Halachic Rulings

By: Rabbi Yechezkel Khayyat

Ownership
The Gemora discusses the status of a disputed bathhouse, and whether either claiming party can consecrate it. The Gemora's conclusion is that the power needed to consecrate an item depends on the type of item. If the item is real estate, anyone who can retrieve the item in court may consecrate it, even before retrieving it. However, a movable item can only be consecrated when the one consecrating has de facto and de jure possession.

The Baal Hamaor and the Ramban (BK 18 in Rif pages) discuss why one may not consecrate an item which was stolen from him. The Baal Hamaor says this is simply because it is out of his reach, and an item must be accessible to be consecrated. The Ramban says it is because the thief has certain liability for the item, and therefore has acquired some ownership by his theft.

Based on the Ramban's opinion, Rabbi Akiva Eiger (BM 7 bemasusa) asks how our Gemora reaches its conclusion. The Gemora distinguishes between stolen real estate and movable items, since real estate is immutable, and cannot be acquired through the standard acquisitions of theft. However, this distinction seems irrelevant in the case of the bathhouse, where neither party did any acquisition.

Rav Elchanan Wasserman (Kovetz Shiurim BK #9) points out that the Baal Hamaor brings our Gemora as a proof to his opinion. He therefore states that the Ramban agrees that inaccessibility precludes consecration, but adds that the partial ownership acquired by theft also blocks consecration. In our Gemora, where the bathhouse is inaccessible, both Rishonim agree that neither can consecrate it.

The Ramban and Baal Hamaor only disagree about a thief who is ready to hand over the item, but has not yet done so. (In fact, that is the context for their discussion of the rules of consecration).

Rav Elchanan therefore answers Rabbi Akiva Eiger's question by explaining that the distinction of acquisition between real estate and movable items is only relevant when the consecration is prevented by theft acquisition. However, when the consecration is prevented by sheer inaccessibility, if one can retrieve a real estate asset in court, he may consecrate it, since the one holding the real estate cannot truly hide the item from its owner. If he cannot retrieve it in court, he cannot consecrate it, since it is still inaccessible.
Grabbing vs. Holding
The Gemora states that the Mishna, which evenly splits a garment held by two parties, is a case where each side is only grabbing a fringe, which doesn't confer any possession. Therefore, they swear and take half. However, the braisa of Rav Tachlifa discusses a case where each party is holding a segment of the garment. In that case, each party takes what they are grabbing, and then split the rest.

The Rishonim point out that the word used in the Mishna is ochazin – holding on to, since the parties are only holding onto the edge. However, Rav Tachlifa uses the word adukin – attached, since the parties are grabbing a segment of the garment. The Gemora says Rabbi Avahu indicated that the split in the adukim case is done with each side swearing.

The Rosh (1:13) and Tosfos (7a Machvei) say that they must swear on everything that they will take, including the portion they are grabbing. The Rosh proves this from the statement of the Gemora on 3a that the oath in the Mishna is to prevent people from forcibly grabbing other people's garments. This logic applies to the whole garment, including the portion they are currently grabbing.

The Ramban agrees, and proves it from the language of the Gemora, which says that Rabbi Avahu machvei – showed – that the split should be with an oath. Rabbi Avahu was physically showing that the whole garment is subject to an oath.

The Rambam (To'ain v'nit'an 9:9) says that the oath is only on the section that they are not grabbing, but each can cause the other party to swear on the part they are grabbing through gilgul – an ancillary oath.

The Shulchan Aruch (HM 138:3) rules like the Rambam. The Gra (12) supports this position from the Gemora's statement that holding on to a portion of the garment is sufficient for chalipin, indicating that grabbing a section of a garment is full ownership, with no need for proof or swearing. The Shach (5) and Sma (11) dispute this, and rule like the Rosh.

The Shita discusses why the Gemora didn't resolve the contradiction by stating that the Mishna was a case of each grabbing exactly half the garment. The Shita quotes a number of answers:
1. They wouldn't swear in this case, since they are not splitting anything out of their direct possession. This answer follows the Rambam's ruling above.
2. It is a rare (even impossible) case, and therefore not a good answer.
3. The Mishna would not need to tell us such an obvious halacha in that case.
How to Split a Contract?
The Gemora cited statements of Rabbi Elazar and Rabbi Yochanan about splitting a contract held by the debtor and creditor. Rabbi Elazar said they only split it evenly when they are both holding the detail and form section of the contract, but if one is holding the details and one the form, they each get the section they are holding. Rabbi Yochanan said that they also split the contract evenly when the detail and form section are in the section not held by either side.

The Rif and Rambam do not cite these opinions and limitations on the rules of splitting a contract, and the Shulchan Aruch (HM 65:15) follows their ruling in the first version of this halacha.

The Rosh does cite the statement of Rabbi Elazar, and the Shulchan Aruch cites this opinion as well.

The Gra explains that this dispute depends on the understanding of how a split is done when each is holding the detail or form section. The Gemora says that the advantage of holding the detail section is the increased value a date adds to a contract. Rashi (7b Shtara) states that Rabbi Elazar is discussing Rabban Shimon ben Gamliel's statement that we split the contract, even if the signatures were not validated, since Rabban Shimon ben Gamliel does not require validation of the signatures. Therefore, the value of the detail section is not in the signatures, since they need not be validated. The value is not in the names of the parties, since those are repeated in the form section. The only element which is crucial in the detail section is the date of the contract, and that is the increased value of that section.

Tosfos (7b d'is) disagrees, and says that elements of each section that would render the contract unfit are not included in the possession gained by grabbing, since each party doesn't want the counter party to remove such elements. The only element which is nonessential is the date.

According to Rashi, the statement of Rabbi Elazar, and the discussion following it, are only according to Rabban Shimon ben Gamliel's opinion, that a contract that is not forged need not have its signatures validated. We, however, rule like Rebbi, and therefore will not hold of Rabbi Elazar's statement. However, according to Tosfos, Rabbi Elazar's statement is in accord with Rebbi as well, and therefore halacha includes it. See Gra HM 65:45 and Note 1 on the Rosh for further discussion.

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Heilech

Heilech
By: Rabbi Avi Lebowitz

Rabbi Chiya says that included in the case of modeh b’miktzas where the person partially admits and partially denies is also a case of “heilech”. Meaning, Reuven claims that Shimon owes him one hundred zuz. Shimon responds by denying fifty and admitting on the other fifty, saying “heilech”. Rabbi Chiya holds that Shimon is required to take an oath on the fifty that he denies. Rav Sheishes disagrees and holds that heilech is exempt, because the fifty that he is admitting on is as if it has already been returned to the lender and the entire claim is only on the fifty that is being denied, so it is a case of kofer hakol, which does not require an oath.

Rashi implies that in order to qualify as heilech in a case of a loan, the borrower must say that he didn’t spend the money, but if he would have spent the money and is presenting the lender with other money, that would not qualify as heilech.

The Hagahos Ashri understands Rashi exactly like this, and therefore holds that if the borrower spent the money and is now replacing it by returning other money, even though we rule in accordance with Rav Sheishes that heilech is exempt, the borrower would have to swear because this isn’t a case of heilech.

However, the Bach on the Rosh says that Rashi is not coming to define heilech, rather he is coming to explain Rabbi Chiya who says that even by heilech the borrower must swear. Rashi is coming to say that even if the money has never been spent and it is a supercharged heilech, Rsbbi Chiya would still hold that the borrower must swear. But it is entirely possible that Rashi would hold that according to Rav Sheishes that heilech is exempt, it would even be exempt if the original money was spent so long as now the borrower is presenting the lender with other money in its place.

The Gr”a quotes from the Ran that a case of a loan is always considered as if the money has been spent since it is given to spend, and therefore a loan never qualifies as heilech. The only situation of heilech is when one gives another something to watch, and then presents him with only part of it at the time he returns it and denies the other part of it. Based on these Rishonim, in a case of a loan, even if it hasn’t yet been spent, the borrower would have to swear.

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Save us from Brazenness

We conclude the daily morning blessings with the following: Blessed are You, Hashem, who bestows beneficent kindness upon His people Israel (Hagomel chasadim tovim l’amo Yisroel). This is immediately followed by the tefillah, May it be Your will, Hashem, my God, and the God of my forefathers, that You rescue me today and every day from brazen men and from brazenness etc. What is the connection between the two tefilos?

Reb Shmuel Leider in Nitei Eishel explains as follows: Our Gemora states: Rabbah said: Why did the Torah say that one who admits part of a claim must swear? It is because we assume that no man would be so insolent to deny his obligation in the face of his creditor. And since the Holy One, Blessed be He has showered us with beneficent kindness without any limits whatsoever, so much so that we cannot even thank Him sufficiently. As we say in nishmas: Even if our mouths would be as full of song as the sea, and our tongue as full of joyous song as its multitude of waves, and our lips as full of praise as the breadth of the heavens etc., we still could not thank You sufficiently for even one of the thousand thousand, thousands of thousands and myriad of favors that You performed for our ancestors and for us. Accordingly, we are debtors to Hashem, so immediately after we thank Hashem for all the kindness He does for us, we pray that He should save us from brazenness, i.e. we should not Heaven forbid act insolently towards Hashem after all the kindness that He bestows upon us.

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Cloak or Talis?

When the Belzer Rebbe was but a child, they asked him, “What is the meaning of the Mishna when it stated that two people are holding onto a talis?”

He replied, “It means that two people were holding onto a cloak.”

They persisted, “Perhaps the Mishna means a talis literally?”

He replied, “I can prove that it is referring to a cloak from the explanation of the Rosh. The Rosh explains the Mishna to be referring to a case where the object will belong to the finder, for example – if it was found in a city where a majority of the residents are idolaters. If the Mishna would be referring to a talis which has tzitzis on four corners, one would be obligated to announce that he found such an item even in a city of idolaters, for a talis obviously would not belong to them!”

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Three Fellows Holding on

The Mishna had stated: Two people are holding on to a cloak. This one says that he found it, and the other says that he found it. This one says that it is all his, and the other claims that it is all his. This one should swear that he does not own less than half of the cloak, and the other should swear that he does not own less than half of the cloak, and they should then split the cloak.

