Interest-Free Loans

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The Gemora quotes a different version of Rav Huna’s statement. Rav Yosef explained that the verse discussing lending states: if you will lend money to Ami – my nation, to the Ani – the poor one – Imach – with you. This verse teaches that the priority in lending is first to a Jew over a non Jew (Ami), then to a poor person over a rich person (Ani), and to a local poor person over a poor person somewhere else (Imach). Rav Huna says that the priority given to a Jewish debtor is even when the non Jewish debtor will pay interest.

The Pnei Yehoshua discusses what the halachah would be in a case where if he would lend money with interest to a gentile, he would gain substantially. Is he still required to lend to a Jew without interest?

He questions the basis of the halachah: Do we not say that whenever a person would suffer a loss, his needs take precedence over others?

He answers that it is different here, for the mitzvah to lend to a poor person is a mitzvah of tzedakah; one is required to do whatever is in his means in order to sustain his fellow Jew. One must be concerned about his own losses only when the mitzvah regarding his fellow is to prevent him from a loss.

The Megilas Esther writes that one is obligated to lend to a Jew interest-free even if he has the possibility of lending to a gentile for a substantial amount of interest. This is because the Jew is not losing; he is merely not gaining.

The Shaar Hamishpat disagrees with this, and Ahavas Chesed cites several different opinions with respect to this issue.

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Don't Call him Evil

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The Gemora states: If he calls him a evil person, he (the insulted person) may descend against his life (he is permitted to hate him to such a extent that he may attempt to reduce his income).

Rashi explains this to mean that the insulted person may fight with him as if the libeler hit him, and it is as if he was coming to kill him. Furthermore, Rashi heard that he can compete against him in his line of business in an attempt to decrease his income.

Rashi asks that it is hard to understand how the Chachamim would allow this person to take revenge.

Some answer that here it is permitted because he suffered personally and he was subject to a public humiliation. The Chafetz Chaim, however, writes that it is unclear if this is the accepted halachah, and therefore, one should be stringent in the matter and not take revenge.

Others answer that it is permitted because if people think that he is indeed a evil person, his income will suffer tremendously, for people will not have compassion on him.

Tosfos writes in the name of the Gaonim that it is permitted to burn one-third of his grain. Tosfos concludes that this is bewildering, for where is the source for this?

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Can you Pay Someone to be a Cosigner for a Loan?

by: Reb Avi Lebowitz

There is a disagreement between the Taz (170:3) and Nekudas Hakesef whether one can hire someone to be a cosigner on a loan where the cosigner has full responsibility as much as the borrower himself (areiv shluf dotz).

The Chochmas Adam in his sefer Binas Adam (sha'ar mishpat tzedek 2) points out that this discussion took place before the Ritva on Bava Metzia was accessible. However, now that it is accessible, the answer is resolved. Rava had stated that Reuven may pay Shimon to go convince Levi to lend money to Reuven because Reuven is only paying Shimon for s’char amirah (payment for talking). The Ritva asks: Why does the Gemora need to permit it based on this rationale, it should be permitted anyway based on the other rationale that the Gemora suggests that the Torah only forbids interest that is paid directly from the borrower to the lender? The Ritva answer that we are referring to a case where Levi refuses to lend money to Reuven, but is willing to lend it to Shimon, who then goes and lends it to Reuven. Even though it emerges that, technically, Shimon is the one who lends to Reuven and therefore when Reuven pays him, it is ribbis that is paid from the borrower to the lender; it is nonetheless permitted since it is only s’char amirah.

The Binas Adam learns from the Ritva that it is only is a situation where Reuven doesn't request of Shimon to be an areiv shluf dotz; rather Shimon decides on his own to borrow from Levi and lend it to Reuven. But, if Reuven would be paying Shimon to be such a high level guarantor, it is as if he were hiring Shimon to borrow from Levi and then lend to him, which would constitute a prohibition of paying ribbis, since it is no longer just s’char amirah.

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The Famous Taz

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Estate Money and Interest

The Gemora allowed an administrator of an estate to invest the orphan’s money in an investment with favorable terms for them, although this is generally Rabbinically prohibited.

The Shulchan Aruch (YD 160:18), based on the Rambam and Rosh, applies this license to all Rabbinically prohibited interest, and extends this to money of charity, money donated to Torah scholars, and money donated for use in a synagogue.

What did the Torah Permit?

