Perutah in Media

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The Mishna had stated: One who steals from his fellow something worth a perutah and swears falsely is obligated to bring it to him, even to Media.

What is the significance of Media?

The Vilna Gaon (Kol Eliyahu; Kiddushin 12a) explains based on the following verse [Yeshaya 13:17]: Behold I stir up Media against them, who do not value silver, and do not desire gold. The thief must travel even to Media, a place where a perutah is completely insignificant because of the abundance of gold and silver that is found there. Nevertheless, the thief must go there and return the money that he stole.

This is why Shmuel (Kiddushin 12a) ruled that if someone betroths a woman with a date, even if a kur of dates is only worth a dinar, we say that she is betrothed, as a single date might be worth a perutah in (the country of) Media. Precisely in Media, where money is insignificant, that is where it is possible that one will receive a perutah in exchange of one date.

The Nitzotzei Ohr adds on his words: This is why the Gemora there mentions dates, for dates there were very expensive. That is why beer there was made from barley and not from dates, as we find the Gemora discusses the beer from Media. For this reason, one was prepared to pay a perutah for one date.

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Paying for Terumah

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The Gemora cites a braisa: If someone steals terumah but did not eat it, he pays keifel (double) the value of the terumah. If he ate it (accidentally after he stole it), he pays twice the principle plus one fifth. The value of one principle plus one fifth is from chulin produce, and one principle is paid with money according to the value of terumah.

The gemora in Pesachim (32a) is uncertain what the halachah is if one steals terumah from a Kohen and he eats it. Does he pay according to the measure – that is, he pays with unconsecrated produce in the amount of terumah produce that he stole – even if the produce went up in value? Or perhaps he pays according to the value which he stole, and therefore, if the produce price went up in value, he can give less produce which equals the value in which he stole. The Gemora does not resolve this.

The Mishnah Lamelech wonders how it would be evaluated according to value. Do we evaluated how much the stolen terumah itself is worth (which would be less than chulin), or do we view it as if it would have been chulin produce? He cites an opinion of the Ra”sh that it is evaluated as if it would have been chulin produce.

The Tosfos Yom Tov derives from Rashi in our sugya that he pays according to the value of terumah.

The Minchas Chinuch makes the following distinction: If a non-Kohen eats terumah that belongs to him (it was inherited from his mother’s father), he can pay according to the value of terumah, for the payment is not on account of stealing; rather, it is to receive atonement for his sin. However, a non-Kohen who steals terumah and eats it, he must pay according to its value as if it would be chulin produce. This is because of the following: If he would pay a lesser amount of chulin produce, immediately after he designates the produce for payment, which serves as his atonement, the produce becomes terumah. This would cause the price to drop, and it would emerge that he is paying less than the value of terumah in which he stole.

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Pigs in the Future

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Our Gemora states that ma’aser sheini produce is regarded as something that will otherwise become permitted (since it may be eaten in Yerushalayim, or it can be redeemed), and there is a principle that any item that will eventually become permitted is not nullified even when intermingled with a thousand items of its like.

The Rishonim disagree regarding a food item that the Gemora is uncertain if it is forbidden or not and it remains unresolved. The inquiry will remain in that state until Eliyahu Hanavi clarifies it for us. The Ohr Zarua maintains that this is regarded as “something which can become permitted,” since there is a possibility that Eliyahu will say that it is permitted. The Rashba disagrees and he explains: If Eliyahu will decide that the food is forbidden, it will emerge that this item will never be permitted. If he will rule that it is permitted, it actually was never forbidden. Either way, he argues, it cannot be labeled as “something which can become permitted.” The Bach cites a Mordechai that it is not considered “something which can become permitted,” for by the time Eliyahu will permit it, the food will be already ruined.

The Chasam Sofer cites the following question from the Rav in Frankfurt: Chazal write that a pig is called a “chazir,” for in the future, Hashem will reverse the prohibition of the pig and it will be permitted. If so, according to those Rishonim, pig should be regarded as “something which can become permitted”?

The Chasam Sofer answers based upon that which was written in the Toldos Yitzchak: The Torah forbids animals that do not have split hooves, or those that do not chew their cud because those animals are naturally conceited; they trample with their feet and they have a poison inside of them, which is extremely dangerous for a Jew to eat. The animals that do not digest their food easily and they are compelled to chew their cud; those animals are permitted to eat.

If so, explains the Chasam Sofer, there will be no change in halacha regarding the pig. It was forbidden and will remain forbidden. Rather, Hashem will change the nature of the pig and it will begin to chew its cud. That is why it will be permitted then. Accordingly, the only pigs that will be permitted then, are those that will be born after this change occurs; however, the pigs that were in existence prior to that will remain forbidden. This is why a pig is not classified as “something which can become permitted.”

Something that can become Permitted
(Davar she’yeish lo Matirin)
The Mishna states: If one makes a neder prohibiting himself from wine, he is permitted in cooked food which has in it the taste of wine. However, if he said, “Konam this wine that I will not taste,” and it fell into a cooked dish, if it contains enough to impart flavor to the entire mixture, it is forbidden.

This would imply that if there is not enough to give flavor, it would be permitted. The Ra”n quotes his teachers who ask the following: Something which is forbidden on account of a neder is “something that can become permitted” (davar she’yeish lo matirin), and we have established that anything that can become permitted is not nullified even in a thousand!?

They answer that when we say that it is not nullified even in a thousand, that refers to something that has been mixed with its own kind. But here, when it says, “and it became mixed,” it is referring to something else that is not the same kind, like the case of eggs that were cooked with it. Anything that is mixed with something else that is not its kind is permitted, provided that it does not give flavor, even if it is “something that can become permitted.” The Ra”n cites proof to this from a Mishna in Chalah and a Yerushalmi.

They, therefore, objected to the statement of the Ri”f in Meseches Chulin concerning bread that was baked in an oven with roasted meat. The Gemora states that it is forbidden to eat it with a dairy sauce even though it has been established that we are not halachically concerned with vapors. The reason it is forbidden is because the bread is “something that can be permitted,” since one may eat it together with meat. For that reason, it is not nullified, even in a thousand. It is evident from the Ri”f that he maintains that “something that can be permitted” is not nullified even in something that is not its kind.

The Ra”n, however, agrees to the Ri”f. When the Mishna here says that “something can become permitted” becomes nullified in something that is not its own kind, that is referring to something that is forbidden now, but will become permitted in the future, like nedarim. For the Ra”n has the following question: Since according to the Chachamim, all forbidden things become nullified in their own kind just as in a different kind, why did the Chachamim make a distinction in the case of “something that can become permitted,” between its own kind and a different kind? The reason is as follows: The Chachamim and Rabbi Yehudah disagree whether or not something can be nullified in its own kind. Rabbi Yehudah maintains that a forbidden item is not nullified in its own kind, because anything that is similar to another thing does not weaken and nullify it; rather, it preserves it and strengthens it.

The Chachamim disagree and hold that a forbidden item and something which is permitted are not similar to each other, even if they are the same kind. This is because one is forbidden and one is permitted. For it is not fitting to follow the similarity of their substance, but rather the difference in their being forbidden and permitted. It is for this reason that the Chachamim learned concerning “something that can be permitted” for the sake of being strict towards the opinion of Rabbi Yehudah. For since the forbidden item is not completely different from the permitted one, because the forbidden one will eventually become permitted, we say that it is not nullified in its own kind. It will only become nullified when mixed with a different kind, for the difference that exists between one kind and another will make up for the equality that is added here because it is “something that can be permitted.” It is the difference between kinds that is the cause of nullification, and equality interferes with nullification.

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Is it Mutar to Cheat (just a little)?

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The braisa had stated: If it is an issar less, it is forbidden.

Abaye explains this to mean that the coins cannot be used at its face value if the sela became lacking by an issar more than its price fraud limit.

Rava challenges this interpretation, for if it is even a little more than the limit, it cannot be used at its face value!?

Rather, Rava understands it to mean that if the sela became deficient by an issar to a dinar, it cannot be used any longer at its face value. This would be an anonymous ruling which follows Rabbi Meir’s viewpoint.

