Women First

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It is written [Shmos 19:3]: Moshe ascended to Hashem, and He to him from the mountain, saying, “So shall you say to the house of Yaakov and tell the sons of Israel.” Rashi cites from Chazal: So shall you say to the house of Yaakov: These are the women. Say it to them in a gentle language. And tell the sons of Israel: These are the males.

The commentators ask: Why did Hashem speak to the women before He spoke to the men?

The Beis Halevi answers based upon our Gemora, which stated that if one purchased a field from a man and then purchased (the lien) from his wife (in order that she should not collect her kesuvah from this field), his purchase is void, for we may assume that she only consented to please her husband. Although she does not truly want to sell her rights, she agrees to sell it in order to please her husband. This is why it is the custom by acquisitions to acquire it from the wife and then her husband. This way, we can be certain that she truly intends to sell it.

Accordingly, this is what Hashem wanted at the time the Torah was given. He wanted to ensure that the women will reveal their intent that they are truly interested in accepting the Torah without any trace of coercion at all. That is why the women were asked before the men. This way, their answer was actually their own. They were not accepting the Torah based upon their husbands desires; it was purely their own decision.

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Self-imposed O’nes vs. External O’nes

By: Reb Avi Lebowitz

Rav Huna says that if one is forced into selling something and receives money for it, the sale is binding. The Gemora explains the rationale is that everyone who sells items that are dear to them only does so under pressure and financial difficulty, yet the sale is binding, so this type of force is no different.

To that the Gemora responds - ודלמא שאני אונסא דנפשיה מאונסא דאחריני, meaning that there is a difference between a self imposed o’nes and an external o’nes. When one is forced due to financial pressures, he is making a decision under the circumstances. Although he would prefer to never be in such a predicament, nevertheless, he is making a conscious decision under the circumstances - this decision is regarded as ratzon. But if one is being coerced or forced by someone else, we don’t consider his decision to be b’ratzon, so it is possible that the sale isn’t binding (which is the opinion of Rav Bibi, unlike R’ Huna who holds that so long as he receives something in return, it is binding).

This concept if very important to distinguish between what we can call an internal o’nes and an external o’nes. This issue arises in two places, but the distinction is exactly the same.

The Rambam in Yesodei Hatorah (perek 5) holds that if one’s life is being threatened unless he serves avodah zarah he is obligated to forfeit his life. But if he doesn’t do so, he is still considered an o’nes and not killed for serving avodah zarah. Yet, the Rambam writes (halachah 6) that if one is deathly ill and uses avodah zarah as a means to heal himself, he is liable for whatever punishment is normally associated with the act that he committed.

Why is it considered o’nes when he is forced by others, but not when he is ill?

The Ohr Sameach makes the distinction that is hinted to in our Gemora (but doesn’t mention the Gemora). Based on our Gemora the distinction is clear. When someone else is threatening to kill him, the decision that he makes is not considered “ratzon,” because he doesn’t at all want to do what he is being forced to do. But when he is ill and uses avodah zarah to save his life, he is deciding to benefit from avodah zarah. Surely, he is faced with extenuating circumstances, but that doesn’t change the fact that he is making a conscious decision and is therefore liable for it.

The Rama writes in Hilchos Brachos (204:8) that if one is being forced to eat non-kosher food, even though he is enjoying the taste he doesn’t make a brocha since he is considered an o’nes. But the Shulchan Aruch writes in the very next halachah that one who eats non-kosher because they are ill and they need it for medicinal purposes, makes a brocha on the food.

The Taz (12) struggles with this and elaborates about it (siman 196:1). But based on our Gemora the distinction is simple. One who is being forced to eat non-kosher by someone else is not making a decision to eat non-kosher, and would not eat it if not for being forced at gun point. Therefore, we don’t consider this eating b’ratzon, and it is not worthy of a brocha. But, one who is ill, although he has severe circumstances, he is making a decision to eat the non-kosher food under the circumstances (and being that his life is threatened it is permitted for him to eat it), so we consider this to be a decision made b’ratzon and worthy of a brocha.

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Path to Sanctity

The Gemora states: Whoever betroths a woman in Jewish marriage, betroths her subject to the will of the Rabbis.

The baalei mussar say: One who wants to sanctify and purify himself in his service to his Creator, should do so subject to the will of the Rabbis. He should go to the Rabbis and the righteous people of his generation, and they shall guide him in his quest. One who tries to forge a path himself is apt to stumble and make mistakes; nothing substantive will result from it.

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Compliance with the Rabbis

Mar bar Rav Ashi says: In a case of kiddushin, this is certainly invalid. Being that he acted improperly, Chazal act improperly with him and take away the kiddushin (Chazal have the power to deem any type of kiddushin invalid). [They accomplished this by transforming retroactively the money of the betrothal given to the woman at her first marriage into an ordinary gift. Since the hefker of money comes within the authority of Beis Din, they are thus fully empowered to cancel the original betrothal, and the divorcee assumes, in consequence, the status of an unmarried woman who is permitted to marry any stranger.]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Path to Sanctity

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Forced Get

Rav Huna holds that if one is coerced to sell property, the sale is never the less binding. [The reason for this is that a person will feel that he has no choice, and he might as well give up the property and take the money.] The Gemora says that all sales are done under duress and nevertheless, they are binding. [People only sell when they need money but they really have no desire to sell.

The Gemora asks on this logic. There might be a difference when the coercion is not internal, but coming from someone else.

Perhaps it is from the following braisa: It is written regarding a sacrifice: He shall bring it. This teaches us that we force him to fulfill his obligation. Perhaps, you might think that he brings the korban even against his will. The Torah writes: Of his will. This teaches us that we compel him to bring the sacrifice until he says that he is willing to bring it. [This shows that one can be forced by others to do something willingly, and is therefore a source for the law that a forced sale is a sale.]

The Gemora rejects this proof: Perhaps there it is different, for everyone wishes to receive atonement (and he is really willing to bring the korban).

Rather, it may be proven from the latter part of that braisa, which states: And the same is true regarding a letter of divorce and the emancipation of slaves. We compel him to give the get (in cases where he is required to do so) until he says that he is willing to give it. Evidently, the divorce and emancipation is valid even though, in his heart, he is not truly willing. This proves that words that are only in the heart are not regarded as words.

The Gemora rejects this proof: Perhaps there it is different, for he has a mitzvah to listen to the Chachamim (to issue a divorce or to free his slave).

Similarly, the Rambam discusses a case when a person is obligated to divorce his wife due to the ruling of Beis Din. When he refuses, he is beaten until he says that he is willing.

The Rambam asks: How can a get that is given by force be ruled to be valid? A coerced get is not valid at all!?

He explains that it is only considered “forced,” if a Jew is compelled to do something that the Torah does not obligate him to do. However, if he is compelled to do something that the Torah instructs him to do, this is not considered “forced.” The explanation is as follows: A Jew wants to perform all the mitzvos and distance himself from all sins, but his evil inclination convinces him to do otherwise. When he is beaten, his evil inclination is broken and when he says that he is willing, it is his actual intent and the get is valid.

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Coerced Admission

The Gemora establishes that there is a difference between the child of craftsman and a child of a robber in the case where there are witnesses that saw the father admit that he sold the property.

Tosfos asks on this that if witnesses saw an admission, even a craftsman and a sharecropper themselves would be believed!?

He therefore emends the text of the Gemora to read that the children claim that the original owner admitted to them that the land was sold to their father. In the case of the child of the sharecropper and craftsman, this claim is believed. In the case of the robber, however, it can be assumed that the owner admitted to the son because he was afraid of the father.

