Haman and his Daughter

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Rava inquired (Bava Kamma 17) : If an animal pounced upon a utensil but it didn’t break, and it rolled to another place and broke there, what is the halachah? Do we consider the beginning of the process, and it is regarded as if the animal itself broke the utensil (in which case the owner will be liable to pay in full), or do we look at when the utensil actual broke, and then it would be regarded as a case of “pebbles” (in which case the owner will only be liable to pay for half the damages)?

The Gemora attempts to resolve this from that which Rabbah said: If one threw a utensil from the top of a roof and someone else comes and breaks it with a stick, the second person is exempt from liability, for we can say to him (the owner of the utensil), “He broke a broken utensil.” [Evidently, Rabbah considers the beginning of the process, and that is why the utensil is regarded as broken even before it actually hits the ground and breaks!]

The Gemora rejects the proof, by saying that although it was clear to Rabbah (that we consider the beginning of the process), it was still a matter of inquiry to Rava.

Tosfos writes that if one throws a stone or shoots an arrow onto a utensil, and someone else comes and breaks the utensil first, the second person is definitely liable to pay for the damages. We cannot say in this case that “he broke a broken utensil,” for if the utensil would be considered broken immediately, there would never apply the halachah of “pebbles,” for we would always consider the utensil to be broken as soon as the pebbles shoot out from the animal. Tosfos concludes that the logical distinction between throwing a stone at a utensil and throwing the utensil itself is a simple matter.

The Rogatchover Gaon uses this Tosfos to explain a Gemora in Megillah (16a). As Haman was leading Mordechai through the streets, they passed by Haman’s house. Haman’s daughter witnessed the scene and thought that Mordechai was leading her father. She took the bowl from the bathroom and threw it on her father’s head. When she realized that it was her father, she fell off the roof and died. This explains that which is written: And Haman hurried to his house, mourning and with his head covered. He was in “mourning” on account of his daughter, and “his head was covered” because of what occurred to him.

The question is asked that the sequence is reversed!? The verse should have stated that “his head was covered” and then he was in “mourning” Why was he mourning before his head was covered?

The Rogatchover Gaon suggests the following: Immediately after Haman’s daughter threw the bowl down, she realized her mistake, and she threw herself off the roof before the bowl landed on her father’s head. According to Tosfos, who distinguishes between when the utensil was set into motion, and when the stone was set into motion, we can explain as follows: She (like the utensil) was considered dead at the beginning of her descent; however, Haman’s head was not covered until the bowl actually landed on his head. This explains why the verse mentions that he was in mourning even before his head was covered.

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Fender Bender

By: Reb Avi Lebovitz Hearos on the Daf/

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Reuven is driving behind Shimon and smashes into Shimon’s car, destroying his fender and causing $500.00 worth of damage. Shimon continues to drive home and gets into a terrible accident that completely totals his car. Reuven claims that he should not be liable for paying for the damage that he caused, because even if had he not caused the damage, it would have happened due to the later accident. Is Reuven obligated to pay?

The Reshash learns from Tosfos that Reuven is responsible. Tosfos says that although in the case of the Gemora where one throws a vessel from the roof and the other one smashes it before it hits the ground, the thrower is liable to pay and the smasher is exempt; in a case where one throws a stone at a utensil and before it hits the ground, someone else smashes it, the smasher is liable and therefore the thrower is exempt. The argument that “he broke an already broken item,” only applies to a case where the damaged item itself was thrown, not when another item was thrown at it. The logic is clear. When one throws a stone at a utensil, he has no connection to the utensil until the stone makes contact with it, so if prior to that, someone else smashes the utensil, the smasher is fully responsible.

Based on this, the Reshash says that if Reuven smashes Shimon’s vessel, but later a fire occurs and burns the broken vessel, Reuven is responsible to pay for the damage he caused. Why? Because even if Reuven would smash the vessel after the stone has been thrown, he would be obligated to pay; certainly if he broke the utensil prior to the fire heading to Shimon’s home, Reuven is liable to pay. Similarly, in the case of the car accident, Reuven would be obligated to pay, because even if at the time of the fender bender there was already a train headed right at Shimon’s car and it would definitely be destroyed, Reuven is liable for the damage he caused.

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Spine Turns into a Snake

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The Gemora (Bava Kamma 16) cites a braisa: The spine of a deceased person becomes a snake after seven years, if he does not bow down for the modim prayer.

Tosfos explains that this is measure for measure. Rav Sheishes (Brochos 12b) said that when he bowed down during Shemoneh Esrei, he would bow like a rod (in one swift motion), and when he straightened up, he would straighten up like a snake (which raises its head first and then slowly raises the rest of its body). A person’s punishment is that his spine turns into a snake.

What is behind the bowing down like a rod and straightening up like a snake?

Kollel Iyun HaDaf explains this based upon the Maharsha and the Maharal: The point of "Modim" is to show one’s humility before Hashem, Who grants a person everything he needs for his daily life. The Gemora in Sotah (9b) teaches us that Hashem originally made the snake the king of the beasts, but the snake was not grateful and it became arrogant and wanted even more. Hashem punished the snake, saying, “I originally created you to walk with an upright stature, but now that you did not humble yourself, you will walk upon your stomach.” The snake, therefore, is a symbol of the punishment that befalls a person who does not humble himself and does not recognize that everything he has is a gift from Hashem. When a person bows down, he should bow like a rod, reminding himself that there is a Master in Heaven Whose word he must obey (for a king rules with his stick; see Sotah 40a and Shabbos 52b).

When a person rises after bowing, he must remember that even when standing erect, he should not do so in an arrogant manner. The Gemora here teaches us that if a person does not bow during Modim and thereby commits the sin of the snake, by standing erect and not recognizing Hashem’s dominion; after he dies, his spine that did not bend, will turn into a snake.

Tosfos brings another explanation: The Midrash says that there is a vertebra in the spine of a person from which he is resurrected in the World to Come. This bone is so strong and hard that fire cannot consume it. And now, when that bone becomes a snake, he will not be resurrected and will therefore not live in the World to Come.

Tosfos rejects this explanation, for it is not logical to say that one will punished so harshly for committing this minor transgression, for we have learned that all of Israel has a share in the World to Come.

Rav Shamshon Raphael Hirsch wrote in a letter: Anyone who reads this Gemora finds it laughable, but Pliny says the same statement almost word for word, “After a number of years the human spine turns into a snake” Chazal, however, used this to teach a mussar lesson. To any mind it is clear that every similarly surprising statement of Chazal, if we look into it, was accepted as true by the scholars of the time.

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YAAKOV’S ACQUISITION OF CATTLE

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It is written [Breishis 30:43] regarding Yaakov Avinu: And the man increased exceedingly, and had large flocks (sheep), and maid-servants and men-servants, and camels and donkeys. It is not mentioned in the Torah that Yaakov had cattle. Why not? We see that Yaakov sent to Esav cattle, as it is written [ibid, 32:6]: And I have oxen, and donkeys and flocks, and men-servants and maid-servants; and I have sent to tell my lord, that I may find favor in your sight. A few verses later, we also see that Yaakov had cattle. It is written [ibid, v. 8]: And he divided the people that were with him, and the flocks, and the herds, and the camels, into two camps. Yaakov sent cattle to Esav, as it is written later in the same Perek. Perhaps one can answer that Yaakov acquired the cattle afterwards; if so, the question may be asked: Why didn’t he acquire cattle beforehand?

The Gemora in Yevamos (16a) relates the following incident: Yonasan the son of Hurkenas met Rabbi Akiva. He questioned him and silenced him. He asked him, “Are you the Akiva whose name is known from one end of the world to the other? You are fortunate indeed to have merited such a name, but you have not yet reached the level of an oxherd.” Rabbi Akiva replied (with humility), “I have not even reached the level of shepherds.”

It is evident from here that it is more difficult to be an oxherd than a shepherd. One does not need to be so careful when watching sheep – he has to watch that the sheep do not graze in other people’s fields. When one is watching cattle, he must be concerned that the cattle do not damage other animals or people. This is not a simple task, as the Gemora states: Rav Papa says that the half damages that an ox-owner is required to pay if his animal gores are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation).

If one takes the animals that he is entrusted to watch into a desert, a place where there are no private fields, watching sheep there is almost effortless; he does not need to be cautious at all. However, he still must be vigilant in his guarding of the cattle, lest they damage other animals or people, for it is common for there to be other animals and people in a desert.

Yaakov did not want to watch Lavan’s cattle, for he was worried that the cattle will cause damage and Lavan would not be willing to pay for the damages. He was able to tell Lavan that he does not posses the expertise necessary to watch cattle. This excuse was only possible if he did not have cattle of his own. He did not acquire cattle until after he departed Lavan’s house, for now, if his cattle would damage, he would be liable, and he would certainly compensate anyone for any damages cause by his animals. (Igrah d’kallah)

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Is it Natural for an Ox to Gore?

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It was stated (Bava Kamma 15) : Concerning the payment of half damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half damages are considered a fine.

The Gemora explains: Rav Papa says that the half damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half damages are considered a fine).

Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.

Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?

He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.