Tosfos understands in Rashi that one would be permitted to defraud his fellow if it is less than a sixth, even in a case where he does not intend to return the overcharge. This is because the defrauded party, because it is insignificant, is immediately mochel the “cheater.” It would be permitted to charge exactly a sixth more than its price only if he intends to return the overchatge within the time it would take the other party to show the purchase to a merchant.

The Ritva writes that it is forbidden to defraud your fellow in cases where it is precisely a sixth. This is because people are generally particular regarding these things.

The Ramban maintains that it is forbidden even if it is less than a sixth, for one is not allowed to defraud his fellow whatsoever. If it was less than a sixth, the sages ruled that he is exempt from paying it back. That does not make it permitted.

The Chinuch holds that there is no Biblical prohibition when one defrauds his fellow less than a sixth.

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Stipulation regarding Marital Relations

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The Gemora cited a braisa: If someone says to a woman that she is betrothed to him on condition that he does not owe her support, clothes, or marital relations, the kiddushin is valid, but the conditions are invalid; these are the words of Rabbi Meir. Rabbi Yehudah says: In monetary matters, the condition is upheld.

The Gemora explains that Rabbi Yehudah holds that one can make a condition modifying the obligations stipulated by the Torah regarding monetary law.

This would explain why Rabbi Yehudah holds that the condition is valid when he stipulated that he does not owe her support or clothing; however, why is it valid when he stipulates that he will not have marital relations with her? This is not a monetary law!?

Rashi, because of this, writes that the husband remains obligated to have marital relations with her, for this is not a financial right. Depriving a wife from relations would cause her physical distress and therefore the condition is void.

The Mishnah Lamelech challenges this from a Gemora which states that one can say to his fellow, “Hit me and you will be exempt.” Evidently, one can waive physical anguish! Furthermore, we find that a woman can release the husband from his marital relations!?

Some answer that Rashi himself, cited in the Shitah Mikubetzes in Kesuvos (56a), states that the condition is void, for we assume that a woman will not waive her rights regarding anything which causes physical anguish; however, if she explicitly forfeits those rights, they are forfeited.

Rabbeinu Chananel holds that a man may stipulate on marital relations, and a wife can waive her rights to it as well. This is because the pleasure of relations belongs to her and it would be regarded as a financial right.

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Torah is for Jews

The נצי“ב used to say over the following story. In Russia, there was a certain Education Minister who became friendly with a משכיל named Dr. Lilinthel. In their conversations, this משכיל used to quote to the Minister from משניות and גמ‘. The Minister developed a desire to learn גמ' and asked Lilinthel to teach some גמ' to him. Lilinthel and two other משכילים chose a גמ' in בבא מציעא דף נ' to learn with him. This was the סוגיא called תגרי לוד which they figured since it was a גמ' with only סברא and one didn’t need too much background information, the Minister would be able to understand it. They prepared it extremely well and began to teach it to him. After they finished the גמ' one time, the Minister appeared exhausted and extremely tired. He asked them to repeat the גמ' to him. They learned it with him again. After the second time, he closed the גמ' in exasperation and proclaimed that he didn’t understand one word that they taught him. When they told this over to the נצי“ב, everyone was amazed that this brilliant Minister couldn’t understand a simple גמ‘. The נצי“ב said that there is a clear גמ' in סנהדרין that says ”תורה צוה לנו משה מורשה קהלות יעקב - לנו מורשה ולא להם מורשה“. תורה is only for כלל ישראל and not for the גוי.

QUESTIONS AND ANSWERS FROM YESTERDAY’S DAF
to refresh your memory

Q: How is one obligated to sustain his workers?

A: Like a feast from Shlomo Hamelech.

Q: When does R’ Yochanan allow a person to retract from his words?

A: By a large gift.

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Merchants of Lod

Daf Yomi

Merchants of Lod
The Gemora inquires: According to the view of the Rabbis (who hold that ona’ah is a sixth), is a price fraud of less than a sixth immediately waived, or is it waived only after the buyer has had time to show the item to a merchant or his relative?

The Gemora asks: And if you will conclude that it is only after he has had time to show the item to a merchant or his relative, what would be the difference between a sixth (where the Mishna above rules that one may return such an item until the time it would take to show it to a merchant or his relative) and less than a sixth?

The Gemora answers: There still would be a difference, for in the case of a sixth, he (the one who was defrauded) has the upper hand, and can either withdraw or retain the ownership but have the overcharge returned; whereas in the case of less than a sixth, he must retain ownership and have the overcharge refunded. What then is the halachah?

The Gemora says: Let us resolve this from our Mishna [When the merchants of Lod heard this (that Rabbi Tarfon ruled that a third of the price is regarded as ona’ah), they were happy, since it allowed them a larger margin above the fair price. However, when Rabbi Tarfon told them that he also allowed a day for the buyer to return the item,]: They went back to following the Rabbis opinion. Now, it was thought that less than a third according to Rabbi Tarfon’s view (the sale would still be valid) is identical in halachah with less than a sixth according to the Rabbis. Now, it is well if you would say that an overcharge of less than a sixth, according to the opinion of the Rabbis, (it is only) when the buyer has had enough time to show the item to a merchant or his relative (where he can demand a refund; afterwards, he forfeits that right), whereas according to Rabbi Tarfon, (it is only after) the whole day (passes before he forfeits the rights of demanding a refund). It was on this account that the merchants reverted to the ruling of the Rabbis. [Assuming that the Rabbis allowed the buyer to demand a refund when he was overcharged by less than a sixth – the original excitement of the merchants can be understood, as well as their ultimate rejection. They were not pleased that a buyer could void the sale if he was overcharged by more than a sixth. When they heard that Rabbi Tarfon ruled that a sale cannot be voided unless there was an overcharge of more than a third, they were excited, for now, if they overcharged a buyer by more than a sixth, but less than a third, the buyer could not void the sale; the buyer would have a short amount of time (the time it took to show it to a merchant or his relatives) to demand a refund of the overcharge. However, when Rabbi Tarfon proclaimed that the time limit would be the entire day (and not within the time it took to show it to a merchant or his relatives), they realized that they would lose out with this method. For in cases where the overcharge was less than a sixth, the buyers would only have a short amount of time to demand a refund according to the Rabbis, whereas Rabbi Tarfon allowed them the entire day. This advantage outweighed the fact that if the overcharge was a sixth or more than a sixth (but less than a third), the sale could be voided according to the Rabbis, but according to Rabbi Tarfon, the buyer could only claim a refund for the overcharged amount.
More than a sixth, but less than a third:
Rabbis - Sale could be voided, but only in a short amount of time.
Rabbi Tarfon - Sale cannot be voided; buyer has the entire day to demand a return of the overcharge.] But if you would say according to the Rabbis that when the buyer is overcharged by less than a sixth, he immediately waives his right to demand a refund, and similarly according to Rabbi Tarfon (when the buyer is overcharged by less than a third), he immediately waives his right to demand a refund, why did the merchants revert to the Rabbis opinion? Rabbi Tarfon’s viewpoint would be more advantageous to them! For that which the Rabbis regarded as price fraud (either to void the sale or to demand a refund of the overcharge), Rabbi Tarfon would rule that the buyer waives his right immediately!?
[Less than a third:
Rabbis – Buyer could demand a refund or void the sale.
Rabbi Tarfon – Buyer waives rights immediately – sale is final!]

[The Gemora demonstrates that the story still makes sense – even if the buyer immediately waives his rights when he was overcharged by less than a sixth.] Do you think that less than a third according to Rabbi Tarfon’s view is identical in halachah with less than a sixth according to the Rabbis? No, it is not! From a sixth to a third according to Rabbi Tarfon is the same as exactly a sixth according to the Rabbis. [The halachah of exactly a sixth according to the Rabbis is this: The buyer can either void the entire sale or he can demand a refund of the overcharge. (If the price fraud was more than a sixth, both the buyer and the seller can void the sale.) The following will explain why the merchants reverted to the opinion of the Rabbis:
Exactly a sixth:
Rabbis - Buyer can either void the sale or demand a refund of the overcharge, but only in a short amount of time.
Rabbi Tarfon - Buyer can either void the sale or demand a refund of the overcharge, but he has the entire day to do so.
More than a sixth, but less than a third:
Rabbis - Sale could be voided by either party (there is a question if there is a deadline for this).
Rabbi Tarfon – The buyer (but not the seller) has the entire day to either void the sale or demand a refund of the overcharge.]