Rabbeinu Yonah defends the original text. He says that the case of the craftsman/sharecropper, and the case of the robber are not identical. The case of the craftsman/sharecropper is when they claim to have bought the property. In such a case, they are not believed. The case of the robber is when there are witnesses who saw the owner admit. This is teaching us a bigger novelty - that even when the owner admits in front of witnesses, which is a serious admission, it is still considered to be a false admission motivated by fear.

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AMaLeK Serves as a Mnemonic Aid

Amalek’s name as an acronym for remembering Tamudic topics:
The Gemora sometimes offers acronyms, acrostics or other sorts of words or phrases as devices to remember subjects, rulings or the like having some common denominator. Our Gemora links the topics of a guarantor (arev), who may testify for a debtor; a lender (malveh), who may testify for a debtor; a purchaser (lokeach), who may testify for another purchaser from the same vendor; and a joint principal debtor (kablan), who – according to one opinion – may testify for a debtor (all depending on certain conditions) and connects them, rather controversially using the letters of AmaLeK as a mnemonic aid.

In his commentary on our sugya, Rabbi Yaakov Emdin wonders how the Gemora could thus use Amalek, whose memory we are commanded to erase (Devarim 25:19), and asserts that we may use the name to memorize Torah, “extracting the spark of holiness in him.” Indeed, he contends, the verse hints we may do so: “…Erase the memory of Amalek from under the sky; do not forget!” (ibid). The verse seems to indicate we may use Amalek’s name to prevent forgetting the details of Torah. The Gemora in Gittin 57b also alludes to Amalek’s spark of holiness: Haman descended from Agag, king of Amalek (Esther 3:1; Shemuel I, 15:8) but “Haman’s grandchildren learned Torah in Benei Berak” (see the expanded version of Rabbi Y. Emdin’s commentary in the Wagschal edition of the Gemora).

Apropos Haman, Beis Yosef (O.C. 690) cites Rabbi Aharon of Luneil, author of Orchos Chayim, that the children’s custom to scrawl Haman’s name on stones and knock them together while hearing the Megillah comes from a midrash on the verse “…I shall erase the memory of Amalek” (Shemos 17:14): “Even,” stresses the Midrash, “off the trees and stones.” Hence, he concludes, we must not ridicule the custom.

Erasing Amalek while testing pen: Kav Hayashar (Ch. 99) recounts that HaGaon Rav Heshel of Krakow would test his quill by writing Amalek or Haman and striking the name out as a reminder of the commandment to erase his memory.

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Getting the Wrong Clothes from a Dry Cleaner

The members of our beis midrash became engrossed in an unusual din Torah because of its direct connection to our sugya. Reuven collected his suit from a dry cleaner and paid for it but was shocked to discover that the suit was not his! He asserted that he was quite sure it wasn’t his and demanded compensation, whereas the cleaner insisted that Reuven had given him the very same suit to be serviced.

The beis din hearing the case based their verdict on our sugya: Our Gemora addresses the possibility of a person, similar to our Reuven, giving a garment to a worker, such as a cleaner, dyer or tailor, to be professionally serviced. If the professional returns him another’s article, claiming it’s Reuven’s, the latter must not use it.

Rambam adds that he must not use the other’s belongings till that person “returns the missing item and takes his own” (Hilchos Gezeilah VaAveidah, 6:6). In other words, Reuven may take the article home but must not use it, and should wait for its owner to appear with his missing property.

Now, if Reuven is forbidden to use the article, why must he take it home? Why can’t he blame the professional for losing his garment and demand compensation? Surely he recognizes his clothing better than anyone, so why don’t we believe his claim?

Still, the general rule of torts applies even here: “Anyone demanding payment or property must produce evidence.” Reuven must show clear proof that the article is his and the cleaner, having been paid for his usual service, does not have to remunerate him. Nonetheless, Reuven is forbidden to use the item: He knows it’s not his and must not use another’s property without permission (Piskei Din Yerushalayim, Dinei Mamonos Uveirurei Yahadus, V, p. 141).

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Taking another’s Coat in a Synagogue

By: Meoros HaDaf HaYomi

Our sugya explains that if a person hung his coat somewhere, found it missing and, next to that place, discovered a similar garment, he must not use it, even knowing his own was removed by mistake, as no one may use another’s property without permission (Shulchan Aruch, C.M. 136:2).

Taking another’s Footwear at a Mikveh or Bathhouse

The Gaon of Buczacz zt’l, author of Kesef HaKodoshim on Shulchan Aruch (ibid) devoted much discussion to the topic of people taking each other’s clothes at a mikveh, bathhouse or – to update the context – sauna or swimming pool. Till a few decades ago, streets in many European towns were unpaved and at the entrance of public buildings a place was provided for people to leave their muddy galoshes. HaGaon Rav Y.M. Epstein, author of Aroch HaShulchan (ibid), relates: “In places frequented by the public, where they leave their galoshes at the entrance and often inadvertently exchange them, they don’t mind and each one wears the other’s till being able to return them. There is no reason to consider this as thievery since their custom proves mutual consent.”

Is other wear regarded differently?
People usually don’t mind temporarily switching galoshes. Concerning more personal or representative wear, though, such as shoes or a coat, a person may resent another’s donning them. However, HaGaon Rav Shemuel HaLevi Wosner (Shevet HaLevi, VI, 38) mentions that boys in large yeshivos often unwittingly take each other’s hats. By the logic expressed in Aroch HaShulchan, they may wear each other’s hats till having a chance to return them, and even never having a chance, we assume that the original owner harbors no resentment.

Rav Moshe Feinstein, though, treated the question of jackets switched in a synagogue (Responsa Igros Moshe, O.C. V, 9) and asserted that Aroch HaShulchan permits their temporary use where the custom proves mutual consent. Where there is no definite custom, however, we must apply the Gemora forbidding using another’s property without permission.

A notice to allow one who took your garment to use it: Rav Feinstein further stresses that the leaders of every congregation should record and publicize a community regulation, displayed on a prominent bulletin board that people who inadvertently exchange clothing allow each other to use it until returned.

The Chazon Ish’s cane:
To cite an appropriate anecdote, the Chazon Ish zt”l once noticed that someone had switched canes with him. Wanting to use the other’s temporarily, he hung a notice in shul, saying “I beg permission to use your cane till you have an opportunity to return mine” (II, Letter 155).

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The Witnesses have an Interest in the Case

By: Meoros HaDaf HaYomi

The Reinterment of HaGaon Rav Mordechai Benet zt”l

The Gemora, here and often elsewhere, disqualifies anyone suspected of having an interest in a case from serving as a witness or dayan.

The Chasam Sofer zt”l was known for his sensitivity to this issue, which he expressed at the burial of HaGaon Rav Mordechai Benet. The Gaon, whom the Chasam Sofer called the “teacher of all Israel” (Responsa, VI, Likutim, 37), passed away in 5589 far from his town of Nikolsburg, Moravia – now in the Czech Republic – and was buried in Lichtenstadt. His family and members of his community claimed he had instructed them to bury him in Nikolsburg or, at least, Prague and asked the Chasam Sofer’s permission to move the body. The Chasam Sofer, though, replied that all Nikolsburg were unfit to be witness, as they had an interest in the affair, wanting to pray at his grave especially as he had assured them that whenever they needed anything they should pray at his grave. Still, he allowed the reinterment since they claimed he had asked to be buried alternatively in Prague and this admission showed they had no personal interest (Responsa, ibid, and see Responsa Shoel Umeshiv, I, 231).