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U'bi'er

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The Gemora (Bava Kamma 14) explains that one braisa speaks of a case where a yard was set aside for both of them for the purposes of both keeping produce and their oxen (it is therefore not regarded as “the field of another,” and he would not be liable for shein and regel), whereas Rav Yosef’s braisa deals with a yard set aside for keeping produce in but not cattle, in which case, as far as shein is concerned, the yard is regarded as the yard of the damaged party (because the damager has no permission to bring his ox in).

Rabbi Zeira challenged this explanation: In the case where the yard was set aside for keeping produce in (for both of them), how can the there be liability for shein and regel when the field does not fulfill the condition of being “the field of another” (since the damager has the right to keep his produce there as well)?

Abaye said to him: Since the yard is not set aside for keeping cattle in, it may well be termed “the field of another.”

Reb Elchonon Wasserman explains the dispute as follows: It is written regarding shein: ubi’er b’sadeh acher – and it consumes in the field of another. The argument is regarding the word ubi’er. Is it in reference to the act of damaging, or is it in reference to that which is damaged?

Rabbi Zeira holds that it is in reference to that which is damaged. The produce is what is getting damaged. And since with respect to the produce, they both had permission to keep their produce in the yard, it is regarded as a jointly owned courtyard – and with respect to the damage of shein, it is considered a public domain, and the damager is exempt from liability.

Abaye, however, holds that the word ubi’er is in reference to the act of damaging. The ox is the one who committed this damage. And since the damager has no right to bring his ox into the yard, it is regarded as the “field of another,” and therefore, he would be liable.

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Kodoshim Damaging

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Rabbi Abba(Bava Kamma 13) says: If shelamim damage, one collects from their meat (which is eaten) and not from their limbs (which is burnt on the mizbe’ach).

The Ketzos Hachoshen asks: Why, even according to Rabbi Yosi HaGelili, who holds that kodshim kalim are not the property of the High, should one be liable to pay for the damages? It is forbidden to derive pleasure from this animal, and something that is forbidden to derive benefit from is regarded as if it is ownerless!?

The Minchas Chinuch notes that this question is only according to the Rishonim, who maintain that something that is forbidden to derive benefit from is regarded as if it is ownerless. However, there are Rishonim who hold that one is considered the owner on things that are forbidden for benefit; it is just that it is not regarded as being under his domain. Accordingly, one would still be liable if his korban shelamim damaged.

Reb Shimon Shkop distinguishes between two types of items that are forbidden for pleasure. There are things that the Torah requires one to destroy. Such items are considered ownerless, and one cannot betroth a woman with those items. However, there are other items that are forbidden to derive benefit from because they are designated for a mitzvah, such as a sukkah during the holiday of Sukkos, tefillin and korbanos – these items are regarded as his. One would be allowed to sell them, for that does not retract from the mitzvah – it does not contradict that which it was designated for. One would be permitted to betroth a woman with a korban. This is why he would be liable if his shelamim damaged.

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Kinyan Agav

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The Gemora (Bava Kamma 12) rules that the movable property does not need to be piled on the real property in order for the kinyan agav (by making a kinyan on the land, he automatically acquires the movable property) to be effective.

The Rishonim ask: If the halachah would be that kinyan agav is only effective if the movable property is piled on the land, why would it be necessary to use agav? The movable property should be acquired because it is resting in his courtyard!?

The Ritv”a answers: The Gemora is referring to a case where the courtyard is not protected and therefore it cannot be used to make a kinyan. That is why agav is necessary.

The Shitah Mekubetzes answers that a courtyard can acquire for a person only movable property that entered it after it became his. However, a courtyard cannot acquire property that was in it before the courtyard became his.

The Steipler Gaon writes that the Shach states this halachah only with respect to the acquisition of a courtyard without the knowledge of the owner. However, if he intends to use the courtyard to acquire the movable property which is found in it, it will be effective even if the property entered the courtyard before it became his.

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Mobile Courtyard

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The Gemora (Bava Kamma 12) 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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Assessments

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by Reb Avi Lebovitz http://www.hearos.blogspot.com

The Gemora (Bava Kamma 11) concludes that if one steals an item and ruins it, he is not able to simply return the broken item and pay for the damage; rather, he has to pay in cash for the entire item, or replace it with an equivalent item. However, when one damages, or borrows an item and it gets damaged by accident, he can simply return the item and pay the depreciation amount. Why? Tosfos explains that when one steals an item, they immediately acquire the item by removing it from the domain of its owner, and therefore are liable to reimburse the owner for the entire item (not just the difference from the time it was stolen and the time it is returned). But, when one damages, he is only responsible for the amount that the item depreciated due to the damage, but whatever remains still belongs to the original owner. Based on this, a borrower, who is responsible if an accident happens, since he is regarded as acquiring the object when he borrows it, he therefore is responsible for the entire item.

Why do we say that a borrower is making a kinyan and acquiring the object at the time that he accepts responsibility? Just as a paid custodian is only responsible for what was stolen but he can return whatever remains and just pay the difference, a borrower should be able to do the same? Tosfos understands that since a borrower is responsible for unavoidable accidents, his responsibility cannot begin at the time that the accident occurs because one cannot be liable for a complete accident. The only way that a borrower can be responsible for an accident is because he makes a kinyan on the object when he borrows it. Based on this, there is a major difference between the liability of a (paid or unpaid) custodian and that of a borrower. A custodian is responsible for their negligence in not protecting the object, and that obligation begins at the time of the incident. A borrower, on the other hand, is not responsible for the incident, but responsible at the moment he borrows it to return the item as it is at that moment.

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Deriving Benefit from a Corpse

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By Reb Avi Lebovitz Hearos on the Daf

Tosfos (Bava Kamma 10) asks: Why do we need a special verse to exempt a person who is killed by falling in a pit? It should be included in the exposition of “and the corpse shall belong to him”!? This means that the owner of the pit is only liable when the corpse can belong to the owner of the animal. Just as we exclude an animal that is a disqualified sacrifice, which cannot belong entirely to its owner (since certain restrictions apply to it even after it is redeemed), we should exclude man as well, since it is forbidden to derive pleasure from a corpse!?

Tosfos answers that from this verse alone, I would have said that the owner of the pit is liable for damaging a gentile, since one is permitted to derive pleasure from his corpse, so we need a verse to exempt the pit owner for the death of all people.

Shulchan Aruch (Y.D. 349:1) writes that it is forbidden to derive benefit even from a gentile corpse. The Nekudas Hakesef quotes this from a Teshuvas Harashba. But, the Nikudas Hakesef points out that both our Tosfos and the Magid Mishnah hold that only a Jewish corpse is forbidden to derive pleasure from.

The Vilna Gaon proves that Tosfos is correct from David who used the foreskins from the Philistines to betroth the daughter of King Shaul. He also points out that the Rashba in his commentary on the Daf says like Tosfos.

However, the Pischei Teshuva reconciles Tosfos and the Rashba by saying that it is not Biblically forbidden, and that is why a special verse is needed to exempt the pit owner when a person is killed in a bor, but it is Rabbinically forbidden to derive pleasure from any corpse.

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Spending Money for a Mitzvah

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Tosfos (Bava Kamma 9b) writes that it is evident from our Gemora that a person is not obligated to give up all of his possessions in order to fulfill a mitzvah, and even for a mitzvah that will pass in time, such as an esrog. It is further evident from the conclusion of the Gemora that one is not even obligated to give up a third of his possessions in order to fulfill a mitzvah. And furthermore, it is said regarding charity: One who gives liberally to charity should not give more than a fifth of his money, for then, he will be forced to beg for support himself.

All Mitzvos

The Rosh writes that this halacha applies by all mitzvos; one should not spend more than a fifth of his wealth on any specific mitzva, such as esrog or lulav. The Rambam and Rema seem to rule accordingly.

Why not Spend?

The Rishonim ask: Why would someone be exempt from performing a mitzvah just because it costs more than a fifth of his wealth? The Ra’avad answers that this is similar to halacha that one should make his Shabbos like an ordinary weekday, and not be forced to be supported from charity. This is because poverty is regarded as death, and one is not obligated to give up his life for an ordinary mitzvah.

The Biur Halachah writes (in his explanation of an opinion from the Beis Yosef) that not all mitzvos are compared to charity, for charity is a mitzvah that will not pass in time, and even if the poor people are before him, they can be supported by another person. That is why one would not be obligated to spend more than a tenth of his possessions. However, with respect to a mitzvah that will pass in time, it is possible that there would be an obligation to spend more than a tenth.

Reb Yaakov Emden asks: Why isn’t there an obligation to spend more for a positive commandment? Did we not learn regarding one who does not want to fulfill a positive commandment – we beat him until his soul departs him? Do we treat his money stricter than his life?

The Maharitz Chayus answers that we only beat him until his soul departs him when he is rebelling against the fulfillment of mitzvos; otherwise, we do not beat him, and he would not be required to spend all his money for it.

Lo Sa’aseh is Different

The Ra’avad adds that this halacha applies only to a positive commandment; however, one would be required to spend his entire wealth in order not to transgress a negative precept.

Must he Spend a Fifth?

The Gemora (Kesuvos 50a) states that one should not spend more than a fifth of his wealth to fulfill a mitzvah; is one halachically required to spend up to that amount, or is it only regarded as a mitzvah?