The Gemora asks: If so (that the only argument by more than a sixth is if the seller can also void the sale), why were they pleased in the beginning (the buyer anyway can void the sale if he pleases)?

[In order to answer this question…] We should prove from this fact (that they initially were pleased with Rabbi Tarfon’s opinion) that according to the view of the Rabbis, in a case where the sale is voided, one can always retract. They thus rejoiced when Rabbi Tarfon told them that an overcharge (from a sixth to a third) constitutes price fraud (for they thought that the buyers would have a very short time limit to make such a claim). But then when he told them that the time for withdrawing is the entire day, they reverted back to the Rabbis.
[More than a sixth, but less than a third:
Rabbis - Sale could be voided by either party forever.
Rabbi Tarfon – The buyer (but not the seller) has the entire day to either void the sale or demand a refund of the overcharge.
(The fact that Rabbi Tarfon imposed a limit of one day was not so advantageous for them, for once the buyer has one day to void the sale, he will probably find time to do so. Furthermore, price fraud more than a sixth was not such a common occurrence.)
Exactly a sixth:
Rabbis - Buyer can either void the sale or demand a refund of the overcharge, but only in a short amount of time.
Rabbi Tarfon - Buyer can either void the sale or demand a refund of the overcharge, but he has the entire day to do so.
(Here, it would be a big loss for them if they would follow Rabbi Tarfon’s opinion, for in the common case of precisely a sixth, the buyers would have the entire day to void the purchase; whereas according to the Rabbis, they would only have a short amount of time.)]

For if you should think, continues the Gemora, that according to the view of the Rabbis, in a case where the sale is voided, it is only within the time that the buyer can show it to a merchant or to his relative, why did they rejoice in the first place?
[More than a sixth, but less than a third:
Rabbis - Sale could be voided by either party, but only in a short amount of time.
Rabbi Tarfon – The buyer (but not the seller) has a short amount of time to either void the sale or demand a refund of the overcharge.]

The Gemora answers: They rejoiced in respect of a sixth itself. For according to Rabbi Tarfon, there would be no claim at all, whereas according to the Rabbis, it would be a case of price fraud.

[In conclusion:
Rabbi Tarfon
Less than a sixth or a sixth – Sale is valid; no claims whatsoever.
More than a sixth, but less than a third - The buyer (but not the seller) can either void the sale or demand a refund of the overcharge.(Originally, this ruling was thought to be limited until the buyer had enough time to show it to a merchant or to his relatives; afterwards he ruled that he has the entire day.)
A third or more - Sale could be voided by either party.
Rabbis
Less than a sixth – Sale is valid; no claims whatsoever.
Exactly a sixth - The buyer (but not the seller) can either void the sale or demand a refund of the overcharge.
More than a sixth - Sale could be voided by either party, but only within a short amount of time.

Initially, the case of exactly a sixth was more advantageous according to Rabbi Tarfon, for the sale was valid immediately. However, when Rabbi Tarfon ruled that the buyer had the entire day to submit his claim, the merchants reverted back to the opinion of the Rabbis.]

The Gemora inquired: In cases where the sale is void according to the Rabbis, can the buyer retract forever, or can he retract only within the time it takes for him to show the purchase to a merchant or to his relatives? And if you will conclude that (it must be that there is no limit, for if) he can only retract within the time it takes for him to show the purchase to a merchant or to his relatives, then what difference would there be between a price fraud of a sixth and one of more than a sixth? This, the Gemora says, is not a proof, for if the price fraud was exactly a sixth, only the one who was defrauded can retract, but where the price fraud was more than a sixth, both the buyer and the seller can retract. So, what is the halachah (regarding our inquiry)?

The Gemora says: Let us resolve this from our Mishna [When the merchants of Lod heard this (that Rabbi Tarfon ruled that a third of the price is regarded as ona’ah), they were happy, since it allowed them a larger margin above the fair price. However, when Rabbi Tarfon told them that he also allowed a day for the buyer to return the item,]: They went back to following the Rabbis opinion. Now, it is well if you say that annulment of the sale according to the view of the Rabbis, is only within the time it takes to show the purchase to a merchant or a relative, whereas according to Rabbi Tarfon’s view he has the entire day, for it is on that account that they reverted to the Rabbis opinion. But if you say that in the case of annulment of sale, according to the view of the Rabbis, one can always retract, why did they revert to the opinion of the Rabbis? Surely Rabbi Tarfon’s ruling was more advantageous to them, since the buyer could only demand a refund during that day, but no more!?

[More than a sixth, but less than a third:
Rabbis – Buyer can always void the sale.
Rabbi Tarfon – The buyer (but not the seller) has the entire day to either void the sale or demand a refund of the overcharge.
(Rabbi Tarfon’s ruling is more advantageous to the merchants, for the buyers are limited to one day.)
Exactly a sixth
Rabbis - Sale could be voided, but only in a short amount of time.
Rabbi Tarfon – The buyer has the entire day to either void the sale or demand a refund of the overcharge.
(Although the Rabbis ruling seems to be more advantageous for the merchants, it is easily avoidable by selling it for slightly less than a sixth, where the buyer waives his right to demand a refund.) ]

The Gemora answers: Annulment of a sale is rare.

[It is therefore not considered advantageous to the merchants, and even if it does occur, there is no advantage to Rabbi Tarfon’s ruling, for once the buyer has one day to void the sale, he will probably find time to do so. It emerges that they reverted to the opinion of the Chachamim on account of a case where the price fraud was exactly a sixth, for according to the Chachamim, the buyers only had a short amount of time in which to demand a refund, but according to Rabbi Tarfon, they had the entire day to submit their claim.]

Rava said Raba said: The halachah is: In the case of less than a sixth, the sale is valid. If the fraud was more than a sixth, the sale can be voided (by both of them). If it was exactly a sixth, it is valid, but the overcharge must be returned. And in both of those cases, it is only if the claim was made within the time it takes to show the purchase to a merchant or his relative.

The Gemora cites a supporting braisa: In the case of price fraud less than a sixth, the sale is valid. If the fraud was more than a sixth, the sale is void. If it was exactly a sixth, it is valid, but the overcharge must be returned. These are the words of Rabbi Nassan. Rabbi Yehudah haNasi said: The seller (when he was the one defrauded) has the upper hand: if he wishes, he can say, “Return me the merchandise,” or he can say, “Pay up the amount that you defrauded me.” And in both of those cases, it is only if the claim was made within the time it takes to show the purchase to a merchant or his relative. (50a – 50b)

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What is a Sixth?

Shmuel states that ona’ah includes a case of a sixth of the sale price, even if it is not a sixth of the fair price. Shmuel also agrees that a sixth of the fair price is considered ona’ah. Therefore, according to Shmuel, all the cases below are ona’ah:
1. Item worth 70, sold for 60
2. Item worth 60, sold for 50
3. Item worth 60, sold for 70
4. Item worth 50, sold for 60

The Rambam (Mechira 12:3) says that anything less than a sixth is considered forgiven. The Rambam gives two examples:
1. Item worth 60, sold for 51
2. Item worth 60, sold for 69

The Magid Mishnah challenges the first case of the Rambam. In this case, a sixth of the fair price is 10, while a sixth of the sale price is 8.5. The difference in the sale is less than a sixth of the fair price, but is more than a sixth of the sale price (8.5), and should be ona’ah according to Shmuel!?

The Shulchan Aruch (HM 227:3) only discusses the second case, while the Rama (227:4) cites the first case.

The Sma (227:5,11) rules like the Magid Mishnah.

The Taz explains that the Rambam holds that Shmuel accepts either form of sixth, but only at a sixth. Any other deviation is evaluated based on the fair price only. See Drisha C”M 227:4 for more details.

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Commitment to an Honor (mohel or sandek)

The Rishonim discuss a case where a father committed to honor someone with part of the bris ceremony, either as a sandak or a mohel, and then changed his mind. (See Beis Yosef YD 264)

The Maharam says that since these commitments are routinely made and kept, the commitment is enforceable in court.

Rabbeinu Yechiyel limits this to a commitment made after the baby was born.

The Rosh disagrees, and says that only a standard kinyan is enforceable.