The Gemora quotes a statement of Rav Huna that prohibits charging interest from a non Jew. The Gemora debates why this is prohibited, and how to reconcile this statement with the verse and Mishna that seem to permit such a loan.

Tosfos (70b Tashich) asks why the Gemora was concerned with reconciling this Rabbinic law with the verse and Mishna, and answers that the Gemora assumed that the Sages would not prohibit something the Torah permitted.

The Taz states in numerous places that although the Sages have leeway to enact their own new prohibitions, they may not prohibit something explicitly permitted by the Torah.

The Taz in YD 117:1 applies this to the Rabbinic prohibition on commerce in forbidden foods. Since the Torah explicitly allows one to sell neveilah meat to a non Jew, the Rabbinic prohibition had to allow for such commerce when one chanced upon the forbidden food, so as to not fully prohibit an act the Torah explicitly allows.

The Taz in OC 588:5 discusses a question raised by earlier poskim. We find the Sages prohibited the performance of numerous mitzvos on Shabbos (e.g., Shofar, Lulav), due to a concern of one accidentally carrying to perform the mitzvah. Why did the Sages not apply this to bris milah, prohibiting a bris milah which falls on a Shabbos.

The Taz says that since the Torah explicitly said that one must perform a bris milah on the eighth day, even if it is a Shabbos, the Sages could not prohibit it.

The Chavos Yair 142 challenges this Taz from our Gemora, among others. Our Gemora is an instance where the Sages prohibited an action explicitly permitted by the Torah – i.e., charging a non Jew interest on a loan. Therefore, the Chavos Yair rejects the Taz’s thesis.

Later poskim dispute the Chavos Yair’s disproof. The Shla, quoted by the Chasam Sofer (YD 106), says that the Sages did not prohibit charging a non Jew interest, since that is indeed explicitly permitted by the Torah. Instead, the Sages prohibited a Jew from lending to a non Jew at all, and only thereby precluded the Jew from receiving interest from him.

The Chasam Sofer (YD 106, 109) says that Tosfos themselves (70b Tashich, 64b v’Lo) seem to support the Taz, and actually explain the Gemora based on his principle. According to Tosfos, when the Gemora challenged Rav Nachman from the verse, the Gemora was stating that since the Torah explicitly allowed a Jew to charge a non Jew interest, the Sages cannot prohibit it. The Chasam Sofer says that the reason the Sages were allowed to do so is due to the exclusions built in to their prohibitions (for livelihood, or for a Torah scholar). Just as the Sages allowed commerce in forbidden food when the Jew chanced upon it in order to avoid explicitly prohibiting an act allowed by the Torah, so too, the Sages allowed charging a non Jew interest in some cases, to avoid explicitly such a prohibition.

Rav Moshe Feinstein (Igros Moshe OC 1:134) says that the Gemora’s answer that we read the verse only as tashich – explicitly allowing a Jew only to pay interest, means that the Torah never did explicitly allow a Jew to charge interest, giving the Sages the leeway to prohibit it. See Rabbi Akiva Eiger YD 117 on the Taz for more details.

Tosfos (70b Tashich) says that nowadays we lend money to non Jews with interest. Tosfos advances three reasons for this behavior:
1. The economic situation and lack of other professions available to Jews makes the interest necessary for the creditor’s basic needs, in which case it is permitted.
2. Ravina’s answer understood that the prohibition was to limit our interactions with non Jews. Since we are forced into such interactions due to economic circumstances, there is no added interaction that will be prevented by refraining from charging interest.
3. The second version of Rav Huna’s statement does not prohibit interest from a non Jew at all, but only prioritized an interest free loan to a Jew above it.

The Shulchan Aruch (YD 159:1) rules that charging interest from a non Jew is prohibited by the Sages, unless the creditor needs the interest for his basic needs, or is a Torah scholar. However, the Shulchan Aruch says that it is permitted nowadays, based on the first two reasons of Tosfos (see Shach 2).

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Power of a Word

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The Gemora relates the following: Mar bar Ameimar said to Rav Ashi: My father does business this way. If the sellers would come to him and say that they did not make this anticipated profit, he would believe them (without imposing an oath upon them; in such a case, he would only receive half of the actual profit, and not the amount written in the document; this way, he would avoid any ribbis concern).