The Beis Yosef (Y”D; 249) writes that it is considered a mitzvah in the preferable manner if one spends up to a fifth of his wealth in order to perform a mitzvah. The Beis Yosef adds that although one can imply from the Gemora that it is not even a mitzvah to spend that amount because the Gemora states: One who spends liberally should not give more than a fifth of his wealth; however, even less than that would be regarded as spending liberally, and there would be no mitzvah whatsoever to spend that amount. Nevertheless, there is a Yerushalmi in Pe’ah that seems to indicate that there is a mitzvah to spend up to one-fifth of his wealth for a mitzvah.

In the sefer Ahavas Chesed, the Chafetz Chaim cites a Rambam in his explanation to the Mishnayos, who writes that there is a halachic obligation to spend up to one-fifth of one’s wealth for charity. He asks form our Gemora, which would seem to indicate that there is no such obligation. He answers that our Gemora is discussing a case where the poor people are not present and someone is searching to find them in order to give them charity. In such a situation, there is not even a mitzvah to give up to one-fifth. However, the Yerushalmi and the Rambam are speaking about a case where the poor person is in front of you; then, there would be a halachic obligation to give up to one-fifth.

Spending More than a Fifth

What if one wants to spend more than a fifth? Is he allowed to? It is evident from the Rambam in his explanation to the Mishnayos that it is regarded as virtuous (midas chassidus) for one to spend more than a fifth. However, it can be inferred from the Rambam in halachos that one should not spend more than a fifth of his wealth on a mitzvah.

The Chafetz Chaim reconciles the two rulings of the Rambam in the same manner as before. If the poor person is present, it would be regarded as midas chassidus to spend more than a fifth, and that is what the Rambam in his explanation to the Mishnayos is discussing. However, when the poor people are not present and one is chasing after them, he should not spend more than a fifth.

The Shitah Mekubetzes writes that one is permitted to spend more than a fifth of his wealth if it is to support the studying of Torah. The Ahavas Chesed explains the reasoning for this. One who supports another fellow to learn Torah is creating a partnership with him; the supporter receives a reward together with the one who is learning the Torah. One is permitted to purchase this reward for himself even if it will cost him more than a fifth.

Reb Moshe Feinstein (Igros Moshe (Y”D, 4:37) rules that this is correct only if the supporter specifically negotiates with the one studying Torah to create a partnership of Yissochar and Zevulun. However, if the provider is just donating money to support Torah, he is not permitted to give more than a fifth.

The Ibn Ezra in Mishlei (4:7) writes that one is permitted to spend more than a fifth of his wealth in order to study Torah himself. The Chafetz Chaim in Likutei Halachos (Yoma 12a) also rules like that. However, the Netziv in the Shiltos states that this is a matter of dispute between two Amoraim. The Gemora in Eruvin cites the verse that Torah is not in the Heavens. Rav Avdimi says: If it would be in the heavens, one would be obligated to go there and learn. It is evident that one would be forced to spend more than a fifth of his wealth to study Torah, for otherwise, he could claim that it costs too much to travel to the Heaven. However, Rava disagrees regarding the interpretation of that verse, and according to him, one would not be allowed to spend more than a fifth in order to study Torah.

The Rema (Y”D, 249:1) seems to hold that one can give away more than one-fifth of his wealth to charity right before he dies. It is brought in the name of Rabbeinu Yonah that even then, he should not.

It is written in Ahavas Chesed that one who is a free-spender in regards to himself and his family, i.e., he splurges on expensive clothing, builds for himself a fancy mansion and generally leads a luxurious lifestyle; it is permitted for him to give to charity more than a fifth of his wealth.

Some say that if one finds himself in dire straits, he is permitted to spend more than a fifth with the intention that it should be on account of this deed that he will merit a salvation. It is brought in the name of the Bnei Yissoschar that one who requires atonement on a specific sin is also permitted to give away more than a fifth.

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Paying Kofer

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The Gemora (Bava Kamma 4a) explained the Mishna according to Rav as follows: The nature of ox, that it pays kofer (if the ox kills a person, the owner is liable to pay a kofer payment), is not the same as the nature of a person, who does not pay kofer (and therefore, if the Torah would only write that one is liable for an ox, we would not necessarily know that one is liable for his own damaging).

Tosfos asks: Why is the fact that an ox pays kofer regarded as a stringency? The reason why a person does not pay kofer when he kills someone is because of the principle of kim leih bid’rabbah minei - (whenever someone is deserving of two punishments, he receives the one which is more severe). And since a man is executed for killing another man, he is not required to pay the kofer payment. It emerges that not paying the kofer is not a leniency, but rather, it is due to a stringency, namely – that he is put to death!?

The Riva answers that a person would not pay kofer even if he would not be executed. This would be in a case of an accidental killing.

The Darchei Dovid explains: Although this is also a type of kim leih bid’rabbah minei; whenever someone accidentally does something - and this same action, if it would have been done intentionally, would have exempted him from a monetary payment – it exempts him from the payment in this case as well; nevertheless, it must be regarded as a lenient ruling, for the bottom line is that he is not executed and he is not obligated to pay anything.

Alternatively, Tosfos answers that he is not exempt from the kofer payment due to kim leih bid’rabbah minei.

The Maharam explains: The principle of kim leih bid’rabbah minei only applies when he committed an action that he deserves to be executed for, and simultaneously, he does something else that he is required to pay money for. However, in our case, where a man killed someone, the punishment of execution and the kofer payment are both coming for the same reason. Kim leih bid’rabbah minei will not apply here.

The Reshash explains Tosfos to mean that the principle of kim leih bid’rabbah minei does not apply in this case because the kofer payment serves as an atonement for the killing. Kim leih bid’rabbah minei exempts a money obligation which is a payment because of compensation; however, it does not exempt payments on account of forgiveness.

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Uncertainty regarding Liability by Damages

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The Gemora (Bava Kamma 3a) asks: Why didn’t the Torah just write v’shilach, which connotes both shein and regel (which the Gemora proceeds to prove), and u’vier would not be necessary?

The Gemora answers: If the Torah would only write v’shilach, we would only have learned that one is liable for one of those damages; either regel because its damage is usual, or shein because it has physical pleasure when damaging (but we would not have learned that there is liability for both types).

The Gemora asks: But they are both equal, so let us derive both types of damages from one verse, for which one of them would be excluded?

The Gemora answers: If shein and regel would be derived from one verse, we might have said that one is liable only if the owner sent the animal out; however, one would not be liable if the animal went out by itself and damaged. The Torah therefore writes u’vier as well.

The Rashba asks on the Gemora’s question: Why would we learn out both damages from one verse based on the fact that we do not know which one of them to exclude? On the contrary! Since we are trying to extract money from the damager, why don’t we apply the principle that the one who is attempting to extract money is the one who is obligated to bring the proof?

A possible answer on this question is that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, we can understand why both damages will be included in one verse since we do not know which one to exclude. Why didn’t the Rashba answer like this?

The Chasam Sofer adds that this is even more problematic, for the Rashba himself (2b) uses this principle to answer a different question. The Gemora had stated: One might think that when the Torah differentiates between a tam (an ox that did not yet gore three times; the owner only pays for half the damage) and a mu’ad (an ox that gored already at least three times; the owner pays the full amount of the damage), it is only when the horn is disconnected from the animal (in a case where the animal took its uprooted horn in its mouth and gored; as the case of Tzidkiyah was of an unattached set of horns). However, when an animal gores with its horns attached to its head, it should always pay full damages. This is why the braisa quotes the additional verse from the Torah.

The Rashba there asked: On the contrary! Let us say that when an animal gores with its horns attached to its head, it should always pay half damages!?

He answered that damages are treated as prohibitions, and the rule is with respect to prohibitions that when in doubt, we rule stringently. Accordingly, when faced with the option of always paying full damages or paying half, the Gemora chooses the option of paying in full.

It would therefore seem that the Rashba is contradicting himself! How do we treat damages? Do we automatically rule stringently because it is like a prohibition, or do we rule leniently, for we are attempting to extract money away from the one who possesses the money, and for that, proof is needed?

The Har Tzvi suggests the following answer: The Levush (C”M 378) writes that not only does the Torah obligate the damager to compensate the person who was damaged, but there also is a prohibition to damage someone else’s property, in the same manner that it is forbidden to steal. If someone does not guard his possessions against inflicting damage on someone else’s property, he has violated a Biblical prohibition.

Accordingly, the Rashba can be explained as follows: The Gemora above was discussing a case where the damager is certainly obligated to pay. The animal inflicted damage with a disconnected horn in its mouth. The Gemora’s only question was with respect to the amount of the compensation. Should he always (whether it’s a tam or a mu’ad) pay full damages, or should he only pay half. In such a case, we would rule stringently, for the owner has indeed transgressed the prohibition of allowing his animal to cause damage. He now has to “fix” his sin by compensating the owner for his loss. This would be similar to a case where one said to his fellow, “I know that I owed you money, but I do not know if I paid.” He would be obligated to pay. However, in our case, where the Gemora is not certain if one should be liable at all for shein or regel; we must rule leniently. For it is quite possible that the Torah did not mandate that there should be any obligation to guard one’s property against causing such a damage. This is why the Rashba asks that if we are uncertain if there is any liability at all, we should rule leniently, and apply the principle of the one who is attempting to extract money is the one who is obligated to bring the proof. Accordingly, there is no contradiction at all.

