Mechanics of a pruzbul

We learned in a Mishna: A pruzbul is not made out unless the borrower has some land. If he has none, the creditor can give him ownership (through a third party) from any amount of his own land (and then a pruzbul may be written).

Rav Chiya bar Ashi said in the name of Rav (Daf Yomi: Gittin 37a): Even land the size of a carob stalk is sufficient.

Rav Yehudah said: Even if the creditor only lends him a place sufficient for the borrower to put his stove or oven, a pruzbul may be written because of it.

Rashi explains that the Rabbinical establishment of a pruzbul is only for a usual case, and since, generally, one did not lend money to someone who did not possess land, a pruzbul cannot be written in such a case.

The Rashba asks on Rashi: Is the case where the creditor lends the debtor land in order to collect from considered a usual case? Why there did we allow a pruzbul to be written? He explains that the Rabbis did not differentiate between the cases, and as long as the debtor has some property, a pruzbul may be written.

The Tumim (67:22) writes that it would seem from Rashi that the debtor is required to have land at the time of the loan, for then, it will be usual for the creditor to lend him money. However, there is no necessity for him to have land at the time that the pruzbul is being written! This, he states, is bewildering, for the primary reason for the land is that the creditor should have what to collect from!?

He answers that this case would also be an unusual one. For it is not common for a debtor to have land at the time of the loan and afterwards sell it, for there will not be many purchasers interested in buying land that is pledged to a creditor. Therefore, the presumption is that if he had land at the time of the loan, he would still have land at the time the pruzbul is being written.

Accordingly, the Tumim concludes, that if the loan would be a verbal one, and there is no land to collect from, it is not considered a usual case and a pruzbul would not be written.

The Rash explains differently. He states that a pruzbul is written only when the debtor has land, for then, the debt is regarded as if it has been already collected. This is comparable to the case where he lent with a collateral, where in that case, shemitah does not cancel the loan for that very same reason.

The Rashbam in Bava Basra (66a) also explains like that, but he adds that when the debtor has land, it not completely regarded as if it is paid already like the collateral case; rather, it appears as if there is a security on the loan. If there would be a collateral, shemitah would not cancel the debt according to the Biblical law. The Chachamim did not want to establish this institution in a manner that appeared as if they were uprooting a halachah from the Torah.

The Ran writes that there is an apparent distinction between the two explanations. According to the Rash, it would be necessary for the debtor to possess the land at the conclusion of shemitah, for then is when the loan would be cancelled. According to Rashi, it is only necessary for the debtor to possess land in the beginning, for then it is a usual circumstance, and a pruzbul may be written.

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Validity of Signatures

The Mishna had stated: The witnesses sign the get to benefit the public.

The Gemora asks (Daf Yomi: Gittin 36a) : Do the witnesses only have to sign on the Get because of “Tikun Ha’Olam” – “benefiting the world?” This is a Torah law! This is evident from the verse, “And it should be written in a document and signed!”

Rabbah says: The Mishna’s statement is needed according to Rabbi Elozar, who holds that the witnesses for the giving of the document cause the document to take effect. Even according to him, Chazal instituted that witnesses should also sign the Get because of tikun ha’olam. This is because there are times when the witnesses of the giving of the Get might have died or went overseas (and at least the witnesses signed will be able to contradict the ex-husband in case he claims that he did not divorce her).

Rav Yosef says: Even according to Rabbi Meir (who holds that the witnesses for the giving of the document cause the document to take effect), they decreed that witnesses should specify their names in a Get, due to tikun ha’olam. This is as the braisa states: Originally, people would sign, “I, So-and-so (without writing his name), have signed as a witness.” If there was a different document with the same handwriting that was verified to be authentic, this document would also be valid. If not, it is not valid. Rabban Gamliel said: They made a great decree when they instituted that witnesses should specify their names in a Get, due to tikun ha’olam.

The mefarshim ask on the Rambam in Hilchos Edus (3:4), who states that the requirement for witnesses to sign on a document is only mi’divrei sofrim (a Rabbinical obligation). The Gemora expressly states that this is a Biblical requirement!?

The Megillas Sefer answers that when the Gemora states that it is Biblically required, it is not being completely accurate, for the verse where this obligation is derived from is a verse in Yirmiyah. The Gemora only meant to ask that from the Mishna it would seem that the witnesses sign only because of Rabban Gamliel’s decree, when in truth, this was established generations beforehand!

The Pnei Yehoshua answers that it is only a Biblical requirement according to Rabbi Meir, who holds that the witnesses who sign the document are those who render it effective. However, the Rambam rules in accordance with Rabbi Elozar, who holds that the witnesses who observe the delivery of the document are those who render it effective. Therefore, the Rambam writes that the signatures are only a Rabbinical requirement.

The Nesivos Hamishpat, Chasam Sofer and others answer that the Rambam is only referring to proof documents, since the witnesses are obligated to testify in Beis Din so that the judges will have the ability to cross examine them. Testimony is valid only from the mouths of the witnesses, but not on the basis of any documents or writings. However, regarding a document that is made to affect something, either a marriage, divorce, sale etc., the Rambam will agree that the signatures of the witnesses are Biblically required.

Reb Chaim Brisker adds that a document, like a get, which later will be used as proof that the woman got divorced can still be Biblically valid. For once the document rendered an effect, it is as if it has been investigated in Beis Din, and would not any longer be disqualified because of the rule that testimony must come from their mouths and not from their writings.

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Disgraced but did not Respond

The Gemora cites a braisa (Daf Yomi: Gittin 36b) : Those who are insulted, but do not insult back, and those who hear their shame, but do not respond, and those who do God’s will out of love and are happy even while they suffer, concerning them it is written: But they who love Him shall be as the sun going forth in its might.

The Chidah in his seforim relates the following incident several times: There was once a very wealthy and powerful man who humiliated a torah scholar. The Rav of the city told the Torah scholar that he should forgive the man. The scholar told him that he immediately forgave him, for it is written in the Zohar HaKadosh that the sins of the Jewish people cause the Shechinah much pain, Heaven forbid, and if he would not forgive him, it would be regarded as a grave sin for the wealthy person. He, therefore, immediately forgave him, for this way, the Shechinah will not be pained.

The Chidah concludes that he wrote this over numerous times, for it is of tremendously important and extremely precious and words of mussar, such as these, must be constantly reiterated in order to inspire people to fear Hashem properly!

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An Idolatrous Name

Rav Yehudah said in the name of Shmuel (Daf Yomi: Gittin 34b): The Jews from abroad sent to Rabban Gamliel the following inquiry: If a man comes here from Eretz Yisroel whose true name is Yosef, but who is known here as Yochanan, or whose name is Yochanan, but who is known here as Yosef, how can he divorce his wife? Rabban Gamliel thereupon stood up and decreed that they should write in the get, “This man So-and-so or by whatever names he is known,” “This woman So-and-so or by whatever names she is known,” in order to benefit the public.

They asked Rabbeinu Tam regarding a Jew who worships idols and he divorced his wife with a get which had only his Jewish name written on it, and not his idolatrous name. What is the status of such a get?

He answered: Heaven forbid to even mention an idolatrous name on a get which is written according to the law of Moshe and all of Israel!

The Ra”dach in his response explains that his idolatrous name is not regarded as his name at all, and if that would be the only name written on the get, it would be as if the get would be written without the name of the divorcing husband.

However, Reb Yosef Engel notes that from the language of Rabbeinu Tam, it would seem that there is a different explanation. It is on account of the sanctity of the get that his idolatrous name cannot be written.

And the Rad”vaz in his response writes like that as well. He says that any holy scroll, such as a Sefer Torah, Tefillin, or Mezuzah, where there lies an obligation that it should be written lishmah, and also a get has sanctity, for it is also has a requirement to be written lishmah.

He concludes that the matzah which is being baked to be eaten on Pesach night also possesses sanctity, for it is required to be baked lishmah.

It is possible that this could explain the custom of many righteous people to kiss the matzah before they eat it on the night of the seder.

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A Show of Intent

Giddul bar Re’ilai (Daf Yomi: Gittin 34a) sent a get to his wife. The agent went and found her sitting and weaving. He said to her, “Here is your get.” She said to him, “Go away now and come again tomorrow.” The agent returned to Giddul and told him what happened. Giddul exclaimed, “Blessed be He Who is good and does good!”

Abaye said: Blessed be He Who is good and does good, but the get itself is not cancelled. Rava, however, said: Blessed be He Who is good and does good, and the get is cancelled.

The Gemora explains the point at issue between them. It is the revealing of intention in respect of a get. Abaye holds that the revealing of intention (without verbalizing it) in respect of a get makes no difference (and therefore, the get is still valid). Rava maintains that it does make a difference.

The Tosfos R”id explains that the dispute is based upon the following: Do we consider his show of intention as merely “words of the heart” (thoughts), and therefore, it would not be regarded as words? Or perhaps, his display of intent is more than merely a thought, but rather, it is regarded as if he spoke it out!

Accordingly, he adds that if it would be clear beyond a shadow of a doubt as to what his intent was, even Abaye would concede that the get is void, for throughout halachah, we always say that when someone’s thoughts are clear to everyone, it is not regarded as thoughts, but rather as words. Our Gemora is discussing a case where it is not so clear as to what he was thinking, and therefore, Abaye and Rava disagree.

The Chasam Sofer understood the Gemora differently. He explains that even in our Gemora, it is definitely clear as to what the husband is thinking. He wants to cancel the get. Nonetheless, Abaye holds that it still remains only a thought, and to rescind his verbal instruction from before, it is necessary to verbalize it. Thoughts, even thoughts that are clear to everyone, are not sufficient to cancel his previous order.

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Compliance with the Rabbis

The Gemora (Daf Yomi: Gittin 33a) asks: Since the get may be annulled in accordance with Biblical law, how can we allow a married woman, owing to the authority of Beis Din, to marry anyone in the world?

The Gemora answers: Yes! Anyone who betroths a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis have in this case retroactively revoked the original betrothal. (They accomplished this by transforming retroactively the money of the betrothal given to the woman at her first marriage into an ordinary gift. Since the hefker of money comes within the authority of Beis Din, they are thus fully empowered to cancel the original betrothal, and the divorcee assumes, in consequence, the status of an unmarried woman who is permitted to marry any stranger.)