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Kosher Judges the Entire Time

By: Reb Avi Lebowitz

The Gemora says that when a Sefer Torah is stolen from a city, the judges of that city may serve as judges to convict the thief so long as they would relinquish their portion in the Sefer Torah. However, the Gemora concludes that by a Sefer Torah where they will anyway be benefiting from the reading, it is not sufficient to relinquish their ownership since they will still be considered biased (nogei’ah b’davar) because they are ultimately benefiting from the Sefer being returned to the city.

Tosfos asks that the Gemora holds that for items other than a Sefer Torah, it would help to relinquish their ownership thereby removing their negi’os. Why don’t we require techilaso v’sofo b’kashrus? Meaning, we should require the judges to be kosher not only at the time of the judgment, but even at the time of the crime?

Tosfos answers that the requirement of techilaso v’sofo b’kashrus only applies to a passul in the guf, such as a relative, but doesn’t apply to a monetary passul.

Tosfos in Niddah (50a) makes a distinction between a witness where we have such a requirement, and a judge, where we don’t have such a requirement.

The Ramban explained by the Nemukei Yosef has a very interesting approach to this question. When one testifies on a monetary issue, he is not testifying on the money, rather he is testifying for the owner of the money. While it is true that we require techilaso v’sofo b’kashrus, and therefore one, who was a relative through marriage at the time he witnessed a crime, cannot testify on that crime even if he has divorced, since then and is no longer a relative. The rationale is that at the time one witnesses the crime he must be kosher for testimony. But with a monetary issue, such as a communal item that is stolen, he is considered kosher for testimony for all those that he is not related to, and passul for testimony for the share of all those he is related to, including himself. Therefore, by removing himself from this money, he is no longer testifying for himself, rather, he is testifying for others and for them he was kosher all along to serve as a witness.

The R"I Mi’gash answers that one who is passul as a nogei’a, is not considered a witness at all. He is not like a relative who is considered a passul witness, rather, he is not in the subject of testimony. Therefore, when he removes himself and becomes a valid witness, he is considered techilaso b’kashrus, since that is the first moment that he assumes a status as a witness. This seems to be an exact opposite logic from Tosfos. Tosfos considers the negi’ah of money so mild that we don’t apply the din of techilaso b’kashrus, whereas the R"I Mi’gash considers it so severe that we don’t even consider him to be a witness. [In truth, there is a lot of discussion as to why a nogei’ah is passul. He is only passul to testify l’zechuso, but kosher l’chovaso, so he is not like a regular passul who is passul for chov and zechus. Some say it is a din of karov eitzel atzmo, some say it is a chashash meshaker, and some say he is not an eid at all - the latter seems to be the opinion of the R"I Mi’gash.]

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The Testimony of a Shtar

By: Reb Yonatan Sapir

The Mefarshim are bothered how does a shtar (document) work? Chazal have a rule that testimony must be said orally and not written. If this is the case, how can we rely upon the testimony of a shtar?

There are a number of different answers to this question. Rabeinu Tam says the prohibition of writing testimony only refers to someone who is mute. Anyone who can say testimony may also write testimony. This follows a principle taught by karbonos. We are commanded in the Torah to mix the meal offering with oil. Chazal tell us that it if there is enough oil that it can be mixed, the mixing is not necessary. The same is true here; as long as a person can speak, speaking is not necessary.

The Rambam is of the opinion that testimony in a shtar is only Rabbinic. According to Biblical law, a shtar is invalid. Since, however, they are necessary for the functioning of society, the Rabbis decreed that this form of testimony should be considered valid.

Rashi and the Baal HaMaor have a different explanation. They explain that a shtar is written by the person obligating himself in some fashion (i.e. a borrower or a seller). The witnesses here are not regular witnesses in a court case, rather, they are agent of an obligated party who which to obligate themselves by means of a shtar. This form of testimony is not what the Torah was referring to when it disqualified written testimony.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on the dispute mentioned above regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

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Tale in Front of Three is not Subject to Lashon Hara

By: Reb Avi Lebowitz

The Chofetz Chaim dedicates an entire chapter (klal three) to discuss the various interpretations of Rabbah bar Rav Huna who says that disparaging remarks related in the presence of three people do not constitute slander.

Rashbam understands that he is discussing a case where Reuven violated the prohibition of lashon hora by saying something negative in the presence of three people about Shimon. It would then be permitted for these people to repeat to Shimon what Reuven said about them, since it was said in the presence of three - it is assumed that Shimon will find out anyway.

The difficulty with this approach is that it seems somewhat circular - the three people are allowed to repeat the tale to Shimon because they will repeat it to him anyway, so he is bound to find out.

Therefore, the Chofetz Chaim writes (2:5) that if one of the three is a G-d fearing person and is not likely to repeat the lashon hora by saying the tale to Shimon, it would be forbidden for any of the three to repeat it, because it is as if it wasn't said in the presence of three.

The Rambam seems to take a similar approach, but rather than explaining it based on rechilus, he simply says that the three people who heard the lashon hora are permitted to repeat it to others since they are bound to find out anyway. But the Rambam stipulates that when one of the three repeat over the lashon hora, they cannot intend to degrade the person they are speaking about or make it more revealed (for example, if it a local group knew about it, it would be forbidden to publish in the papers for the purpose of spreading the news to others).

Tosfos has an entirely different approach where he completely avoids the permission of the Rashbam and Rambam. The Gemora is speaking of an avak lashon hora, which can be interpreted both for good and for bad. The idea of telling it over in front of three people is a litmus test whether it is actually lashon hora. If the teller is not embarrassed to say it over in front of three people which will likely lead to the one being spoken about hearing that he was spoken about, it is not lashon hora. But if the speaker would be afraid to tell it over to three people out of fear that the person being spoken about will find out, it is lashon hora. [The Chofetz Chaim proves that Tosfos cannot be matir outright lashon hora even if told to three.]

Rabbeinu Yonah (Shaarei Teshuva 228) has an alternate approach where he explains the case to be when the lashon hora is being spoken about a person who there isn't any real prohibition to speak about - see there.

According to all the approaches, the connection to the protest is very simply that we find by lashon hora an assumption that word travels when told in the presence of three, therefore a protest must be done in the presence of three. But, as the Rashbam points out, there is no violation of lashon hora at all to spread a protest because it is being done for a constructive purpose, so that the occupier holds on to his contract to prove that the field belongs to him.

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A Disputed Vehicle

By: Meoros HaDaf HaYomi

Levi was known to have a car and Shimon started using it but when Levi asked him to desist, Shimon retorted that he bought it from him. The licensing bureau was on strike and the true ownership could not be documented, so Levi summoned Shimon to a beis din. Shimon claimed the above-mentioned right of chazakah that anything a person now holds is assumed as his (Shulchan Aruch, C.M. 133:1). Apparently, the solution to the problem depends on the two explanations in Rashbam’s commentary on our Gemora: Anyone purporting to own real estate known as another’s must produce a bill of sale or other proof and, if not, relinquish his claim. Regarding chattels, though, the present holder of the goods may claim the above right of chazakah without further proof of acquisition as his physical possession proves his ownership: We assume he did not enter the owner’s premises and steal them, but made a legal purchase.

Our sugya, though, tells of a person with goats in his possession, claimed by the original owner, and asserts that chazakah in this case is inapplicable but that he must prove he bought them. Rashbam (s.v. Hagoderos) offers two reasons to differentiate goats from other chattels: (a) They move about by themselves, as opposed to other, immobile chattels. (b) Other chattels are kept at home whereas goats are usually out grazing. Chazakah, we said, stems from the assumption that a holder of chattels has not stolen them as most people are not so brazen to rob others’ homes. Goats, though, may be stolen in two ways without invading another’s premises: (a) They could wander into the holder’s premises by themselves. (b) He could take them from a public or ownerless area. The ease of their theft undermines the claim of chazakah.