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An Av and its Toladah

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The Gemora (Bava Kamma 2a) notes: We see regarding Shabbos that there are thirty-nine main categories of melachos (that are forbidden to perform according to Torah law) on Shabbos. This implies that there are sub-categories as well. Regarding Shabbos, we say that the sub-categories are like the main categories. Whether one transgresses a main category or sub-category unwittingly, he must bring a korban chatas. Whether one transgresses a main category or sub-category willfully, he is liable to be stoned. What difference, then, does it make that one is called a main category and one is called a sub-category? The difference is that if one performs two main category prohibitions or two sub-category prohibitions, he is liable twice. However, if he performs a main category prohibition and its sub-category prohibition at the same time, he is only liable for transgressing Shabbos once (and would only bring one korban chatas).

Rashi explains that when one performs an av (main category) together with its toladah (sub-category), he is liable for the av, and not for the toladah. For example, if one planted a tree (av) and watered a plant (a toladah of zore’a), he is liable for the av, and not for the toladah.

The commentators ask: What practical difference does it make if he is liable for the av or the toladah? The bottom line is that he is required to bring one korban chatas!?

Reb Tzvi Pesach Frank suggests the following: The Gemora in Shabbos (71b) rules that if one eats two olive-sized pieces of cheilev (forbidden fats) in one state of unawareness, and he is apprised of the first and he brings a korban. If subsequently, he becomes aware of the second, he is now required to bring another chatas for that one (for the bringing of one korban cannot exempt one from bringing a korban for a violation that he did not know about at the time). Accordingly, if one would perform an av and its toladah together, and he would be apprised of the av, but not the toladah, he would bring a korban for the av. If afterwards he is made aware of the toladah, he would be liable to bring a korban for it, for according to Rashi, one is not liable for a toladah when it is done together with its av.

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Best of Physicians to Gehinom

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The Mishna (Kiddushin 82a) had stated: Abba Guryon of Sidon says in the name of Abba Gurya: A man should not teach his son to be a donkey driver, a camel driver, a wagon driver, a sailor, a shepherd, or a shopkeeper, for their craft is the craft of robbers. Rabbi Yehudah says in his name, Most of the donkey drivers are evil men, and most of the camel drivers are righteous. Most of the sailors are pious. The best of the physicians are destined to Gehinom, and the most righteous of the butchers is the partner of Amalek.

There are several explanations as to the meaning of the Mishna when it states that the best of the physicians are destined to Gehinom.

Rashi understands it to mean that doctors do not fear sicknesses for they eat healthily. They therefore are not humble before Hashem. There are times that they will cause someone to die. They also can refuse to heal the poor if they do not have money to pay for their services.

The Pardes Yosef writes that a doctor must visualize Gehinom opened up before him at all times, for his decisions can lead to someone’s death.

The meaning cannot be that all doctors are destined for Gehinom, for there are many examples of great Torah scholars who were also physicians. Shmuel, Rabbi Chanina, Abba Umna, the Rambam and many more were all doctors. Rather, there are two types of doctors. There are the righteous ones who know that that they can accomplish nothing without Hashem; they are merely Hashem’s agents to heal. There are others, unfortunately, who are not believers. They think that they have the power of healing in their hands. These physicians skip the blessing of “Refa’einu” in Shemoneh Esrei. Accordingly, they have only seventeen brochos in Shemoneh Esrei. This is what the Mishna means: “Tov she’b’rofim” – the numerical value of “tov” is seventeen. Those doctors that have only seventeen brochos in their Shemoneh Esrei are destined for Gehinom.

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Discretion of the Judges - Kiddushin 74

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The braisa continues: A judge is believed to say the following: “I found in favor of this person, and I found against this person.” This is only true if the litigants are still standing before him (for then, he is still responsible to remember how he ruled); otherwise, he is not believed.

The Gemora asks: But let us check to see who is holding the document in which it is written that the verdict was in his favor?


The Gemora answers: The braisa is referring to a case where the document was ripped up.

The Gemora asks: Why don’t we just rejudge the case?

The Gemora answers: The braisa is referring to a case where it was decided based upon “the choice of the judges” (and we therefore are concerned that he will not reach the same verdict the second time).

The Gemora in Kesuvos (85a) cites the following dispute: If a person sold the same field to two people on the same day, Rav says they should split the field, and Shmuel says the law is the choice of the judges (they should decide who to give it to).

The Rishonim disagree as to the method that the judges should use to give one of the claimants the entire field. Rashi explains that “the choice of the judges” means that the judges choose to whom the property in question should be given by attempting to determine, based on logical considerations, to whom the seller would have preferred to give the field.

Tosfos argues with Rashi and maintains that “the choice of the judges” means that the judges give the field to whomever they please. They need not base their decision on whom they think the seller preferred, but rather, they base their decision on whatever considerations they deem appropriate, such as which of the two claimants needs the property more, or which one is a Torah scholar.

The Gemora maintains, at this point, that in general, it is preferable to resolve the case with “the choice of the judges” rather than to split the property, because by using this method, there is at least a possibility that the correct person will receive the entire field. Therefore, according to Shmuel, the judges give the entire field to one of the two claimants.

Kollel Iyun HaDaf discusses why Rav would disagree and hold that the property is divided because of the witnesses’ signatures.

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A Righteous Person Born on that Day

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The Gemora (Kiddushin 72) relates: When Rebbe was about to die, he said, “There is a city Homanya in Bavel, and all of its residents are Ammonites. There is a city Misgarya in Bavel, and all of its residents are mamzeirim. There is a city Birka in Bavel, and there are two brothers who swap their wives with each other. There is a city Birsa Disatya in Bavel, and today its residents have strayed from Hashem. One Shabbos there was an abundance of fish in the pond and they all came to catch the fish. Rabbi Achai the son of Rabbi Yoshiyah excommunicated them, and then they became apostates. There is a city Akra D’Agma in Bavel, and a man named Adda bar Ahavah resides there, who today is sitting in the lap of Avraham (for he was being circumcised that day). Rav Yehudah was born today in Bavel.”

For master taught: When Rabbi Akiva died, Rebbe was born. When Rebbe died, Rav Yehudah was born. When Rav Yehudah died, Rava was born. When Rava died, Rav Ashi was born. This teaches you that a righteous person does not leave this world until a righteous person like him is created. This is as it says: And the sun rises and the sun sets. Before the sun of Eli was extinguished, the sun of Shmuel the Ramasi rose.

The commentators ask: Why is it necessary to be anguished when a righteous person departs from this world? Why, behold, another righteous person was born and will be capable of taking his place?

The Chidah offers several answers:

1) It is not definite that the new righteous person will find himself in the same location as the previous one; it is therefore incumbent on the residents of the city to mourn their loss.
2) Although there will be an eventual replacement for the deceased tzaddik, but it will take some time until he reaches the level of his predecessor. It is for this period of time, when there will be a void of a righteous person, that people are required to mourn for.

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Money Purifies a Mamzer

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Rabbi Yehoshua ben Levi said (Kiddushin 71) : Money will purify mamzeirim (if they are accepted into Klal Yisroel through their wealth, Hashem will not make their disqualifications known in the Messianic era).

The question is obvious: How can money purify mamzeirim? Is money the answer for all things?

The Ri”f, when he cites Rabbi Tarfon in the Mishna (Rabbi Tarfon said: There is a manner in which mamzeirim can be purified. How is this? If a mamzer marries a slavewoman, the child is classified as a slave (and not a mamzer). If the child is freed, he is regarded as a free man, and is permitted to marry into the congregation.), writes: and this is what Rabbi Yehoshua ben Levi said that money will purify mamzeirim.

The Ra”n explains the Ri”f as follows: He means that a mamzer can purify himself with money, by purchasing a slavewoman and marrying her. However, the Ra”n concludes that it does not appear that this is the simple explanation in the Gemora.

Reb Heshel from Cracow explained our Gemora based upon a Gemora in Bava Metzia (83b), which states that a person who acts with chutzpah is a sign that he is a mamzer. However, it is also known that rich people can also act with chutzpah. It emerges as follows: If one is seen acting with chutzpah, there is a strong possibility that he is a mamzer. However, money can purify a mamzer. For if he is wealthy, we will say that it is on account of his wealth that he is acting with chutzpah, and not because he is a mamzer.

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Converts

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Converts are like Sapachas

Rabbi Chelbo said (Kiddushin 70) : Converts are as harmful to the Jewish people as sapachas (a type of tzara’as).

Rashi explains that this is because converts are not so meticulous in the performance of mitzvos, and those Jews who observe this behavior will become influenced by them.

Tosfos writes that each and every Jew is a guarantor for his fellow, and if converts do not perform mitzvos meticulously, they will be punished on account of them.

Tosfos rejects this explanation, for he proves that when the Jewish people accepted to be guarantors for each other, they did not accept to be guarantors for the converts as well.

Tosfos brings another explanation: They are harmful to the Jews, for it is impossible that someone will not bother them, and the punishment for this will be severe, for the Torah in twenty-four places warn the Jewish people not to bother the converts.

Tosfos brings another explanation: It is because of the converts that we are still in exile, for the Gemora says that Klal Yisroel are scattered all over the world much more so than other nations in order for there to be additional converts.

Rabbeinu Avraham the convert explains differently: It is because the converts are meticulous in their performance of the mitzvos. This shows the shortcomings of ordinary Jews.