If one says that the entire cloak is his, while the other one claims that only half of it is his, the first one should swear that he does own less than three quarters of the cloak, while the second one should swear that he does not own less than one quarter of the cloak. The first one then takes three quarters, while the second one takes one quarter.

They asked the Maharil Diskin when he was only a child: What would be the halachah if three people were holding onto the cloak? One of them said, “It is all mine,” and each of the other two said, “Half of it is mine.” We cannot say that the one who claimed that it is all his should receive half, and the other two should get a quarter each, for it would emerge that only the one who said that the entire cloak is his would be losing out because there is a third party in the case. Perhaps the halachah should be that we should give half to the one who claims that it is all his, for the other two are admitting that this half is his, and regarding the other half, it should be split in thirds between all of them, for they are all claiming on that half that it is completely theirs. This is also not correct, for the two that were claiming that half is theirs are not admitting that the other half belongs to the one person who claimed that it is all his, for although each one of them is admitting that it does not belong to them, perhaps it belongs in partnership to the other two?

He answered on the spot as follows: The one who claimed that the cloak is completely his receives half the cloak, plus a third of one of the remaining quarters. Each of the other two receives a third of one quarter and half of the remaining quarter. And he explained: Each one of the fellows who claimed that only half of the cloak is theirs is in essence admitting that the other half belongs to the other two – half to the one who said that it is completely his, and half to the other one who said that only half is his. It emerges that the fellow who said that it is completely his has an admission from each one of them that a quarter of the cloak is his. He therefore receives a quarter of the cloak. Each one of the fellows who are claiming that half the cloak is theirs is also admitting to the other fellow claiming a half that a quarter of the cloak is his. They each would be entitled to a quarter of the cloak except for the fact that the fellow claiming that the entire cloak is his is disputing their claim. Therefore, the two fellows claiming half the cloak is theirs each split a quarter with the one claiming that the entire cloak is his. On the last remaining quarter, all three of them are claiming that it is completely theirs. They therefore split that quarter in thirds.

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Halachos from the Daf - Bava Kamma 118

Where to Return?

The Mishna stated that one who incurred an obligation to pay in a settled area may not pay in a desert. The Shitah quotes the Rema that explains that the rule is that if the obligation was incurred in a secure area, one must pay back in a secure area. If the original place of the obligation is now not secure, the payment may not be made there, even though it was incurred there. The Meiri states that if the receiver of the payment agrees to accept the payment in the desert, it is then a valid payment, and releases the debtor from his obligation.

Where to Claim?

The Gemora explained that in all cases but a loan, the creditor may not claim the object from the debtor anywhere besides the original place. The Meiri explains that this is because generally items that are not fungible as a loan is will only be in their original place, and we do not force the debtor to return to that place. However, if the debtor has the item with him, he must return it wherever the creditor demands it. Furthermore, if the debtor is a thief, but he acquired the object through a change, the obligation now has the rule of a loan, since it is purely a monetary obligation, and may be demanded anywhere. The Ramban adds that even in the case of a loan, the creditor must leave the debtor with enough money for him to support himself until he leaves the desert.

How Obligated?

When discussing the Mishna about one who is unsure of his obligation, the Gemora introduces the concept of ba latzais yedei shamayim – one who cannot be forced to pay in court, but wants to fulfill his religious obligation. Rav Shimon Shkop in Shaarei Yosher (5:16) discusses the nature of this obligation. One has no obligation to fulfill his religious obligation, but if he does want to, he is opting to not invoke his power of ownership (muchzak), and then is obligated based on the standard rules of bari and shema. It is a good character trait to want to fulfill such an obligation, but we do not try to persuade him to do so. This is different than the concept of chayav b’dinei shamayim – one who is obligated at a religious level, but not in a court context. That situation is one where a clear obligation exists, but cannot be directly enforced by a court. We do, however, provide inducements to persuade him to do so.

The Need to Know

The Gemora discusses different levels of knowledge that a theft victim must have when the thief returns an item. The Rashba states that once the victim saw someone steal his item, the thief must notify the victim so that he does not consider him a thief anymore. The Rashba therefore holds that if the victim just realized that an item was stolen by noticing that one was missing, this is not considered knowledge of the theft. The Sma states that once the item is stolen, the victim despairs of having to guard it, and therefore must be aware of its return. According to the Sma, once the victim notices the item missing, this would be considered knowledge of the theft.

The Rif and Shulchan Aruch rule like Rav Chisda and Rabbi Yochanan. The Rif explains that Rava explains Rav Chisda, and agrees with him, indicating that the halachah follows his opinion. When dealing with an inanimate item, Rav Chisda would agree to Rabbi Yochanan. In any case, we would rule like Rabbi Yochanan, since he is favored over both Rav and Shmuel in general. The Baal Hamaor, however, rules like Rav. One of his reasons for this ruling is the fact that the Gemora established the opinion of Rabbi Akiva to follow Rav in the case of a coin. See Biur Hagra (HM 365:1) for a discussion of why the Rif ruled like Rabbi Yochanan against the majority of Rav and Shmuel. See Responsa Rabbi Akiva Eiger (1:155) for a detailed discussion of the Baal Hamaor’s opinion.

Guardian’s Theft

The Gemora said that Rabbi Akiva and Rabbi Yishmael argue about a case of a guardian who stole the item he should be guarding. Rabbi Akiva says that the theft ended the term of the guardian, and he must now return it to the owner’s possession, while Rabbi Yishmael says that the guardian’s term is not ended, and he must just return it to its original place. The Rishonim explain that Rabbi Akiva holds that once the guardian stole the item, the owner would not trust the guardian anymore. The Rashba discuss why Rabbi Yishmael requires him to return it at all – if the guardian’s term is not over, it is safe in his possession, and should not have to be returned.
The Rashba offers three answers:

1. Rabbi Yishmael is not being precise
2. Rabbi Yishmael is referring to a case of a coin, which must be kept in its designated place
3. Even an animal should be in its flock, to ensure it doesn’t run off

The Rashba states that once the Gemora establishes the dispute in the case of a guardian, it does not depend on any specific opinion about the level of knowledge necessary. Rashi, however, states that even this reading of the braisa assumes that both Rabbi Akiva and Rabbi Yishmael agree with Rav Chisda’s position.

What’s in the Pocket?

The Gemora offers an explanation of the braisos dealing with returning stolen money at a later sale that distinguishes between putting money in an empty pocket or by putting it in a pocket that has money. Rashi explains that in an empty pocket, the owner will count the money and realize it was returned, while in a pocket with money, he won’t realize how much was added. The Rif, however, explains that in an empty pocket, he will not count the money, and not realize it was returned, while in a pocket with money, he will count it and realize the extra money. The Shulchan Aruch (H”M 365:1) states that if the pocket was empty, the thief has not fulfilled his obligation, but if the pocket had money, and the owners knew how much, the thief has fulfilled his obligation. The Gra explains that the Shulchan Aruch is ruling like the Rif, but adding in Rashi’s qualification. The Rif only stated that generally one knows how much money is in their pocket, when it’s not empty, since they check it periodically. Once they know how much is there, they will realize the extra, since they will again check. However, the Rif would agree with Rashi that if the owner did not know how much money was there, putting the money there is not notification.

Shepherds

The braisa stated that one may purchase wool shearings that are tfurim. Rashi explains that this means when the wool was made into clothing, in which case the shepherd acquired the wool by its change. The Raavad says it means shearings that are connected and put into large groups. The reason one may buy is that such large items are probably not stolen, because a thief would not draw attention to himself. The Rashba explains, based on the tosefta, that it means pieces of wool that are stuck on bushes. Since they are so insignificant, the flock owner does not mind if the shepherd takes them.

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Lesson from the Chafetz Chaim

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It once happened that some Chasidim, in the days of the Chafetz Chaim, offended a well-known giant in Torah. The Chafetz Chaim was extremely disturbed about it, but he refused to issue a public protest about it. His rationale for this was based upon our Gemora (Bava Kamma 117b) : Rabbah ruled: If a man was chasing after a pursuer with the intention of rescuing the intended victim and he accidentally broke utensils, he is exempt, whether they belonged to the pursued or to any other person. This is not based on a matter of strict law, but it is based upon the following consideration: If you were not to rule like this, no person would ever be willing to rescue a fellow man from the hands of a pursuer. It emerges from here that in order to find people who are willing to rescue someone from the hands of a pursuer, it might come out that innocent people will consequently suffer. The Chasidim, explained the Chafetz Chaim, are fighting to save Klal Yisroel from its pursuers. It will happen that on account of this noble pursuit, innocent people will suffer as a result. [This does not mean to say that he is condoning such behavior at all; he is merely saying that if he would publicly take a stand against their movement, people will refrain from fighting noble causes.]

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Miracles in Halachah

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Rav Kahana asked Rav (Bava Kamma 116a) : If one person saved the other person’s donkey (on condition that he would be paid for his donkey), and the first person’s donkey ended up being saved anyway, what is the halachah?

Rav answered: Heaven had mercy on him (and the owner of the donkey he saved must still pay him the value of his donkey).

This is comparable to the case of Rav Safra. When Rav Safra was traveling with a caravan, a lion joined them and started traveling with them (protecting them from bandits and other wild beasts). Every night one person from the caravan would feed the lion his donkey (in order that he should not attack them). When it was Rav Safra’s turn, he offered the lion his donkey (rendering it hefker), but the donkey did not eat it. Rav Safra quickly went and reacquired his donkey. [Rav Safra had fulfilled his obligation by offering his donkey. He was not obligated to contribute any more to the cause, for the return of his donkey was regarded as a miracle – Heaven sent, and that would not undo the fulfillment of his obligation. This is comparable to Rav’s ruling: Since the rescuer’s donkey was miraculously saved, it does not undo the obligation from the owner of the donkey that he saved.]

Rav Acha from Difti asked Ravina: Why did he have to reacquire the donkey? When he made the donkey ownerless, he only did so because he had to feed it to the lion, not in order that anyone who wants can acquire it (i.e. he did not really make it hefker in the first place)?