Rabbeinu Tam says that if one committed to a mohel to do his son’s bris, this has the status of a verbal commitment, and one who does not keep it is considered untrustworthy.

The Pri Yitzchak says that committing to a mohel has the status of a small gift, since the father typically cannot perform the bris, and he is simply giving the right to choose the mohel. However, committing to a sandak is a large gift, since the father himself can do that, and he is giving that right to the sandak. Since it is a large gift, a verbal commitment would not be binding.

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Keepin your Word

Rav and Rabbi Yochanan debate whether backing out of a verbal commitment is considered untrustworthy. The Halachah (C”M 204:7-9) follows Rabbi Yochanan, as he has clear support in the opinions of the Tannaim.

The Rishonim debate the parameters of their opinions.

Rashi indicates that Rav only allows one to back out of a verbal commitment when conditions changed, as in the case of Rav Kahana.

Many Rishonim, including the Rif, Ramban, Tosfos (49a Modeh) and Rashba hold that Rav and Rabbi Yochanan hold their positions regardless of whether conditions changed. In all cases, Rav says it is considered trustworthy, while Rabbi Yochanan says it is considered untrustworthy.

The Baal Hamaor and the Rosh say that both Rav and Rabbi Yochanan allow one to back out of a verbal commitment if conditions changed.

According to the Baal Hamaor, even Rabbi Yochanan would agree to the ruling Rav gave Rav Kahana, and the Gemora only used the story as a springboard for the more general debate.

In the course of the discussion, the Gemora quoted the statement that we learn that one must keep his “hin” (yes) just, by keeping his word. Abaye deflected this as a proof to Rabbi Yochanan by limiting this requirement to one meaning what he says at the time he says it. According to the Baal Hamaor, Abaye’s statement is also relevant to Rabbi Yochanan, since he allows one to violate his verbal commitment if conditions changed.

The Nimukei Yosef explains that in any case Abaye’s statement is relevant to Rabbi Yochanan, since Rabbi Yochanan agrees that one may violate a verbal commitment on which the recipient did not rely (e.g., a large gift). Therefore, the Rif quotes Abaye, although he rules like Rabbi Yochanan. Once someone is called untrustworthy, the community is allowed to employ social sanction, by calling him wicked, and announcing in public what he did.

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Benefit from Receiving

By: Reb Avi Lebowitz

The Gemora in Kiddushin (6a) says that if a woman would give a gift to someone who is an important person and doesn’t accepts presents from just anybody, she would be receiving enough pleasure from the fact that he receives her gift so that he can betroth her with that benefit that she receives.

The Taz (y.d. 160:8) explains that the reason that he must be an important person is because if he is just a regular person, then the benefit she receives, doesn’t have any cash value to it and therefore cannot create a kiddushin.

The Taz continues to apply this concept to the prohibition against lending with interest as well. If a lender tells a borrower, “I will lend you the money you need on condition that you receive this gift from me” - it depends. If the borrower is an important person, then the lender would be receiving real benefit from the borrower willing to receive his gift, which would create a ribbis (lending with interest) problem. But if the borrower is not an important person, there wouldn’t be any ribbis problem. The Taz clearly understands that if the receiver of the gift is not an important person, we consider the value of the pleasure that the giver has to be worth zero, and therefore it is not a ribbis problem.

However, R’ Akiva Eiger (y.d. 160 on Taz) cites a Ran in Kiddushin who asks based on Levi in our Gemora who holds that chalifin is done with the vessel of the seller, because the benefit that the seller receives by the buyer willing to accept his gift, provides enough benefit to the seller with which to sell the item. Clearly, we see that the seller receives benefit by the buyer receiving his gift even if the buyer is not an important person. This seems to contradict the Gemora in Kiddushin!?

The Ran answers that even if the receiver of the gift isn’t an important person, the giver has pleasure that the receiver was willing to accept, but the pleasure isn’t valued at a perutah. Therefore, in the context of kiddushin where her pleasure must equal a perutah, it only works when he is an important person. But, by chalifin, where the benefit received by the seller need not be worth a perutah, even if the buyer is not an important person, it will work.

R’ Akiva Eiger explains that Rav doesn’t disagree with Levi about this. Therefore, in the context of ribbis, where even a slight benefit that the lender receives from the borrower is a prohibition (although not a Biblical one), even if the borrower isn’t an important person, there would be a problem of ribbis. Based on this, the lender cannot say to the borrower, “I will lend you money on the condition that you receive this gift from me,” even if the borrower isn’t an important person, because the lender will be receiving some minor benefit which is forbidden.

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Kinyan through Admission

The Gemora struggles to figure out a way how Reuven can transfer his money that he has at home to Shimon, who will then use that money to redeem the ma’aser sheini of Reuven and avoid the additional fifth surcharge.

The Gemora suggests that if Reuven would have land to transfer to Shimon, he could transfer the money “agav” the property. Although Tosfos in Bava Kamma (12a) writes that kinyan agav is only Rabbinical, apparently Tosfos understands that even a Rabbinical kinyan would be sufficient to establish Shimon as an owner of the money to redeem the ma’aser sheini and biblically avoid the additional fifth surcharge.

Tosfos raises a question: Even without a kinyan agav or kinyan chalifin, can’t Reuven very directly transfer to Shimon the money by “admitting” that it actually belongs to Shimon?

In this question, Tosfos evidently assumes that an admission doesn’t merely allow Beis Din to act as if witnesses testified, but it actually transforms the ownership of the item to belong to Shimon and would be considered Shimon’s money for ma’aser sheini redemption purposes.

The Ketzos HaChoshen (40) answers Tosfos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily state that we are dealing with a case where there are no witnesses available to allow the kinyan hoda’ah (admission) to go into effect.

The Ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transferring chametz that is another place to belong to a gentile. We see from the fact that it works for ma’aser sheini that it not only works for monetary purposes, but even for prohibition purposes, therefore it should work for chametz as well.

However, Tosfos in Bava Kamma (104b) implies that it would not work on a Biblical level and wouldn’t work for ma’aser sheini purposes. Nevertheless, the Ketzos argues that it should still work for chametz since one has nullified the chametz and the requirement to rid himself of the chametz is only Rabbinical. But in truth, the Ketzos points out that even if kinyan hoda’ah is only Rabbinic in origin, it shouldn’t be any worse than kinyan agav which works for ma’aser sheini.

Reb Avi Lebowitz suggests that Tosfos in Bava Kamma doesn’t necessarily contradict our Tosfos because Tosfos in Bava Kamma is speaking about a case where he is admitting that he owns property by which he will transfer the money through a kinyan agav - to which Tosfos says that it doesn’t work on a Biblical level. But our Tosfos speaks of directly transferring the money through an admission, which would work on a Biblical level.

The rationale for the distinction is that admitting to owning property would require two Rabbinical allowances - one for the kinyan hoda’ah and a second for kinyan agav. A kinyan which is based on a combination of two Rabbinical allowances is weaker and perhaps would not work on a Biblical level.

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Is a Coin a Utensil?

It was stated: Rav and Levi have the following dispute. One of them holds that a coin can be used to effect an acquisition of chalifin (the buyer gives the seller something as a token exchange to settle the transaction), and the other one says that a coin cannot be used to effect an acquisition of chalifin.

Rav Pappa explains: A coin cannot be used as chalifin for the seller focuses on the figure which is stamped on the coin, and that figure may eventually become outdated (by the government; it is therefore not regarded as “whole,” and it is different from a “shoe,” which is the torah’s model of a utensil used for chalifin).

Rashi writes that both opinions hold that one does not need to use a utensil in order to effect an acquisition of chalifin (unlike Rav Nachman), for a coin is not a utensil, and nevertheless, they argue if it may be used. And even according to the Amora who holds that it cannot be uses, maintains that way for a different reason altogether.

The Rishonim ask: How can it be that Rav Nachman (who holds that chalifin can only be accomplished with a utensil) disagrees with his predecessors (Rav and Levi)?

Tosfos answers that a coin can be regarded as a utensil, for it may be used as a weight for a scale. Alternatively, it can be used for a necklace for one’s daughter.

The Ritva writes that Rav Nachman does not require an actual utensil; as long as it is something that lasts – similar to a shoe. This would exclude produce. A coin, however, would be included.