TEACHING TORAH TO A GENTILE PLANNING ON CONVERTING
The Rambam (Issurei Bi’ah 14:2) writes that we inform the prospective convert the essentials of the faith, which is the unity of God and the prohibition of idolatry, and they go on at great length about these matters.

The Machaneh Chaim (Y”D II, 45) asks: Why isn’t this forbidden on account of a gentile studying Torah? The Gemora in Sanhedrin (59a) states explicitly that a non-Jew who studies Torah is liable for death.

He answers by citing a Medrash Tanchuma in Parshas Vayelech: The numerical value of Torah is six hundred and eleven. The remaining two mitzvos which complete the six hundred and thirteen are the two mitzvos which were given by Hashem directly at Har Sinai. This is the explanation of the verse: The Torah that Moshe commanded us to observe. Moshe instructed us regarding six hundred and eleven mitzvos; the other two were from Hashem.

The prohibition against teaching an idolater Torah is only applicable to the six hundred and eleven mitzvos that Moshe taught us. The other two, I am Hashem your God and the Unity of God; one would be permitted to teach to them. This is where the Rambam derived his ruling from; we can go on with great length discussing the unity of God and the prohibition of idolatry.

The Maharsha (Shabbos 31a) writes that it is permitted to teach Torah to an idolater who wishes to convert. He proves this from the incident with Hillel and the convert.

Reb Akiva Eiger (41) disagrees and maintains that it is forbidden to teach Torah to an idolater even if he is planning on converting. Hillel taught the convert Torah only after he converted.

NOT BELIEVING A SCHOLAR
At that time, the plaintiff spoke up and said to Rav Yehudah, “Is it me that you call a slave, when, in fact, I descend from the Chasmonai family!” Rav Yehudah responded, “Shmuel has said that whoever says that he is from the Chashmonai family is in truth a slave (for Herod had killed them all out).

Rav Nachman said to Rav Yehudah, “Do you not hold of that which Rabbi Abba said in the name of Rav Huna, who said in the name of Rav: Wherever a scholar issues a halachic ruling (that was previously unknown) and such a point comes up for a practical decision, he is obeyed if he made the statement before the incident occurred, but if the statement was made only after the incident occurred, he is not obeyed (and therefore, we do not have to accept this ruling which you stated in the name of Shmuel)!?

Rav Yehudah replied, “But there is Rav Masnah who holds like me as well?” Rav Masnah was not seen in Nehardea for thirteen years, but just that day, he came before them. Rav Yehudah asked him, “Does the master remember that which Shmuel said while he had one foot on the bank of the river and the other foot was on a boat?” Rav Masnah replied, “Shmuel said, ‘whoever says that he is from the Chashmonai family is in truth a slave, for no one remained from their family except for one maiden who went up on the roof and called out with a loud voice, “whoever says that he is from the Chashmonai family is in truth a slave.” She then threw herself off the roof and died.’”

Rav Nachman declared that the man was indeed a slave. That day, they ripped up many kesuvos in Nehardea (all the married woman from that man’s family lost their kesuvos).

From Rashi’s commentary (Yevamos 77a), it would seem that the reason we do not accept the scholar’s statement is because we are concerned that he might deliberately falsify the halachah.

The Ritva forcefully disputes this. Heaven forbid that a Torah scholar would deliberately falsify the ruling. Rather, the reason why we don’t believe him in these situations is because he might make a mistake; in the excitement of the moment, it would appear to him that he remembers the tradition in one manner, when in fact, it is really the opposite.

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Waiter in a Non-Jewish Restaurant

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(From Meoros Daf HaYomi)

Our Gemara (Kiddushin 69) quotes the words of Nechemiya ben Chachalya, who is referred to in Ezra (2:63) as “Hatirshasa.” His job was to attend to King Nebuchadnezzar and to serve him his wine. Based on the Talmud Yerushalmi, Rashi (s.v. Hatirshasa) explains that part of Nechemiya’s task was to taste the wine before serving it as a security measure to prove that he was not trying to poison the king. As such, chachamim granted Nechemiya a special dispensation [heter] to drink [shasa] wine made by non-Jews, and therefore was given the name “Hatirshasa.”

Source of the prohibition against non-Jewish wine: Since Nebuchadnezzar was not an idol-worshipper, his wine was not considered libation wine, which is forbidden by the Torah (Avoda Zara 29b). Still, the Sages had to grant Nechemiya explicit permission to drink his wine because when Daniel was exiled to the Babylonian king’s palace, he pledged not to defile himself by drinking the king’s wine, even if it was not used for libation offerings (Daniel 1:8). This decree was enacted once again for Klal Yisrael by the talmidim of Beis Shammai and Beis Hillel (Shabbos 17b), who prohibited drinking non-Jews’ wine, even in a Jewish home (see Beis Yosef, Y.D. 123, Os 1; see also Encyclopedia Talmudis, “Yayin shel goyim” p. 335).

A man who made his living as a waiter asked the Radvaz (Part IV §22) whether he would be allowed to work in a non-Jewish restaurant and serve wine there. The Radvaz replied that although Nechemiya ben Chachalaya served wine to Nebuchadnezzar, this should not be used as an example, for he had no alternative. Had he tried to disobey the king’s standing orders, he would have placed his life in danger. But a Jew may not engage in this profession of his own volition, and he should be rebuked and, if possible, prevented from doing so. Furthermore, said the Radvaz, a Jew should not set foot at non-Jewish parties to prevent him from learning their ways.

The Kol Eliyahu (Responsa II §27) adds that if a waiter is involved in warming or preparing the food, he is liable to come to taste it and to transgress a Torah prohibition.

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Eretz Yisroel; Highest Place

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Does High and Low Apply to Spherical Objects?

(From Meoros Daf HaYomi)

In our sugya (Kiddushin 69) the Gemara cites a verse in Yirmyahu (23:7) “…Who brought Bnei Yisrael up from the land of Egypt” and a verse in Devarim (17:8) “…then you shall arise and go up unto the place which the Lord thy G-d shall choose” to demonstrate that Eretz Yisrael is higher than any other land, and that the Beis HaMikdash is the highest point in Eretz Yisrael. The wording of the Gemara seems to indicate that Eretz Yisrael is physically higher. In fact, the Yam Shel Shlomo (on our sugya, Kiddushin Chap. 4, 1) goes so far as to say that if someone standing in Eretz Yisrael says, “I vow to go up to Chutz La’aretz,” the vow is considered to be made in vain and is invalid. Leaving Yerushalayim or Eretz Yisrael is always referred to as “going down.”

Many commentators maintain that our Gemara should not be interpreted literally. The Chasam Sofer (Responsa, Part II, Y.D. §234) stresses this point, writing, “…in fact, those who are somewhat familiar with the world map can see otherwise…actually the world is round, and high and low do not apply to spherical objects; from any given point one sees the skies high overhead and low on the horizon, forming a dome. Someone who approaches from a point on the horizon appears as if he emerged from a deep pit, and high and low do not apply.”

Furthermore the Maharal of Prague (in his book on Talmudic Aggados and in Tiferes Yosef, Chagiga 3b, s.v. Eizehu) writes that the Gemara is referring to the spiritual loftiness of Eretz Yisrael, and not to its physical height.

It is interesting to note that the Chasam Sofer (ibid) writes that Eretz Yisrael is said to be “higher than all other lands” because Creation began from the even shesiya [foundation stone] located on Har HaBayis (see Rashi, Sanhedrin 26b, s.v. veshesiya). Thus all eyes are raised to Eretz Yisrael and Har HaBayis because mankind lifts its gaze to the spot where the ground beneath its feet was first created.

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Conceived First or Born first; Who is the Firstborn?

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The Gemora (Kiddushin 68) states: We have learned that kiddushin does take effect with women that are forbidden merely by a negative commandment. It is written [Devarim 21:15]: If a man has two wives, one beloved, and the other loathed. The Gemora asks: Is there a beloved or loathed wife before Hashem? Rather, the Torah is referring to their marriage. Beloved means that he is married to a permitted woman and loathed means that he is married to a prohibited woman and nevertheless, the Torah states regarding them “If a man has two wives.” We derive from here that if a man marries a woman that is forbidden to him merely by a negative commandment, the Torah recognizes and validates the marriage.

The verse mentioned above continues and states that if the loathed wife becomes the mother of the man’s firstborn son, the father is forbidden to deny that son the right to the double portion and give it instead to the son from the beloved wife.

How can the Torah refer to one of the wives as “a loathed one”? Why would it enter our mind that the father can deprive the son of the loathed one if he in fact is the firstborn? It would seem from the order of the words in the verse that the son of the beloved woman was actually born first.

The following explanation is written in the name of the Gr”a. The Torah is referring to a case where a man divorced a woman and that is why she is called “the loathed one.” He married another woman soon afterwards. His present wife gave birth to a son seven months after the marriage. The divorced woman gave birth to a son after nine months. One might think that the double portion designated for the firstborn should go to the son of the beloved woman because he was born first; the Torah teaches us that this is not the case. Since the son of the loathed woman was conceived first, by rights, he is deserving of the double portion. This is what the Torah means when it says “for he is the first-fruits of his strength.”