Ravina answered: Rav Safra did this as an added precaution (just in case someone would claim that it did not belong to him any longer).

Tosfos asks: The Gemora in Bava Metzia rules that someone who rescues an animal from a lion attack is permitted to keep the animal for himself, for the owner abandoned hope of ever recovering his animal; it is therefore regarded as hefker. If so, shouldn’t Rav Safra’s donkey be legally regarded as hefker?

Tosfos answers that there is a basic distinction between the two cases. Here, the lion is not an attacker, but rather, it is a protector. The lion never attacked Rav Safra’s donkey; the donkey was given to it. It was not inevitable that the lion would kill the donkey. There could have been times that the lion was satiated and would have no interest in eating on that particular night. Accordingly, Rav Safra did not give up hope on his donkey, and is therefore not considered halachically hefker.

The Chazon Ish explains as follows: If Rav Safra’s donkey would have been saved in a completely natural manner (e.g. if there would have been other nights where the lion was satiated and did not kill the donkey), he would have been obligated to repay the others, for he would not have contributed to the caravan’s protection. The Gemora stresses that this was viewed as a miraculous event, for every other night, the lion did consume the donkeys. Rav Safra, being a holy person, was accustomed of having miracles performed on his behalf, and therefore he knew that there was a possibility that a miracle might happen and his donkey will be spared. It was therefore regarded as if he paid his portion towards the caravan’s protection.

However, with respect to reacquiring his donkey, it is not sufficient to say that Rav Safra relied on the fact that a miracle might occur and therefore he would not abandon hope on retrieving his donkey. It would depend on the type of miracle. If a public miracle, revealed to all, one that would involve a change in the laws of nature would occur and his donkey would be spared, even if Rav Safra was confident that such a miracle will happen, it would be regarded as if he had despaired on his donkey and he would be required to reacquire the donkey. It would be as if a different donkey was sent down from Heaven. This is because the Torah was given according to the laws of nature, and the halachah will not change due to an open miracle. But, if the miracle would be a hidden one, one that would be concealed by nature, although it only happened because of Rav Safra, it would be regarded as a natural occurrence, and if Rav Safra would be confident that this would occur, the halachah would consider it as if he did not abandon hope about it. This is because all of nature is in truth governed by Heaven, and a miracle such as this would be considered a natural occurrence for one who is accustomed to such miracles. Therefore, since there are times when a lion, due to some abnormality in its stomach, be satiated and it will have no desire to eat, this is viewed as a natural even that Rav Safra was waiting for, and it is as if Heaven sent satisfaction to the lion in order for it not to consume Rav Safra’s donkey.

It emerges from the Chazon Ish that something that changed through an open miracle is not halachically regarded as being the same item that it was before. This would be similar to Reb Chaim Brisker’s challenge to some of the answers given to the Beis Yosef’s famous question.

The Beis Yosef asks: Why do we celebrate Chanukah for eight days if we are celebrating the miracle that the oil that should have lasted for only one day instead lasted for eight days? We should celebrate Chanukah for seven days, since only seven days of the burning of the oil were miraculous!?

He offers two solutions to this problem. He first suggests that on each night, when the oil was poured from the container into the Menorah, the jug remained completely full (similar to the miracle performed by Elisha). Another suggestion is that after every night, all the oil remained in the Menorah.

Rav Chaim Brisker challenges these two answers, arguing that miraculously generated oil is not acceptable for the lighting of the Menorah. He notes that the oil used for the Menorah is described not merely as “Shemen” (oil) but as “Shemen Zayis,” oil produced by an olive tree. This implies that it must be produced by an olive tree, and not by a miracle.

This parallels that which the Chazon Ish stated: The fact that it was a public miracle would change the nature of the oil. Beforehand, it was olive oil, but now, it is “Heaven-sent oil.”

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Ba'al Tashchis

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The Gemora (Bava Kamma 115b) says that it is forbidden to drink from water that has been left uncovered for there is a concern that a poisonous snake drank from it and left its venom inside. Te Gemora rules that one cannot give this water to an animal.

Rashi explains that the rationale is that we are concerned that one may slaughter the animal and it will be dangerous to the person who eats from this animal.

Tosfos points out that Rashi’s approach would only apply to a kosher animal, but in truth this halachah should apply to a non-kosher animal as well, because there is a violation of ba’al tashchis - the killing of an animal for no reason at all.

Tosfos proves this from a Gemora in Avoda Zara 30b that it is only permitted to feed it to a cat (snake eater) which will not be damaged by the venom. This implies that it would be forbidden to feed it to other non-kosher animals that will be poisoned by the venom.

Reb Avi Lebowitz points out something interesting from Tosfos regarding ba’al tashchis. Usually we refer to something as wasteful because it has a function to serve a human and it is being wasted. But in a case where the object provides no direct benefit to a human being, one can argue that it is permitted to waste it without any violation of ba’al tashchis. Tosfos says that this is not true, because even a non-kosher animal, similar to a cat that is not designated to assist people in carrying loads or plowing a field, nevertheless, it cannot be killed for any reason and would constitute a violation of ba’al tashchis.

It is noteworthy that the Halachah L’Moshe writes that according to Tosfos, who maintains that the prohibition against giving these animals to drink from the uncovered water is because of ba’al tashchis, this would apply only to one’s own animal and an animal belonging to his fellow. However, it would be permitted to give this water to an ownerless animal, for this prohibition is not applicable to animals which are hefker.

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Rebbe - "I Say"

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Rebbe had said (Bava Kamma 114b): I say that a ganav is like a gazlan.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

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Obeying a Jewish King in Eretz Yisroel

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It is evident from the Gemora that the law of the kingdom has the full force of halachah behind it. The Ritva writes that we do not find anyone that disagrees with this principle.

The Rashbam explains the rationale for this halachah: All citizens of a country voluntarily accept upon themselves to obey the king’s decrees and laws. All of their laws are therefore binding. Accordingly, one who possesses his fellow’s property based upon that particular country’s law, does not violate a prohibition of stealing at all.

The Rashba explains it differently: Since the entire land belongs to the king, he is entitled to chase anyone away from his land if he wishes, and he has the right to tax everyone for the privilege of residing in his land.

A difference between these two opinions may be if this halachah would apply in Eretz Yisroel with a Jewish king. According to the Rashba, it might not apply in Eretz Yisroel, for every Jew has an inalienable right to live there, and no king would have the jurisdiction to banish anyone from the Land.

The Ra”n in Nedarim 28a rules that this principle applies only in the lands of the exile. The reason for this, he explains, is that in these countries, the land is the property of the kingdom, and one is therefore obligated to abide by the laws and ordinances of the country in which he resides. But, in Eretz Yisroel, which belongs to the entire Jewish nation, there is no obligation to comply with the laws of a Jewish king. The Rambam and Shulchan Aruch both rule that this principle does apply to a Jewish king in Eretz Yisroel.

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Law of the Kingdom

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

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

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

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

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

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

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

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Borrower Lending to Another

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Rava said: If their father (after he died) left them a cow which was borrowed by him, they may use it for the entire period for which it was borrowed.

The commentators ask: How are the heirs permitted to use it? The halachah is that a borrower is not permitted to lend the item out to anyone else, for the owner can say, “I do not want my deposit to be in the hands of someone else”!?

The Hagahos Mordechai answers that since it is self understood that a borrower will give the item to his wife and children, this would be permitted even after the borrower’s death.

The Machaneh Efraim asks on this interpretation that if so, it should only be permitted by the borrower’s sons and only if they are supported by the father!? Otherwise, it should be forbidden, and from the halachah, this does not appear to be the case!?

Reb Akiva Eiger answers that the halachah that a borrower is not permitted to lend the item out to anyone else is only l’chatchilah; however, once he lends it out, the owner cannot take it away from him. Therefore, in this case, where the children took possession of it through an act of Heaven, they are permitted to use it.

The Erech Shai answers that the owner may be particular only to say that he did not intend to lend it out to someone else; however, with respect to the death of the borrower, which is not such a common occurrence, he cannot say that if I would have known that my cow would end up by the inheritors, I would not have lent it in the first place. The heirs therefore are permitted to use it.

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Save us from Brazenness

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We conclude the daily morning blessings with the following: Blessed are You, Hashem, who bestows beneficent kindness upon His people Israel (Hagomel chasadim tovim l’amo Yisroel). This is immediately followed by the tefillah, May it be Your will, Hashem, my God, and the God of my forefathers, that You rescue me today and every day from brazen men and from brazenness etc. What is the connection between the two tefilos?

Reb Shmuel Leider in Nitei Eishel explains as follows: Our Gemora states: Rabbah said: Why did the Torah say that one who admits part of a claim must swear? It is because we assume that no man would be so insolent to deny his obligation in the face of his creditor. And since the Holy One, Blessed be He has showered us with beneficent kindness without any limits whatsoever, so much so that we cannot even thank Him sufficiently. As we say in nishmas: Even if our mouths would be as full of song as the sea, and our tongue as full of joyous song as its multitude of waves, and our lips as full of praise as the breadth of the heavens etc., we still could not thank You sufficiently for even one of the thousand thousand, thousands of thousands and myriad of favors that You performed for our ancestors and for us. Accordingly, we are debtors to Hashem, so immediately after we thank Hashem for all the kindness He does for us, we pray that He should save us from brazenness, i.e. we should not Heaven forbid act insolently towards Hashem after all the kindness that He bestows upon us.

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Oath Taken Outside of Beis Din

Rav Nachman said (Bava Kamma 106) that if a custodian swears falsely outside of Beis Din and afterwards witnesses testify against him, Rav would concede that he is still liable to pay kefel.

Rashi explains that an oath taken in Beis Din is stronger than one taken outside of Beis Din, and if one swears in Beis Din, the claim against him is dissolved.

It is also evident from the Gemora that if the plaintiff jumped up and adjured the custodian to swear before Beis Din had the chance to impose the oath upon him, and afterwards he admitted, Rav would concede that he is liable in paying the extra fifth and to bring a korban asham, but he will not be liable to pay the kefel.