Ravina said to Rav Ashi: This is a satisfactory explanation where betrothal was effected by means of money; what, however, can be said in a case where betrothal was effected by cohabitation?

Rav Ashi replied: The Rabbis have assigned to such cohabitation the character of a promiscuous cohabitation. (From the moment a divorce is annulled in such a manner, the cohabitation, it was ordained, must assume retroactively the character of a promiscuous cohabitation, and since her original betrothal is thus invalidated, the woman resumes the status of the unmarried and is free to marry whomsoever she desires.)

The Rashba asks: Why don’t we apply this rule in the case in Yevamos where a man fell into water that has no end? There, we rule that the wife will remain an agunah because the husband might have exited the water from a place that was not visible to us. Why don’t we say that the Chachamim revoked the original kiddushin from him, and she may remarry another man?

He answers: It is only applicable in certain cases. If, for example, there was a get, except that it was written with a condition, and an uncertainty arose regarding the condition, the Chachamim can revoke his kiddushin. Another example where the Chachamim would revoke the kiddushin is where one witness is testifying on the woman’s behalf (that her husband died). However, when there is no get and no witness, the Chachamim did not go ahead and revoke a kiddushin.

The Gemora in Yevamos (110a) records an incident in Narsh where a girl was married off when she was a minor. When she became an adult, they sat her by a Chupah (wedding canopy, in order to validate the first marriage), and someone else snatched her away before the “wedding” (and made her his wife)! Rav Bruna and Rav Chananel, students of Rav, were present when this happened, and they did not even require her to have a get from the second “husband” (as his kiddushin is invalid).

Rav Ashi explains that being that the wife snatcher acted improperly, the Chachamim therefore acted improperly with him and removed the validity of his kiddushin. (This is following the opinion of Rav, who maintains that for the marriage of a minor to become valid, she must have marital relations with her husband when she becomes an adult, and if not the marriage is invalid.)

The Chachamim were empowered to remove the kiddushin in this case because he acted improperly in the beginning of the kiddushin.

Reb Yosef Engel in Gilyonei Hashas cites a Teshuvos haRashba who writes that we only apply the principle of “Since he acted improperly, the Chachamim acted improperly with him” in places that are specifically mentioned in Chazal. The Sages did not annul the marriage in every case where one acts with trickery. This can be proven from a Gemora in Kiddushin (58b). The Gemora states: One who instructs his fellow to marry a woman for him (as an agent), and the agent goes ahead and marries her for himself, she is married to the second one. We do not say that since he acted improperly, the Chachamim invalidated his marriage.

This can also be proven from the fact that even if one betroths a woman who is subject to a negative prohibition, kiddushin, nevertheless takes effect. This is also true if someone marries a woman who is a secondary ervah to him. Obviously, sometimes this principle is applied, and sometimes, it isn’t.

The Chasam Sofer asks: Why, in these cases (where he betroths a woman subject to a negative prohibition, or a secondary ervah) do we not say that the Chachamim revoked his kiddushin?

He answers, based upon Tosfos, who says that it is for this reason that the groom tells the bride that he is betrothing her according to the laws of Moshe and all of Israel. The kiddushin is only effective if Israel, i.e. the Chachamim consent to the marriage. However, one who is violating the Torah, or the sages, is obviously not marrying with such a stipulation and therefore, the marriage can still be effective. [According to the Chasam Sofer, not every marriage has that stipulation attached to it.]

The Shiltei Giborim states that this principle applies by a get as well. Anyone who divorces a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis may, in certain cases retroactively revoke the divorce.

Based upon this, the Taamei Yaakov answers the following famous question on Rabbeinu Gershom’s decree: Since the Torah expressly permits one to divorce his wife without her consent, how can this be banned? The Taz lais down a rule that the Rabbis do not have the authority to prohibit something which is explicitly permitted by the Torah!?

He answers that since the Rabbis forbid giving a get in such a manner, it is automatically nullified, for one’s betrothal and divorce can only be effective if he is compliance with the Rabbis’ ordinances. In these cases, the Rabbis did not consent to such a get.

[I am uncertain as to how this answers the question. Granted, the get will be ineffective since it is prohibited to give a get without the woman’s consent; but how did the Rabbis have the authority to issue such a decree? If the Torah expressly permits it, they cannot forbid it!?]

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Story from the Daf

When Rabbi Yehoshua from Sosnovitz was a nine year old boy, his father took him to the Rav of the city to be tested on his learning. The Rav asked him to say over the first Mishna in the fourth perek of Gittin (Daf Yomi: Gittin 32a) . The child explained the Mishna as follows: Rabban Gamliel decreed regarding the beards. The Rav realized that the boy couldn’t even translate the words of the Mishna correctly, let alone, explain it properly! Yet, he was hesitant to inform the father of this, for he thought that it would cause him too much pain.

Reb Yehoshua’s father returned and asked the Rav for his assessment of his child. The Rav just related to him the boy’s translation of the Mishna, so the father could ascertain for himself. When the father heard this explanation, he proclaimed, “I didn’t know that my son was on such a lofty level!”

Many years later, when Reb Yehoshua became well known as one of the righteous men in the generation, there was an edict issued from the government that all Jews are required to shave off their beards. They came to Reb Yehoshua for his advice and to beseech him to pray on their behalf that the decree should be nullified. Reb Yehoshua responded: “When I was a child, I explained the Mishna to mean that Rabban Gamliel decreed regarding the beards. The meaning is that Rabban Gamliel decreed that no nation will have the ability to interfere with the beards of the Jewish people. There is nothing at all to be concerned about.” It was only a short time afterward that the decree was rescinded!

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Taste of the Manna

The Gemora (Daf Yomi: Gittin 31a) states that one can separate both terumah gedolah and terumas ma’aser with a thought and one does not need to physically or orally designate the terumah.

Tosfos writes that on Shabbos, it is still forbidden to mentally separate terumah, for through that, he renders the produce usable (it is regarded as “fixing” on Shabbos).

Based upon this, the Pnei Dovid answers the following contradiction: It is written [Shmos 16:23] regarding the manna: Tomorrow is a rest day, a holy Shabbos to God. Bake whatever you wish to bake, and cook whatever you wish to cook. Rashi comments: Whatever you wish to bake in an oven, bake everything today for two days, and whatever amount of it you need to cook in water, cook today. Yet, it is written [Bamidbar 11:8]: The people walked about and gathered it. Then they ground it in a mill or crushed it in a mortar, cooked it in a pot and made it into cakes. And there Rashi comments: The manna did not actually enter the mill, the pot, or the mortar, but its taste changed to that of ground, crushed, or cooked food. And this is actually how the Gemora in Yoma (75a) explains it as well! It wasn’t actually baked, but rather, if they wanted it to taste as if it was baked, then it would! Seemingly, Rashi is contradicting himself!?

He answers that there is a distinction between the weekdays and Shabbos. During the weekdays, they could mentally decide on how the manna should taste, and so it happened. However, on Shabbos, this would be forbidden, for it would be regarded as “fixing” the food! They therefore had to bake it from beforehand if they wanted it to taste baked on Shabbos.

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Holy Thoughts

The Gemora states (Daf Yomi: Gittin 30b - 31a) that one can separate both terumah gedolah and terumas ma’aser with a thought and one does not need to physically or orally designate the terumah.

There are certain mitzvos which require one to contemplate the mitzvah, such as loving HaShem, fearing HaShem and other such mitzvos. There is even a situation where if one sought to perform a mitzvah and he could not complete it because of extenuating circumstances, it is considered as if he performed the mitzvah. Thus, thoughts play an important part in serving HaShem.

Rav Chaim Volozhiner writes in Nefesh HaChaim that one who entertains immoral thoughts is worse than the Roman general Titus, who defiled the Holy of Holies, because a gentile does not have the capability of reaching high spiritual levels, whereas a Jew has the ability to reach very high spiritual levels, and improper thoughts defile the spiritual Holy of Holies. This idea should teach us that not only do we have to be pure in our actions but we must also keep our thoughts pure and holy.

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Moshe's Instruction

It is written [Shmos 7:1]: Hashem said to Moshe, “See! I have made you a lord over Pharaoh, and Aaron, your brother, will be your speaker.” What is the connection between the two parts of the verse?

Reb Shlomo Kluger explains the verse based upon our Gemora (Daf Yomi: Gittin 29a) . Rava had said that our Mishna was referring to words (that were said by the husband, i.e. instructions to write the get), and those cannot be passed on to another messenger (for words are too insignificant to be transferred). However, something tangible (like a get) can be passed on to another messenger.

This principal, he explains, is that mere words cannot be transferable to a second agent. However, the first agent can be appointed for mere words.

Moshe’s mission was one of words. Hashem commanded him to go to Pharaoh and speak to him. Accordingly, one can ask: How did Moshe have the authority to transfer this to Aaron? Mere words are non-transferable to another agent!?

This is the explanation for the introductory verse. Hashem made Moshe into a lord over Pharaoh. Moshe, therefore, was not merely an agent; he was the principal himself. He, therefore, had the authority to appoint Aaron to be his agent to talk to Pharaoh.

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Between Eighty and One Hundred

The Mishna (Daf Yomi: Gittin 28a) had stated: If an agent was bringing a get and he left the husband old or sick, he may give the get under the assumption that the husband is still alive (for we assume, based upon the principle of chazakah, that nothing changed from the status quo). [If we would be certain that the husband died before the agent delivered the get to the wife, he may not give it any longer.]

The Chasam Sofer says: By the fact that the Mishna did not say ‘an old and sick person,” we may infer that if in fact the husband was old and sick, the agent would not be allowed to deliver the get, for then we can no longer assume that he is still alive.

The Chasam Sofer adds that this would apply for anyone over sixty years old.

The Maharshal in Yam shel Shlomo disagrees and says that even if the husband is old and sick, we nevertheless, assume that he is still alive, and we deliver the get. He adds that this is only if he is younger than eighty years old. However, if he is over eighty, it would depend upon his strength.