Rav Ashi said: This is fine because your father is alive (and he will waive the amount written in the document). However, if he would die and the orphans would have a document saying that the merchants owed them a certain amount of money, wouldn’t they have to pay? This statement (talking about the death of Ameimar) was like an “error proceeding from a ruler,” and Ameimar died.

The Gemora in Moed Katan (18a) records the following incident: The Sage Shmuel paid a condolence visit to his brother Pinchas, who had lost a child. He asked him why he allowed his fingernails to grow although it was permitted to cut them. The rebuttal of Pinchas, “If such a tragedy as mine had befallen you, would you also show such disregard for mourning?” is described by the Gemora as an example of “an error proceeding forth from the ruler” (Koheles 10:5). The result of this apparent slip of the tongue was that Shmuel himself soon became a mourner because “there is a covenant for the lips” — a spoken word has the power to effect fulfillment. As proof of this power Rabbi Yochanan cites the statement made by the Patriarch Avraham, on his way to offer his son Yitzchak as a sacrifice, to the two young men accompanying them. “Stay here,” he told them “and I and the lad will return to you” (Bereishet 22:5), and did indeed result in their both returning.

How can we derive from here that a person should be careful with his words; this brought about a positive result that Yitzchak was saved?

The Chasam Sofer answers that to Avraham, it was regarded as undesirable, since he was unable to fulfill the will of Hashem.

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Concealing his True Stature

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The Mordechai (Gittin 461) relates that Rabbeinu Tam once instructed a Kohen to pour him some water. This caused one of his students to inquire as to how he could allow a Kohen to serve him, being that the Yerushalmi states that whoever uses a Kohen for his own needs is in violation of the prohibition of me’ilah (since the Kohen is sacred). Rabbeinu Tam's response was that the Kohen who served him in 12th century France was without the clothing of the Kohen and, therefore, not a Kohen (based upon the Gemora Sanhedrin 83b). The student persisted that if so, we shouldn’t give a Kohen the first aliyah. Rabbeinu Tam remained quiet. Rabbeinu Peter then suggested that a Kohen can voluntarily forfeit the respect due to him as a Kohen and, therefore, there was no problem with Rabbeinu Tam's use of him.

The Ta”z asks that the Kohen is not permitted to forfeit his kedushah and marry a divorcee!? What is the difference between the two?

He answers that it is only permitted for the Kohen to forfeit the respect due to him with respect to something that he will be deriving benefit from – e.g. to be an attendant for Rabbeinu Tam. However, something that the Torah explicitly prohibits, such as – marrying a divorcee, there is no option to forfeit that kedushah.

The Ta”z adds that the reason Rabbeinu Tam was quiet was not because he did not know what to answer; but rather, it was because he did not want to be considered a Torah scholar, for that would be the only reason that it would have been permitted. He cites our Gemora and Tosfos as a proof to this. The Gemora stated: Rav Kahana, Rav Pappa and Rav Ashi did not eat the produce from a pledged field even with a deduction. Ravina, however, did. Tosfos asks: How could Ravina eat the produce from a pledged field even with a deduction? Didn’t the Gemora say above that a Rabbinical scholar would not take produce in such an arrangement?

Tosfos answers that Ravina, due to his great humility, did not want to be regarded as a Rabbinical scholar. Ravina did not want people to be aware of his spiritual importance. The prohibition, which applied to other Torah scholars, did not apply to Ravina, for since he was not known as a Torah scholar, his conduct would not necessarily serve as an example to others.

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Asmachta by har sinai

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It is written in Parshas Yisro [24, 9 – 11]: And Moshe and Aaron, Nadav and Avihu, and seventy of the elders of Israel ascended, and they perceived the G-d of Israel etc., and they perceived G-d, and they ate and drank.

Rashi cites the Medrash Tanchuma: They gazed and peered and because of this were doomed to die, but the Holy One, blessed be He, did not want to disturb the rejoicing of this moment of the giving of the Torah. So He waited to kill Nadav and Avihu until the day of the dedication of the Mishkan, and for the elders until the following incident: And the people were as if seeking complaints… and a fire of Hashem broke out against them and devoured at the edge (the leaders) of the camp.

We can ask: What happened by the sin of the complainers that precisely then, Hashem chose to destroy the elders?

The Chasam Sofer answers based upon our Gemora: Rav Pappa said: An asmachta is sometimes binding and sometimes not. If the lender found the borrower (on the date that the loan was due) drinking beer (at a tavern), it is binding (for he clearly does not care about the forfeiture of his field); if, however, he was trying to procure money, it is not binding.