The Rishonim cite Rabbeinu Chananel who explains that one who is Biblically mandated to take an oath in Beis Din, and he swears outside of Beis Din, or he swore in Beis Din before the court imposed the oath upon him, he is not exempt from his obligation and he can be mandated to swear again.

The Ramban and the Rashba disagree and hold that an oath taken outside of Beis Din is regarded as a valid oath and he would not be required to swear again. Our Gemora holds that one is not liable to pay kefel for such an oath, for it is not as strong as an oath imposed by the court.

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Abstaining from Wine

Rabbi Elozar HaKappar asks (Bava Kamma 91) : What does the verse mean when it says, “and he shall atone for him for having sinned on his soul?” What “soul” did he “sin” against? It must be referring to the fact that he pained himself by abstaining from wine. This additionally teaches us that if this person who merely abstained from wine is called a sinner, someone who abstains from many things is certainly a sinner.

Ben Yehoyadah explains why one who deprives himself from wine or any food is regarded as a sinner. Portions of one’s soul are contained within foods and drinks. When one recites a blessing before eating these foods, he can cause a remedy for those parts of the soul, and through his blessing, they will be able to go to their rightful place. It emerges that one who declares himself to be a nazir and therefore refrains from eating grapes or drinking wine, is sinning regarding his soul, for now his soul will remain deficient.

Furthermore, there are many mitzvos where wine is required, such as kiddush on Shabbos and Yom Tov, havdalah, birkas hamazon, bris milah and sheva brochos. Chazal established the mitzvos in this manner in order to rectify the sin of Adam Harishon, which was with wine. One who vows to be a nazir and therefore abstains from drinking wine causes anguish to his soul.

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Afflictions Purge a Person's Sins

The Gemora (Bava Kamma 91) states that if a master knocks out the tooth of his slave, or if he blinds his eye, he must release the slave.

It is noteworthy that Rabbi Yochanan in the Gemora in Brochos (5a) derives from here that a person is considered fortunate if Hashem inflicts him. It is taught through a kal vachomer as follows: If the loss of a tooth or an eye, which is only one of the limbs in a person’s body, nevertheless, a slave gains his freedom because of it, then afflictions, which cleanse the person’s entire body, should certainly free a person from sin because of them!

Rish Lakish derives this same lesson from a different source. He says: The word covenant is written with respect to salt and the word covenant is written with respect to afflictions. Just as salt sweetens the meat, so too, afflictions will cleanse a person from his sins.

The Bobover Rebbe in Kedushas Tziyon notes that there is a distinction between the two expositions. According to Rabbi Yochanan, the afflictions will only cleans a person if they emanate from Heaven, similar to the halachos of a slave, where he will only be set free if his master knocks out his tooth or eye. He will not gain his freedom if someone else injures him. However, according to Rish Lakish, any type of afflictions will cleanse him, in the same manner as the salt sweetening the meat. It makes no difference as to who applies the salt.

Based upon this, Rav Tzvi Pesach Frank explains the following. It is written [Shmos 6:5]: And also, I heard the moans of the children of Israel, whom the Egyptians are holding in bondage, and I remembered My covenant. The Jewish people thought that the Egyptians were their masters and they were those who were afflicting them. They did not realize that their suffering was decreed from Heaven. Because they didn’t know who was causing them their hardships, they did not gain their freedom. It was only because Hashem remembered His covenant, that all afflictions cleanse a person from his sins, that was the reason they were released from the bondage.

Reb Meir Shapiro adds to this: If a slave does not come to court and testify that his master knocked out his tooth or eye, he will not gain his freedom. If he says that it happened by happenstance, he will not go free. So too, it is with afflictions. If a person does not believe with complete faith that the afflictions are affecting him because of Divine Providence, the afflictions will not purge him of his sins. However, if this principle was derived through the gezeirah shavah from salt, it would not make any difference.

The Rashba was asked the following question: If a slave initiates a fight with his master and strikes the first blow, and the master counters with some strikes of his own and knocks out the slave’s tooth, will the slave gain his freedom?

He replied that the slave goes free. The proof is from the aforementioned Gemora, where Rabbi Yochanan derived that afflictions will cleanse a person from his sins through a kal vachomer from the laws of the slave. How can the two be compared? Afflictions come to a person because he has sinned! It was his own fault! Perhaps, then, those afflictions will not purge him from his sins!? Evidently, we see that a slave also gains his freedom, even if he was the one who initiated the fight!

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Humiliation with Words

The Gemora (Bava Kamma 91) stated: If someone spat at his friend and the spittle hit him, or he removed the hair covering of a woman or his friend’s cloak, he is required to pay him/her four hundred zuz. Rav Papa taught: This is only if the spittle reached his friend, but if it only hit his clothes, he is exempt from paying this fine.

The Gemora asks: Shouldn’t the perpetrator be liable similar to one who humiliates his fellow with words? The Gemora answers: It is evident from here that one who embarrasses his fellow with words is exempt from any liability.

The Rosh cites Rav Shrira Gaon: Although it seems from the Scriptural verses that one is not liable for humiliating his fellow with words, nevertheless, the Sages would excommunicate him until he appeases his fellow properly according to his honor. He notes that it is logical to assume that there is a higher degree of embarrassment for one who is humiliated with words more than one, who was embarrassed through a wound, for there is nothing worse than slandering one’s fellow.

The Rambam (Hilchos Chovel 5:7) rules that one who admits in Beis Din that he wounded his fellow privately, he will be liable to pay for the embarrassment, for even though the victim was not humiliated at the time of the wounding, he was humiliated at the time of the admission in Beis Din.

The Minchas Chinuch (49:7) asks: Isn’t this a classical case of embarrassing one’s fellow with words, and one is not liable for such humiliation?

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Hekdesh and a Lien

Hekdesh vs. Lien

The Gemora cited Rava’s statement, that a lien can be broken by three mechanisms: hekdesh (consecration), chametz on Pesach, and shichrur (freeing a slave). The Rishonim discuss the parameters of hekdesh breaking a lien.

Type of Hekdesh

Rashi states that this is only true for hekdesh haguf – consecration of an item itself, and not just its value. If someone consecrates an animal as a sacrifice, the animal itself is to be used for the sacrifice, and is therefore considered hekdesh haguf. If someone consecrates other items, they will be sold, with their value being used by hekdesh. This is called hekdesh damim (monetary consecration).

Tosfos explains that since hekdesh haguf is not redeemed (unless the animal becomes unfit), once it applies to an animal, a lien does not remove it. However, just as hekdesh damim can be removed via redemption, it is removed by the lien.

The Rambam (Malve v’lo’ve 18:7) holds that both types of hekdesh remove a lien.

Rabbeinu Tam (Tosfos Gittin 40b hekdesh) says that on movable items, both types of hekdesh remove a lien, but on real estate, only hekdesh haguf removes a lien, since real estate is considered to currently be property of the lien holder.

The Meiri states that the type of hekdesh is immaterial, and the only issue is whether the borrower has any more assets for the lien holder to collect from. If there are more assets, the hekdesh removes the lien, but if there are no more assets, the hekdesh does not affect the lien.

How?

Tosfos (Gittin 40b hekdesh) state that Rava is consistent with his opinion (Pesachim 30b) that a creditor is considered an owner of property he collects only from the time of collection. Therefore, until that time, the assets are still the property of the borrower, and he has the power to consecrate it.

Konam

The Rishonim discuss whether forbidding an item through a konam (vow) can also break a lien, inasmuch as a konam is akin to a personal consecration. Most Rishonim say that only a konam that forbids everyone from benefiting from the item can break the lien, since such a konam is similar to consecration in it universal application. Some Rishonim (Meiri, Ran, Nimukei Yosef) hold that even a konam only prohibiting the creditor from benefit breaks a lien, but we pressure the borrower to undo his konam, since he unfairly has harmed the creditor alone by his action.

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Paying for Humiliation

Rav Abba bar Mammal inquired (Bava Kamma 86) : What would be the halachah if someone insulted someone while he (the victim) was sleeping, and then he died (without ever realizing that he was insulted)?

Rav Zevid explains the inquiry as follows: Does the assailant pay for embarrassment because the victim is insulted, and since in this case, he died before waking and was never insulted, no payment should is required, or is the payment perhaps on account of the public degradation, and since here there was degradation, he should be liable?

The Gemora cites a braisa: Rebbe says that a deaf-mute is subject to be paid for embarrassment. A deranged person is not subject to be paid for embarrassment. Regarding a minor, it depends.

Rav Pappa explains: If the minor is old enough that if he is reminded of some insult, he feels embarrassed, he will be paid for embarrassment. However, if when reminded, he still is not embarrassed, he is not subject to be paid for embarrassment.

It is noteworthy that the Gemora in Rosh Hashanah discusses a case where someone at times is normal and at times, he is deranged. It is some sort of bipolar disorder where he cycles on and off from “normal” to “abnormal.” Reb Avi Lebovitz wonders what the halachah would be If one embarrassed this person when he was deranged, but later he becomes normal and is embarrassed about what happened, would the assailant be responsible? Do we say that since at the time that the act was done he was deranged, the assailant is exempt, or do we say that since the obligation for paying embarrassment is for the feeling of humiliation, the assailant should be liable?

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Permission to Heal

The Gemora (Bava Kamma 85) states that from the verse, “v’rapo yerapei” teaches us that a doctor is given permission to heal a sick person.

Rashi explains that if not for that verse, I might have thought that the doctor would be forbidden from healing him, for Heaven has decreed that he should be ill; it would be contrary to his destiny. The Torah teaches us that he may be cured.

The Rishonim ask from the Gemora above (81b) which cites a braisa: How do we know that one must return another lost person? The verse says, “And you will return it to him.” Is it not obvious then that a doctor is Biblically obligated to save a person from dying?

The Moishav Zekeinim answers that the Torah is teaching us that the doctor is allowed to charge for his services, for otherwise, I would have thought that since it is a mitzvah, he must do it for free.

Tosfos HaRosh answers that without the extra verse, I would have thought that a doctor may only heal a person when the sickness was man-induced. However, an illness that emanated from Heaven, it would be forbidden for the doctor to heal him, for it might be as if he is nullifying the word of God. The Torah teaches us that all sicknesses may be cured.