Reb Akiva Eiger in Shulchan Aruch writes that he is uncertain as to what the halacha would be if the husband was old and sick.

The Shiltei Giborim writes that when the Mishna rules that if the husband is sick, we still assume that he is alive, that is only if he is the sickness befell him from the hand of Heaven, such as a sickness which was caused by exposure to the cold or the heat. However, if he was knifed in the stomach or his skull was crushed, we do not assume that he is still alive, and we would not deliver the get.

The Yam shel Shlomo rules as follows: If the husband is over the age of one hundred, the agent may deliver the get even if he is sick as well. However, if he is over eighty years old, but not yet one hundred, the agent should not deliver the get if the husband is sick. The distinction between them is as follows: The Gemora refers to someone alive over eighty as a “ben gevuros,” a man of strength. This is true if he is healthy. However, if he took ill, then he is not at full strength, and therefore we cannot assume that he is still alive. Contrast this to someone who is over one hundred years old. Someone so old is always frail and weak, and there should not be any assumption that he will remain alive. However, the Gemora applies the logic that once he has reached such an age (over one hundred), he is regarded as an exceptional person (due to his longevity), and we may therefore assume that he is still alive, even if he is sick.

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An Ignorant Person's Recognition

The Mishna (Daf Yomi: Gittin 27a) had stated: If an agent (who was bringing a get) lost the get and found it immediately, it is still valid. However, if he found it after some time, it cannot be used (for we are concerned that it fell from someone else and it is not the get which he lost). If he found the get in a chafisah or in a deluskema (types of containers), or if he recognizes the get, it is valid.

Rashi explains that if the agent himself found the get (not in a container) and he recognizes it, the get is valid.

Other Rishonim understand the Mishna to mean that the get is valid if he recognizes the container.

The Rashba writes that the get will be valid if the agent found it and claims that he recognizes it. This is true even if the agent is an ignorant person. That which the Gemora says below that an ignorant person cannot be trusted that he recognizes the get is only true when someone else found it and the agent is trying to claim it from him. There, we suspect that he is lying. However, if he himself found the get, he is trusted that he recognizes it, for he has a migu (believe me what I am saying, for if I would want to lie, I could have said a better lie); he could have said that he never lost it in the first place. (The Ritva seems to say that the ignorant person is believed even without the migu.)

The Ramban writes that it is only with respect to a lost article that we do not trust an ignorant person when he claims that he recognizes it. However, with regards to a get, which is a prohibitory matter, he is trusted. (The Magid Mishnah explains that this is because one witness is believed with respect to prohibitory matters.)

There are two glaring questions on the Ramban. Firstly, the Gemora below states explicitly that to return it to someone who claims that he recognizes it by sight, it is only to a Talmudic scholar who would be trusted, but not any ordinary person!? Secondly, a get should be regarded as a davar she’b’ervah, a matter with respect to relations, and two witnesses are required for testimony involving such matters!?

The Toras Gittin answers the first question as follows: When the Gemora states that an ordinary person will not be trusted that he recognizes the get, that is only with respect to the monetary issues of the get; however, with respect to the prohibitions stemming from the get, he will be trusted.

The Maharam Schick answers the second question: The halacha is if a father said, “I accepted a kiddushin for my daughter, but I do not know from whom,” and a fellow comes to us and says that it was him, he is believed and she is married to him. The Ran explains that although ordinarily, a davar she’b’ervah requires two witnesses, here it doesn’t, for his testimony is not in contrast with any preexisting status quo; it is merely a clarification as to whom the father accepted the kiddushin from. One person is sufficient for this. So too, here, the one witness is not testifying on the divorce; rather, he is clarifying for us as to who this get belongs to.

The Oneg Yom Tov answers this question by saying that the concern for two Yosef ben Shimon’s in the same city is only a Rabbinical one, and therefore, although it is a davar she’b’ervah, only one witness is required.

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Essence of a Get

The Mishna (Daf Yomi: Gittin 26a) states: A scribe who writes the tofes (the text of the get, not including the names of the people and the date) of a get must leave blank spaces for the names of the man, woman and the date.

The Mishna Lamelech writes that it is necessary to write the location of the man and the woman as well.

Tosfos Yom Tov asks: Why doesn’t the Mishna mention that it the scribe is required to leave spaces blank for their locations as well?

He proves from here that the omission of the city names will not invalidate a get.

The Rashba rejects the proof by saying that perhaps it is included in that which the Mishna says: the names of the man and the woman.

It is brought in the name of Rabbeinu Tam that if their locations are omitted from the get, the get is invalid.

Proof to this is from the fact that the Mishna did not make mention of the fact that he has to leave a blank space for the words “Behold, you are permitted to any man,” and if that is not written, the get is rules to be invalid.

Tosfos writes that this precise language was not found in the earlier gittin, however, similar expressions were used and therefore, their gittin were valid.

The Ramban concludes that if this exact expression (“Behold, you are permitted to any man”) is not written in the get, the get is disqualified and if she has already remarried, she must leave that man.

The Steipler Gaon notes that the verse, sefer kerisus venasan beyadah veshilchah (a document of severance; and he shall place it in her hand and send her out) is the same numerical value as “zehu gufo shel get: harei at muteres lechal adam” (this is the essence of the get: “Behold, you are permitted to any man”).

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Two Lugin

The Gemora (Daf Yomi: Gittin 25b) cites a braisa: If someone buys wine from amongst the Cutheans (converts to Judaism after an outbreak of wild animals in Eretz Yisroel and their conversion was debated as to its validity; they observed some commandments, but not others), he should say the following: “The two lugin (a measurement) that I will eventually separate (from the one hundred lugin in total) are terumah (tithe for the kohen), ten are ma’aser rishon (tithe for the Levite), nine are for ma’aser sheini (to be eaten in Yerushalyim),” and after redeeming the ma’aser sheini (with coins), he can drink right away. These are the words of Rabbi Meir. Rabbi Yehudah, Rabbi Yosi, and Rabbi Shimon forbid this leniency.

Rashi explains the braisa to be referring to a case where he does not have a vessel to separate the tithes required to allow him to drink the wine in an orderly fashion.

Some explain it that he did not have any tahor vessels.

Rashi in Sukkah (23b) explains that the fellow purchased the wine bein hashemashos (close to sunset) on Friday and he did not have time to separate the ma’aser before Shabbos. Since it is forbidden to separate ma’aser on Shabbos, he did not have what to drink.

Tosfos challenges Rashi’s explanation, for if that would be the case, he would not even be allowed to orally declare it to be ma’aser, for it is forbidden to fix his produce on Shabbos!?

The Kaftor va’Ferach answers that Rashi holds that the manner prescribed in the Gemora is permitted, for he is not actually fixing it on Shabbos. He is separating the ma’aser after Shabbos and retroactively the produce is remedied on Shabbos. It emerges that he did nothing on Shabbos.

Tosfos explains that the remedy discussed in the Gemora is only when it is still bein hashemashos. At that time, there was a Rabbinic decree not to separate ma’aser, but one, at that time, is permitted to orally declare it to be ma’aser.

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Cutheans

The Gemora (Daf Yomi: Gittin 25a) cites a braisa: If someone buys wine from amongst the Cutheans (converts to Judaism after an outbreak of wild animals in Eretz Yisroel and their conversion was debated as to its validity; they observed some commandments, but not others), he should say the following: “The two lugin (a measurement) that I will eventually separate (from the one hundred lugin in total) are terumah (tithe for the kohen), ten are ma’aser rishon (tithe for the Levite), nine are for ma’aser sheini (to be eaten in Yerushalyim),” and after redeeming the ma’aser sheini (with coins), he can drink right away. These are the words of Rabbi Meir. Rabbi Yehudah, Rabbi Yosi, and Rabbi Shimon forbid this leniency.

Tosfos explains that although the Cutheans observed the mitzvos that are expressly written in the Torah, and therefore, it would be safe to assume that they already separated terumah and ma’aser, nevertheless, they are only trusted with respect to the food which they eat. However, the produce which they sell to others, they are not trusted, for the Cutheans were not particular about the transgression of lifnei iver (placing a stumbling block in front of a blind man). Tosfos in Sukkah (23b) explains further that understood that verse only in its literal sense. They maintained that it is forbidden to place a stumbling block in front of a blind man, but there is no prohibition against causing someone else to sin.

However, Tosfos asks: Would selling the produce without separating terumah and ma’aser not be regarded as stealing from the Kohanim? Stealing is a prohibition that they seemingly did observe!

Tosfos answers that since terumah and ma’aser is considered money that has no claimants (for which Kohen is regarded as its owner), it was not considered stealing in their eyes.

Other Rishonim add that, in truth, it is not regarded as stealing. Stealing is only when one takes something away from an owner who can make a claim to it. Since the Kohanim cannot forcibly take the produce from him, it is not considered stealing.

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Yosef ben Shimon

Reb Tzadok HaKohen explains why the Gemora (Daf Yomi: Gittin 24b) uses the example of Yosef ben Shimon, a name that we do not find this sort of combination in the Torah. The Gemora could have used Reuven ben Yaakov! Why was this combination chosen?

He says that all of Klal Yisroel are called by the name Yosef, for they guard the covenant. Yet we find that twenty-four thousand members from the Tribe of Shimon died in the plague of Pe’or (which involved acting promiscuously with the women of Midyan), something that was completely contrary to the attributes of Yosef. One can therefore mistakenly think that the descendants of Shimon should not be called after the name of Yosef. It is for this precise reason that Chazal chose the name Yosef ben Shimon. It is to demonstrate that even the Tribe of Shimon is still connected to Yosef.

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Eliezer the Slave

Rabbi Chiya bar Abba said in the name of Rabbi Yochanan (Daf Yomi: Gittin 23b) : A Canaanite slave is disqualified from serving as an agent to receive a woman’s get from her husband because he is not included in the halachos of divorce and marriage.

Tosfos in Kesuvos (7b) writes that Eliezer was the agent of Yitzchak to marry Rivkah.

The Panim Yafos asks: How could Eliezer serve as the agent for marriage, when he was not included in the halachos of marriage.

He answers that this principle is only applicable when he is serving as an agent for another person. However, a slave may serve as an agent of his master for marriage and divorce, since he is considered the hand of the master.