How is a goat different from a car? In his Netzach Yisrael (41), HaGaon Rav Yisrael Grosman asserts that accoding to Rashbam’s first reason, cars are not like goats: They don’t move by themselves. According to his second reason, however, cars may be compared to goats as they are not kept at home.

To decide if chazakah applies to a car, then, we must determine whether Rashbam links the two reasons – i.e., chazakah doesn’t apply only if both reasons prevail, as in the case of goats – or if merely one reason suffices to overrule chazakah. Rav Grosman learns from Tosfos in Gittin (20b, s.v. Ta shema) that one reason is enough and Shimon must therefore prove his ownership.

Still, in his Darchei Choshen (I, p. 197), HaGaon Rav Y. Silman insists that entering and driving another’s car is the same as breaking and entering into his premises. Most people are not suspect of such crimes and Shimon does not have to prove his ownership.

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The Disputed Boat

By: Rabbi Mordechai Kornfeld

The Gemora discusses two cases in which two litigants argue over the ownership of an object (a boat) which neither one of them is holding in his possession. In the first case, one of the litigants asks the court to appropriate the object and hold it until he brings testimony of witnesses to support his claim (so that the other litigant should not seize the object in the meantime and sell it to a third party, from whom the litigant with witnesses will not be able to get it back in court). In the second case, the Gemora asks who is entitled to keep the object when neither litigant asks the court to hold it. In that case, Rav Nachman rules: “Kol d’Alim Gevar” – “whoever is stronger prevails.” The Gemora itself says that the same halachah, “Kol d’Alim Gevar” applies in the first case.

If the same halachah applies in both cases, why does the Gemora change the other details of the case? In the first case, the Gemora says that each of the litigants claims that the boat is his. In the second case, the Gemora says that each of the litigants claims that the boat was his father’s. Why does the Gemora not present the second question as a case in which each litigant claims that the object is his, in which the halachah is still “Kol d’Alim Gevar”?

Perhaps the Gemora prefers to give a case in which it is clear that neither defendant expects to find proof to support his claim of ownership, and therefore neither will request from the court to hold the object. When each one says, “The object is my father’s and I received it as an inheritance,” it implies that he does not know how his father obtained it, but just that he left it as part of his estate. If the claimant does not know how his father acquired the object, he will not to be able to prove his ownership. [Although he might be able to prove that the object was seen in the possession of his father, such proof will not suffice to resolve the case, because -- at the present moment -- the object is in the possession of neither litigant, as Tosfos writes on 33b, DH v’Iy Ta’in.]

In addition, the Gemora asks why the halachah here should differ from that in the case of “Shtei Shtaros” – “two documents,” where the halachah is either “Yachloku” – “they divide it” (or "Shuda d’Dayanei"), and the Gemora answers that “Yachloku” (or "Shuda d’Dayanei") applies only when neither litigant can bring proof for his claim. In contrast, in the case here of the disputed boat, it is possible for one of the litigants to prove that the boat belongs to him. Had each litigant said that “the object is mine,” this answer would have been obvious. The Gemora assumed, however, that when each one says that the object belongs to his father (implying that he has no knowledge about how his father obtained it), one might have thought that the halachah is “Yachloku” (or "Shuda d’Dayanei") since the case will remain unresolved. The Gemora answers that even though, at present, neither litigant expects to find proof to his claim, nevertheless he can search and perhaps find proof of his father’s ownership. Therefore, the halachah in such a case remains “Kol d’Alim Gevar.”

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The Stronger Wins Self-sacrifice Pays

By: Meoros HaDaf HaYomi

Our sugya explains that if two people argue about the ownership of a boat and each has equal proof, “the stronger wins.” According to the Rosh, this means that “he who is right is willing to endanger himself to get what is truly his.”

HaGaon Rav Natan Gestetner uses our Gemora to clarify the following topic: The Torah praises Moshe at his demise, saying: “No other prophet arose in Israel like Moshe… [known for] the strong hand… that Moshe made” (Devarim 34:10-12). Rashi comments: “for receiving the tablets with his hands.”

Why does the Torah specially praise Moshe for accepting the tablets with his hands? In his Gur Aryeh, Maharal of Prague explains, according to the Yerushalmi, that when the people worshipped the golden calf, Moshe held on to the tablets by two handbreadths, Hashem held on to two handbreadths and two handbreadths remained between them. [Each tablet was six handbreadths wide, six tall and three thick, as we learned in Bava Basra 14a; their corners were thus square and not round, as depicted by certain gentile artists.] When the people sinned, Hashem tried to seize the tablets from Moshe, but Moshe was stronger and grabbed them back and the Torah therefore praises him for his strong hand.

Rav Gestetner adds another aspect: The Torah cannot be divided piecemeal: “Hashem’s Torah is whole, restoring the soul” (Tehilim 19:8). It restores our souls only when whole, and could not be divided between Hashem and Moshe. The Torah therefore praises Moshe, that by his self-sacrifice in seizing the tablets with all his might (from Hashem and fearless of the consequences!), we have indeed received the whole Torah – known as Toras Moshe! (Lehoros Nasan on the Torah IV p.212).

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Paying when he cannot Swear

By: Reb Avi Lebowitz



In a situation where two witnesses would require someone to pay, one witness would require him to swear, but he is not completely denying the testimony of the witness and therefore cannot take the oath that is incumbent upon him, we apply the concept of מתוך שאינו יכול לישבע משלם – if he cannot swear, he must pay. Therefore, when a single witness testifies that Reuven grabbed something from Shimon, we assume that it belongs to Reuven since he was holding on to it. Had Shimon been willing to swear that he didn’t grab it from Reuven, we would believe him against the single witness. However, since Shimon admits to grabbing it, but is claiming that it rightfully belongs to him, he is unable to make the oath demanded of him, and therefore must return the item.



Tosfos asks that if Shimon would deny that he grabbed it and make an oath, he would be believed. Why don’t we believe Shimon to say that he grabbed it and swear that it belongs to him, with a migu that he could have said that he never grabbed it? If he would not make an oath that it belongs to him, it would not be a valid migu since he prefers to use the claim that would exempt him from a oath. But since he is now making an oath that it belongs to him, it should be a valid migu (assuming that he can use a migu even if the migu claim would require a Biblical oath)?



Tosfos explains that this is exactly the point of argument between Rav and Shmuel against Rabbi Abba. Rav and Shmuel (Shavuos 47a) hold that since he has a migu, we don’t require him to return the item. But Rabbi Abba holds that even though he has a migu, we require him to either swear to contradict the witness by saying that he didn’t grab it, or pay - no other options. Tosfos doesn’t clearly speak out the point of argument between Rav and Shmuel against Rabbi Abba.



It seems that the point of dispute is whether a single witness obligates Shimon to support his claim with an oath, or is he obligating him to pay with an option to exempt himself using an oath. According to Rav and Shmuel, a single witness obligates an oath - meaning, that he obligates Shimon to support his claim with an oath. By Shimon swearing that it is his, and using a migu that he could have sworn that he didn’t grab it, he is, in essence, using an oath to support his claim. But, Rabbi Abba holds that a single witness does not obligate him to merely support his claim with an oath. The fact that Shimon can prove he is correct by swearing it is his in conjunction with a migu isn’t sufficient. The single witness obligates Shimon to pay with the only option out of paying being an oath to contradict a single witness. Shimon’s only option out of paying is by making a oath to contradict the testimony of the single witness by swearing that he didn’t grab it. Since Shimon admits to grabbing it and cannot make this claim, we resort to the default that he must pay.