Rav Acha from Difti asked Ravina: Perhaps he was drinking to dismiss his anxiety (that he could not pay the loan), or perhaps someone else had assured him of the money (to repay it)?

Similarly, it can be said regarding the Jewish people’s acceptance of the torah when they said, “we will do and we will listen.” Seemingly, this should be regarded as an asmachta, and therefore not binding – they were coerced into saying that by the fact that the mountain was placed on top of them.

Accordingly, we can say as follows: when the elders ate and drank, this was a demonstration that they were completely at ease with their decision; they were displaying happiness and joy with the acceptance of the Torah, and that it wasn’t an asmachta at all. So, on the contrary – they were acting properly, and not deserving of a punishment at all! However, by the sin of the complainers, it is written: They travelled from the mountain of Hashem. Rashi explains that they ran away like a child runs when he is leaving school. They were fleeing in order not to receive any more laws. This would then indicate that when they were eating and drinking by Mount Sinai, it was not a sign of happiness, but rather, they were dispelling their anxiety. This was a cause for their demise, and that is why Hashem waited until the time that they demonstrated what their true intentions were.

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Increasing the Dowry

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The Mishna stated: If someone is renting out a courtyard and he says, “If you give me the money now, I will give it to you for ten sela a year. If you give me the money every month, it will cost you one sela a month (totaling twelve sela per year),” this is permitted.

The Rem”a rules: It is permitted to increase the dowry of one’s son-in-law. He explains the case: A father vowed to give a certain amount to his daughter as a dowry. He then stipulated with his son-in-law that for every year that he allows the dowry to stay by him (and not collect it), he will give an extra amount. This is permitted, for it is as if he is merely increasing the dowry amount. However, this is only if the condition was made before the marriage. Otherwise, it would be forbidden, because the father-in-law is rewarding the son-in-law for waiting to collect the debt.

THE FORBIDDEN SALE AND THE PERMITTED LOAN

By: Rabbi Yaakov Montrose

The Mishna here discusses two cases. In the first case, a landowner sells a field to a buyer who makes a down payment. The seller says, “Whenever you want, you may bring the money and take your field.” The Mishna states that this arrangement is forbidden. RASHI (DH Machar Lo) explains that the field retroactively becomes the buyer's when he pays the rest of the money. Accordingly, if the seller ate the fruit of the field in the interim time, the seller effectively has taken Ribbis for letting the buyer delay payment. If, on the other hand, the buyer eats the fruit of the field during this time, there is a possibility that the buyer will be taking Ribbis: in the event that the buyer defaults on the sale and does not deliver the rest of the money by the given time, the down payment that he gave will retroactively be considered a loan to the seller, and the buyer (lender) will have eaten the fruit of the field of the seller (borrower), effectively taking Ribbis for his “loan” to the seller.

In the Mishna’s second case, a borrower gives his field as collateral to a lender, and they stipulate that if the borrower does not pay back the loan within three years, the field retroactively becomes payment for the loan. The fruit of the field is sold and the money held by a third party until the three years pass. If the borrower pays back the money on time, the profit from the fruit goes to the borrower and the field stays in his possession. If he does not pay back, the ownership of the field is considered to have been transferred to the lender three years ago, and the profit of the fruit goes to the lender.

The TOSFOS YOM TOV asks the following question. The Mishna’s point seems to be that when there is a possibility that the ownership of a field will be transferred retroactively when a certain time arrives, neither party may eat the fruit in the interim because of Ribbis. Why does the Mishna express this point in the case of a sale which is forbidden and in a case of a loan which is permitted? The point seems to be the same in both cases.

(a) The TOSFOS YOM TOV answers that the Mishna teaches its point in the first case with regard to a sale because it wants to show that even though the Halachah is often lenient in cases of sales (as Rebbi Yehudah indeed is lenient in this case because he rules that “Tzad Echad b'Ribbis” is permitted), in this case the Halachah is not lenient and such a transaction is forbidden. On the other hand, the Rabanan were generally stringent in cases of Ribbis of loans. The Mishna therefore teaches a second case to show that such a transaction is permitted even in the case of a loan.

(b) Alternatively, the Tosfos Yom Tov explains that the case of a permitted loan is necessary only because of the testimony which the Mishna quotes afterwards. The Mishna relates that Baysos used to manage his loans this way according to the Chachamim. To maintain consistency with the case of Baysos, the Mishna teaches the second case, in which the law is lenient.