This explains why Eliezer began by saying, “I am the slave of Avraham.”

The Pardes Yosef asks that this does not explain how Eliezer could marry Rivkah on behalf of Yitzchak! Eliezer belonged to Avraham; not to Yeitzchak!?

He answers that this is why Avraham gave over all his possessions to Yitzchak, including his slave, Eliezer. Once Eliezer belonged to Yitzchak, he could serve as his agent.

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Minor Writing a Get

The Mishna (Daf Yomi: Gittin 22b) had stated: Everyone is qualified to write a get, even a mute, one who is insane, or a minor.

Tosfos asks: Since a minor in not a “bar kerisus,” he is incapable of divorcing his own wife, he therefore should be disqualified from writing a get for someone else!?

Tosfos answers: Since he will eventually grow into an adult, he is not regarded as someone who is incapable of divorcing his wife, and therefore, he is still eligible to write a get.

The Noda b’Yehudah (O”C §1) asks: Why is the halacha of writing a get different than the halacha of writing tefillin? A minor is excluded from writing tefillin, since he is not a “bar keshirah,” he is not obligated in the mitzvah of tefillin. Why don’t we say that since he will be obligated in the mitzvah when he becomes an adult, he should be eligible to write tefillin?

Reb Elchonon Wasserman answers: That which we say that someone who is not a “bar kerisus” cannot write a get is only if he is excluded inherently from the subject of divorce. A minor, however, cannot issue a divorce, not because he is excluded, but rather, it is because he is incapable of marrying. He, therefore, can still be regarded as a “bar kerisus,” and can therefore be eligible to write a get. However, with respect of tefillin, a minor is excluded from the obligation of tefillin, and therefore, he is not considered a “bar keshirah,” and is therefore not disqualified from writing tefillin.

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Mobile Courtyard

The Gemora (Daf Yomi: Gittin 21a) states that a moving courtyard cannot effect an acquisition for its owner. The Rishonim disagree as to the reason for this. Rashi and Tosfos maintain that since the halacha that a courtyard can effect an acquisition for its owner is derived from the halacha of acquiring through one’s hand, a moving courtyard, which does not resemble to a hand (which is stationary), cannot effect an acquisition for its owner.

The Ritva and the Ran suggest a different reason for this. They say that since the courtyard can be a great distance away from the owner, it is not considered protected by the owner, and therefore it is disqualified from effecting an acquisition for the owner.

The Divrei Mishpat notes that the following case would be a difference between them: If a lost object would fall on his animal which is in his courtyard. If a mobile courtyard is excluded because it does not resemble a person’s physical hand, he will not acquire this lost object, for the animal is a moveable object. If, however, a mobile courtyard is disqualified from effecting an acquisition because it is not guarded from intrusion by the owner, here, he will acquire the lost object because the object is protected.

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Name of Hashem Written without the Proper Intent

A braisa (Daf Yomi: Gittin 20a) was taught: A scribe was supposed to write the Name of Hashem in a Sefer Torah, and instead intended to write the name Yehudah. [The name Yehudah is similar to the letters in the Name of Hashem, except that the word Yehudah has a letter “dalet” between the “vav” and the “hey.”] He forgot to insert the “dalet” and ended up writing the Name of Hashem but without the required intention necessary to write the Holy Name. Rabbi Yehudah posits that the scribe can pass his quill over the Name of Hashem and have the proper intention of writing the Name. The Chachamim disagree, claiming that this is not the best way to write the Name of Hashem (and the Sefer Torah is subsequently invalid).

The Rishonim ask: According to Rav Chisda, who holds that the Chachamim maintain that the Sefer Torah is disqualified, why does he use the term that it is not the best way to write the Name of Hashem? This would indicate that the writing is good, but it is not written in the most preferable method! Why didn’t he say that the new writing does not accomplish anything?

The Rashba answers that they actually hold that the tracing over of the word is not regarded as an act of writing at all and the Sefer Torah is disqualified. They only used that term to discuss Rabbi Yehudah’s opinion.

The Pnei Yehoshua suggests a novel approach to explain the Chachamim’s terminology: Although the Chachamim maintain that the Sefer Torah is disqualified, they nevertheless hold that the Name of Hashem retains its sanctity and is forbidden to be erased. He proves that the Name of Hashem, although it wasn’t written with the correct intention, cannot be erased. This is why the Chachamim say that it is not the best way to write the Name of Hashem.

The Tashbatz, however, proves from our sugya that it is permitted to erase the Name of Hashem when it is written without the correct intention.

The Gemora in Yoma (38a) states that Ben Kamtzar had a unique talent that he was able to write four letters with one hand at the same time and he did not teach this talent to anyone else. The Gemora says that this was considered a shame and due to this, he was referred to as an evil person. What were the Chachamim concerned about? Rashi comments that this was referring to the Name of Hashem which has four letters.

The Tosfos Yom Tov explains that there is an advantage for the Name of Hashem to be written at one time, so that His Name should not be missing for a moment.

The Minchas Chinuch has a novel approach and says that if one writes the first two letters of the Name of Hashem which is the “yud” and the “hey,” that itself is one of the Name’s of Hashem, and by subsequently writing the third letter, the “vav,” it constitutes erasing Hashem’s Name. Ben Kamtzar was able to avoid with his special skill.

The Emek Brocha asks that if the Name of Hashem is written without proper intent, there is no prohibition to erase it, so why should there be a prohibition here when the scribe did not intend to write the ‘two letter’ Name of Hashem, but rather His ‘four letter’ Name?

According to the Pnei Yehoshua, this is not a question, for this, in fact, a prohibition to erase the Name of Hashem, even when it is written without the proper intent!

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Shailah from the Minchas Chinuch

It was stated (Daf Yomi: Gittin 19a): If a man writes over red paint writing with black ink on Shabbos, Rabbi Yochanan and Rish Lakish both agree that he is liable on two counts, one for writing (the two new black letters) and one for erasing. [One is only liable on Shabbos if he erases with the intention of writing two letters in its place. Here, in order to write the two new black letters, he must erase the red letters first.]

If he writes over black ink with black ink or red pigment with red pigment, he is not punishable. [This is because nothing has been accomplished with the new writing.]

If he goes over black ink with red pigment, some say he is punishable and some say he is not punishable. Some say he is punishable because he is erasing the previous writing. [He is not liable for writing because the original black writing was much clearer than the red one.] Some say he is not punishable because he is only ruining the previous writing.

Rish Lakish inquired of Rabbi Yochanan: If witnesses are unable to sign their names on a get, is it permissible to write their names for them in red pigment and let them go over it with black ink? Is the upper writing regarded as writing or not?

He replied: It is not regarded as writing.

Rish Lakish challenged him: But, didn’t our teacher teach us that in respect of Shabbos, the upper writing is regarded as writing?

He replied: Because we have a certain opinion, shall we practice stringently based upon it? [If the Beis HaMikdosh would be in existence, I wouldn’t tell that person that he is liable to bring a korban chatas for violating the Shabbos, for perhaps it is not a transgression and he will be bringing an unconsecrated animal into the Courtyard!]

Tosfos notes: It is evident from here that tracing over letters with the same color ink is not regarded as writing with respect to Shabbos or with respect to gittin. Accordingly, Tosfos asks from a Gemora below (20a) which states: If a get was initially not written lishmah, it can be rectified if the scribe traces over the letters lishmah! (The Gemora there discusses if this is the halacha according to all opinions or not.) Why should it be valid if he is using the same color ink again?

Tosfos answers that since the scribe is adding an important element to the writing, namely the lishmah of the get, it therefore constitutes an act of writing for the get. However, in our case, the second writing accomplished nothing, and therefore, it is not regarded as an act of writing.

The Minchas Chinuch (§ 32) poses the following question: If one, on Shabbos, would trace over the letters of a get that had previously not been written lishmah, what is the halacha? If we would say that the tracing lishmah constitutes an act of writing and the get will be valid, it will emerge that he intentionally violated the Shabbos and he will be regarded as a mummar, who is disqualified from writing a get! And if we rule that he, in fact, is a mummar and the get is invalid, it will emerge that his tracing did not accomplish anything and he did not violate the Shabbos, which in turn, will validate the get! The logic goes complete circle and we will never be able to execute him for transgressing the Shabbos, for his writing did not accomplish anything and therefore it did not constitute an act of writing, and we will not be able to validate the get, for if we would do so, it would emerge that he was a mummar at that time and the get is invalid!?

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Decree when the reason no longer applies

Tosfos (Daf Yomi: Gittin 18a) asks: One of the reasons mentioned for the decree that the date should be recorded on a get is because perhaps the husband will want to save his niece from capital punishment if she committed adultery. Nowadays, Tosfos asks, when we do not execute anyone, why is there still a necessity to write the date in the get?

The Avnei Neizer (E”H: 188) cites a challenge to Tosfos’ question: Although the reason may not be applicable, the sages’ decree should still apply unless a greater Beis Din comes and nullifies it!

He answers that Tosfos understood that the initial decree was only established in a time and a place where they administered capital punishment. Accordingly, if nowadays, it is universal that we do not execute anyone, we are not nullifying the decree; rather, the enactment was never instituted for such cases. This is why it is not necessary for another Beis Din to annul the initial decree.

This would be comparable to that which Tosfos in Beitzah (6a) states: Tosfos writes that a matter that was only prohibited because of a specific concern will be permitted when the concern no longer exists. This principle justifies why we do not have to be concerned for water that was exposed at night and one is allowed to drink from it because in modern times snakes are not frequent in our homes.

The Gemora (Beitzah 30a) cites a Mishna that states that one is not allowed to clap or dance on Shabbos or Yom Tov. Rashi explains that the reason that one is prohibited from performing any of these actions is because they can lead to one fixing musical instruments. Tosfos states that this prohibition only applied in those days when they were experts in fashioning musical instruments. Presently, however, the decree does not apply, because we do not know how to fashion these instruments.

The Rema (O.C. 339:3) rules in accordance with Tosfos. Teshuvos HaRema (125) writes that there was an incident where a marriage occurred on Friday night and the people were not concerned that the groom would write the kesuvah, marriage contract on Shabbos. The reason for this permit was because it is not common in our times for the groom to write his own kesuvah.