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Claims to Fruit

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The Gemora establishes that a person is believed if he claims that fruit was sold to him. The commentators explain that this is not true in every case. A person is believed to have bought the fruit if he has already eaten them. He’s also believed to go and cut the fruit down if the owner is not present. Beis Din will not stop him even if we know the land belongs to someone else. This is the case in our Gemora. If, however, the owner is present and disputes the claim, the owner is believed. The Rashbam says if this were not the case, there would be no way to prevent people from stealing fruit.

Tosfos raises an interesting question. Our Gemora gave a case where the squatter could only give proof that he was on the land for two years. Rav Nachman therefore made him give back all the fruit which he ate during those years. Tosfos asks: Why couldn’t he keep those fruit by making use of a migo. Since he would have been believed if he said he bought the fruit, we should allow him to keep the fruit based on the claim that he bought the land!?

Tosfos answers by establishing a fundamental principle in migo. A migo is only applicable if one might make the alternative claim. In our case, however, the claimant is attempting to establish ownership on the entire property. A claim on the fruit alone would not accomplish this goal and, therefore, migo is not relevant here.

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Disturbing Traffic

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The Mishna states: If a tree is leaning over the public domain, it must be cut so that a camel and its rider may pass by.

HaGaon Rav Yosef Shalom Elyashiv rules in reference to our Mishna demanding a tree’s owner to prune its branches that disturb public traffic that he is only required to cut branches up to the height of a camel with its rider. The current obligatory limit, however, is the minimal height demanded by government authorities for building bridges over roads.

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Cutting Down Fruit Trees

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Rava bar Rav Chanan refused to cut down his fig trees because Rav Chanina’s son died because he cut down a fig tree.

There is a prohibition from the Torah to cut down fruit bearing trees. It is not clear, however, that the prohibition should apply in this case. Tosfos asks a question from a Gemora in Bava Kamma (92a). The Gemora says that one is allowed to cut down a fig tree in order to save vines. Grapes are considered more valuable than figs and therefore it is not considered destructive to cut it down. Why then did Rava bar Rav Chanan refuse to cut down his fig tree?

Tosfos answers that one is only allowed to cut the fig tree if it is doing serious damage to the vines. In our case, the damage was not so severe so it was not permitted.

The Rosh in Bava Kamma permits the cutting of a fruit tree if one needs the space in which the tree is situated.

Based on this, the Taz (Yoreh Deah, 116) allowed someone to cut a fruit tree in order to build a house.

The Ya’avetz, however, requires that one have a gentile cut the tree based on a different understanding of our Gemora. The Ya’avetz is bothered by the question of Tosfos. If it is permitted to cut the tree, why was Rava bar Rav Chanan afraid of a curse? The Ya’avetz comes to the conclusion that even though it is permitted according to halachah, there is still a curse. Therefore one should never cut the tree down by himself, but rather have a gentile do it. Many people conduct themselves according to this opinion even though almost all the Rishonim don’t learn this way.

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Retaining its Beauty

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The Mishna says that if the city is first, the tree should be cut down and he will not be reimbursed.

The Gemora asks: Why does the owner of the pit have to reimburse the owner of a tree for the cutting down of his tree, while in our Mishna the owner of the tree is not reimbursed?

Rav Kahana says: This is because a pot belonging to partners is neither hot nor cold. [Rashi explains that it is difficult to collect money from people in the city for the tree, as everyone will say that money should first be collected from others. In the interim, if the tree is allowed to stand, it will affect the beauty of Eretz Yisroel. We therefore rule that the tree must be cut down immediately without payment.]

The Gemora asks: What is the question? Perhaps there is simply a difference between damaging the public and damaging an individual!?

Rather, the Gemora answers: Rav Kahana’s statement was said regarding the second part of the Mishna. The Mishna states: If the tree was first, he must cut it down, but he is reimbursed. One would think he could claim, “First give me the money and then I will cut it down!” [The Mishna implies that he first must cut it down, and only then is he reimbursed.] Rav Kahana says: This is because a pot belonging to partners is neither hot nor cold.

Reb Moshe Feinstein asks: According to the Rishonim who hold that this halachah only applies in Eretz Yisroel, what is the Gemora asking that he should tell them, “First give me the money and then I will cut it down”? It is also incumbent upon him to beautify Eretz Yisroel! Just as they are obligated to give him money for this, he should be obligated to lose money on this account!? Why should he be entitled to cut it down only with the stipulation that he should be reimbursed for it?

Now if the halachah would apply in all lands because it is painful for people to see the ruining of their town, we could understand that he would have a right to claim that the town’s look does not bother him at all. However, the beauty of Eretz Yisroel is not dependent on his personal preference – if so, why should he be allowed to make such a stipulation?

He answers that although they all are obligated to preserve Eretz Yisroel’s beauty, he is not compelled to lose money for this.

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Closer and Majority

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Rabbi Chanina maintains that when the principles of rov, the majority, and karov, close in proximity, conflict with each other, then we follow the principle of majority. And although both principles are of scriptural origin, the principle of majority is superior.

Reb Shmuel Rozovsky is uncertain as to why we would follow that which is “closer.” Is it because that this is a method which clarifies the doubt, for it is more probable that it came from the “closer”? Or perhaps, the probability of coming from the “closer” is just as likely as if it was coming from the “further,” except that there is a halachah that we follow that which is “closer.”

This can be proven from that which Rabbi Chanina said that when there is a conflict between the “majority” and that which is “closer,” we follow the “closer.” If “majority” and “closer” are both logics that clarify to us that which was uncertain, Rabbi Chanina’s halachah would be understandable, for he would be informing us that the clarifier from the fact that it is closer is superior then the clarifier emerging from the majority.

However, the Tosfos HaRosh in Bava Metzia (66b) writes that when we follow a majority that is before us (such as a piece of meat, where we are uncertain if it came from one of the nine stores selling kosher meat, or the one store selling non-kosher meat), that is not because the majority verifies for us that the meat in question came from the kosher shop; rather ,it is the Torah’s law that we follow the majority. Accordingly, if we would say that the logic of following the “closer” is on account of clarification, it would certainly be stronger than a mere “majority.” This proves that following the “closer” is also a Torah law and not based on logic.

If so, the question begs to be asked: How does Rabbi Chanina know that we follow the “closer” and not the “majority”? If they are both halachos without any logic, why is one superior that the other?

He answers that even though they are both halachos and not verifiers, they are distinct from each other. When we follow the majority, the majority resolves the uncertainty. Although the doubt rests before us, the majority is a decider. However, when we follow the ”closer,” it doesn’t resolve the uncertainty at all; it merely tells us that we should not search any longer for where this doubtful item comes from - since we can attribute it to that which is closer. However, when that which is closer conflicts with a majority, it is impossible to assert that the object did not come from that which is further (for the majority tells us that it did); it therefore reverts back to an ordinary case of uncertainty, where we would rule according to the majority.

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Heavenly Academy

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Rabbi Yirmiyah inquired: If one foot is within fifty amos and the other beyond, how do we rule?

The Gemora notes: It was for this that they ejected Rabbi Yirmiyah out of the Beis Medrash.