There are those (the Netziv) who question if the Gr”a ever said this. One of the questions that they ask is from Rashi in Bereishis (25:26), who writes from a Medrash: The interpretation is in accordance to its simple meaning: Yaakov held onto Esav’s heel lawfully, to restrain him. Yaakov was formed from the first drop and Esav from the second. We can learn from a tube that has a narrow opening. If one would insert two stones into it, one after the other, the one that entered first will emerge last, and the one that entered last will emerge first. The result is that Esav, who was formed last, emerged first, and Yaakov, who was formed first emerged last, and Yaakov came to restrain him so that he should be the first to be born as he was the first to be formed, and he would open her womb and take the birthright by law.

According to the Gr”a, this leaves us with a question: If Yaakov was the true firstborn, why was it necessary for him to purchase the birthright from Esav?

The Kli Chemda differentiates between the birthright for inheritance, which is related to the time of conception (since it is based on a relationship with the father) and between the rights to serve in the Beis Hamikdosh, which is dependent on the time of birth. This is what Yaakov wished to purchase from Esav.

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Kiddushin with a Slavewoman - Kiddushin 68

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Rav Nachman bar Yitzchak explains a braisa (Gittin 40a) to be dealing with the following case: The master told her, “Become free with this deed (of betrothal) and be betrothed to me with this.” [In this case, she was obviously not freed from beforehand.] Rabbi Meir holds that this expression (be betrothed) includes emancipation (for she cannot become betrothed to him unless he frees her first), and the Chachamim maintain that it does not include emancipation.

Tosfos in Yevamos (47b) asks: How can the kiddushin be effective if the slave did not immerse herself in a mikvah beforehand? The halachah is that after a slave becomes free, he is immersed in a mikvah to become a complete Jew. If so, this woman is still a slave, and kiddushin is not effective with a slave!?

Tosfos answers that we are dealing with a case where she immersed herself prior to the kiddushin.

The Nimukei Yosef states that the requirement for this immersion is only Rabbinical, and therefore, the kiddushin will be Biblically effective even if she did not immerse beforehand.

Reb Chaim Brisker asks that both of these answers will not resolve the issue according to the Rambam. He proves that the Rambam holds that this immersion is a Biblical requirement. This is because the Rambam maintains that this immersion is a completion of her conversion process. If so, asks Reb Chaim, it is obviously a Biblical requirement and it also cannot be done before she becomes free, for it is part of her conversion process and that can only be accomplished after she becomes free! How would the Rambam understand our Gemora? How can the kiddushin be effective with a slavewoman?

He answers as follows: A freed slave requires immersion in order to accept upon himself those halachos that he was lacking while he was still a slave, for at that time, he was not a complete Jew. This, however, has no bearing on the fact that kiddushin is not effective with a slave or a slavewoman. That, our Gemora in Kiddushin (68a) explains, is because a slave does not have any lineage (yuchasin). A slave, in this respect, is inferior to an idolater, for an idolater does have lineage. As soon as the slave is freed and he is no longer a slave, he does have lineage, even though his conversion was not completed, for even an idolater has lineage. It is for this reason that kiddushin can be effective in this case even though she did not immerse in the mikvah yet. For in order for the kiddushin to be effective, it is not necessary for her to have a completed conversion; as long as she is not a slave is sufficient, and since at the moment she becomes free, she is no longer a slave, kiddushin may take effect.

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Follow the Father - Kiddushin 67

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The braisa states: How do we know that if a male from any nation (other than the seven nations of Canaan, where by the other nations, the prohibition of “you shall not spare the life of any soul” does not apply) cohabited with a Canaanite woman (where the prohibition of “you shall not spare the life of any soul” does apply) and had a child; one is permitted to purchase that child as a slave (for he follows the father’s nationality and we are not obligated to kill him)? The braisa answers: It is written [Vayikra 25:44]: And also from among the children of the residents who live with you, from among them you may purchase slaves. One might have thought that even if a Canaanite male cohabited with a woman from any of the other nations and had a child; one would be permitted to purchase that child as a slave. It is therefore written [ibid.]: ….whom they begot in your land. The Torah teaches us that one may purchase slaves only from those who were born in your land to Canaanite mothers from non-Canaanite fathers, but not from among those children who were born abroad to non-Canaanite mothers from Canaanite fathers, and who later returned to reside in your land with their fathers.

The Minchas Chinuch writes that the halachah of following the male by the other nations is only if the child was born from an idolater woman; however, if she converted while she was pregnant, the child is legitimate and he does not follow the father, provided that the mother is permitted to join the congregation. He adds that even according to those who hold that the fetus is not regarded as the “thigh of the mother,” nevertheless, the lineage of idolaters is determined only after their birth, but as a fetus, they are not accorded the status of the father. And therefore, in this case, the child was born as a Jew, and therefore he follows the mother.

This halachah is applicable even in a case which causes us to rule stringently. If the father would be from a nationality which is permitted to join the congregation and the mother was an Egyptian woman, and she converted while she was pregnant, the child will be accorded the status of its mother and would therefore be ruled to be a second-generation Egyptian.

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Wearing the Tzitz - Kiddushin 66

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The braisa states: King Yannai once went to Kuchlis, which is located in the desert, and captured sixty of its villages. When he came back, he was very happy, and called together all of the Torah scholars. He said: Our fathers ate salty vegetables when they were building the Beis Hamikdash, we should also eat these now to remember our fathers. He then had salty vegetables placed on tables of gold, and the people (at the gathering) ate. There was a scorning, bad hearted, godless person named Elozar ben Po’irah present. He said to Yannai: King Yannai, the heart of the Perushim (Torah faithful) is set against you! King Yannai replied: What should I do about this (to see if you are correct)? Elozar replied: Put the tzitz (an adornment only allowed to be worn by the “Kohen Gadol” -- “High Priest”) between you eyes. He did this. There was an elder named Yehudah ben Gedidyah present. He said to Yannai: King Yannai, it is enough that you have the crown of the throne! Leave the crown of Kehunah for the sons of Aharon! This is because they said regarding him that his mother had been captured by idolaters in Modi’in, but they searched to see if it was true and it (proof) was not found. [According to Rashi, his father was indeed a Kohen, but according to this rumor he should not have married his wife, as she was unfit to marry a Kohen. If the rumor was true (see below for the exact case), this would mean Yannai was a chalal, and was not fit to serve as a Kohen.]

Yannai angrily removed the scholars from the meal. Elozar ben Po’irah again spoke to King Yannai. He said: King Yannai, it is understandable that a regular Jew should swallow insults. However, you are a king and the Kohen Gadol, is it fitting that you should do the same? King Yannai asked: What should I do? Elozar replied: If you listen to my advice, you will kill them all. King Yannai asked: What will become of the Torah? Elozar replied: The Torah will be wrapped and placed in a corner, and whoever wants will go and study it.

Rav Nachman bar Yitzchak says: Immediately, a wind of heretical behavior entered Yannai’s mind. This is evident from the fact that he did not reply, “This maybe true about the written Torah, but what about the Oral Torah (which was not yet written down at all)?” Immediately, the spark of evil was started by Elozar ben Po’irah, and Yannai killed all the scholars. The world was lacking Torah knowledge until Shimon ben Shetach (Yannai’s wife’s brother; she hid him) came and returned the Torah back to its original state.

Rashi asks: How can he put the tzitz on at this time when he is not engaged in performing the Temple service?

He answers: The Kohanim were permitted to derive benefit from the Holy vestments, for the Torah was not given to the ministering angels, and they were not expected to remove these garments at the moment that they concluded the service.

Tosfos asks: On the contrary! They were obligated to remove them as soon as they had a chance!

Furthermore, asks the Rashba, the permission was only inside of the Beis HaMikdash, not outside!?

The Beis Halevi explains Rashi: Since they were not expected to remove these garments at the moment that they concluded the service, this proves that there was no prohibition whatsoever against deriving benefit from the Holy vestments, and they were permitted l’chatchilah to wear these garments even when they were not performing the Temple service, and even when they were not inside the Beis HaMikdash.

Rabbeinu Tam answers based on a Scriptural verse that the tzitz was different than the other garments, and they were allowed to wear it even when they were not performing the Temple service.

The Ritva writes that Yannai was not correct by wearing the tzitz at this time.

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Shavyah A'nafshei - Kiddushin 65

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The Mishna stated: If a man said to a woman, “I betrothed you,” and she said, “You did not betroth me,” he is forbidden to marry her relatives, but she is permitted to marry his relatives.

Rashi explains the man is forbidden to marry her relatives because of the principle of “shavya anafshei chaticha d’issura” i.e. she has made for herself a forbidden piece; she is compelled to abide by her declaration.

There are several explanations to this: The Ketzos Hachoshen explains that this is based upon “believability.” A person is believed with regards to himself, when it is disadvantageous to him. He cites a Rashi on our Daf that this is comparable to the halachah of “the admission of the litigant is like the testimony of a hundred witnesses.”

The Terumas Hakeri says that this is not because he is believed, but rather, it is based upon the following logic: Since he knows that something is forbidden to him, it is incumbent upon him to distance himself from this. Accordingly, Beis Din is obligated to ensure that he does not violate any prohibition that according to his words he knows to be forbidden, for Beis Din acts with him in the same manner that he acts with himself.

The Shaar Hamelech quotes the Mahari Assad that the reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object.

The Maharit writes that this cannot be the reason, for if so, he should be able to annul this prohibition in the same manner that one can have his oath annulled!