Rav Shlomo Zalman Auerbach zt”l poses an interesting question. The halacha is that presently we do not have a legally qualified reshus harabim and for this reason one would be permitted to walk in a public thoroughfare on Shabbos while wearing various ornaments. According to this ruling, then, why are we still forbidden to blow shofar, shake a lulav and read the Megillah. Regarding these mitzvos there is a concern that one may come to carry the shofar, lulav or Megillah in the reshus harabim. Yet, the halachah is that our public thoroughfares are not deemed to be a legal reshus harabim, so we should no longer have these concerns.

Reb Shlomo Zalman also questions the opinion of the Raavad who maintains that muktzah is forbidden on account of a rabbinical decree that one should not come to carry into a reshus harabim. Why should this decree still apply when there is no longer a legally qualified reshus harabim?

Rav Shlomo Zalman explains that Tosfos is only referring to musical instruments. In previous times, everyone was capable of playing and repairing musical instruments. For this reason there was a decree prohibiting clapping and dancing. In our times, however, only a minority of people is capable of fixing musical instruments and because it is uncommon for people to fix musical instruments, there is no necessity for the decree against clapping and dancing.

Rabbah (Beitzah 5a) maintained that Rabban Yochanan Ben Zakkai rescinded the prohibition against accepting witnesses after the offering of the afternoon tamid sacrifice, and subsequently an egg that was laid on the first day of Rosh HaShanah was permitted to be eaten on the second day. Rav Yosef challenged Rabbah’s ruling because if the Chachamim assembled to render a ruling, they would need to reassemble to revoke their ruling. Rav Yosef added that one could not say that Rabban Yochanan Ben Zakkai convened with his colleagues to permit one to eat the egg, because their decision was only to accept the testimony after the offering of the afternoon tamid sacrifice, but they never took a vote on permitting the egg to be eaten.

Tosfos HaRosh in Avodah Zara (2a) rules that one is permitted to conduct business with gentiles during their holiday season as initially this was prohibited because gentiles in the past worshipped idols and now that gentiles do not worship idols, the decree is irrelevant.

Tosfos in Brachos (53b) writes that people are not scrupulous regarding mayim acharonim, washing the hands at the end of a meal, because we no longer have melach sedomis, salt from Sodom. Tosfos notes that although the practice of washing mayim achronmim was instituted by an assembly of a Bais Din, this institution was not unanimously accepted and thus this institution is not categorized as a ruling that is irrevocable unless a Bais Din reassembles and rescinds the ruling.

Reb Shlomo Kluger in Elef Lecho Shlomo (116) rules that one is permitted to learn by candlelight on Shabbos and we are not concerned that he may come to move the wick which will cause the fire to burn brighter, thus violating a biblical prohibition, because one does not need to move the wick of our present-day candles.

Teshuvos HaRosh (klal 2:8) rules that one is permitted to tie strings of linen on a four-cornered garment that is made from linen to fulfill the mitzvah of tzitzis and we are not concerned that one might tie strings of wool to the garment. The reason for this ruling is because all know that techeiles, a blue-dyed wool used for tzitzis, is not prevalent, thus there is no permit to tie strings of wool to a linen garment.

Teshuvos HaRosh writes that if is common knowledge why a decree was instituted and the rationale no longer applies, then the decree is considered irrelevant. Teshuvos HaRosh draws a contrast of this supposition to the case in our Gemora regarding the egg that was laid on the first day of Rosh HaShanah, because some people are not aware whey the egg was initially prohibited, nor do they understand why the reason to prohibit no longer applies.

Shearim Mitzuyanim B’Halachah rules that if necessary, one is permitted to take medicine on Shabbos. Taking medicine on Shabbos was initially forbidden as there was a concern that one would violate the prohibition of grinding. Now that medicine is prepared by the manufacturer and most people are not even aware of the process involved in manufacturing the medicine, there is no longer a concern that one who wishes to take medicine will violate the Shabbos prohibition of grinding herbs or spices.

[END]

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Romans; More Preferable than the Persians

Rabbah bar bar Chanah (Daf Yomi: Gittin 16b - 17a) was once ill, and Rav Yehudah and Rabbah went to inquire on his health. While they were there, they asked him the following question: If two agents bring a get from abroad, are they required to declare that it was written and signed in their presence, or not? He replied: They are not required, for would they not be believed to testify that this woman was divorced in their presence (and it would not be necessary for the woman to produce the get)? In the meantime, a Persian man came in and took away their lamp (for that day was one of their holidays, and it was forbidden to light a candle except in their temples). Rabbah bar bar Chanah exclaimed: All Merciful One! Either hide us in Your shadow or in the shadow of the son of Esav (for they respect us)!

The Maharam Schiff explains: The Romans (descendants of Esav) oppress the Jewish people only when Klal Yisroel shirk the yoke of Torah from themselves.

The Medrash states that this is actually what Yitzchak told Esav: If Yaakov’s descendants cast off the yoke of Torah, then your descendants could decree destruction upon them and subjugate them. However, if Yaakov’s children remain devoted to Torah, Esav would have no control over them.

It emerges that it is preferable for the Jewish people to be amidst the children of Esav, for then, Klal Yisroel is in control of their own destiny.

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Showering after Mikvah

Rashi (Daf Yomi: Gittin 16a) explains that the Chachamim enacted a decree of mayim sheuvim (drawn water) because people would err and say that immersing in a Mikvah and in mayim sheuvim would render one pure. Rava (Shabbos 14a) asked Abaye, why does it make a difference if people said this? The end result was that the people had immersed themselves in a Mikvah?

Reb Moshe Feinstein writes in Iggros Moshe that perhaps Abaye’s reasoning was that by pouring on themselves mayim sheuvim, they transgressed the prohibition of baal tosif (adding on to a mitzvah) by thinking that pouring mayim sheuvim was obligatory. Rava, however, maintained that for this suspicion there was no reason to render the person tamei. Some wrote that Abaye held that if one would immerse in a Mikvah or in mayim sheuvim, others would consider him tamei, and they would end up burning Terumah and Kodshim in an errant manner.

Some Rishonim write that similar to matters of purity, the Chachamim also enacted a decree that a woman who was a niddah is not allowed to shower after immersing in a Mikvah. If she showered after immersing in a Mikvah, her immersion would be invalid and she would be forbidden to her husband. Most Rishonim, however, maintain that this is not the law, because this decree was only enacted regarding matters of purity.

The Shach writes that the reason that is offered in the Gemora that people will err in thinking that pouring mayim sheuvim is what purifies the person, also applies to a woman immersing in a Mikvah, irrespective of the woman erring in her thinking. Others write that from the words of the Rambam, it appears that the decree was enacted because people erred and thought that merely immersing in a Mikvah did not render them pure, and they also were required to pour on themselves mayim sheuvim. This reasoning only applies with regard to mayim sheuvim of Taharos, because only when one immersed for Taharos was one required to have the correct intentions. A niddah who immersed in a Mikvah, however, does not require the correct intention, and there was no reason to enact a decree for a niddah.

Rav Shmuel Vozner in Shevet HaLevi writes that even though the Rama rules that after immersing in a Mikvah a woman should not shower, once she arrives at her home she is permitted to shower.

Rav Ovadyah Yosef in Sheilos U’Teshuvos Yabia Omer, however, rules that a woman can shower immediately after immersing in a Mikvah.

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Katafreis Connection

The Gemora (Daf Yomi: Gittin 16a) cites a Mishna in Taharos: A jet of liquid from a jug (nitzok), or liquid flowing down a slope (katafreis), or liquid enough to moisten (mashkeh tofe’ach) does not form a connection for tumah or for taharah. [The explanation that they are not a connection for tumah: Nitzok – if one pours liquid from a tahor vessel into a tamei one and the flow of the liquid is uninterrupted between them, it is not regarded as a connection to make the upper vessel tamei. Katafreis – if a liquid from a pool flows down a board on a slope into a pool of liquid which is tamei, the upper pool remains tahor. Mashkeh tofei’ach – a moist trough has two pools of liquid on opposite sides; one of them tamei and one of them tahor. Although the trough is damp enough that it can moisten anything that touches it, the tamei pool does not contaminate the tahor one. The explanation that they are not a connection for taharah: A mikvah must contain forty se’ah of water in order to be valid. If there are two mikvaos and neither of them contain forty se’ah and they are connected through any one of the three ways mentioned above, they are not considered halachically connected to form one large valid mikvah.]

The Vilna Gaon asks: Even without the connection through katafreis, why don’t we say that each droplet of tamei water should contaminate another drop, and ultimately, the water in the upper pool should be rendered tamei?

He answers that the halacha of katafreis would be necessary in a case where a tevul yom (one who was tamei, but has immersed himself in a mikvah; he is considered a tevul yom until nightfall) touched the liquid, for he cannot contaminate a food item with the capability of contaminating something else (and therefore, one droplet will not cause the other to become tamei). Through the principle of katafreis, it could be regarded that the entire flow is regarded as one body of liquid, and the upper pool could become tamei (if it would be considered connected).

Reb Shimon Shkop asks on his answer from the Rambam, who rules that these halachos would apply by tumas sheretz as well, and a sheretz can contaminate one drop to render the others tamei!?

He answers that one drop cannot render the other drops tamei because of the principle of beis hasetarim (for the drops touching each other are not recognizable).

Rav Elyashiv answers simply that if the liquid would be rendered tamei because of its contact with the first droplet, it would only be Rabbinically tamei, for that which a liquid is ruled to be a rishon l’tumah is only a Rabbinic decree. Hence, kodoshim that contracted tumah in such a manner could not be burned. However, through the principle of katafreis, the entire liquid would be rendered tamei on a Biblical level, and if kodoshim would be involved, it would be required to be burned.