The Rashba writes that Rav Nachman is only excluding things that are not similar at all to a shoe.

Tosfos cites an opinion who holds that a coin is a utensil, for it is used for purchasing items.

The Hagaos Mordechai answers that anything which is man-made is regarded as a utensil. This would exclude produce. A coin, however, would be included.

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B'kiyus or b'Iyun?

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The Mishna states: Gold can acquire silver, but silver cannot acquire gold.

The Pappa Rav opened the winter zman with the following thought: The Torah is likened to gold and to silver. It is compared to gold, as it is written [Tehillim 19:11]: Torah is to be desired more than gold, even more than very fine gold. It is compared to silver, as it is written [Mishlei 2:4]: If you seek it like silver. It is also written [Tehillim 119:72]: The Torah of your mouth is better for me than thousands of gold and silver.

Now, one’s primary focus should be on learning in depth, using all his full capacity of his mind and thoughts. It is through this that a person will have the ability to negate evil thoughts that might enter his mind, for the nature of man is that he cannot concentrate on two different things at the same time. Accordingly, if one delves into the depths of the holy Torah, he will most certainly be protected from all which is evil This is when the Torah is likened to gold, for gold is untainted and pure.

However, it is impossible to consistently study on such a level, and one has an obligation to learn the entire breadth of the Torah. The Gemora in Shabbos (63a) teaches us that a man should study and subsequently understand (the understanding will come eventually). Studying Torah at a quicker pace is likened to silver, for although silver is also valuable, it is nevertheless less significant than gold.

This is what our Gemora meant when it stated that Rebbe in his youth taught that silver acquires gold, but when he was older, he taught that gold acquires silver. Initially he thought that one should diligently study at a swift pace in order that he should learn the entire Torah even if he will lack understanding. However, when he aged, he came to the realization that gold acquires silver, and one’s primary learning should be focused on the depths and understanding of Torah.

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A New Thief

Rabbah ruled: If someone stole a barrel of wine from his fellow and it was worth one zuz at the time it was stolen and four zuzim at the end (when it was destroyed), the halachah is as follows: If he broke the barrel or drank the wine, he would pay four (for up until the time of destruction, it belongs to the owner; the thief would have been obligated to return the barrel which was worth four zuzim; if he directly destroys it, he pays four). If it broke by itself, he pays one (for that is what it was worth at the time it was stolen).

The Ketzos Hachoshen explains that the reason he must pay four zuzim when he breaks it or drinks it is because he is regarded as a damager, and he pays for the object’s value at the time of the damage. It cannot be considered stealing at that time, for once an object has left the possession of the owner and enters the thief’s domain, there can be no more responsibility for stealing. This is because it is written: and it was stolen from the owner’s house. The Gemora learns from there that something cannot be stolen if it is in the house of the thief. Here, where, at the time it was damaged, it was in the thief’s domain, there cannot be a new “stealing.” This would be similar to one who steals from a thief, where the halachah is that the second thief is exempt from paying the principle. Therefore, in our case, when the thief breaks it or drinks it, he can only be liable for damaging it, not for stealing it.

The Nesivos Hamishpat disagrees and holds that while it is true that one who steals from a thief is exempt from paying the principle and he is not regarded as a thief, that is only when he did not add anything to the original thievery. This is why the second person cannot be regarded as a thief. However, if he caused a change to the stolen object, he has added to the thievery and can now also be regarded as a thief. Therefore, when the thief breaks it or drinks it, he has added to the original stealing by the fact that he has destroyed the object. He is therefore responsible on account of stealing.

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Shomer Rulings

Money Matters
The Gemora begins by stating that a custodian should keep deposited money on his body, and then later quotes Shmuel’s statement that money must be buried. The Rambam (She’eila u’Pikadon 4:6) explains that when the money is deposited with the custodian at home, he must bury it, while if the deposit was to transport the money somewhere, he must keep it on his body.

Shmuel states that a custodian must guard money entrusted to him by burying it, and anything short of that is negligence.

The Rosh quotes Ri Barceloni that says that Shmuel is only discussing a situation where burglary is common. However, if it is not common, a custodian need only guard the money as he guards his own. The Gemora implies this in its follow up discussion of different ways of storing the money, which the Gemora explicitly ties to the prevailing form of burglars at the time.

The Rambam (She’eila u’Pikadon) seems to imply that Shmuel’s statement is not subject to variation in different times and situations.

The Shulchan Aruch (HM 291:18) rules like the Rosh. See the Gra (HM 291:28) for a discussion of how this debate depends on differing texts in our Gemora.

The Sma (C”M 291:24) says that now that our houses are much more solid than in the Gemora’s time, and therefore a custodian may store the money in a locked house.

Shmuel is also implicitly stating that if the custodian did bury the money, and it was stolen, he is not liable.

The Rishonim debate what the rule for a paid custodian is. Unlike an unpaid custodian, a paid custodian is fundamentally liable for theft, but he is also not liable for unavoidable loss of the deposited item.

The Gemora states a number of times that a paid custodian is not liable for an item that is taken through armed robbery, since that is unavoidable. When a paid custodian buries money, but it is still stolen, he may be liable, since it is theft, but he may not be liable, since it seems like an unavoidable loss.

Rabbi Akiva Eiger (HM 303:2) lists three positions of the Rishonim on this question:
1. Tosfos (BK 57a K’gon) and the Rosh (BM 3:21) say that a paid custodian is liable, even if he buried the money, since that is included in the liability for theft. Every theft is akin to an unavoidable loss, so a theft that is more unavoidable is still a theft. Only in the case of an armed robber, where the paid custodian was present and powerless to stop the theft is considered truly unavoidable.
2. The Ramban says that a paid custodian must keep the money in his presence. Therefore, theft of buried money is not considered unavoidable, and a paid custodian is liable. However, if something unavoidable occurred to the paid custodian, making it impossible to keep the money with him (e.g., a sudden severe sickness), he is not liable.
3. Tosfos (BM 42a Amar Shmuel) says that a custodian is not liable for unavoidable theft, which includes buried money, as well as an unavoidable event which prevented his guarding.

The Rambam (She’eila uPikadon 4:4) applies Shmuel’s statement to any item that has two things in common with money:
1. Valuable enough that burglars look for it
2. Not ruined by being underground
Therefore, blocks of precious metals and stones also must be buried when being guarded.
Diversification
Rav Yitzchak says that one should split his assets in three, with one third going to land. The Maharshsa offers two explanations for this:
1. Buried underground, as Shmuel requires of the custodian
2. Invested in real estate
Unobserved Blessings
The Gemora says that blessing only occurs to items that are not measured and observed.

The Meiri explains that the Gemora is referring to the blessing of successful returns on investments.

Rabbeinu Manoach says that the Gemora means that the blessing will be that the ultimate measure will be larger than the original estimate, in a miraculous fashion.

The Sfas Emes echoes this position, by explaining that Hashem does not make miracles that openly subvert nature, and therefore this blessing only occurs before the produce is measured.

The Ritva quotes the Ramban who says that one makes a brachah on this occurrence only when measuring produce for the purpose of separating tithes, since Hashem promised us a blessing for fulfilling this mitzvah. When otherwise measuring, one is not certain a blessing will occur, so he may not make a brachah.
Household Custodians
The Gemora states that a custodian may entrust his deposited item with members of his household.

The Rishonim debate what the rule is if the ones entrusted were negligent.

Rabbeinu Tam (42b kol) says that the custodian is ultimately liable for the negligence of members of his household, while the Ramban, Rashba (BM 36a) and Rambam (She’eila u’Pikadon 4:9) say that the member entrusted with the item is liable.
The Ox who couldn’t Eat
Rami bar Chama debates how to judge the case of an estate administrator who gave an ox without teeth to a herdsman, where it died. The Gemora explained that the orphans had already voided the sale, so the potential litigant is the seller.

Tosfos (42b Hacha) explains that Rami bar Chama is assuming that we rule like Rabbi Yosi (35b), who says that an owner of an item can directly deal with a custodian appointed by his custodian. Within Rabbi Yossi’s position, Rami bar Chama was unsure whether the seller can address the herdsman via his appointment by the orphans, or whether the orphans are removed from the transaction, since the sale was retroactively voided. Rami bar Chama’s conclusion is that the orphans are considered unpaid custodians, and the seller does have legal standing vis a vis the herdsman.