Tosfos Rabbi Yehudahh Hachasid explains why the Torah wrote v’rapo yerapei” twice: The Torah is teaching us that a second doctor may heal an ill person even after a first doctor was unsuccessful, for we might have thought that by the fact that the first doctor was unable to cure him, this is a proof that Hashem does not want him healed and it is forbidden for the second doctor to attempt to heal him. The Torah teaches us that even the second doctor is permitted to cure him.

The Hadar Zkeinim answers that if not for the extra verse, we would think that only a person who is drowning, where he is dying at that moment, is it permitted to save him. However, if one is sick and is dying slowly, perhaps it is forbidden to heal him. The Torah teaches us that even this is allowed.

The Ramban adds that this verse is necessary to teach the doctor that he should not say, “Why should I get involved? Perhaps I will err and cause the person to die.” The Torah is telling him that he need not be concerned for this.

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Insights for Bava Kamma 83

By: Reb Yechezkel Khayyat

Dovecotes of Non Jews

The Gemora lists the dovecote of a non-Jew as not meriting a trap free zone around it. The Rishonim discuss the reason for this. The Meiri states that the Gemora was only referring to non Jews who are barbaric and have no religion at all. These people’s property is not afforded any protection, due to their barbaric behavior. All other dovecotes are protected, even if not owned by Jews. Rashi, on the other hand, understands the restriction of traps to be a special protection accorded to fellow Jews, as a kindness. This kindness is not extended to non-Jews.

Slave Value

The Mishna states that to estimate nezek, we evaluate the value of a slave with and without the damage. The Shitah quotes Rav Yehonasan who says that we do not estimate how much the victim feels he lost due to the permanent damage done to his body, since that would be so extreme as to be unfair to the damager. One would never put a reasonable price on his own physical body parts, and the resulting estimation would be exorbitant.

Rashi states that the slave market we are referring to is the market for an eved ivri – a Jewish slave. The Ketzos explains that a Jew cannot be estimated as a non Jewish slave, since he would never be one. The Rosh, however, says the market is for non Jewish slaves. Rashi’s opinion is difficult, as Jewish slaves are only sold for six years, and therefore the difference in value will not accurately reflect the damage done. Rabbi Akiva Eiger says that even if we were to continually reevaluate the damages every six years (to reflect the ongoing loss), this would be unfair to the damager, since the ultimate sum will be much larger than the one time loss to a permanent non Jewish slave. The Maharshal suggests that Rashi agrees that the slave market used for estimation is that for non Jewish slaves, but that Rashi here is simply giving a rationale for applying such an estimation to a free man. Since a free man can sell himself as a slave, this indicates a monetary loss ascribable to the damage done to his body. See Ketzos 420:1 for more detail on Rashi’s opinion.

Ayin Tachas Ayin

The Gemora explains how we know this verse is not literal. The Rambam (Chovel umazik 1:6) states that even though the straight reading of the verse is at odds with the halachah, the halachah comes from Moshe Rabbeinu himself, and has been always accepted. The commentators discuss why the Torah used this phrase, if the real meaning is not literal. The Ibn Ezra states that the Torah is telling us that if the damager would not pay money, it would be fitting for him to lose his eye. The Seforno similarly states that in a pure legal sense, the appropriate punishment would be physical, but the Torah was kind to allow monetary punishment instead. See the Ibn Ezra (Shmos 21:24) for a discussion of logical proofs to the monetary punishment.

The Gr”a states that the verse itself hints to the monetary punishment. The word Ayin is three letters – ayin, yud, nun. If we take the letters after each of those letters, we have the letters pei, kaf, samech. Rearranging those letters spells kesef – money. The verse tells us that for the eye, the damager pays tachas ayin – the letters below (after) ayin.

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Raising Dogs

Rabbi Eliezer Hagadol (Bava Kamma 83) stated that one who raises dogs is equivalent to raising pigs, and he therefore is included in the curse of the Sages. The Shitah quotes Rav Yehonasan who says that the opinion in the first braisa agrees that a dangerous dog may not be raised, but only due to the verse of ma’akeh (a fence), which states lo tasim damim – you shall not introduce blood in your house.,which was quoted on BK 15.

The Maharshal (BK 7:45) discusses why the prevalent custom in his time was for Jews to have dogs in their property. He first considers the possibility that since we live amongst non Jews, some of whom are hostile to us, we may raise the dogs for protection, just as the Gemora allows this for border towns, including Nehardea. He rejects this possibility, since even when kept for protection, the dog must be chained down during the day (when people walk around and may get hurt), and only let loose at night (when people are not walking around). The prevalent custom is to keep the dogs unchained even during the day. He therefore states that the Gemora’s statements on daf 15 and 83 are referring solely to a kelev ra – a bad dog, which can harm and scare people, by harming or barking. The Mishna therefore referred to one who raises Hakelev – the dog, i.e., the prohibited kelev ra – and not just kelev – a dog. However, our dogs, which are docile and do not scare or hurt people, are not included. Instead, they are included in the category of kelev kufri (80a), which Rashi explains as either small or docile dogs. People are used to these dogs, and are not even scared of them. Any dog that scares people – even if it cannot harm them - is forbidden, as indicated in the story of the pregnant woman.

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Greek Wisdom

The Gemora (Bava Kamma 83) states that Greek wisdom is not the Greek language, but does not explain what Greek Wisdom is. This is, of course, extremely relevant, as the braisa stated that one who teaches his son Greek Wisdom is cursed. The Shitah quotes a Gaon who says that Greek wisdom is a form of communicating in hints, without all people understanding the content (similar to the Oracles of Greek history). This fits well with the story the Gemora quoted (82b), in which an old man communicated important information to the army outside of Yerushalayim, which led to the curse. The Shitah quotes the Rema who says that Greek wisdom is predicting the future based on astrology. The Meiri says that Greek wisdom is Greek philosophy, which was forbidden due to its tendency to attract people and draw them away from many fundamental religious principles. Those who had to interact with the royalty needed to be versed in these areas, in order to be socially acceptable to the royal mileui.

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Seudas Mitzvah

Seudas Mitzvah

By: Reb Avi Lebowitz

The Gemora (Bava Kamma 80) tells Rav and Shmuel and Rav Assi once met at a circumcision of a boy, or as some say, at the house for the salvation of a son (the redeeming of a firstborn). Rav would not enter before Shmuel, nor Shmuel before Rav Assi (for Rav Assi was greater), nor Rav Assi before Rav (for Rav Assi was Rav’s student). They therefore discussed who should go in last, and they decided that Shmuel should go in last, and that Rav should enter and then Rav Assi.

Rashi comments that the “week of the son” refers to a bris milah, whereas the “salvation of the son” refers to a party that was done for the pidyon haben (redemption of the firstborn).

The Maharsha points out that from Rashi we find a source for making a party for pidyon haben, but it is not a source for making a party for a bris milah.

The Maharsha seems to understand that the requirement to make a party for pidyon haben is better sourced than the requirement to make one for bris milah. However, the Maharshal (Yam Shel Shlomo 37), in his famous discussion about seudas mitzvah asks a question from the Gemora in Chulin 95b which states that Rav did not partake in any “voluntary” feast!? Why then was Rav participating in this seudah? The Maharshal explains that by milah, the feast itself is a mitzvah just like it is by a wedding, however, there is no mitzvah to have a party by pidyon haben. The Maharshal clearly understands that whether it was milah or pidyon haben, Rav was joining and eating at the party. He assumes that the requirement to have a seudah for milah is more basic than having one at pidyon haben. Since the seudah of pidyon haben is only voluntary, how could Rav join and eat? [Evidently he holds that it is not a mitzvah at all by pidyon haben!?]

From this, the Maharshal is mechadesh a major yesod that any seudah whose purpose is to give praise to Hashem and either publicize a mitzvah (such as pidyon haben) or a miracle (such as the birth of a child which is Rabbeinu Tam's explanation of “salvation of a son” i.e.a shalom zachor) qualifies as a seudas mitzvah.

The source for a siyum on a masechta of Gemora qualifying as a seudas mitzvah, the Maharshal says, is from a Gemora in Shabbos 118b that Abaye would make a party when he would see a torah scholar finish a masechta (the Maharshal then launches into a suggestion to make the bracha of “hasimchah bi’me’ono” at a siyum, which he retracted from after he felt that it was the reason that a siyum he once attended was totally ruined). At the end of the perek, the Maharshal continues to show from this Gemora in Shabbos that even those who aren't actually finishing the masechta should celebrate with the one completing the masechta, just as we find that Abaye would make the seudah for his students even when he didn't actually learn it with them.

The Maharshal also points out that the Gemora in Ta'anis 30b cites that one of the reasons for establishing a Yom Tov on the fifteenth of Av was because it was the day that they completed the mitzvah of cutting the wood for the mizbei’ach. Just as there is a point to make a seudah and Yom Tov upon the completion of a mitzvah, so too, there would be with the completion of a masechta, because there is no greater mitzvah than completing a sefer. As surprising as it may seem, the seudah at the siyum masechta seems to be better sourced as a seudas mitzvah, more than bris milah (which the Maharsha questions) and pidyon haben (which the Maharshal initially questioned).

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Mumar l'hachis and l'teavon

Desecrating Shabbos

By: Reb Avi Lebowitz

Rabban Yochanan ben Zakkai’s students asked of him (Bava Kamma 79) : Why is the Torah stricter on a thief than on a robber. He replied: The robber puts the honor of the servant (man) on the same level as the honor of his owner (Hashem),whereas the thief does not put the honor of the servant on the same level as the honor of the master (for by stealing covertly, he is displaying a fear of man, but not Hashem). He made, as it were, the eye of the one Below (Hashem) as if it would not be seeing, and the ear of the one Below as if it would not be hearing, as it says: Woe to them who hide in depths to conceal their counsel from Hashem, and their deeds are in the dark, and they say, “Who sees us, and who knows of us?” And it is written: And they say, “Hashem will not see, neither will the God of Jacob give heed.” And it is written: For they say, “Hashem has forsaken the earth and Hashem does not see.”