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Dangerous Custodians

Daf Yomi: Gittin 14a - 14b: Rabbi Achi the son of Rabbi Yoshiyah deposited a silver vessel with custodians in Nehardea. He said to Rabbi Dustai the son of Rabbi Yannai and to Rabbi Yosi the son of Kippeir, who were on their way there, “When you come back from Nehardea, bring me the vessel back.” They went and got it from the custodians. The custodians said to them: “Make with us a kinyan (that we will thereby be exempt from any further responsibilities)!” They said, “No (we do not want the labilities)!” “Then, give it back,” they said. Rabbi Dustai the son of Rabbi Yannai was willing, but Rabbi Yosi the son of Kippeir refused. The custodians started to hurt Rabbi Yosi the son of Kippeir (in order to get the vessel back). They said to Rabbi Dustai, “See what your friend is doing.” He replied, “Beat him up good!” When they returned to Rabbi Achi the son of Rabbi Yoshiyah, Rabbi Yosi said, “Look, master, not only did he not assist me, but he even said to them, ‘Beat him up good’!” Rabbi Achi the son of Rabbi Yoshiyah asked Rabbi Dustai, “Why did you act in that manner?” He replied, “Those people are very tall and their hats are very tall, and their voices comes from their midsection (since they had very deep voices), and their names are frightening - Arda and Arta and Phili as their leader. If they give instructions, ‘Tie him up,’ they tie him up; if they instruct, ‘kill him,’ you are killed. If they had killed Dustai, who would have given Yannai, my father, a son like me?” Rabbi Achi the son of Rabbi Yoshiyah asked Rabbi Dustai, “Are these men connected with the government?” He replied, “Yes.” Do they have horses and mules that run behind them?” He answered, “Yes.” Rabbi Achi the son of Rabbi Yoshiyah asked Rabbi Dustai, “If that is so, you acted properly.”

*** It is evident from the Gemora that halachically, they were not obligated to return the vessel to the custodians. The Tosfos Harosh explains: The Gemora above had stated that unless the custodian has been established as a liar, he could claim that the depositor does not want that his deposit shall be in someone else’s hands (and therefore, it should be returned to the custodian). Here, the custodian cannot make such a claim. For Rav Achi explicitly instructed them to return the vessel to him.

*** Rashi cites two explanations as to what Rav Dustai said when the custodians were hurting Rabbi Yosi. Either he said, “Beat him up good (in order that he should return the vessel to them)!” Or, he said, “He is deserving of this (since he is not returning the vessel).” Some Rishonim derive from here that it is permitted to save oneself with someone else’s body, for Rav Dustai was telling them to hit Rabbi Yosi because he was terrified that he would get hit.

*** Rabbi Dustai excused his actions by saying, “Those people are very tall and their hats are very tall, and their voices comes from their midsection, and their names are frightening - Arda and Arta and Phili as their leader.” Rashi explains that they were men of great dimensions and they wore awesome clothing. And since they had very deep voices, it appeared as if their voices were coming from their midsections. The Maharsha brings an alternative explanation according to the simple reading of the Gemora: They were one cubit tall and their hats were one cubit tall. It was because of this that their voices appeared to emanate from their midsections.

*** Rabbi Dustai concluded, “If they had killed Dustai, who would have given Yannai, my father, a son like me?” The Vilna Gaon states that it may be gleaned from here that when a son adds an honorable title to his father’s name, he is permitted to say his father’s name. It is only forbidden for one to say his father’s name without a title.

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Selling a "Runaway" Slave

The Gemora (Daf Yomi: Gittin 13a) explained the dispute between Rabbi Meir and the Chachamim as follows: The Gemora explains: Rabbi Meir said to them: You have answered me with regard to his food (the master has a right not to provide him with food), but you have not answered me with respect of terumah (if his master was a Kohen, he will lose the ability of eating terumah)! And if you will answer me that the master, if he wanted, could throw the document to the slave (against his will) and thereby disqualify him from eating terumah, this is not correct because the slave can run away and the master will not have the option to free him (and therefore the slave can still eat terumah)! For if the slave of a Kohen ran away (and he could not be found to free him), or the wife of a Kohen rebelled against him (and she could not be found for him to divorce her), would they not be able to still eat terumah! This slave (if someone is acquiring the document for him), however, will not be able to eat terumah!

Rava explains the Chachamim’s response in our Mishna: It is because the slave is the master’s property. The meaning is as follows: The master, if he wants, could take four zuzim from a Yisroel (selling the slave to him), which would thereby disqualify the slave from eating terumah (even if the slave runs away)!

The Reshash asks: How could the master sell his slave who ran away? This should be akin to one who stole an object from his friend. The owner is unable to sell it because it is not presently under his jurisdiction. Here too, the slave is not presently under the control of the owner!

He answers that here it is different. The slave fled from the master because he wants to remain a slave. He is therefore still regarded as being under the jurisdiction of his master.

Furthermore, the halacha is that land cannot be halachically stolen, and a slave which is compared to land has that halacha as well. Therefore, the slave, no matter where he is, would still be regarded as being under the control of the owner.

The Ayeles Hashachar answers: Since the slave is required to return himself to his master, it is considered as if he is still under his jurisdiction.

The Dvar Avraham writes that this question can be answered according to the Shitah Mikubetzes in Bava Kamma (33b). The Shitah says that if someone sells an item that was not under his control, but afterwards, it came into his jurisdiction, the sale is effective retroactively. Here too, if the slave is returned to the master, at that point the sale will be effective.

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Rashi's Retraction

The Mishna states: If one says, “Give a get to my wife,” or he says, “Give an emancipation document to my slave,” and he died, the documents should not be given after his death.

Rashi notes that our Mishna should not read, “Give this get to my wife,” or “Give this emancipation document to my slave,” rather, he merely said, “Give a get to my wife,” or “Give an emancipation document to my slave.” He instructed the agents to do so, but he did not actually give them the document. If he would have handed the document to the agents, the Chachamim would hold that the emancipation is effective immediately, for they maintain that it is advantageous for a slave to gain his freedom and the agents can acquire the document for him.

Tosfos (9b) points out that here, Rashi, is retracting from a position he took above. Rashi had stated that when the agents acquire the document for the slave, the slave does not gain his freedom at that time. He becomes free when the document is delivered into his hands. The acquisition of the document accomplishes that the master may not retract any longer. Here, Rashi says that if the agents would acquire the document, the slave’s emancipation would be effective immediately.

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Food and Medicine for the Slave

*** Rabbi Yochanan said (Daf Yomi: Gittin Daf 12b) : If a man cuts off the hands of his friend’s slave, he pays the loss of earnings and the doctor bills to the master, and that slave receives his food from charity.

The Gemora explains that Rabbi Yochanan is discussing a case where the master is providing food for the slave, and he is taking from charity for the extras.

Rashi explains that the slave requires additional food because of his medical condition.

The Nesivos Hamishpat writes that the additional food will speed up the recovery process. This, the slave must pay for himself. The damager is not required to pay for that.

The Chazon Ish disagrees: He states that if this additional food will be beneficial to improve his medical condition, he would not have to pay for it himself; it would be included in the doctor bills. Rather, the Gemora is discussing the delicacies which are given to a sick person in order to cheer him up. This is not included in the medical bills.

*** The Gemora concludes that the master can say to the slave, “Work for me, but I will not sustain you.”

Reb Yechezkel Abramsky explains that the master is not completely exempt from sustaining the slave when he is working for him. The master has the right to tell him that he should worry himself with regards to his food. This is why Tosfos says that during a famine year, where people will not have pity on the slave and he will not be able to find food, the master is obligated to feed him, and if he doesn’t, the slave can demand his freedom.

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Agent to Free a Slave

The Mishna (Daf Yomi: Gittin 11b) had stated: If someone says: “Give this Get to my wife” or “Give this document freeing my slave to my slave,” if he wants to retract the document (before it gets to his wife/slave) he may. These are the words of Rabbi Meir. The Chachamim say: He can retract by the Get of his wife, but not by the document freeing his slave. This is because a person can have someone else acquire something beneficial for him when he is not present, but not something that is a liability for him when he is not present.

The Acharonim ask: One who frees his Canaanite slave has violated a Biblical commandment! If so, the agent who is being sent to deliver the emancipation document is an agent for an aveirah! There is a well established principle that one cannot be an agent for an aveirah!?

There are those who prove from here that although one is not permitted to serve as an agent to commit an aveirah, the agency, nevertheless, is not negated because of it. Tosfos in Bava Metzia (13b), however, states clearly regarding one who was sent to serve as an agent for an aveirah, the agency is negated and his actions are null and void.

The Noda BeYehudah answers that since the agent is acquiring the document for the slave, he is serving as an agent of the slave and not as an agent of the master. He is therefore not regarded as being an agent for an aveirah, because the aveirah is for the master to set him free; not for the slave to gain his freedom.

One can also answer that we are discussing a case where it was a mitzvah to free the slave (a tenth man was needed for a minyan), and therefore, there was no aveirah.

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Idolater Judges

The Gemora (Daf Yomi: Gittin Daf 11a) asks: What are names that are clearly those of non-Jews?
Rav Papa answers: Names such as Hurmiz, Abudina, Bar Shibsai, Bar Kidri, Bati, and Nakim Una. Rashi explains that these are all names of idolater judges.

The Maharam Shif asks: The judges are not the ones who are signing! Rather, it is the witnesses who are signing in the presence of the judges.

He answers that Rashi is only stating as to why these names are obviously idolaters, and not Jewish. There were well known idolater judges with those names, and that is why when someone signs with such a name, we are certain that he is an idolater and not a Jew.

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The Law of the Government

The Gemora (Daf Yomi: Gittin Daf 10b) notes: The Mishna did not make any distinction between a document of sale and one of a gift. It is understandable that a document of sale can be valid even if idolaters are signed on it, for when the buyer gave the money before the judges is actually the time that he acquired the land; the document is only a proof to the sale. If the buyer had not given money in front of the judges, they would not have discredited their reputation by writing the document for him. But with respect of a gift, with what did he acquire the property? It is only through this document! But this document is equivalent to a shard! [Why does the Mishna rule that even in this case, the document is valid?]

Shmuel answers: The law of the government is the law (even according to our law).

The Gemora in Shabbos (88a) teaches that when Bnei Yisroel stood at Mount Sinai and heard the word of Hashem, He held the mountain over our heads. Hashem declared, “If you’ll accept the Torah, all will be well. If not, this will be your burial place!” Rav Acha bar Yaakov said: This can now be used as an excuse for Klal Yisroel when they do not perform the mitzvos. For when they are summoned for judgment, they can claim that they were coerced into accepting the Torah; it was not done willingly.