Rabbi Chaim Vital writes in Sha’ar Hagilgulim that his Rebbe, the Arizal, told him about Rabbi Yirmiyah, who was constantly asking questions. Since his intention was to increase the studying of Torah and to glorify it, and yet, they embarrassed him and sent him out of the study hall, his reward is of a great magnitude. All inquiries that are posed in the Heavenly Academy are asked by Rabbi Yirmiyah. And he was chosen, said the Arizal, to be the one to stand guard at the entrance of the Heavenly Academy.

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Power over the Evil Inclination

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Three people were not ruled by the Evil Inclination at all. They are: Avraham, Yitzchak, and Yaakov. This is evident as the verse states regarding them: With everything, From everything, and everything. Some say this even applies to David, regarding whom the verse states: And my heart is empty inside (referring to his lack of evil inclination). The other opinion (that does not include David) understands that in this verse he was expressing his pain (not lack of Evil Inclination).

Tosfos explains that this does not mean that their Evil Inclination was always powerless over them, for if so, they would not be entitled to receive any reward for their good deeds. Rather, it means similar to that which is stated in the Gemora Yoma (38b): When the majority of a man’s years have passed without sin, he will no more sin. So too here, since the Holy One, Blessed be he, sees that a person has fought fiercely against his Evil inclination and has distanced himself from sinning, He assists him in his older years by protecting him from its tricks.

The Brisker Maggid writes in Machazeh Einayim that there can be people who are immune from the wiles of the Evil Inclination even without Hashem’s assistance. This, says the Eitz Yosef, can only be accomplished after years of dominating over the Yetzer Hara.

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Se'udas Havra'ah

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Meoros HaDaf HaYomi

Our Gemora recounts that Yaakov Avinu prepared the stew, with which he bought his brother’s firstborn rights, for Yitzchak to comfort him after Avraham’s demise.

The commentaries (see Rashi, Bereshis 25:30) explain that he brought the lentils as a se’udas havra’ah (recuperation meal) given to a mourner coming from burying his relative and the poskim learnt important halachos about this meal from our Gemora.

The Gemora in Moed Katan (27b) decides that a mourner must eat the “bread” of others at this first meal, not his own, and Shulchan ‘Aruch rules accordingly (Y.D. 378:1).

Does “bread” mean any food or is the term restricted to actual bread alone? Chochmas Shlomo and ‘Aroch HaShulchan (Y.D. 378) hold that a mourner may eat his own food aside from bread but Shevet Yehudah (378) and the Chida (Yafeh LaLev, VIII, 378) assert that he must eat nothing of his own and Kitzur Shulchan Aruch maintains that he must not even drink his own coffee.

Why is a mourner forbidden to eat his own food at the se’udas havra’ah?

According to Divrei Soferim (25:23), the above difference of opinions depends on the reason for the Talmudic regulation that a mourner must not eat his own food for his first meal. The Rosh, cited in Beis Yosef (Y.D., ibid), holds that a mourner is so despondent that he neglects to care for himself. Chazal therefore decreed that he must not prepare his first meal, causing others to bring him food and comfort him (Responsa Igros Moshe, Y.D. II, 168).

Shevet Yehudah, though, maintains that Chazal wanted to prevent a mourner from eating a full meal and neglect his mourning and therefore limited him to eating what others bring, assuming their contributions would not be excessive. Hence, Shevet Yehudah forbade a mourner to eat anything of his own, avoiding any possibility of his eating a full meal.

The Acharonim (Divrei Soferim, ibid, 27) emphasize the Tur, who quotes our sugya that the meal is intended to “comfort the mourner” – i.e., to hearten him but not to prevent his overeating.

The Rosh (Moed Katan, Ch. 3, §84) adds that a husband must not serve his wife a se’udas havra’ah for two reasons. Being that he must support her as her husband, she acquires the food he serves her and it is not regarded as another’s. Moreover, they always eat together and the food would not appear as if brought by others.

May a son supported by his father bring him a se’udas havra’ah from his own (the son’s) food? According to the first reason he may do so as the food does not belong to his father. Worrying about appearances (maris ‘ayin), though, the son must not, as anyone who knows that his father supports him and sees him serving is sure the food is his fathers.

The Acharonim prove, once again from our sugya, that the first reason of the Rosh forbidding a husband to serve se’udas havra’ah is halachically valid: Yaakov was supported by Yitzchak yet he brought him the stew which, as mentioned, was a se’udas havra’ah (Ruach Chayim by HaGaon Rav Chayim Falaji, 378).

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Torah Scroll of the Temple Courtyard

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The Gemora has a dispute between Rabbi Meir and Rabbi Yehudah whether the Torah scroll that was written by Moshe was actually in the Ark with the Tablets, or whether it was in the on the side of the Ark.

The Gemora (14b) refers to this Torah scroll as the scroll of the Temple Courtyard. Why would the scroll that is kept inside the Holy of Holies be called the scroll of the Temple Courtyard?

Rashi is apparently bothered by this question and says that the scroll that Moshe Rabbeinu wrote was used by the king during hakhel, and by the Kohen Gadol on Yom Kippur. Apparently, Rashi held that it was permitted to go into the Holy of Holies to take out the Torah in order to read it.

Tosfos (14a) asks why the Gemora finds it necessary to leave some space in the Ark so that the Torah can be put in and removed easily; it was never removed anyway, since it is forbidden to enter the Holy of Holies except on Yom Kippur, and we don’t find any mention in the Mishnayos that they would use this Torah scroll on Yom Kippur!?

Tosfos clearly assumes not like Rashi and holds that this scroll wasn’t used, and is therefore troubled by why they had to leave space to get it in and out easily.

Tosfos answers that although it was never used, they would sometimes remove it in order to repair it (and one may enter the Holy of Holies in order to fix it, so too, one may enter to fix the Torah scroll). Also, between the destruction of the Tabernacle in Shiloh and the second Temple, they would use the Torah.

The Reshash suggests that even Rashi agrees with Tosfos that one may not enter the Holy of Holies to remove the Torah, but during the second Temple, when there wasn’t any Ark, it was used (and that is why it is called the scroll of the Temple Courtyard – for perhaps during that time, it was actually kept in the Courtyard).

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Half Slave and Half Free

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The braisa states: If someone is half slave and half free-man (he was jointly owned by two men, and one of them set him free), he serves his master for one day and then is free for one day (and so on). Beis Shammai says: You have fixed the problem for his master, but you have not solved his own problem. He cannot marry a Canaanite slavewoman (as his free side is a freeman, who is forbidden to marry a slavewoman) and he cannot marry a regular Jewish girl (who cannot be with his slave half)! Should he simply not marry? The world was created to be populated, as the verse says: The world was not created by G-d to be empty; it was created to be populated! Rather, we force his master to free his other half as well, and we have the slave write for the master a document stating that he owes the master the rest of his value. Beis Hillel retracted their opinion, and agreed with Beis Shammai.

The Sfas Emes discusses the verdict regarding a half-slave and half free person that he must go free, and the slave writes a document to the remaining partner for half of his value. This is because the slave has no money. Essentially, by the first partner’s freeing his half, the second partner lost his slave as well, as the law is that he must set him free. Can the second partner demand that the first partner should take the bond from the slave, while the first partner should pay him the monetary equivalent?