Many years ago (14 Teves 5761), I had a question based on the halachah found in Hilchos Shechita (siman 2) - One who violates Shabbos in public is considered a mumar for the entire torah tantamount to one who worships avoda zara, and his shechitah is invalid just as the shechitah of an idolater. But, one who violates Shabbos in private, although he is not trusted, so long as there are mashgichim who determine that he shechted properly, his shechitah is valid. Based on the Gemora’s logic by ganav and gazlan, we should consider one who desecrates Shabbos in private to be worse than one who desecrates Shabbos in public!?

R' Moshe (Igros O.C. 1:33) raises this question and based on it, he is mechadesh an important yesod. It is not clear why one who desecrates Shabbos in public is so severe, but R' Moshe suggests that one who violates Shabbos in public is not just a mumar l’teavon (a heretic out of desire), but the fact that he is doing it in public indicates that he is a mumar l’hachis (a heretic out of spite). Although the concept of the Gemora is true, that one who steals in private and hides from Hashem is worse, that is when both the act in private and the act in public are for the sake of fulfilling his. However, when one violates Shabbos in public, he enters a new realm of being a “mechalel Shabbos l’hachis,” which is certainly worse than merely being motivated by desires. Even if deep down, he is only doing it to satisfy his desires, we do not regard his inner thoughts, and the act is an act of l’hachis.

Based on this, he suggests that this only applies at a time when people understand the severity of Shabbos, so that when one violates Shabbos publicly, it is an indication that he has a complete disregard for the Shabbos, but nowadays, where people no longer take Shabbos seriously, and their desires would bring them to desecrate Shabbos in public just as fast as it would bring them to desecrate Shabbos in private, even one who desecrates Shabbos in public will not have the status of an idolater (and therefore his shechitah is valid and he can be counted for a minyan).

I had an alternate approach to answer this question. Stealing is an aveira between two fellow men that every society recognizes as wrong and destructive. It is part of human nature to consider theft to be bad, and is inherent in human nature to try and hide these actions from others. When one hides these actions from people because he is worried that people will think less of him, or may catch him to punish him, he is outwardly displaying a fear for people that exceeds his fear of Hashem. Since it is part of human nature to hide acts of theft, we assume his intention is to hide it from other people. However, Shabbos is between man and God, and therefore the violation of Shabbos is not considered bad by human nature. When one hides his desecration of Shabbos from others, we assume that it is not because he is afraid of people, because people don't view desecrating Shabbos as inherently bad. So why would he hide his actions from people? We assume his attempt to hide his desecration of Shabbos is out of respect for Hashem, rather than trying to hide from Hashem. But when he is desecrating Shabbos in public, we consider it to be a lack of respect, violating Shabbos in the open showing no regard for it at all.

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Replacing the Lost Esrog

By: Rabbi Mendel Weinbach
Ohr Sameach

A Jew borrows a very expensive esrog from his neighbor to fulfill the mitzvah of taking the four species on Sukkos. Before he has a chance to return it, it somehow gets lost and he must now compensate the owner with another esrog. But why should he be required to purchase a similarly expensive esrog if he can provide him with a perfectly kosher one that is not of the same quality but much cheaper?

This question was dealt with by two great halachic authorities in connection with our Gemora (Bava Kamma 78) . The Sage Rava rules that if someone set aside an ox for fulfillment of his vow and that ox was stolen, the thief can replace it with a sheep and the victim cannot demand an ox because he wished to bring a sacrifice of greater quality. One opinion is that the case of the esrog is similar to this case and the ruling should be the same. A dissenting opinion is found, however, in the Responsa of Chacham Tzvi (Responsa 102). In the case of our Gemora, he points out, the thief did not cause his victim any loss of money, while he did so in the case of the esrog. That expensive esrog had the potential of being sold for a high price, while an animal set aside for sacrifice is not for sale.

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Night before Execution

It is an accepted tradition that the lengthy Tosfosim in the seventh perek of Bava Kamma were authored by the Baalei HaTosfos the night before they were murdered al pi Kiddush Hashem. While they were imprisoned, knowing that they would be killed the next day, they occupied themselves by delving into the depths of Torah. It is said that they cut their fingers and used the blood for ink. “Mi k’amcha Yisroel?”

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Insights on Bava Kamma - 76

Too late to redeem?

Tosfos (76a shechitah) asks why we consider the slaughtering of a sacrifice outside of the Temple to be unusable. Rabbi Shimon holds that an animal with a blemish can be redeemed as long as it is moving, even after slaughtering. Once the animal is slaughtered, the slit throat is a definite blemish, and should be grounds for redemption.

Tosfos answers that only blemishes that were present before an animal died are grounds for redemption, but that redemption can occur as long as the animal is still moving.

Tahi bah

The Rishonim discuss the exact meaning of this word, used to describe Rabbi Elozar’s objection to the cases offered by Rabbi Yochanan and Reish Lakish.

Rashi explains that the word is a borrowed term from wine inspection. The Gemora in Bava Basra refers to someone who smelled wine, and uses the same verb tahi . Similarly, Rashi explains that Rabbi Elozar was inspecting the statements, and delving into them, to understand them better.

The Shitah Mekubetzes, on the other hand, quotes an opinion that explains this word as a form of the more common matma - he was amazed.

Sacrificial slaughtering

Rashi states that Rabbi Elozar was challenging both Rish Lakish, who offered the case of a sacrifice with a blemish, as well as Ravin, who offered the case of a sacrifice that was successfully brought (including splashing of the blood), but not for the sake of its owner. Rashi understands Rabbi Elozar’s objection to apply even to Ravin, because even in a case where the sacrifice turned out to be valid and edible, the fact remains that as of the time of the slaughtering, it was not yet edible, since the splashing was not done.

Tosfos (76b v’halo zrika) states that Rabbi Elozar was challenging Rish Lakish, but only Rav Dimi’s version of Rabbi Yochanan’s answer – the case of the sacrifice whose blood was spilled before being splashed. Tosfos explains that their understanding of the Gemora in Chulin 80b is that the need for splashing blood can invalidate a slaughtering only if it was not ultimately done. Splashing of blood which was ultimately done will definitely make the slaughtering an edible one, retroactively.

Rashi, on the other hand, has a different text in the Gemora in Chulin, and therefore holds that even slaughtering a sacrifice which was successfully completed, including splashing the blood, does not render the slaughtering re’uyah since at the time of slaughtering, the animal was not edible.

See Pnei Yehoshua for a discussion of whether Rashi holds that Rabbi Elozar was also challenging Rav Dimi.

Just as if...

The Gemora stated that Rabbi Shimon holds a general rule of kol ha’omed - anything destined for a specific action is considered as if the action were already done. Tosfos (76b v’halo zrika) narrows the scope of Rabbi Shimon’s rule to cases where the subsequent action is mandated – a mitzvah. In that case, since the action not just may be performed, but is supposed to be performed, we can act as if it’s already done.

The halachah rules like the Chachamim. The Aruch Hashulchan infers from this topic a number of halachic conclusions. One of them is in the halachos of a shofar. The Gemora states that a shofar that is cracked is unfit. There is debate in the Rishonim on what extent of a crack invalidates a shofar, both for vertical and horizontal cracks. The Rosh (R”H 3:6) cites an opinion that any sized vertical crack (i.e., along the pathway of the air flow), no matter how small, invalidates the shofar, since the more it is blown, the larger the crack will become. The Aruch Hashulchan (O”H 586:15) states that this opinion does not invalidate it from the Torah, since we rule like the Chachamim. Rabbi Shimon can hold that a shofar that will become fully cracked is considered currently cracked, as part of his general opinion of kol ha’omed. The Chachamim, however, do not agree with this rule, and therefore would not consider the shofar already cracked. Since we do not rule like Rabbi Shimon, the invalidation must be on a Rabbinic level, lest we use a fully cracked shofar. [According to Tosfos’s limitation of Rabbi Shimon, it is debatable if Rabbi Shimon would apply kol ha’omed to a cracked shofar. There is no mitzvah of cracking the shofar, per se, but there is a mitzvah to blow in it, which would crack it further.]

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Whose Money is it?

By: Reb Yechezkel Khayyat

The Gemora (Bava Kamma 76a) discusses the opinion of Rabbi Shimon, that something that can cause someone monetary loss is tantamount to being that person’s money. The Ra’avad rules like Rabbi Shimon, and therefore considers hekdesh for which the makdish is responsible (harei alai) to be the property of the makdish. Therefore, according to the Ra’avad, if someone steals such hekdesh, he must pay full damages (including kefel and dv’h) to the makdish.

The Rambam (Geneivah 2:1), however, rules like the Chachamim, as this is the anonymous Mishna’s position. Therefore, in all cases of hekdesh articles that are stolen, the thief is not liable to pay any damages to the makdish. The Rambam first states that one who steals from hekdesh does not pay kefel, and quotes the verse yeshalem shnaim l’reyeyhu’ – he should pay double to his peer, excluding hekdesh, which is not his peer. Then, the Rambam applies this equally to all hekdesh – irrespective of the makdish’s responsibility – and quotes the verse of v’gunav mibeis ha’ish – and it was stolen from the home of the man, excluding hekdesh, which is not a man.

Tosfos (63a rayayhu) ask why the Gemora on 62b uses reyeyhu to exclude hekdesh, while our Gemora uses the verse of ha’ish to exclude hekdesh. While Tosfos explains that both are actually being learned from reyeyhu, the Lechem Mishnah states that the Rambam was implicitly addressing this question by quoting the different verses. The verse of reyeyhu is the fundamental source for excluding hekdesh from theft payments. However, the extra verse of ha’ish is the source for our ruling that this applies to all hekdesh – whether the makdish is responsible for it or not.

The Rishonim and Achronim discuss the exact formulation and rationale behind Rabbi Shimon’s opinion. Some of the facets discussed are:

1. At what point is it considered money? Does this begin while it’s in the responsible person’s property, simply because it can cause him to lose money, or is it only once it’s been removed from his property?