The Perashas Derachim asks from our Gemora which states that the law of the kingdom is the law. If so, this should certainly apply by The Holy One blessed is He, Who is the King of all Kings. How could Klal Yisroel use the coercion as an excuse? The law of the kingdom is the law, and they took an oath obligating themselves to perform His mitzvos!

He answers that Rabbeinu Tam holds that the principle of the law of the kingdom is the law is only applicable if the king decrees on all his subjects. However, if the decree is issued only on part of his kingdom, this principle does not apply. Since Hashem is the King over all the nations of the world and He only forced Bnei Yisroel to accept His mitzvos, this principle would not apply and hence, a claim of coercion can be effective.

It emerges that regarding the seven mitzvos that were given to all Bnei Noach, the principle of the law of the kingdom is the law would apply, and a claim of coercion would not be valid.

According to this, the Ketzos HaChoshen explains the argument between Pharaoh and the midwives. Pharaoh asked them, “Why didn’t you listen to my commandment? The law of the kingdom is the law and since I the king decreed that all the Jewish children should be killed, you are obligated to listen to me!” They responded to him, “Your decree is not a universal one; it was only issued regarding the Jewish children and not to any others. Accordingly, the principle does not apply and we are not obligated to adhere to the laws of the kingdom. Thereupon, Pharaoh immediately decreed that all children born must be thrown into the sea.

Reb Shlomo Kluger uses this principle to explain Adam HaRishon’s response to Hashem. He answered, “The woman which you gave to me gave me from the tree and I ate.” What kind of answer was this? Adam HaRishon was saying that since his was wife was here as well and she was not commanded not to eat from the tree. Therefore, the law of the kingdom does not apply and that is why he ate.

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Cuthean as a Witness

The Mishna (Daf Yomi: Gittin Daf 10a) had stated: Any document that has a Cuthean witness signed on it is disqualified (for he is suspected of lying) except that of a get for a woman and for the freeing of a slave.

Tosfos writes that this Mishna is only according to those that hold that the Cutheans were true converts to Judaism, and Biblically, they are regarded as full-fledged Jews. However, according to those who maintain that the Cutheans only converted out of fear of the lions, they are not regarded as Jews, and they cannot be eligible as a witness.

The Ri”f rules that nowadays, the Cutheans are disqualified from all types of testimony, for they are considered like an ordinary idolater.

Reb Isser Zalman Meltzer asks: How can a Cuthean be qualified to testify? Even if they are not suspected to lie, but they deny the Oral Law, and certainly they should be ruled ineligible!

He writes that since this was the tradition that they accepted from their fathers, they are regarded as a child who was taken captive by idolaters (and the fact that he does not believe in the truth of the Oral law does not disqualify him, for he never knew any different), and therefore, they are not disqualified from being a witness.

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Suspected of Lying

The Mishna (Daf Yomi: Gittin Daf 10a) had stated: Any document that has a Cuthean witness signed on it is disqualified (for he is suspected of lying) except that of a get for a woman and for the freeing of a slave.

The Pnei Yehoshua asks: Since they are suspect of lying, they should be regarded as a rasha (wicked person) with respect of monetary matters, and the halacha is that a thief is disqualified form all testimony!?

He answers that the Yerushalmi says that the Cutheans are eligible to sign on a get because they are only suspect with regards to monetary matters, but not with respect of illicit relations. The Pnei Yehoshua explains: The Yerushalmi holds that a witness who is suspected of stealing is only disqualified from testifying with regards to money matters, but he would still be eligible to testify on arayos (relationships). However, l’halacha we hold that such a person is ineligible to testify on all matters, so accordingly, how could the Mishna rule that the get is valid?

He answers that in truth, we do not know definitely that they would lie; it is only that they are suspect of lying. The halacha is that if they are suspected of lying, they are disqualified from testifying with respect of monetary matters, but not with respect of other testimonies.

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Get

A bill of divorce is referred to as a get. Tosfos (Daf Yomi: Gittin 2a) writes that it is the practice for a get to be written in twelve lines, because the numerical value (gematria) of the word get is twelve (gimmel = 3; tes = 9; 3 + 9 = 12).

The Vilna Gaon adds that the document could have been called differently, for there are many combinations of letters that add up to twelve, such as a “ches” and a “daled.” However, what is unique about the “gimmel” and the “tes” is that you will never find these two letters next to each other in the entire Torah. This is why the document which is used as a separation between the man and his wife is referred to as a get.

The Steipler asked that there are other combinations of letters, such as a “gimmel” and a “kuf,” or a “zayin” and a “tzadi,” or a “samech” and a “tzadi” that are also never found next to each other!? He answers that the “gimmel” and the “tes” are the first of such combinations.

It can also be said that they wanted a name that would accomplish two things; one, that its numerical value is twelve, and secondly, that the two letters are never found next to each other. The “gimmel” and the “tes” are the only two letters that have both components.

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Learning while Standing

The Mishna (Daf Yomi: Sotah 49a) had stated: When Rabban Gamliel the Elder died, the glory of the Torah terminated and purity and abstinence perished.

Rashi cites the Gemora in Megillah ((21a) which states that from the days of Moshe until Rabban Gamliel, they would study Torah standing. Afterwards, people became weaker and they would study torah while sitting; they didn’t have the strength to stand.

The Gemora in Brochos (28a) says that when Rabban Gamliel was the Rosh Yeshiva, his policy was that any student who was not "tocho c'baro," his inside was not like his outside, would not be allowed to enter the Beis Medrash. Not everyone who applied was automatically accepted into his Yeshiva. Rabban Gamliel only accepted students who were honest and sincere, through and through, without any hints of fakery or hypocrisy.

The Gemora relates that there was a subsequent change in the leadership and Rabbi Elozar ben Azariah was appointed the new Rosh Yeshiva. He implemented a new policy: Everyone was invited into the Beis Medrash even someone who was not "tocho c'baro." As a result, the Gemora records: Many benches were added to the Beis Medrash.

Two questions can be asked. Firstly, how were they able to ascertain who was a “tocho c’baro” and who wasn’t; only Hashem is capable of peering into someone’s heart? Secondly, why does the Gemora state that many benches were added; we are not interested in the amount of chairs there were; it should have said that there were many more students learning on the account of the new policy?

Rav Nosson Gishtetner answers based on our Gemora: In the days of Rabban Gamliel, the sincere students would be learning standing; that was a symbol that he was learning Torah for the sake of the mitzvah and not for any ulterior motive. When the new policy was enacted, more benches were added because the generation was weaker and they did not have the ability to stand while they were learning.

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Prophecy Compared to Torah

Rabbi Il’a bar Yeverechyah said (Daf Yomi: Sotah 49a) : If there are two Torah scholars traveling on the road and they are not discussing Torah, they deserve to be burned, as it states: And as they (Eliyahu and Elisha) walked, walking and speaking, that behold, a chariot of fire appeared etc. The reason why the chariot of fire passed between them and did not burn them was because there was a discussion of Torah between them; if there had not been such a discussion, they would have deserved to be burned.

The Gemora in Taanis (10b) cites a Scriptural verse where Yosef instructed his brothers not to discuss Torah on their way back from Egypt since they might become distracted and lose their way. The Gemora questions this from our Gemora. The Gemora answers that one should review his learning on the road since it will not require much attention; however he should not delve into Torah study since that will distract him.

Tosfos cites a Medrash that the reason the fire appeared and they deserved to be burned was because they were discussing worthless words at the time.

The Brisker Rav asks that the Metzudos explains the conversation that Elisha was having with Eliyahu at that time. Elisha asked Eliyahu that the spirit of prophecy should rest on him with a higher level than that of Eliyahu. Eliyahu answered him that under certain conditions, that will occur. It emerges that at the time that the fire appeared they were discussing matters that should be regarded as holy and not futile words. They were discussing how the Heavenly presence will rest on Elisha. For this, they deserved to be burned?

The Brisker Rav answers that that this discussion pales in comparison to a discussion regarding Torah. When traveling on the road, one must make sure that there is Torah discourse being discussed and not other matters even if those matters are dealing with the Shechina and Prophecy.

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Terifah on the Mizbe'ach

The Gemora (Daf Yomi: Sotah 48a) asks: Who are the “strikers?” Rav Yehudah said in the name of Shmuel: They would cut a calf between its eyes in order that blood should fall into its eyes (and it would become easier to slaughter). He stopped this, because it looked like they were making a blemish on the animal (which would render it invalid to be brought as a sacrifice).

The braisa taught: They would hit it with sticks, just as is done with sacrifices brought before idols. He asked them: Until when are you going to bring animals that are not killed via slaughtering (neveilah) as sacrifices on the altar?

The Gemora asks: How could he say this? They slaughtered the animals! The Gemora answers: Rather, he said that they were bringing animals that are too sick to be kosher, as he suspected that they were causing a puncture in the covering of the brain (rendering the animal unkosher as a “tereifah” even if it would be slaughtered properly). He therefore instituted that they should have rings on the ground (of the courtyard of the Beis HaMikdash that would hold the animal in place during slaughtering).

The Maharsham in Daas Torah asks: Since they knew where the animal was hit, why couldn’t they check to see if the animal was a tereifah or not?

The Minchas Keneos answers: It is forbidden to slaughter an animal which is a tereifah in the Beis HaMikdash because the Rabbis placed a tumah on a kodoshim animal which is a tereifah (and therefore it would help finding out afterwards that it was indeed a tereifah).

Furthermore, he states that we are concerned that when they hit the korban with a stick, it is regarded as if they were destroying kodoshim with their hands (if it becomes a tereifah), and therefore they instituted that it shouldn’t be hit at all.

Dayan Weiss, in Minchas Yitzchak answers that since this procedure was constantly done, it was impossible to institute that the animal should always be checked afterwards to see if it became a tereifah. There is a grave concern that sometimes, they will forget.