The Sfas Emes concludes that being that the damage is not direct, as it is only a consequence of the first person’s action, Beis Din will not force the first owner to pay the second owner. [However, it should be noted that usually indirect damage makes a person liable to pay according to “Heavenly law (meaning what is viewed as right and wrong by Hashem),” despite the fact that Beis Din will not make him pay. Accordingly, if the person freed his half of the slave knowing full well that this would indirectly damage the second owner, he should compensate him to ensure Heaven (Hashem) will not hold it against him.] (13a – 13b)

Half Slave and Half Free

By: Reb Avi Lebowitz

Tosfos (d.h. shene’emar) asks: Why does the Gemora choose to cite the verse of “The world was not created by G-d to be empty; it was created to be populated” to justify the importance for the half-slave half-freeman to be able to procreate, rather than the more well known verse in the Torah of P’ru U’rvu (Be fruitful and multiply)?

My understanding of Tosfos answer in the name of the R"I is that the mitzvah of P’ru U’rvu is really a ma’aseh mitzvah like any other, where we have exemptions for o’nes (a case where he has no choice). Therefore, citing the verse of P’ru U’rvu wouldn’t justify forcing the master to free the slave, since at the present time, the half-free side of the slave is exempt as an o’nes because he is incapable of performing the mitzvah. But by citing the verse of “The world was not created by G-d to be empty; it was created to be populated,” the Gemora is pointing to the root and purpose of the mitzvah of P’ru U’rvu. This verse illustrates that the purpose of P’ru U’rvu is to occupy the world and therefore we don’t follow the regular system that we do by other mitzvos, because even if he is exempt due to o’nes, the world will still remain empty. Although the Gemora means to use the verse in the torah as P’ru U’rvu as the source, it chooses to quote an alternate verse that would justify why P’ru U’rvu should apply even in a circumstance where he is an o’nes.

This approach is very meduyak in the language of Tosfos where the entire focus is on the verse chosen by the Gemora, rather than using language that indicates that P’ru U’rvu isn’t at all applicable since he is an o’nes. Tosfos language implies that P’ru U’rvu is truly the source that compels us to force the master to free the slave, but we cite the verse that explains why P’ru U’rvu should apply even to a circumstance of o’nes.

Furthermore, this approach would compliment, rather than contradict the Turei Even in Rosh Hashanah (29a), who asks that since one who does a mitzvah when they are exempt doesn’t fulfill their obligation, how can the Gemora in Yevamos say that if one had children as an idolater, and then he converts his whole family, he automatically fulfills the mitzvah? The mitzvah was done when he was exempt, so he should have to do it again!?

Turei Even answers that since the purpose of P’ru U’rvu is to populate the world, we disregard when the act of the mitzvah was done, so long as the world is being populated as a result of his actions.

If we were to understand Tosfos simply that only the mitzvah of “sheves” (populating the world) applies, but not P’ru U’rvu, then Tosfos would be holding that P’ru U’rvu is a standard mitzvah like any other, where o’nes is exempt and the ma’aseh mitzvah should have to be done when he is obligated in the mitzvah. But since we are explaining that according to Tosfos, the entire mitzvah of P’ru U’rvu is for the purpose of populating the world, Tosfos is essentially a support for the Turei Even’s novel understanding that the time of the ma’aseh mitzvah is not relevant.

This also explains how in the very next Tosfos, they are able to ask that the mitzvah of P’ru U’rvu should override the prohibition of marrying a kadeish (harlot). How can Tosfos cite the mitzvah of P’ru U’rvu moments after saying that it doesn’t apply here since he is o’nes? Clearly, Tosfos never meant to say that it doesn’t apply here; rather, the meaning is that we wouldn’t have realized that it does apply here, if not for the fact that we quoted the verse of “sheves.”

As a side note, there is a famous discussion whether an o’nes is exempt, or actually obligated but unable to perform. Tosfos here seems to support the former. Tosfos explains that since the half freeman is an o’nes in his obligation of P’ru U’rvu, we wouldn’t force the master to free him. Tosfos supports this claim from the fact that we don’t force masters to free all regular slaves to enable them to keep mitzvos. Now, if o’nes is actually obligated but unable to perform, how can Tosfos prove their case from a standard slave who isn’t even obligated at all in the mitzvos? Perhaps we don’t free regular slaves because they aren’t obligated, but we would free this half slave since his free side is obligated, just that he is an o’nes. Clearly, Tosfos holds that o’nes and not being obligated is exactly the same and can prove o’nes from the case of a regular slave.

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Continued Misfortune

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Rabbi Yochanan said: Since the Holy Temple was destroyed, prophecy has been taken from prophets and given to fools and children.

When was it given to fools? It happened with Mar the son of Rav Ashi. He was one day standing in the marketplace of Mechuza when he heard a certain deranged person exclaim: “The man who is to be appointed head of the Academy in the city of Mechasya signs his name Tavyumi.” He said to himself, “Who among the Rabbis signs his name Tavyumi? I do! This indicates that my fortunate time has come.” So he quickly went to the city of Mechasya. When he arrived, he found that the Rabbis had voted to appoint Rav Acha of Difti as their head. When they heard of his arrival, they sent a couple of Rabbis to him to ask his advice (and his permission to appoint Rav Acha). He detained them with him, and they sent another couple of Rabbis. He detained these also, and it continued until there were ten. When ten were assembled (for that is when one should begin lecturing), he began to discourse and expound to them. [He was then appointed as the head of the Academy.]

Rav Acha applied to himself the saying: If a man is dealt with harshly, he does not readily come into favor, and if a man is in favor, he does not readily fall into misfortune.

The Maharsha writes that this is only if it troubles him greatly. If he thinks that being rejected from a position of prominence was a grave misfortune, then good things will not happen soon happen to him. This is in accordance with what the Sages say: One who pursues honor – the honor will run away from him.

The Meiri writes that although there can be times that due to a person’s fortune, the door of success keeps closing on him and it is not readily opened, nevertheless, it is not completely shut. The gates of tefillah and good deeds are not sealed; they will always be there for a person’s protection.

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Adding Years to Someone's Lifetime

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The Gemora cites a braisa: It was related of Binyamin the Righteous who was a supervisor of the charity fund. One day a woman came to him in a year of famine, and said to him, “Master, please assist me.” He replied, “I swear by the service in the Holy Temple that there is nothing in the charity fund.” She said, “Master, if you do not assist me, a woman and her seven children will perish.” He accordingly assisted her out of his own funds. Some time afterwards he became deathly ill. The angels addressed the Holy One, Blessed be He, saying, “Master of the Universe, You have said that he who preserves one soul of Israel is considered as if he had preserved the entire world; shall then Binyamin the Righteous who has preserved a woman and her seven children die at such an early age?” Immediately, his decree was torn up. It has been taught that twenty-two years were added to his life.

The Metzudas David asks that this seems to contradict Rabbi Akiva’s opinion in Yevamos (49b), where the Gemora states: I (HaShem) shall fill the number of your days; these are the years that a person is granted to live at the beginning of his life. If he merits, those years will be completed. If he does not merit, they will decrease years from his lifetime; these are the words of Rabbi Akiva. Evidently, he holds that Hashem completes his years, but He does not add to them!?

He answers according to that which Tosfos writes there: Rabbi Akiva holds that when a person lives for a very long time, those years are not an addition to his allotted life, but rather a blessing from Hashem to live out his allotted time. Hashem does not add years to a person’s lifetime. That is only with respect to his own years. However, if years are deducted from another person’s life, those years can be added to someone else, provided that he deserves it.

Accordingly, it can be said that the twenty-two years which were added to Binyamin the Righteous’ lifetime, were in fact years that were deducted from others. And because Binyamin was so deserving, those years were added to his life.

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Accepting Charity from an Idolater

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The Gemora states: An act of kindness or charity performed by an idolater is regarded as a sin. This is because they are only performing these good deeds to live longer, or that their reign should continue, or in order to glorify themselves, or to rebuke the Jews.