2. Is the obligation of one who harms such an item simply because he has caused a monetary loss, or because the holder’s responsibility created a status of money in the abstract? Another formulation of this question is – when one pays for damage to such an article, is it because of the damage done (which now includes monetary loss), or because the item is considered the property of the holder?

3. The Gemora in Pesachim (5b-6a) discusses Rabbi Shimon’s opinion in the context of chametz on Pesach. The rule established by the braisa quoted there is that the chametz of a non Jew in a Jew’s possession is considered the Jew’s only if the Jew is responsible for it. The Gemora debates whether this is a function of Rabbi Shimon’s opinion, or an exception to the ruling of the Chachamim. The exact application of this rule in the case of Chametz may depend on this debate. If chametz is a function of Rabbi Shimon’s opinion, it may be subject to the possible limitations and definitions of Rabbi Shimon’s general position on such items. If, however, it is an exception to the ruling of the Chachamim, the Torah is telling us a more sweeping statement about how we determine ownership for chametz on Pesach. One ramification of this may be how responsible for the Chametz a Jew must have in order to be obligated to remove it.

See the Ketzos Hachoshen 386:7 and Afikei Yam 2:10 for more detailed discussion of these topics.

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Freeing a Slave

by: Reb Avi Lebowitz

The Gemora (Bava Kamma 74) says that when Rabban Gamliel blinded the eye of Tavi his slave, he was “very happy.” Rashi explains that he was happy because he really wanted to emancipate him, but was unable to do so since freeing a Canaanite slave is a violation of a prohibition, but since he blinded him, he would be free.

[The Ya’avetz raises a technical problem: Rabban Gamliel certainly didn’t blind him intentionally since that would be forbidden, rather it was done accidentally (a proof to this is that he didn’t do it until now), but the Gemora says on 26b that a slave would only go free if he “intended to destroy him.”]

It seems that Rashi would disagree with the Ran (Gittin 20b b’dafei ha’rif) who says that freeing a slave follows the same rules as “lo sei’chanem,” that it is only prohibited if done for the purpose of the slave, but not if done for the need of the master. Based on the Ra”n, it should have been permitted for Rabban Gamliel to free his slave since it brings joy to himself and is not for the benefit of the slave. Can we deduce from this Rashi that he disagrees with the Ra”n and maintains that it is forbidden to emancipate a slave even for the benefit of the master?

It seems that Rashi here is not necessarily against the Ra”n (meaning that even the Ran would hold that Rabban Gamliel wouldn’t be allowed to free his slave for the purpose of giving him joy). The joy that Rabban Gamliel had was not a selfish joy; rather it is because he loved Tavi so much that he wanted to set him free for his own sake. Even the Ra”n would agree that if the only benefit to the master is that he is happy to provide benefit to the slave, that would not qualify as a selfish benefit to permit the freeing of a slave.

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Zomemin

By: Reb Avi Lebowitz

In a situation where two groups of witnesses contradict one another about an event; it is classified as contradictory witnesses, where we have no reason to believe one any more than the other. Under these circumstances the Gemora in Bava Basra has a discussion about what to do - it is an uncertainty, so follow the chazakah. One thing, however, is clear, that we do not believe the latter group any more than the first. However, where the second group doesn't testify about the event, rather about the validity of the first two as being valid witnesses, such as testifying that they are thieves, the second group is completely believed to overthrow the testimony of the first group. This is not considered a novelty, since everything that the first group is saying is true, just that by believing the second group that the first are thieves, we automatically do not accept their testimony.

Rava (in the first version) holds that a zomeim is a novelty and therefore only becomes disqualified from the time of the hazamah, and not retroactively from the time of the testimony. Abaye would presumably agree with Rava that zomemin is a novelty, just that it is not logical for them to be disqualified from the time of the hazamah; therefore we disqualify them retroactively from the time of their testimony.

It seems that the concept of “novelty” by zomemin is that rather than considering it to be a case of contradictory witnesses, where the second group are merely disagreeing about the event, we consider it as if the second group are actually testifying about the character of the first group, invalidating them as witnesses. (See Tosfos who explains that the novelty of zomemin more than contradictory testimony is either that the second group is entirely believed, or that the first group is definitely disqualified, not just out of uncertainty. Assuming like Tosfos’ second approach that the novelty of zomemin is to view the testimony to be on the character of the witnesses, not on the event, in which case it is not a novelty to directly disqualify the first or to validate the second, rather it is a novelty in classification).

Why are zomemin somewhere in between? In essence, the second group is not making a character judgment; they are only contradicting the facts – “these two witnesses could not have possibly witnessed what they claim to have witnessed since they were with us elsewhere.” Had it not been for the novelty of the Torah that we believe the second group, we would view it as if they just contradicting the first group about the events, where we would have a legitimate doubt as to who to believe. We would interpret their intent as simply being that the event was not witnesses by these two witneses because they were with us elsewhere. But the Torah teaches us that we are not to regard the hazamah as just undermining the plausibility of the event, rather they are giving a character testimony similar to claiming that the first group were thieves. Why?

It would seem that the reason is because when testifying about an event, it is sometimes possible to misinterpret the event, or not have a clear picture as to what actually happened, so we give each group the benefit of the doubt. But, by zomemin, the second group is claiming that it was clearly premeditated lying that is taking place, not an innocent mistake. People who would fabricate a story when they were in an entirely different location have a fatal character flaw just as thieves do, and therefore they are not admissible as witnesses in any court.

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Migu

It was stated (Bava Kamma 72): Abaye said: A zomeim witness is disqualified (for any other testimony) retroactively (from the time that he testified). Rava said: He is only disqualified from the time that he is found to be a zomeim.

The Gemora explains: Abaye said that he is disqualified retroactively, for it is at that time that he became an evildoer, for the Torah states: Do not place your hand with an evildoer to be a corrupt witness. Rava said that he is only disqualified from the time that he is found to be a zomeim, for his disqualification is itself a novelty (so why should we stretch it). This is because the two sets of witnesses are two against two, so why should we listen to the second set more than the first? Accordingly, we can only apply the disqualification novelty from the time that they become zomemin.

Tosfos asks: Why is it such a novelty that we believe the second set of witnesses over the first? They should be believed, for they have a migu that they could have disqualified the first set by testifying that the initial witnesses are thieves (“believe us when we say that they were with us, for if we would have wanted to lie, we could have said that they are thieves!”)!?

Tosfos answers that we do not apply the principle of “migu” by two witnesses, for each one of them is not aware as to what the other one is thinking.

Furthermore, it is similar to a “migu against witnesses,” where the migu is not effective, and since in this case, the first set of witnesses are testifying that they did in fact witness the event, they are clashing with the migu of the second set. In such types of cases, a migu is not effective.

The Tzlach answers that this is a migu for half a claim and that is why it is not effective. If they would have only testified that the initial witnesses were thieves, they would become disqualified, but they would not be liable to pay at all. However, if they would testify that the first set was not there at the time that they said the event took place, they would be disqualified and they would be liable to pay. Accordingly, the migu principle would not apply in this case.

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How Kosher?

The poskim discuss different cases of people who transgress, and how we relate to them, in light of Rabban Shimon Ben Gamliel (Rashbag)’s opinion. One situation discussed in recent times is a hotel that wishes to be certified as kosher, but with limitations. The hotel owners agree that all the food prepared in the hotel will be kosher (including only kosher meat, and no cooking of meat and milk together). However, they explicitly do not want to restrict their guests from eating milk right after meat, or even mixing (not cooking) meat and milk together. These actions are Rabbinically forbidden, but not as severe as the other potential transgressions being avoided by the certification. Rav Ovadia Yosef (Yabia Omer Y"D 4:7 and 6:3:3) rules that the rabbinate may - and should - certify the hotel, and says that Rashbag’s statement does not apply to this case. The Rambam rules like Rashbag, but says it’s good to be like the tznuim, making it a positive trait to be concerned with people’s religious welfare. Further, the Rambam may rule like Rashbag only in the case of robbery, which is more severe. Further yet, in the case of the trespassers, they may avoid the land altogether if they know that it may involve other prohibitions. In this case, without the certification, no one will avoid prohibitions, but, on the contrary, violate other ones. Finally, there are many customers who will not eat milk and meat together, and therefore the certification will make the difference for them between forbidden and permitted food. These people (including unwitting tourists) know no better, and therefore are considered anusim (forced), and we are concerned with their welfare.

Rav Moshe Feinstein (Y"D 1:52) also discusses a similar case of an establishment that agrees to only prepare kosher food (with certification), but not restrict the uses of the food by its patrons. Rav Moshe rules that the restaurant should be certified, since a certification does not have to relate to and concern external matters, even in the use of the certified food. Rav Moshe adds that this is especially true, since some of the patrons may be totally ignorant, and have the status of tinok shenishba. This would remove the rule of haliteyhu entirely, even according to Rashbag.

The Tzitz Eliezer (11:55 and 12: page 224) strenuously disputes these rulings, and states that only bad results can come from such a certification. The public at large will take the rabbinate certification much more lightly, and even the certification will be hard to enforce. The Tzitz Eliezer states that Rashbag’s statement definitely applies here, as we want to have no hand in enabling transgressions, and have no interest in ameliorating any of the transgressions involved. In his response to Rav Ovadia Yosef’s letter to him, the Tzitz Eliezer says that it seems that he and Rav Ovadia Yosef approach this halachic area differently.

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Insights on Bava Kamma - 69

Bittul

Tosfos (69a kol hanilkat) discusses how the part of the vineyard that grew after the Tznuim’s declaration did not prohibit the rest of the vine. Tosfos assumes that the regular rules of bittul – nullification of a prohibition in a larger mixture – would not apply, since the fourth year vineyard is a davar sheyesh lo matirin – a prohibition which will become permitted. See the Rama YD 102:4 for a conflicting opinion.