The CHIDUSHEI MAHARI'ACH has difficulty with the question of the Tosfos Yom Tov. The Mishna teaches the first case involving a sale because it needs to teach the potential problem of Ribbis involved in selling a field. A deal in which the fruit is given to a third party until the ownership of the field becomes clarified is not problematic at all. The Mishna therefore needs to teach a case in which the deal is forbidden. The second case of the Mishna is also necessary: since the borrower is offering his field as security for a loan which is due only three years from now, it is possible that this type of transaction should be forbidden because presumably the borrower offers a field of greater value as collateral in order to receive a loan for three years. This means that a default on the loan will provide the lender with a field worth more than the loan -- which is Ribbis. The Mishna teaches that the Halachah in the case of such a loan is lenient and such a deal is permitted.

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What is Interest?

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The Gemora states that living rent free in a debtor's house seems like interest, and is therefore forbidden.

Tosfos discusses the parameters of this prohibition. The Gemora states that living rent free is categorically prohibited, even if the debtor would have allowed the creditor to do so independent of the loan. Tosfos questions how a debtor can do any favors to his creditor, since these also would appear to be interest. Tosfos states that the prohibition only includes conspicuous activities, like living in someone's house, but not things like renting out tools.

The Shach (Y”D 166:1) rules that any inconspicuous favors that the debtor would have done anyway for the creditor may be done. In addition, if they were known to all to be such close friends that they would have allowed each other to dwell rent free, this also may be done.

The Maharshal, however, states that any conspicuous favor may not be done, even if all knew that they would have done this favor without the loan in place.

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Undercutting the Price

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By: Reb Avi Lebowitz

There is a dispute in the Mishna whether a seller is allowed to undercut and sell below market price so that people will buy in his store. The Gemora seems to ask why the Chachamim permit this type of price setting. The Gemora answers that ultimately it will have a positive result on the market because it will force the market price to be lower. The implication of the Gemora is that one can only undercut the market in this way when it will in fact be beneficial to consumers by lowering the market price. However, in a situation where it will not result in actually lowering the market price (perhaps because the market is too large to be lowered by one merchant, such as the case nowadays with internet sales), the seller would be forbidden to undercut the market to encourage consumers to buy in his shop.

However, R’ Shlomo Kluger (Chochmas Shlomo C.M. 228) makes a beautiful diyuk from Rashi that perhaps that is not the halachah.. When the Gemora asks – what is the Chachamim’s reason? Rashi comments: Why is the seller favorably remembered? Meaning, the Gemora isn’t asking why the Chachamim permit to sell for cheap, rather the Gemora is asking why is it considered so positive and even a blessing. To that the Gemora answers that the seller is remembered for good because he helps consumers by lowering the market price. This rationale is only necessary to explain why it is a good thing for the seller to do, but even without this rationale, the Chachamim hold that it is permitted. Based on this, R’ Shlomo Kluger justifies why the Shulchan Aruch fails to limit this permission in any way, and rules that one can always undercut the market price even in a situation where they are selling to a different city and their sales won’t have a positive effect on the market.

It would seem that it is permitted for one to undercut his competitors to provide incentive to the consumers to shop by him, put them out of business, and then raise the price (within the confines of ona’ah). But perhaps we can be medayek from Rashi on the Mishna that this type of devious behavior is not permitted. Rashi, when explaining the Tanna Kamma who holds that it is forbidden to do this, comments: מפני שמרגיל לבא אצלו ומקפח מזונות חבירו. Rashi indicates that the case we are discussing is when he is harming the other merchants only by luring their customers to his store. This is similar to distributing candies where you would not be putting the other merchants out of business, just “stealing” their customers. Since the other merchants can also distribute candy and/or lower their price to compete - it is fair capitalistic business practice, so the Chachamim permit it. However, in a situation where one merchant is wealthier than the rest and can afford to literally sell at a loss for six months to force his competitors out of business, it is very possible that even the Chachamim would agree to the Tanna Kamma that it is forbidden, since the other merchants don’t have the ability to compete.

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Heavenly Voice

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The Gemora states that a Heavenly voice declared that the halachah follows the opinion of Rabbi Eliezer.

The Gemora cites the opinion of Rabbi Yehoshua: He maintains that we do not pay attention to a Heavenly voice dictating who the halachah should follow.