Rami bar Chama says that the herdsman must pay the seller the value of the ox, when sold for discounted meat.

Rashi explains that this is a compromise. Technically, the herdsman is not truly at fault and not liable, but he does compensate the herdsman minimally for his loss.

Rabbeinu Tam (42b Demai) says that this rule was a bona fide legal obligation. The herdsman should have notified the seller of the ox’s lack of teeth, and therefore is liable for its death. However, since an ox without teeth must be sold for meat, and may not even wait until the day of the market, it would have only been worth the price of discounted meat.

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Pain to the Deceased

It was stated (Bava Metzia 38b): If a man is taken captive, Rav said that we would not bring down a relative to his property, and Shmuel said that we would. Now, if it was heard (either by way of a rumor, or through one witness) that the captive was dead, all would agree that we would bring down a relative (for if the captive would return before the relative eats from the produce, he will receive his share like a sharecropper, and if the captive does not return, he inherits it all – either way, he will make sure to do a good job). They disagree where it was not heard that he had died. Rav said that we do not bring down a relative, for he might cause them the property to deteriorate (for he will not fertilize it, and he will constantly plant there – ultimately ruining the land). Shmuel said: We do bring down a relative, for since a master said that we evaluate for them just like a sharecropper, he will not allow the field to be ruined.

The Gemora asks from a braisa: From the implication of the verse (discussing those who oppress widows and orphans): “And I shall become incensed, and I shall kill you with the sword,” I know that their wives shall be widows and their children shall be orphans; why then does the Torah state: “And your wives shall be widows, and your children shall be orphans”? This teaches us that their wives will seek to remarry and we will not permit them (for Hashem is cursing them that they will be taken captive and we will not know if they died or not), and their children will desire to go down to their father’s property and we will not allow them. [This contradicts Shmuel, who rules that we do allow the relatives to go down to the captive’s field!?]

Rava answers: The braisa means that they are not permitted to go down and sell the property.

The Iyun Yaakov asks: What is the curse to the dead sinner if his wife will not be allowed to remarry? There is no pain at all! On the contrary, the Zohar writes that this would be regarded as an honor to the deceased!?

He answers that nevertheless, at the time that the woman desires to remarry, she will be embarrassed, and Chazal say that a man does not want his wife humiliated before a Beis Din!

The Ben Yehoyada writes that these men were killed by sword and buried immediately. There were no witnesses available to verify their identity. It will therefore be necessary to open their graves to see if there are any identifying marks to help us determine who they were. This is considered painful to the deceased, and this is the meaning of the curse.

He adds that these women, who will never be allowed to remarry, will eventually curse their own husbands for being the cause of their present predicament. This will be painful for the deceased!

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200 - 1,000!!??

The Mishna had stated: Two people deposited money with a guardian, one deposited one hundred and one deposited two hundred, and each claims that he was the one who deposited two hundred. Each one receives one hundred, and the other hundred is left until Eliyahu ha’Navi arrives (to settles the issue for us). Rabbi Yosi says: If this is the law, what does the liar lose by lying? [He will receive his money back, and merely cause the other person to lose!] Rather, all of the money deposited is left until Eliyahu ha’Navi arrives.

Similarly, two people deposited vessels with a guardian, one is worth one hundred and one is worth one thousand, and each claimed that they were the owner of the expensive vessel. The smaller vessel should be given to one, and from the value of the expensive vessel should be given the value of the smaller vessel to the other, and the rest should be left until Eliyahu arrives.

Why by the case of money is the example of “two hundred” given, and by the case of the vessels – “one thousand” is given?

Imrei Daas answers: The Gemora below (38a) states: A person would prefer a kav of his own produce more than nine kavs belonging to his fellow. This is because that which he toils for is regarded as more precious to him.

Accordingly, we can explain as follows: With respect to money, a person is willing to lie that the two hundred is his when, in truth, he only gave one hundred. However, with respect to vessels, if his friend’s vessel is merely worth two hundred, he will not wish to lie, for he would rather have his own although it is worth less. If his friend’s vessel, however, is worth more than nine times the value of his own, he would be willing to lie. This is why the Mishna gives the example where his vessel was worth one hundred and the other vessel was worth a thousand.

This explanation is based upon two assumptions: 1. The logic that a person would prefer to have one of his own than nine of his friend’s is precise, and if his friend’s value exceeds his by more than nine times the value, he would not want his own. It is quite possible that the Gemora means that he would prefer his own over that of his friend’s even if his friend’s vessel is worth ten or twenty times the amount! 2. This logic applies by vessels as well as produce. It is quite possible that the Gemora’s logic applies only with respect of produce, where he toiled in the land – that is why the produce is more precious to him. However, with respect to vessels, it wouldn’t make any difference to him.

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Taking Away a Sixtieth

The Gemora (Nedarim 39b) asks: What is the case (of the Mishna that a person who cannot benefit someone can visit him when he is sick but only stand not sit)? If it is that the possessions of the visitor are forbidden to the sick person, he should be able to sit as well!

The Nidrei Zrizin asks: Why should it be permitted to sit while he is visiting the sick? The Gemora below says that whoever visits the sick, takes away one sixtieth of his sickness. It emerges that he is providing him with a direct benefit, and this should be forbidden? And even according to the Gemora’s conclusion that it is only by a person born under the same constellation, perhaps this is the case and by a Biblical uncertainty, we should rule stringently!

He answers that it is apparent from the Mishna that we needn’t concern ourselves that they were born under the same constellation, and furthermore, the Mishna rules that a doctor may heal him a healing of the nefesh, so certainly, a visit which takes away a sixtieth of his suffering, would be permitted.

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Evil Eye

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The Gemora states that one is forbidden to spread out a lost article that he is watching when he has guests because when the guests see the article being displayed, they may be envious and they will cast an evil eye on the article.

One must wonder why one should be concerned of someone else’s jealousy, especially if it is said: and the rotting of the bones is jealousy. Why should one be concerned that someone else’s envy will harm his belongings and property?

We find that the gentile prophet Balaam, when blessing the Jewish people, declared, how good are your tents, Yaakov, your dwelling places, O Israel. The Gemora states that Balaam saw that every Jewish tent was aligned in a way that no one could see inside his neighbors’ tent. Besides for the issue of privacy, there was another dimension to this blessing. Balaam had an evil eye, and Balaam wished to curse the Jewish People with his influence. By casting an evil eye on a neighbor, one is essentially influencing his Jewish friend with the character of Balaam, and this is detrimental to one’s well being. For this reason one should avoid casting an evil eye on someone else, and one must also be careful to avoid allowing others to cast an evil eye on himself or on his possessions.

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Brothers Sent Specifically the “Coat of many Colors”

It is written [Breishis 37:32]: And they sent the coat of many colors, and they brought it to their father; and said: “This have we found. Know now whether it is your son's coat or not.”

The question is asked: Why did the brothers feel the necessity to destroy specifically his fine woolen coat; this was a very special garment and valuable? Why didn’t they rip one of Yosef’s other garments and send it to their father?

The simple answer would be that Yaakov would not recognize Yosef’s other garments; it was the special garment that he gave to Yosef that he would indeed recognize.

Rabbi Aharon Kroll offers another answer based on our Gemora. The Mishna had stated: One may only testify to the identity of a dead man on the basis of the face with the nose, even though there are identifying marks on his body and on his garments. The Gemora explains that we cannot rely on the identifying marks of his garments because we are concerned that the clothes may be borrowed.

Accordingly, one may ask: How could Yaakov be certain that Yosef was killed based on the blood found on Yosef’s clothing; perhaps someone had borrowed Yosef’s garments?

The Be’er Heitev (E”H, 17, 71) cites from the Ra’anach that if it is customary for only one person in the community to wear a certain garment, we do not take “borrowing” into consideration.

The Keli Yakar explains that the k’sones passim that Yaakov gave to Yosef represented the firstborn right that Yaakov took away from Reuven and granted to Yosef. The service in the Beis HaMikdosh required that the Kohen would wear special clothing, and Yosef was given this garment as a sign of honor and glory. This coat was obviously worn only by Yosef, and he would never lend it out.