The Noda Beyehudah writes that “shavya a’nafshei” cannot function like an oath because it is obvious that if one says on a Monday that “today is Shabbos,” it will not be forbidden for him to perform any labor. This is because there is no believability in this case. But, if it would be like an oath, it should be forbidden for him like any other oath!

The Chasam Sofer writes that there would be the following difference in halachah based upon the different reasons: If someone would tell Beis Din something that he knows to be false. If “shavya a’nafshei” is because he is believed in respect to himself, here, where he knows it to be false, he would be able to “transgress” his words in private. However, if it is based upon an oath, it will still be forbidden to him.

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Born into a Mixture - Kiddushin 64

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The Mishna states: If a man has two sets of daughters by two wives, and he declares, “I have given my elder daughter in betrothal, but I do not know whether it was the eldest of the elder group (the first marriage) or the eldest of the younger group (the second marriage), or the youngest of the elder group, who is older than the eldest of the younger group,” they are all forbidden, except for the youngest of the younger group. This is Rabbi Meir’s opinion.

The Makneh asks: Why are they all forbidden? Let us apply the principle of “following the majority”! We should say that each one of these women came from the majority of women that are permitted!?

He answers based upon the following opinion of the Mordechai: We say that something becomes nullified in a majority only when it was once recognized, and afterwards it became intermingled with others. However, something which was created in a state of mixture, it is not possible for it to be nullified by the majority. In our case, we never knew which daughter he was referring to and therefore they will all be forbidden.

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Witness to Disqualify from Kehunah - Kiddushin 63

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The Mishna stated: If a man said, “My daughter was in captivity and I ransomed her,” whether she is now a minor or whether she is an adult, he is not believed (and she will not be disqualified from the Kehunah).

The Tosfos Rid holds that in order to testify that a woman is a divorcee (and therefore she is disqualified for Kehunah), two witnesses are required, for there cannot be testimony regarding a davar she’b’ervah with less than two witnesses. The Rambam, however, maintains that one witness is believed to testify that a woman is a divorcee, or a chalalah, and based upon this testimony, she will be disqualified from the Kehunah.

The Shaar Hamelech asks on the Rambam from our Mishna. Why isn’t the father believed that his daughter was taken into captivity? Is the father any worse that an ordinary witness?

He answers that our Mishna is discussing a case where the daughter asserts that she was taken as a captive. Even in cases where we believe one witness, that is only if there isn’t any contradicting witness.

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Perhaps they Repented - Kiddushin 63

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The Gemora inquires: Would we execute someone by stoning (if she has relations with a man) based upon the father’s testimony (that he married her off)?

Rav said: We would not. We only believe the father with respect to a prohibition, but not for execution. Rav Assi said: We would. We believe the father for everything.

Rav Assi admits that if she would say, “I got married,” we would not stone anyone.

Rav Assi notes the apparent contradiction in his rulings: If in a case (the father said that he married her off) where we believe a man that he is able to marry her (if he comes saying that he was the one who married her), and we rule that we would execute someone by stoning (for having relations with this woman). Then, in a case (where she was the one who said that she got married) where we do not believe a man to marry her (if he comes saying that he was the one who married her), shouldn’t the halachah certainly be that we would execute someone by stoning (for having relations with this woman)!?

Rav Assi answers: There is a clear distinction. The Torah believed the father, but not her. [The only reason that she is forbidden to every man is because of the principle of “shavya anafshei chaticha d’issura” i.e. she has made for herself a forbidden piece; she is compelled to abide by her declaration.]

The Maharik (shoresh 33) writes concerning a case where one witness testifies that a certain shochet was slaughtering improperly and the shochet himself contradicts the witness; since the witness is not believed, he himself is permitted to eat all future meat slaughtered by this shochet. This is not comparable to a case where a witness testifies regarding wine that is forbidden on account of it being yayin nesech because here there is a possibility that the shochet will repent and slaughter properly.

The Pri Chadash (Y.D. 1, 14) asks: Why don’t we apply the principle of “shavya a’nafshei chaticha d’issura,” one who states that something is forbidden, even if he is not believed in respect to everyone else, renders the object forbidden to him (as is evident from the Gemora in Kesuvos 9a)? All the meat slaughtered by this shochet should be forbidden to this witness!?

The Pri Megadim (Sifsei Daas, ibid, 41) answers that the Maharik is referring to a case where the witness retracted and said that he had testified falsely. In such cases, the principle of “shavya a’nafshei chaticha d’issura” does not apply.

Rav Elyashiv answers: The reason why one can render the object forbidden with the principle of “shavya a’nafshei” is not because he is believed in respect to himself; rather, it is because it is regarded as an oath. The witness is taking a vow forbidding himself from this particular object. Accordingly, he explains that the witness who testified regarding the shochet it making a vow that he will not eat the meat from this animal, however, he will not be prohibited, on account of his vow, against eating from any other animal that this shochet slaughters.

The Mishna Lemelech (Hilchos Shechitah 1:26) challenges the ruling of the Maharik from a Gemora (Kesuvos 44a) which discusses a case where two deeds were given over regarding the same field. The ruling is that the second deed cancels the first one. Rafram explains that the recipient has admitted to the other that the first deed is invalid. Accordingly, the Gemora continues that these witnesses must be regarded as legally unfit for further evidence concerning this recipient since he is stating that they put their signatures to an invalid document. We do not say that they should be valid witnesses later, for perhaps they repented. What is the difference between the two cases?

The Shaar Hamishpat (92:7) answers: The Maharik rules that all meat slaughtered by this shochet will be permitted to eat by the witness because there is a double doubt; perhaps, he has slaughtered the animal properly and perhaps he repented. Just because he slaughtered improperly (according to the witness’ testimony) one time, it is not logical that we should prohibit his slaughtered meat forever. However, in respect to testimony, once the recipient has stated that these witnesses testified falsely, they will be disqualified to offer testimony for him forever. Even according to those that hold that we can apply the principle of a double doubt in regards to monetary judgments, here, it will not apply. What can be said? Perhaps the witnesses will testify truthfully and perhaps they repented. This logic is not applicable by testimony, for testimony functions as a proof, and if we are uncertain if the witnesses repented or not, they cannot be accepted as witnesses because we have no proof that they are testifying truthfully. Therefore, they will not be believed for all future testimonies regarding this recipient.

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Stealing from an Idolater

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The Gemora (Kiddushin 63) proves that Rabbi Meir holds a man may sell something that is not yet in existence from the following braisa: If a man said to a woman, “You shall be betrothed to me after I convert,” or “After you shall convert,” or “After I shall have been set free from slavery,” or “After you have been set free,” or “After your husband dies,” or “After your sister (my wife) dies,” or “After your yavam has submitted to chalitzah from you,” she, Rabbi Meir ruled, is legally betrothed! [The kiddushin is effective when the respective conditions are fulfilled, though at the time of the betrothal they were still unfulfilled; this indicates that an act that involves something that is not yet in existence is nevertheless, valid.]

The Acharonim ask: The Gemora in Bava Kamma (70b) explains that the acquisition using money (kinyan kesef) functions in the following way: When the seller receives the money, he becomes obligated to give the item being exchanged with the money. Now according to those that hold that it is permitted to steal from a gentile, how can the idolater betroth this woman with money after he converts? The woman is not obligated to return the money, and if she will lose the money, she would not be required to compensate him! If so, where is the kinyan?

Reb Shimon Shkop answers based upon the opinion of the Yereim, who says that even according to those that hold that it is permitted to steal from a gentile, one cannot fulfill his mitzvah with an esrog that he stole from a gentile. This is because it is not regarded as “his,” for the Torah did not render their money ownerless that anyone has the right to possess their money. “Stealing from an idolater is permitted” means that there is no prohibition against keeping that which was stolen from them. However, since it does not belong to the Jew, he still has an obligation to return it to its rightful owner, and he would be liable to compensate the gentile if he would lose it. Accordingly, the kinyan of money would still apply to an idolater.

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Kiddushin 62 - Two Perutos

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The Mishna states: One cannot take off terumah from what is detached from the ground in order to exempt things still attached to the ground. If he does, it is invalid.

Rav Assi asked Rabbi Yochanan: If someone says that the fruit of this row that is detached should be terumah for the fruit of this row that is still attached or visa versa, but he adds that this should take effect when the fruit becomes detached, what is the law? [Perhaps the attached fruit should be regarded as something that has not yet come into the world (for it is not yet subject to the halachos of terumah)?]

Rabbi Yochanan answered: Anything that is in his hands to do is not considered as if it is lacking an action (and it is therefore valid). [If one has the ability to change its status, the transaction can be valid, even though it presently is still not in the world.]

The Gemora asks a question from a statement of Rabbi Oshaya. Rabbi Oshaya says: If someone gives a perutah to his wife and says that this is her kiddushin for after he divorces her, it is invalid. However, according to Rabbi Yochanan this should be valid!?

The Gemora answers: Although he can indeed divorce her, he cannot make her accept kiddushin afterwards (this is not “in his hands”).

We should therefore be able to answer Rabbi Oshaya’s question. He asked: If someone gives two perutos to a woman, and says, “With the first one, I am betrothing you today, and with the second one, I am betrothing you after I divorce you,” what is the law? According to the above statement (he cannot make her accept kiddushin), the kiddushin should be invalid!?