Cuthean produce vs. D’mai

There is a dispute among the Tannaim whether Cutheans are Halachically Jewish, but just less trustworthy, or not Jewish at all. This depends on whether we classify them as Geirei Arayos - converts only due to fear of lions - or Geirei Emes - true converts. (See Tosfos Chulin on how to reconcile the second opinion with the verses in Melachim that state the history of the Cutheans). The Rishonim explain that the author of the braisa in our Gemora holds that the Cutheans are Jews, but just not trustworthy. Their produce is still different than D’mai, the produce of Amei Haaretz, on which there is a doubt as to some of the tithes. D’mai is most likely tithed, but the Sages instituted an assumption of some tithes not taken. Since it’s a special stringency, there are areas where the Sages allowed leniency (e.g., poor people can eat it, it can be separated on twilight Friday night). However, the produce of the Cutheans are considered definitely not tithed, and these leniencies do not apply.

Ye’ush vs. Hefker

The Rishonim question why a person should have to declare the extra fallen sheaves to be hefker for the poor people. Presumably, the owners - who are ready to declare hefker on these sheaves - have given up on them, and such despair (ye’ush) is sufficient for someone to take ownership. Even those opinions earlier in the perek who do not accept ye’ush to transfer ownership, will agree that changing possession together with ye’ush will. Tosfos (69a kol shelaktu) answers that ye’ush will effectuate ownership, but not remove the need for tithes. Tithes are not necessary for hefker, since the Torah states that tithes should be given to the Levi "ki ein lo chelek v’nachala imach" - because he does not have a portion and inheritance with you. This implies that hefker, where the Levi has equal rights with you and everyone else, will not require tithes. Ye’ush, however, will only transfer the grain to the poor, but not give the Levi (or anyone else) rights to the sheaves. In addition, Tosfos states that the ye’ush here is only vis a vis the poor people, and is no better than hefker only to the poor, which is not considered hefker at all.

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Bereirah

In the course (Bava Kamma 69) of discussing Rabbi Yochanan’s statements, the Gemora introduces the concept of bereirah. Bereirah is a wide ranging concept, appearing throughout Shas, in a variety of forms, having ramifications in many halachic areas. Below are a number of facets of bereirah, which appear in the Rishonim and poskim.

Cases
Courtyard neighbors

The Gemora (Nedarim 55b-56b) discusses the status of two people who are partners in a courtyard. They both have use rights, but it may depend on bereirah to determine exactly when each one has ownership at a given time.

Partners

The Gemora (Beitza 37b-38a) discusses cases of partners who split their joined item, insofar as techumim ownership. Bereirah allows us to consider the ultimate allocation reflective of the original true ownership.

Inheritance

This case is discussed by Rabbi Yochanan in our Gemora, and appears in many other Gemoros.

Separating Tithes

This case is discussed by Rabbi Meir and Rabbi Yehudah in our Gemora, and appears in many other Gemoros.

Choosing a Techum

The Gemora (Eruvin 36b-38a) discusses various Eruvei Techumim, where the actual details of the Eruv are left for later clarification, using Bereirah. The Gemora includes a lengthy discussion of Rabbi Yehudah’s position on Bereirah, based on multiple conflicting sources.

Why does (or doesn’t) it work?

Tosfos (Eruvin 37b Ela) states that those who do not accept bereirah feel that later designation is meaningless, and therefore the action is not effective at all. In our case, this means that the separation that will happen after Shabbos is meaningless, and therefore, the declaration at the onset of Shabbos has no wine to take effect on, and it not effective at all. Rashi (Chulin 14b osrin), on the other hand, states that those who do not accept bereirah simply hold that the later designation cannot resolve the initial unclarity. In the case of the wine, when the person declares that he is taking the tithes from wine that will be designated later, the tithes now exist in the wine, but the person cannot designate them later. Therefore, this wine has indeterminate tithes, and none of it can be used.

See Shaarei Yosher (3:22 v’af shera’isi) for a more detailed discussion of how bereirah does work, and what are its limitations. See Shiurei R. Dovid Lifshitz (Hulin, #29) for a further discussion of this dispute.

How much is unclear?

The Ran in Nedarim (55b v’ika) suggests that the case of partners’ use in a courtyard can be considered full ownership, even according to those who generally do not accept bereirah, since the bulk of the "split" is already done, with only the exact time that it will be used left for later clarification.

Will it definitely be clarified?

Tosfos (Gittin 25b Rabbi Yehudah) states that some cases of bereirah are less acceptable, since there may never be any clarification. For example, as opposed to our case of the wine - where some wine will be taken, but it’s not known which - a case of one who consecrates the coin that he will take from his pocket, is a case where it’s possible that no coin will be chosen at all.

Who decides?

The Gemora in Gittin (25a-b) raises the possibility that bereirah may be more acceptable in the case where the area left for later clarification depends on another party. If bereirah is unacceptable because the party doing the action must decide before acting, then if the only clarification is external, the active party has done his part, and left the rest up to something else. Examples of this are:
1. A person who betroths a woman, but stipulates that it will only take effect if the woman’s father agrees.
2. A person who gives his wife a Get, which should be effective one moment before he dies. This is making it dependent on outside party, i.e., Hashem.

Explicit exceptions

There are cases where the Torah states an explicit detail, which overrides the general rules of bereirah.

The Torah explicitly states that a Get must be written "la" - for her (the wife), and from this the Gemora learns (Gittin 2b) that a Get must be written "lishma" - explicitly for the wife’s sake. From this verse, Tosfos (24b l’aizo) suggests that even those who accept bereirah may invalidate a Get which was written for the sake of "the wife that I choose"

The Gemora on our daf mentions the case of brothers who split their father’s estate as a case of bereirah. Tosfos (Gittin 48a Ee) suggests that, even without bereirah, inheriting brothers could be not subject to return on the Yovel year, due to the inherent nature of inheritance and Yovel.

Torah vs. Rabbinic

The Ri in Tosfos (Nedarim 56b) rules that we accept bereirah in all areas of halachah. The Rambam (Eruvin 8:7, Trumos 1:21, Yom Tov 5:20) rules that in Rabbinic areas of halachah, we accept bereirah, while in areas of Torah halachah, we do not accept bereirah.

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Paying for its Worth at the Beginning

Rav said: A thief must pay the principle according to the value of the stolen object at the time that it was stolen. He pays the double payment and the fourfold and fivefold payments according to the value of the object at the time that he was sued in Beis Din.

Tosfos asks: What is the novelty of Rav’s ruling that a thief must pay the principle according to the value of the stolen object at the time that it was stolen? This is an explicit Mishna below that a thief pays according to the object’s value at the time that it was stolen!?

They answer: This, in fact, is not a novelty at all. Rav is teaching us that the double payment and the fourfold and fivefold payments are paid according to the value of the object at the time that he was sued in Beis Din.

The Shitah Mekubetzes writes that the thief pays the double payment and the fourfold and fivefold payments according to the value of the object at the time that he was sued in Beis Din is completely logical, for since the thief is not immediately liable in these payments, for if he wishes, he can admit and be exempt from paying. He therefore pays according to its value at the time that he was sued in Beis Din.

The Rosh seems to be uncertain if this, in fact, is a logical argument, or if this is something which may be derived only based upon a Scriptural verse.

The Machaneh Efraim discusses the following case: If one damages an object belonging to another; at the time of the damage, it was worth five, but at the time of the payment it was only worth four – how much is the damager required to pay? Perhaps the halachah that one pays according to the value that the object was worth at the time that it was stolen applies only to a thief, for that is where the Torah teaches us the halachah; however, by a damager, perhaps he is only required to return a similar object to the one which he damaged, even if now it is worth less?

He concludes that this would be dependent upon the Rishonim in our sugya. If the halachah that a thief pays according to what the object is worth at the time it was stolen is purely logical, then it stands to reason that this should apply to a damager as well. However, if it is something that is derived from a Scriptural verse, perhaps it only applies by a thief, and not by a damager.

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Exemption when One Admits to a Fine

The Gemora (Bava Kamma 64) asks: According to the opinion (63b) who holds that one verse teaches us about the thief himself and the other deals with a custodian who alleges that the object he was watching was stolen and we find that he stole it himself, and he derives the law about the thief himself from the verse, “If the thief will be found,” what does he derive from the verse, “If it will be surely found?”

The Gemora answers: He understands the verse is required for the teaching of Rava bar Ahilai, for Rava bar Ahilai says: Why does Rav say that if a person admits to a fine (which a person by Torah law does not have to pay based on his own admission) and then witnesses come and testify to his guilt that he is still exempt from paying? This is as the verse states, “If it will surely be found.” This teaches us that if it was first revealed with witnesses he should then be decided as guilty by the judges. This excludes a case where he admitted his guilt. [He will be exempt from paying the fine even if witnesses come later.]

Does this ruling apply only in the Beis Din in which the person admitted to the fine, or does it apply even where witnesses testify in a second Beis Din against him?

The Ketzos Hachoshen (350:2) writes that when one is exempt from liability after admitting to a fine, it is not as if the obligation is cancelled; rather, the halachah is that Beis Din cannot obligate him to pay after he has incriminated himself. Therefore, the exemption applies only in the Beis Din in which he admits. If, however, he admitted in one Beis Din and afterwards he was sued in a second Beis Din and witnesses testified against him, the second Beis Din may obligate him to pay the fine. And similarly, if witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, he will be exempt from paying, since witnesses had not testified in the Beis Din where he admitted, and the Beis Din where he admitted cannot make him liable, for he incriminated himself.

The Nesivos Hamishpat disagrees and maintains that once a person admits to a fine in one Beis Din, he no longer can be obligated to pay even if witnesses testify against him in a different Beis Din. He also holds that in a case where witnesses testify against him in one Beis Din but they did not complete the judgment, and then he is taken to a second Beis Din where he admits to the fine, the second Beis Din cannot obligate him to pay, but it is not because the halachah of admitting is dependent upon Beis Din. Rather, it is because that as long as a verdict has not been reached, it is still regarded as a fine, and therefore, if he admits before a second Beis Din, they cannot obligate him to pay, for he has incriminated himself. However, if witnesses will testify against him in the second Beis Din, he will be liable to pay.

The Nesivos evidently holds that once he admits to the fine and is exempt from paying, the debt is completely cancelled and a second Beis Din cannot make him liable to pay any longer.

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