The Gemora in Yevamos (122a) states: A woman can get married on account of a heavenly voice. This means that if her husband went overseas and a Heavenly voice declares that her husband died, she is permitted to get married.

The Tosfos Yom Tov states that this is not referring to a Heavenly voice since we rule that one does not pay halachic attention to a voice emanating from heaven.

Reb Elchonon explains differently: We do not pay attention to a Heavenly voice regarding halachic matters because Torah is not in the heavens; it was given to human beings. The Sages of Klal Yisroel have the authority to resolve all halachic matters, not the heavens. However, a Heavenly voice can resolve a factual doubt. We would not rely on a Heavenly voice in regards to something that requires two witnesses. The Chachamim were lenient in regards to the testimony of a woman and they relied on the words of even one witness; that is why a Heavenly voice can be believed in this matter.

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the Righteous and the Scoffers

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By: Reb Binyomin Adler

Rava expounded: What is the meaning of that which is written: But when I limped they rejoiced and gathered … they tore [at me] and would not be silenced? Dovid said before The Holy One, Blessed be He: Master of the Universe! It is revealed and known to You that if my enemies were to tear my flesh, my blood would not flow out (for it has drained from the surface of my body because of their taunts about my sin). And not only that, but when they were engrossed in the studying the tractates of Negaim and Oholos (difficult tractates in the order of Taharos), they interrupt their studies and say to me (tauntingly): Dovid! If one cohabits with another man’s wife, what is his prescribed form of execution? I said to them: If one cohabits with another man’s wife, his execution is by strangulation, but he has a share in the World to Come. However, one who makes his fellow’s face turn white from shame in public (as you are doing to me), has no share in the World to Come.

This dialogue appears somewhat strange. Were Dovid’s tormentors really serious in their accusations against him regarding his taking Bathsheva? If they were, should they have not summoned him to trial? Although the Gemora states that a king cannot be judged, certainly the Sages of the time would have at least incriminated Dovid. How can we understand their accusations?

There is a constant struggle in the world between the righteous and the wicked. Thus struggle has manifested itself throughout history, as evidenced in the incident where Avraham and Sara miraculously conceived a child, yet there were still those who scoffed and said that Avimelech impregnated Sara. Hashem always allows room for the wicked to interpret events in their own way. When Dovid committed the act with Bathsheva, Hashem allowed for the wicked to lose their share in the World to Come by scoffing at Dovid. They were not seeking justice at all. Rather, they were looking for someone to mock, and scoffers will mock anyone, even the great Dovid, King of Israel.

The Maharsha notes that one who speaks evil slander incurs tzaraas, and even still their study of those laws did not prevent them from slandering Dovid. One has to guard his speech, but equally important, one must inspect his actions to ensure that he is not from the scoffers, but from those who defend and respect the righteous.

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Verbally Paining a Rasha

By: Reb Avi Lebowitz

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The Mishna tells us that just as there is a prohibition of ona’ah to cheat someone through money, there is also a prohibition to cause them pain verbally.

The Mordechai (306) says that based on the Gemora that considers ona’as devarim to be “not returnable,” it would follow that one receives malkus (lashes) for violating ona’as devarim.

The obvious difficulty with this is that ona’as devarim is a la'av she'ein bo ma'aseh (a prohibition without an action) which one does not receive malkus for violating.

The Sefer Hachinuch explicitly argues with this Mordechai and says that since it is a la'av she'ein bo ma'aseh, there isn't any punishment of malkus.

The Nimukei Yosef explains based on the Gemora (59a) that only עם שאתך בתורה ובמצוות are included in ona’as devarim, that the prohibition of ona’as devarim doesn't apply when one speaks harshly about one who does not fear Heaven (ya’arei shamayim).

Although the Gemora excludes an evil person from this prohibition (meaning that it is permitted to offend him), it seems a little strange why the Nimukei Yosef raises the bar so high, and insists that there isn't a violation to speak against someone who is not a ya’arei shamayim.

We find that the Gemora expounds in Bava Metzia 48b and 62a - ונשיא בעמך לא תאור, בעושה מעשה עמך, to the exclusion of an evil person.