The Gemora answers: Being that she is already accepting kiddushin from him now, it is possible that the kiddushin after future divorce is also valid.

What would be the halacha if one purchased a field with one perutah and stipulated that he is buying it back after he gives it back to the seller?

The Rashba proves from out Gemora that it will be ineffective because the Gemora needs to say a case where there were two perutos.

The Chasam Sofer makes a distinction: Our Gemora needs to discuss a case with two perutos, for kiddushin cannot take effect without a perutah. However, regarding a field, there are other ways to acquire a field, and it would not be necessary to have two perutos.

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Teaching Torah to an Idolater who Plans on Converting - Kiddushin 62

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The Rambam (Issurei Bi’ah 14:2) writes that we inform the prospective convert the essentials of the faith, which is the unity of God and the prohibition of idolatry, and they go on at great length about these matters.

The Machaneh Chaim (Y”D II, 45) asks: Why isn’t this forbidden on account of a gentile studying Torah? The Gemora in Sanhedrin (59a) states explicitly that a non-Jew who studies Torah is liable for death.

He answers by citing a Medrash Tanchuma in Parshas Vayelech: The numerical value of Torah is six hundred and eleven. The remaining two mitzvos which complete the six hundred and thirteen are the two mitzvos which were given by Hashem directly at Har Sinai. This is the explanation of the verse: The Torah that Moshe commanded us to observe. Moshe instructed us regarding six hundred and eleven mitzvos; the other two were from Hashem.

The prohibition against teaching an idolater Torah is only applicable to the six hundred and eleven mitzvos that Moshe taught us. The other two, I am Hashem your God and the Unity of God; one would be permitted to teach to them. This is where the Rambam derived his ruling from; we can go on with great length discussing the unity of God and the prohibition of idolatry.

The Maharsha (Shabbos 31a) writes that it is permitted to teach Torah to an idolater who wishes to convert. He proves this from the incident with Hillel and the convert.

Reb Akiva Eiger (41) disagrees and maintains that it is forbidden to teach Torah to an idolater even if he is planning on converting. Hillel taught the convert Torah only after he converted.

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Concern for an Unfulfilled Condition

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The braisa (Kiddushin 60) had stated: If someone says, “This is your get on condition that you give me two hundred zuz,” even if the get is torn or lost, she is divorced. She should not marry someone else until she gives him the money.

Rashi explains that we are concerned that she will remarry, and if she doesn’t give the money, it will emerge that she was never divorced, and her second marriage would be an adulterous one!

The Ran writes that we can derive from this halachah to any case where a man divorces his wife with a condition; she may not remarry before the condition is met, for otherwise, her second marriage would be an adulterous one!

The Ran challenges this principle from a Gemora in Gittin (83a): Rabbi Akiva said: What happens if after this Get (if one divorces his wife and stipulates that she can marry anyone except for one certain man), she marries a man and has children from him, and then subsequently he divorces her or dies? If she now goes and marries the man that her first husband forbade her to marry, this would make her first Get invalid and the children from her second marriage are rendered mamzeirim! The Gemora asks: According to this question all conditions made in gittin should not be valid, as she could always marry someone first, have children, and then not fulfill the condition! This is the question on Rabbi Akiva’s question.

It would seem from this Gemora that we are not concerned by an ordinary condition that it will not end up being fulfilled!?

The Ran differentiates between conditions that require an action, and those that don’t. In our case, the woman must give the two hundred zuz to the man. Here we are concerned that due to an accident, she will not give him the money. However, in the case in Gittin, we are not concerned that she will willingly violate the condition.

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Food for Thought - Kiddushin 59

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*** The Mishna had stated: And similarly, if a man says to a woman, “Become betrothed to me after thirty days,” and someone else betroths her within thirty days, she is betrothed to the second person.

The Ramban writes that the first kiddushin was not totally voided, and therefore, if within the thirty days, the second man dies or divorces her, the first kiddushin will be valid. Proof to this is from the language of the Mishna when it states that she is mekudeshes to the second one, and it does not say that she is not mekudeshes to the first one.

The Rashba disagrees and holds that the action of the second marriage negates the verbal arrangement of the first one. He adds that the language of the Mishna does not prove otherwise, for once we have established that the second marriage is valid; it is obvious that the first one is voided.

*** Ravin Chasida went to betroth a woman for his son, but instead ended up marrying her himself.

The Gemora asks: Doesn’t the braisa say that in such a case what is done is done, but it is a deceptive act?

The Gemora answers: In the case of Ravin Chasida, the girl was not going to be given to his son in any event (the family did not agree to it).

The Gemora asks: He still should have first notified his son that this was the situation before going ahead and marrying her himself!?

The Gemora answers: He was worried that in the interim, someone else would betroth her.

The Ritva asks: Why was he concerned? Doesn’t the Gemora (Moed Katan 18b) say that every day a Heavenly voice pronounces: “The daughter of this individual is designated for that man”?

He answers that this was Ravin Chasida’s second marriage, for he already had a son, and the Heavenly voice only makes this proclamation by a first marriage.

Furthermore, he answers that perhaps someone will marry her as a result of their prayer. The Gemora in Moed Katan even states that another man might desperately want a certain woman as a wife and he cannot bear the fact that she will be married to another man; subsequently he will pray that she dies.

*** The Gemora asks: What is the law regarding someone who interferes with a poor person who is trying to get a loaf? Rabbi Abba answered: He is called an evildoer.

Rashi writes that the poor man saw a loaf that was abandoned by its owner, and he wanted to acquire it for himself. If another person snatches it away from him, he is a wicked man.

Tosfos writes that there is no ethical breach to do this when the item is ownerless, for if the other person will not acquire the loaf, he will not be able to get it anywhere else. He is not required to lose because of the poor man. The poor man only has a claim to the object when he wishes to purchase the item from another; there the poor person can claim that the “snatcher” is ruining his opportunity to profit.

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A Single Grain is Sufficient

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Rabbi Chiya bar Avin inquired of Rav Huna (Kiddushin 58) : Is the “benefit of gratitude” regarded as money or not?

The Gemora comments: Let us say that this is a matter of a Tannaic dispute, for we learned in a braisa: If one steals the tevel (untithed produce) of his fellow, he is obligated to pay him for the value of the entire tevel (including the terumah and ma’aser that is mixed in, according to its value to him based upon his ability to choose who he wants to give them to). Rabbi Yosi the son of Rabbi Yehudah says: He is only obligated to pay him for the value of the chulin. It must be that Rebbe holds that the ability to choose who to give something to has a monetary value, while Rabbi Yosi holds it does not.

The Gemora rejects this, and gives an alternate explanation to their argument. Everyone holds that the matanos (gift portions for the Kohen) that were not yet separated are considered as if they were separated, and the “benefit of gratitude” is not regarded as money, and the dispute is regarding Shmuel’s ruling, for Shmuel said: One grain of wheat can exempt an entire pile (and there would be no need to separate any more terumah). Rebbe holds of Shmuel’s ruling (and the thief would be required to pay the full value, for the owner could have exempted himself with one grain of wheat), and Rabbi Yosi the son of Rabbi Yehudah does not.

The Acharonim ask that Shmuel is only discussing the Biblical requirement, but the Chachamim instituted that one must give at least one sixtieth of his produce to the Kohen as terumah! If so, the thief should be exempt from paying the value of terumah that he is Rabbinically required to give!?

The Oneg Yom Tov answers based on the Tosfos Ri”d, who says that even Rabbinically speaking, one grain of wheat can exempt an entire pile from the prohibition of tevel. The Chachamim instituted that there is a mitzvah of giving to the Kohen. This, however, the owner could claim that he would not have given, and the thief would therefore be required to pay the entire amount.

The Mishnah Lamelech disagrees and holds that if one does not give at least one-sixtieth to the Kohen, it is Rabbinically regarded as tevel. Accordingly, the thief should not be required to pay the entire amount!?

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Nullified Metzora Bird

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The Gemora (Kiddushin 57) had stated: One verse comes to include the metzora bird that is set free in the category of permitted birds. Another verse comes to include the slaughtered metzora bird in the category of forbidden birds.

The Gemora asks: Perhaps it is exactly the opposite!?

Rava answers: It is not logical to assume that the Torah said that the bird should be sent away in a matter where it will create a stumbling block (for if this would be the bird that is forbidden, someone might mistakenly find this bird and eat it, for there is no way to recognize that this was a metzora bird).

The Acharonim ask: What stumbling block would there be? The metzora bird will become nullified because of the majority of birds in the world that are permitted!?

The Shaar Hamelech answers: We are concerned that someone will find the metzora bird before it intermingles with other birds.

The Peleisi answers: The halachah is that if there is one person in the world that recognizes the forbidden item, it is not nullified, even for the people who do not recognize it. Accordingly, we are concerned that a person will be standing on the top of a mountain and will see where the metzora bird went.

Reb Shimon Shkop answers that the principle of nullification does not apply here, for all the birds in the world are not intermingled with each other in one location; rather, they are all scattered about. And even though it will be permitted, for we follow the majority and say that this one came from the permitted birds, the metzora bird does not lose its prohibited status and will therefore still be considered a stumbling block.

The Chasam Sofer answers that we are not concerned with the finder, for he will not violate any prohibition. We are concerned that the sender will violate the prohibition of outrightly nullifying a prohibition.

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