This explains why the brothers sent to their father Yaakov the fine woolen coat of many colors, and not any other of Yosef’s garments. Yaakov would recognize that this was Yosef’s coat, and only he would be wearing it. This was a clear indicator that Yosef was indeed devoured.

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Proximity and Majority

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The Gemora cites a braisa: If someone found something without an identifying mark next to something with an identifying mark, he is required to announce it (everything).









The Ketzos Hachoshen asks: Isn’t there an established principle (Bava Basra 23b) that when a conflict arises between a “majority” and a “proximity,” we follow the majority!? If so, why do we assume that the produce originated from the barrel which is nearby, we should say that it fell from a passerby, for that is the majority!?



He answers according to the Ramban, who says that that where something is found in its actual place, that principle does not apply. Since the produce is found within four amos of the utensil, it is regarded as if it is resting in its place – we therefore follow the proximity.



The Chasam Sofer answers that besides the “proximity,” there is a definite claim from the claimant. Accordingly, we do not follow the majority in such cases.



The Chazon Ish answers that when the “proximity” is also a “probability,” we do not follow the majority. Since it is most probable that the produce originated from this container, we do not assume that it fell from a passerby.

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Majority of Jews

And Rabbi Shimon ben Elozar also said: If one rescues anything from a lion, a bear, a leopard, a hyena, or from the tide of the sea, or from the flood of a river, or if one finds anything on the highway, or in a big public square, or in any place where many people are commonly found, it belongs to the finder because the owner has given it up from recovering them.

They inquired: Did Rabbi Shimon ben Elozar state his halachah (that one may keep a lost object when he finds it in any place where many people are commonly found) only in a place where the majority of the people are Canaanites (for one is not obligated to return a Canaanite’s lost object, and even if it belongs to a Jew, he would have given up hope of recovering it), or did he state his halachah even in a place where the majority of the people are Jews?

Tosfos explains that since it was found in a place where there are many people, there are certainly dishonest people amongst them who will not be concerned about the mitzvah of returning a lost article; therefore, the owner will despair of recovering it.

The Raavad explains that it is because the minority of Canaanites that reside in the area are regarded as significant, and we may assume that it fell from them. And even if it fell from a Jew, the Jew will despair from recovering it, for he will assume that a Canaanite will find it and keep it for himself.

Tosfos asks: Why are these reasons necessary? Could we not apply the principle that we do not follow the majority with respect to monetary law? Let the finder say that perhaps it fell from a Canaanite, and it cannot be taken away from him, for he is a muchzak (he is presently holding it, and there is no proof against him)!?

Tosfos answers that this principle only applies in cases where the money came into his hands with permission; however, in our case, the owner had no knowledge that it entered his possession – the finder’s chazakah is not stronger than the majority.

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Forgetting your Learning

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A student once said: Everything I learn is lost, for I forget everything! Shouldn’t the Holy One, Blessed be He fulfill the mitzvah written in his torah and return that which was lost from me?

A wise man answered him: Since you do not review your studies one hundred and one times, your Torah is regarded as an intentionally lost article, and such objects are not required to be returned to their owner!

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Metzios and Yeush

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by: Rabbi Yechezkel Khayyat

Scattered Produce

The Gemora asked what amount of produce is considered scattered, and Rabbi Yitzchak answered that the limit is a kav of produce in an area of 4 square amos. The Gemora then proceeds to challenge the premise of the discussion, saying that if the produce was purposely placed, any amount should not be taken, and if the produce was dropped, any amount should be taken. The Gemora explains that Rabbi Yitzchak was discussing a case of one leaving leftover produce after threshing, and not a standard case of lost produce.

Tosfos (21a v’kama) explains that Rabbi Yitzchak was the one who asked the question, and therefore the Gemora challenges the premise of the question itself. Rabbi Yitzchak did not understand the Mishna as a case of produce that was left by accident, since he holds like Abaye on the issue of yeush shelo midaas. Therefore, if the scattered produce was a standard lost item, the finder could not take it, since the owner may not have realized the loss and despaired.

The Rambam (Gezeila v’aveida 15:8), however, rules that if scattered produce was dropped, the finder may keep it.

The Tur (HM 262) challenges this ruling, since we follow Abaye, and therefore should not allow the finder to take the scattered produce.

The Ramban explains that Rabbi Yitzchak felt compelled to limit the case of the Mishna to the leftover grain on the threshing floor, only before the Gemora deflected the later cases of the Mishna with the statement that one immediately realizes the loss of heavy items. Once the Gemora introduced the concept that one immediately realizes the loss of a heavy item, this will allow us to apply the Mishna’s statement of scattered produce to a standard lost item as well.

Two Halves make a Whole?

The Gemora questioned how to apply Rabbi Yitzchak’s measure to other situations. The first set of cases are different measures – instead of one kav in 4 amos, there are ½ a kav in 2 amos, or 2 kavs in 8 amos. Tosfos (21a chatzi) asks why the Gemora considered these different than the case of 1 kav in 4 amos. If Rabbi Yitzchak is indicating that the grain owner does not consider the cost of collecting produce over 4 amos in order to earn 1 kav to be worthwhile, the same cost benefit ratio applies to half that amount or double that amount. Tosfos points out that a kav in 4 amos is just two subareas, each one of ½ a kav in 2 amos. If one would consider it worth the effort to collect the ½ kav in 2 amos, he would do the same for a kav in 4 amos. Tosfos offers two answers:

Psychologically, one is overwhelmed by a large job more than by a smaller job, even when proportionally the cost benefit ratio is the same. When one sees a manageable area of 2 amos, he will consider the job easily done, and worthwhile, and therefore do it. When he sees a larger absolute area of 4 amos – even with proportionally the same benefit for the work in terms of produce – he will consider the job too large, and abandon it. [One may take a lesson for heavenly matters, that the key to accomplishing large tasks is to isolate them into smaller steps, so as not to become overwhelmed and discouraged.]

The areas discussed are always in square amos. Therefore, the case of ½ a kav is in 2 square amos, which is only a quarter of 4 square amos. The Gemora was asking whether the smaller area compensates for the less produce.

Taiku in Lost and Found

The Gemora leaves the further scenarios of Rabbi Yitzchak’s case unresolved as a taiku. A taiku is considered a bona fide doubt in halachah, and the general rules of doubtful situations apply.

The Rishonim disagree on how to deal with such a doubt regarding a lost item. Rosh says that one should be stringent, and take the item and announce its loss to find the owner. The Rambam (Gezeila v’aveida 15:12) rules that one should treat the doubt with passivity. The finder should not take the item, since it may not be a lost item, or it may be an item that he can keep.

The Noda Be’yehudah explains that the Rosh does not consider a finder to be in possession of the lost item, and therefore the standard rules of doubt applies, and the finder must be stringent. However, the Rambam considers the finder to be in possession of the item once he took it, and therefore, he need not announce it, since in monetary halachah, one who tries to remove an item from its current possession has the burden of proof. The finder can maintain that he is allowed to keep it, and the owner must prove otherwise. The Noda Be’yehudah maintains that even the Rambam does not allow the finder who took the item to use it. He must keep it in escrow until Eliyahu Hanavi comes.

Yeush Shelo Midaas

The Raavad suggests that the dispute of Abaye and Rava is simply a dispute over bereirah – retroactively applying a clarification. Since we know the owner will despair on discovering his loss, Rava says bereirah allows us to consider him despaired now, while Abaye hold that bereirah is not effective, and the despair can only take effect at the time of discovery.

The Ritva disagrees, and says that Rava considers the item despaired, even if the owner never does despair. The situation of an item for which there truly is no hope of recovery is sufficient, even if the owner never reaches this realization. See Chidushei Rabbi Shimon Shkop (BM 20) for further discussion of the mechanism of yeush and why Abaye requires it to be actualized to be effective.

How Important

The Gemora explicitly discussed, according to Abaye, why five out of the ten items in the Mishna are taken by the finder. The Gemora omitted:

Bundles of grain, when found in the street
Fish, hanging off a string
Meat slices
Standard bundles of wool
Bundles of linen

The Rosh (siman 2) says that fish and meat are important items (like coins), since they are food, and we assume their owner is constantly checking for them. Bundles of linen and wool are expensive items, and one will also constantly check them. Our text of the Gemora says that loaves of bread and pressed figs are heavy, and their owner therefore immediately realizes their loss.