We also find in the Hagahos Maimon (deios 6:1) on the mitzvah of לא תשנא את אחיך בלבבך וכו' ואהבת לרעך כמוך that we expound - דוקא שהוא רעך בתורה ובמצות אבל אדם רשע שאינו מקבל תוכחה מצוה לשנאותו. It is permitted to hate a wicked person. The source that one can hate such a person is in Pesachim 113b - that one can hate someone who commits transgressions.

We also find in the Rambam (Rotzeiach end of perek 4) who expounds - לא תעמוד על דם רעך, ואין זה ריעך and learns from here that shepherds who are considered thieves are not included in this mitzvah to save them.

All these sources that use the terms “amcha,” “rei'acha” or “achicha” seem to exclude only real wicked people. But the Nimukei Yosef seems to understand that the term “amisecha” in the context of ona’ah excludes anyone who is not a ya’arei shamayim. The term implies a higher standard than the other terms.

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Land and Slaves

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The Mishna says that slaves share the status of land regarding the exclusions listed. Therefore, a sale of a slave is not subject to the rules of ona’ah. Abaye says that a rental is subject to the rules of ona’ah, since it is equivalent to a temporary sale.

The Rishonim explain that Abaye is only referring to rental of items whose regular sale is subject to ona’ah, but rental of land is not subject to ona’ah, similar to a permanent sale of land.

The Rishonim discuss whether hiring a worker is subject to ona’ah. The Ramban and Rashba say that hiring a worker is not subject to ona’ah, since the Torah states that ona’ah applies when buying or selling a “mimkar” - a sale item. When hiring a worker, there is no sale item per se, and therefore no ona’ah.

The Rambam (Mechira 13:15, 17) says that hiring a worker is not subject to ona’ah, since it is akin to renting a slave. Since buying a slave is not subject to ona’ah, renting one – which is a temporary sale – is also not subject to ona’ah. However, the Rambam says that when hiring a worker for a project, as opposed to hourly work, ona’ah does apply, since such a transaction is not considered a temporary sale of a slave, but a proper transaction of merchandise.

The Drisha (227:47) explains that a slave is defined by his time being owned by his owner. Therefore, an hourly worker can be considered temporarily enslaved, since during his employment period, his time is owned by the employer, while a project worker is not even temporarily enslaved, since his time is always only his. Since the Rambam exempted employment as a function of a slave’s exclusion, project work, which is not similar to a slave’s work, is not exempted. However, the Ramban and Rashba offer a more fundamental reason to exempt employment from ona’ah, and therefore apply this to all types of employment, including project work.

This dispute among the Rishonim would seem to depend on a general dispute among the Rishonim about exclusions of slaves. Rashi (Kiddushin 7a, 28a) and Tosfos (Megilla 23b Shamin) say that whenever the Gemora makes halachic statements about slaves, this applies to any person, even if he is free. Therefore, the Gemora (Kiddushin 7a) considers a wife being betrothed to be equivalent to real estate (as far as modes of acquisition), and the Gemora (Kiddushin 28a) treats someone’s claim that one is his Jewish slave to be equivalent to a dispute over land (as far as swearing). Tosfos (Kiddushin 7a, 28a) and the Ritva (Kiddushin 28a), however, say that the categorization of slaves as equivalent to land only applies to Kena’ani slaves, and not to free people, or even to Jewish slaves. The Tur and Shulchan Aruch (HM 227:33,36) rule like the Rambam.

The Shach (HM 95:18) rules that the halachic rules of a slave apply to all people, since the Torah is simply using slaves as a vehicle to explain that human acquisition is equivalent to land acquisition. In general, only Kena’ani slaves are acquired, which is why the Torah used them to teach this rule.This is consistent with the position of the Shulchan Aruch.

The Kovetz Shiurim (Bava Basra 310) suggests that the Rambam may not rule that the laws of slaves apply to all people. However, this is because only a slave can be truly permanently acquired, while other situations (e.g., a wife or Jewish slave), are only temporary, and cannot be compared to land. However, in regard to ona’ah, the exclusion of a slave also excludes hourly employment. Abaye explained that ona’ah applies to rental, only since it is considered a temporary sale. Therefore, a rental is subject to ona’ah where an equivalent permanent sale is subject to ona’ah. Although the employee does not have the rules of a slave, and cannot be permanently bought, employment’s theoretical permanent counterpart would be enslavement, which is not subject to ona’ah. Therefore, the temporary sale of employment cannot be subject to ona’ah, since ona’ah derives from considering a rental as a temporary sale, as Abaye stated.

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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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