The Avnei Neizer writes that in the Beis HaMikdash, they never examined the animal to see if it was a tereifah, for anytime an uncertainty arose in the Beis HaMikdash regarding the kashrus of a korban, they would not offer it as a korban. This is based upon the passuk: Hakrivehu na l’phechasecha.

According to this answer, we could explain why the Gemora states that the concern was that a tereifah will be brought on the mizbe’ach. Shouldn’t we be concerned that they will be eating from an animal which is a tereifah? The answer could be that for that, they could have checked, but for what is going to be brought on the mizbe’ach, they were not allowed to check, and that was the primary concern.

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Accepting Charity from an Idolater

The Gemora (Daf Yomi: Sotah 47b) states: When there increased the number of Jews who accepted charity from idolaters, the idolaters were on top and Israel was on bottom.

The Gemora (Nazir 62a) cites a Scriptural source to teach us that an idolater can vow vowed-offerings and freewill-offerings just like Jews.

The Haga’os Ashri (in Bava Basra) brings the following question in the name of the Maharich: Why are we not allowed to accept charity from an idolater, but we are permitted to accept his korbanos?

He answers in the name of his Rebbe: A voluntary korban is not brought to serve as atonement, and therefore, we are not concerned if they offer a sacrifice, for those do not bring about forgiveness and they will not serve as a protection for them. However, one who gives charity receives atonement for his sins, and merits protection for his good deed. It is not in our best interests to assist them in this matter.

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The Murderer's Testimony

The Mishna (Daf Yomi: Sotah 47b) states that an eglah arufah is only brought in a matter of uncertainty; however, if the murderer was discovered, we do not bring an eglah arufah.

The Minchas Chinuch (§ 530) writes that if a person comes and says, “I killed him,” if he said that he did it inadvertently, he would be believed and we would not bring an eglah arufah. However, if he said that he killed him intentionally, he is not believed, because there is a principle that a person is not believed to render himself into a wicked person. In that case, we would bring an eglah arufah.

Rav Shach in Avi Ezri disagrees because the reason why a person is not believed when his testimony will render him an evil person is because based upon his testimony, he is a rasha, and a rasha cannot offer testimony. However, with respect to eglah arufah, one who is disqualified from testifying is allowed to testify that he can identify the murderer. Even a thief is allowed to offer such testimony. Accordingly, a person should be able to say and be believed that he himself killed him!

Rav Shach explains that the reason a rasha is believed regarding an eglah arufah is because his testimony is not affecting the murderer whatsoever. He is merely stating that he can identify the murderer. Every other place where one witness or a woman is believed, and nevertheless, we do not believe a thief, that is only because he is accomplishing something. Through his testimony (that a woman’s husband died), we will be permitting a woman to get married, and if he is a rasha, he is not believed, for we suspect that he is lying. By eglah arufah, where there is nothing being accomplished (with respect to the murderer), there is no reason for the rasha to lie and he can therefore be believed.

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Yaakov and Yosef; Eglah and Agalos

Rav Yehudah said in the name of Rav (Daf Yomi: Sotah 46b): Whoever escorts his fellow four amos in the city, insures that no harm will come to him during his journey.

The Maharal uses our Gemora to explain the famous Medrash. It is written [Breishis 45:27]: And he (Yaakov) saw the wagons that Yosef had sent to carry him. Chazal say: The Hebrew word “agalah,” wagon, is similar to the word “eglah,” calf. Yosef was hinting to his father that he was alive by making a reference to the eglah arufah, which was the last topic of Torah that Yaakov and Yosef had studied together before Yosef was sold as a slave.

The Maharal notes: It cannot be merely coincidence that they were studying that passage, for if so, how would Yosef know that Yaakov would remember that it was this precise topic that they were studying together before he left.

Rather, this is what transpired: Yaakov was escorting Yosef to Chevron. Yosef said to him: Go back to the house and do not trouble yourself. Yaakov responded that it is a great mitzvah for one to escort another in the beginning of a journey. If one does not escort his friend, it is regarded as if he spilled his blood. One who does escort his fellow insures that no harm will befall him on his journey. It was through this that Yosef realized that Yaakov will definitely remember the topic of Torah that they were studying, for he will remember escorting him out of the city. It was for this reason that Yosef sent the wagons. He was indicating to his father that he was not damaged in any manner, physically or spiritually, and that it was due to the fact that Yaakov escorted him out of the city.

Rabbi Yissochar Frand explains the Medrash differently: He states that a profound lesson is learned from Yosef and Yaakov. When Yosef wanted to give irrefutable proof to his father Yaakov that he was indeed Yosef, the incontrovertible piece of evidence he presented was the Torah portion that they were studying together. Serious Jews identify themselves by the Torah discussion that they were having at a certain time; not by any mundane activities that they were enjoying together. Yosef identified himself to Yaakov by the essence of Jewish identity - the Torah topic that they last discussed.

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Eglah Arufah from Yerushalayim

The Mishna (Daf Yomi: Sotah 45b) had stated: The city of Yerushalayim does not bring an eglah arufah (the law is that upon finding a corpse, and being unable to solve the murder, the leaders of the city closest to the corpse are required to bring a calf to an untilled valley, decapitate it, wash their hands over it, and then they must recite a verse, declaring publicly that they did not kill the person).

The Gemora explains the reason for this: It is written: If a corpse will be found on the land that Hashem your God gives you to inherit it. The Tanna of our Mishna holds that Yerushalayim was not apportioned among the tribes. It was given to all of Klal Yisroel, and therefore, it is not included in the verse of being “land that was given to inherit it.”

The halacha would be that the city, which is next closest to the spot where the body was found, would bring the eglah arufah.

The Gemora in Bava Basra (23b) states that the halacha of eglah arufah is only applicable when the city is located between two mountains, and therefore, people do not frequent that area. For if it would be a city where many people from the world pass through, we would say that the murderer did not come from the nearest city; but rather, he came from the majority of the world.

Tosfos there asks: If so, why is it necessary to exclude Yerushalayim from bringing an eglah arufah based upon the verse “to inherit it”? Yerushalayim should be excluded because it is a city where all people from the world pass through. They come for the pilgrimage and they come during the year to offer their sacrifices and to eat their ma’aser! It emerges that we would never attribute the murderer to the residents of Yerushalayim, for most of the people there are from the rest of the world!?

Tosfos answers that there were streets in Yerushalayim that were only frequented by the residents of Yerushalayim, and it is on account of those areas that the verse is necessary to exclude Yerushalayim from bringing an eglah arufah.

HaRav Elyashiv derives from this Tosfos the following halacha: If there would be a city that a portion of it would not be fit to bring an eglah arufah, but a different part of the same city would be suitable to bring it, that city would be required to bring an eglah arufah.

Accordingly, if they would add on to the city of Yerushalayim (like the Gemora in Shavuos 14b states that this can be done with a Beis Din of seventy-one and the Kohen Gadol), and the added area would be apportioned to all the tribes, Yerushalayim would be required to bring an eglah arufah on account of the extra area.

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Women in Battle

The Mishna (Daf Yomi: Sotah 44b) had stated: When do these words (the exemptions mentioned in the Mishna) apply? It is only with respect to a voluntary war; however, with respect to wars of mitzvah, everyone is required to go out, even a bridegroom from his chamber and a bride from her chupah.

Rabbi Yehudah says: These words were only said with respect to wars of mitzvah; however, with respect to an obligatory war, everyone is required to go out, even a bridegroom from his chamber and a bride from her chupah.

The commentators ask: What does the Mishna mean whit it says, “even a bride from her chupah”? Women are not obligated to go to war! The Chinuch (§ 403) writes with respect of the mitzvah of erasing Amalek’s name that it is only applicable to men, but not to women, for it is the practice of men to wage war against their enemies, not women. The Radvaz on the Rambam also rules like that, and he bases it upon the verse: The complete glory of the princess is within. Accordingly, he asks from our Mishna, which would seem to indicate that they do go out for war! They also ask from the Gemora in Nazir (59a) which states: Rabbi Eliezer ben Yaakov said: How do we know that a woman shall not go out wearing weapons of war? It is because it’s written: A man’s attire shall not be on a woman.

The Radvaz answers: The Mishna simply means that when the bridegroom goes to fight, the bride will leave the chupah, but not to go to war.

Alternatively, he answers that she does go to war, but not to fight. They provide water and food for their husbands. The Reshash adds that they go to the battlefield to cook and to bake for the soldiers. (The Tzitz Eliezer understands that the Radvaz and the Reshash are arguing if the women supply food only to their husbands or to all men.)

The Ben Yehoyadah writes that she goes out to war to guard the weapons.

In the sefer Hon Ashir, he writes that even if a woman is confident that she can stand up to the enemy and she will not back down; we do not allow her to fight.

The Minchas Chinuch writes that according to our Gemora, a woman would be obligated to fight in all wars of mitzvah and to wage war against Amalek. Evidently, this mitzvah overrides the prohibition of wearing weapons of war.

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Reasons for the Exemption

The Mishna states: One, who builds a house, betroths a woman or plants a vineyard is exempt from going to battle.

There are various reasons to explain these exemptions: The Rashbam states: These people are similar to the ones who are faint of heart. They are concerned that they will not merit inaugurating their house, marrying their wife or redeeming their vineyard. They are scared that they will die during battle and are therefore exempt from going to war.

The Ibn Ezra explains: These people are preoccupied with their desire to inaugurate their house, marrying their wife or redeeming their vineyard, and will therefore not pay attention completely to the war. This will cause them to retreat during the heat of the battle and will constitute a danger to the remainder of the army.

The Mishna enumerates all the various people that may return from the battle. The Minchas Chinuch (§ 526) writes that it is not clear from the Gemora or the Rambam if these people have the option of remaining at the battlefield or not. He states that it is logical to assume that the faint of heart are required to go home, for otherwise, he will cause the hearts of the others to melt. He adds that according to Rashi, who writes that these people will definitely die during the war if they do not heed the words of the Kohen, they would not have the option of staying.

Seemingly, according to the reasons mentioned above, they would not be allowed to remain at the battlefield, for according to the Rashbam, they are similar to the faint of heart, and they are required to go home. And according to the Ibn Ezra, they would also be required to return home, for otherwise, they would constitute a danger to the other soldiers.

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