The Gra suggests the Rosh had a text in our Gemora that explained that loaves of bread and pressed figs are important. The Rosh understood this to be due to their being food items, and applied this to meat and fish. The Rosh then applied the concept of money, with its intrinsic value, to the bundles of wool and linen. The Gra explains, based on Tosfos (21a krichos) that bundles of grain are a case where we assume the owner placed them there on purpose and forgot them there, and will realize his loss immediately.

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An Ignorant Person’s Recognition

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

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

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

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

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

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

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

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

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

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Lesser of the Luminaries

The Mishna had stated: If one’s minor son or daughter find an object, it belongs to him. If one’s son or daughter who is of age finds an object, they may keep it.

Rabbi Chiya bar Abba said in the name of Rabbi Yochanan: When the Mishna said “a son who is of age,” it does not mean that he is literally of age, and when the Mishna said “a minor son,” it does not mean that he is literally a minor. Rather, an adult who is dependent (for support) on his father’s table is regarded as “a minor,” and a minor who is not dependent on his father’s table is regarded as “one who is of age.”

It is brought in the sefer Peninim Mi’shulchan HaGr”a that once when the Vilna Gaon was travelling in Europe, he was hosted by a man well-versed in Torah learning. The man showed the Gaon what his deceased father had written on the margin of his Chumash regarding the verse in Breishis [1:16]: And Hashem made the two great luminaries: the great luminary to rule the day and the lesser luminary to rule the night, and the stars. Written on the margin was the following abbreviation: גועשאנ"ק. Many people had attempted to decipher the meaning of this, but to no avail.

The Gaon took a glance at the word and explained as follows: The abbreviation stands for the following: גדול וסומך על שולחן אביו נקרא קטן - an adult who is dependent (for support) on his father’s table is regarded as “a minor.” The explanation was now self-evident. His father was bothered why the moon was referred to as “the lesser luminary.” The answer was that since the moon has no light of its own, because it has no significant internal source of energy, it is referred to as “the lesser luminary” because its secondary light is produced by what it reflects from the sun.

Rashi cites from Chazal that they were both created the same size, but the moon complained and said that two kings cannot use the same crown and therefore the moon was diminished. The question is asked: It is well known that the moon does not have any intrinsic light source of its own, but rather it is only reflecting the sun light. What is the meaning that they were created equally?

Reb Aryeh Tzvi Frummer answers that that this was precisely the punishment to the moon; the moon did not decrease in size but rather its retribution was that it will not contain its own light and it will only provide light that it receives from the reflection of the sun.

Initially, the sun and the moon were both gedolim since they both had an intrinsic light source; afterwards, the moon became a katan because it could not provide light by itself. The Zohar in Breishis seems to explain in an identical manner.

The Beis Yosef (O”C 31) cites the Zohar in Shir Hashirim that Chol Hamoed is akin to the moon; it does not have its own sanctity but rather it receives kedushah from the Yom Tov.

It is for this reason why Mesechta Moed Katan is called Moed Katan. Since it contains many halachos regarding Chol Hamoed, it is called Moed Katan.

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Shliach l'dvar Aveirah

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

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

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

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

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

Shliach l’dvar Aveirah

By: Rabbi Avi Lebowitz

The Gemora explains that the parameters of when we say that one can be an agent for an act of transgression to make the sender liable for the action, is either that the agent is not subject to this particular prohibition, or that the agent has no ability of choosing to execute his assignment or not. Both approaches rely on the fact that the principle that there is no agent for an act of transgression is predicated on the premise that Rashi points out: If you hear the words of your Master (Hashem; telling you not to commit this transgression) and the words of the student (the sender), who should you listen to? This means that when the agent is subject to this prohibition and has the choice to do it or not to do it, the argument can be made that he shouldn’t have done it and therefore he takes responsibility for his actions. But in a case where the agent is not subject to this prohibition, there is no reason for him to abstain from doing it, so the sender cannot make the argument that the agent should not have done it. Certainly, if the agent is forced to do it and does not make his own choice, he is merely an extension of the arm of the sender, so that the sender will be liable.

Tosfos is bothered by why we consider a Yisroel who is acting as a agent of a Kohen to betroth a divorcee, as one who is not subject to this prohibition. Although the Yisroel is not included in the prohibition of betrothing a divorcee, he is certainly in violation of lifnei iver by assisting the Kohen in performing the kiddushin and should be regarded as one who is subject to a prohibition (which would result in the fact that the Yisroel is in violation rather than the Kohen).

Tosfos rejects this concern that we don’t determine if the agent is subject to the prohibition by whether he is committing a transgression; rather, we determine it by whether the transgression that he is doing for the Kohen is applicable to him (and there isn’t any transgression on him to marry a divorcee).

The Nodeh B’yehuda (quoted by Maharitz Chayus) points out that Tosfos could have simply rejected the transgression of lifnei iver causing the agent to be considered subject to the prohibition, because it is not “two sides of a river” (meaning that the Kohen could have done the transgression without the Yisroel), so it is only a Rabbinical transgression of assisting one in doing a prohibited act, and the Mishneh L’melech (Hilchos Rotzeiach) holds that on a Rabbinical transgression, we hold that one can be an agent for an act of transgression.

From the fact that Tosfos doesn’t say this implies that Tosfos holds that even on a Rabbinical transgression, we hold that one cannot be an agent for an act of transgression.

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

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

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

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Partners Stealing

By: Rabbi Avi Lebowitz

The Gemora says that if partners steal they are both liable, but if Reuven asks Shimon to steal for him, only Shimon is liable.

Rashi explains that the case of partners stealing is when one partner does the act of stealing for both of them. Since he does it on behalf of both of them, they are both liable.

Tosfos disagrees because we would only say that one cannot be an agent for a transgression on the act of shechitah to be liable four or five, but on the act of stealing, even if Reuven and Shimon are partners, we would not say that Shimon can serve as Reuven’s agent to make Reuven liable for stealing. Therefore, the only case that Reuven would be liable is when he commits the act of stealing together with Shimon.

The Maharitz Chayus points out that this is difficult even according to Tosfos. Why would we say that when Reuven and Shimon pick it up together - since he acquires it for himself, he may also acquire it for his fellow? Even when they steal it together, since we have a principle that one cannot be an agent for a transgression, Reuven is not able to serve as Shimon’s agent to steal it, and Shimon cannot serve as Reuven’s agent, so it should be considered from each one’s perspective as if the other half of the cloak is still lying on the ground and they cannot acquire it?

He explains based on the Sm”a (C.M. 182), who says that one cannot be an agent for a transgression is based upon the idea that the sender doesn’t really expect the agent to violate the prohibition, because he knows that the agent should listen to Hashem rather than him. This only makes sense in a case where the sender maintains his innocence, but in our case, where both Reuven and Shimon are doing an act of stealing, they aren’t innocent and cannot claim that they didn’t expect the other person to follow through with the agency of a transgression. Therefore, in the case where Reuven and Shimon are doing the transgression together, we say that one can be an agent for a transgression and each one serves as the agent of the other to help him acquire it.

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Riding

The Mishna had stated: If two people were riding on an animal, or one was riding and one was leading the animal, and each of them claims that he owns the animal, each should swear that they do not own less than half of the animal, and they should then split the animal.

Rav Yosef said: Rav Yehudah told me: I have heard from the Master Shmuel two rulings regarding a rider and a leader. One of them does acquire the animal, and one does not. However, I do not know which of them acquires and which does not.

It is evident from the Gemora that the “leader” is acquiring the animal with an act of meshichah (pulling it).

Many Rishonim understand the kinyan by the “rider” as follows: The animal is walking due to the weight of the person sitting upon it. This is tantamount to “pulling it.”

Tosfos explains: The rider is holding onto the animal’s reins and it is moving a little because of him.

Rashi seems to say that the “rider” can acquire the animal even if it doesn’t move at all. It would seem that “riding” would be a new type of kinyan.

The Reshash cites the Ritzvash that the “rider” acquires it because he is “using” the animal. This would be similar to a propriety act done with land.

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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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