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

Our Gemora says that when idolaters give tzedakah it serves as an atonement for them. Because it serves as an atonement, Rav Ami refused to accept tzedakah from Ifra Hurmiz. Even Rava only accepted it for the sake of peaceful relationship with the government, but otherwise, he would not have accepted it. This is based upon a verse which teaches us that the idolaters will become weak and broken once their charitable deeds have dried up, and therefore, we don’t give them opportunities for more merits. However, the Gemora says that if we were to use the funds to support non-Jewish causes (which Rashi explains that we support anyway for the sake of peaceful relationship with the government), it would not give them any special merit. It is only if we use the funds to support Jews that it is considered a merit for them.

Tosfos (8a d.h. yasiv) points out that the Gemora in Eruchin (6b) implies that we would accept donations to synagogues that come from idolaters. Why? Tosfos explains that donations to synagogues are considered like korbanos and we do accept korbanos from idolaters.

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

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

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

What does the Haga’os Ashri mean that vowed-offerings and freewill-offerings are not meant for the purpose of atonement? What is accomplished for the idolaters aside from atonement? Furthermore, the Gemora says in Sukkah (55b) that the idolaters destroyed the Holy Temple, not realizing what they will be losing. When we had the Temple, the Altar served as an atonement for them, but now they have nothing to atone for them. The Gemora in Sukkah clearly implies that the purpose for their korbanos were to be an atonement, which contradicts the Haga’os Ashri?

The distinction of the Haga’os Ashri is found in the Shach and Taz (Y.D. 254:4) to explain the Rama who says that we do accept donations to synagogues from idolaters, but don’t accept tzedakah from them (unless the money was air-marked for tzedakah and must be accepted for the sake of peaceful relationship with the government).

Reb Avi Lebowitz suggests the following: Perhaps the Gemora in Sukkah is not referring to the vowed-offerings and freewill-offerings that the idolaters bring, rather the Holy Temple, in general, served as an atonement for the entire world, including the idolaters. But the vowed-offerings and freewill-offerings, and donations to synagogues that we accept from idolaters is because it allows them to have a share in our prayers, but it will not serve as an atonement to prevent them from being destroyed for sins that they have committed. Tzedakah to the poor which would serve as an atonement for sins that they have committed, we refuse to accept from them unless we have no choice (such as for the sake of peaceful relationship with the government).

The Chochmas Adam (146:3) explains this idea a bit further: Tzedakah to the poor is tantamount to a korban chatas which we do not accept from idolaters because we don’t give them opportunity for atonement, but freewill-offerings, we do accept from them, so we can also accept gifts to synagogues.

It would seem that this prohibition, which forbids accepting tzedakah from them, only applies to tzedakah to the poor, but donations to Yeshivos and donations for kindness activities which do not go to the poor, would be like vowed-offerings and freewill-offerings that we can accept from them. But perhaps when it comes to the studying of Torah, where the donation buys them a share in the Torah, we should not provide them with that opportunity either.

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Reckoning with the Charity Collectors

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The Gemora cites a braisa: The charity collectors are not required to give an account of the monies entrusted to them for charity. And the treasurers of the Temple are not required to reckon the funds given to them for the Temple purposes. And although there is no actual proof of this in the Scriptures, but there is a hint of it in the following verse: And they would not reckon with the men into whose hand they delivered the money, to give to those that did the work, for they dealt faithfully.

Rabbi Elozar said: Even if a man has in his house a treasurer on whom he can rely, he should tie up and count out all money that he hands to him, as it is written: They bound it in in bags and counted the money.

Rashi writes that although he has no intention of demanding an accounting afterwards, he still should tie up and count out all money that he hands to him.

What is the purpose of such a counting?

The Meiri explains that if he will not count it in the beginning, he will certainly suspect the treasurer that he accepted more money then he actually spent. Now that it is counted, at least they are both aware as to the amount of money which was given over to him. One should always make an effort not to suspect a person of committing a wrongdoing.

The Maharsha writes that the money is counted in order that the mazikin (spiritual damagers) should not have any control over the money, for money that is tied, sealed, or counted they cannot have any effect over.

The Ein Eliyahu answers that it is counted in order that the treasurers themselves can make a calculation at the end, if they so desire.

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Tax Exemption for Torah Scholars

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By: Reb Yechezkel Khayyat

The Gemora presents the tax exemptions accorded to Torah scholars. The Rishonim discuss the parameters of these tax exemptions.
Who is Exempt?
The Rosh says that only one who for whom toraso umnaso – his Torah learning is his profession, is exempt. The Rosh explains that even if one learns much Torah and is proficient in Torah, if he spends most of his time working, and less of his time learning, he is not exempt. However, even if one works, if he works only as much as is necessary to support himself and his family, and constantly returns to his Torah study when he is not working, he is exempt.

The Rosh further clarifies (Responsa 15:8) that this exemption applies equally to a Torah scholar who is wealthy, since the exemption is a function of the Torah study, not poverty.

Finally, the Rosh states that if one who studies Torah is not diligent in his performance of mitzvos, he is not considered a Torah scholar who is exempt from tax.

The Rama (YD 243:2) quotes the Terumas Hadeshen (342), who further requires that the Torah scholar be well versed in all the standard Torah sources.

The Shach (HM 163:14) quotes Sefer Chasidim that limits the exemption to one who studies at all times, to the exclusion of any work, but says we do not rule like this.
From what are they Exempt?
The Ramban and Ran state that Torah scholars are only exempt from communal taxes, since they can claim that only the other members of the community are responsible for the existence of these taxes and their payment (as Rebbe stated regarding the tax levied on Teveria). However, if the tax is imposed on each person individually, even Torah scholars must pay.

The Rosh and Rambam (Talmud Torah 6:10), however, disputes this position, and state that Torah scholars are exempt from all types of tax, whether imposed communally or individually. The Rosh points out that Rav Nachman makes a categorical statement that obligating a Torah scholar in a tax is a violation of all sections of Torah, and the Gemora applies this to karga, which was a poll tax assessed on each individual. These indicate that even individual taxes levied on Torah scholars are the responsibility of the community, and not the Torah scholars.

The Shulchan Aruch (YD 243:2) rules like the Rosh and Rambam. See Tzitz Eliezer 2:25 and Yabia Omer HM 7:10 for a detailed discussion of these parameters, and their applicability in contemporary society.

A Raven and Dog

When Rabbi Yonasan, Rebbe’s student, asked for food from Rebbe, he told him that he should feed him, just as Hashem feeds the raven and the dog. Rashi explains that Hashem specifically tailored the physiology of these animals to account for their lack of food. A dog typically does not have much food, so Hashem ensured that it spends three days digesting its food (Shabbos 155b), while a raven does not have feed its children, so Hashem provides them with insects in their waste, which they can eat to be nourished. Tosfos (8a kekelev) explains that the verse in Tehilim refers to both these animals. The verse says that Hashem is nosain liv’haima lachma (gives to an animal its food), livnai oraiv asher yikra’u (to the children of the raven that call out). The Gematria of behaima (animal) is 52, the same as kelev (dog).
Like the Stars
The Gemora explained that the verse that states that matzdikei harabim – those that bring merit to the community are like the stars, is referring to those who educate children in Torah.

The Ben Yehoyada points out that the appropriateness of the metaphor. Although stars appear to us much smaller than the sun, they are actually much larger and more powerful. Similarly, although those who teach seemingly trivial subjects, such as the basics of reading and writing, appear to not be as lofty as those who study and teach Torah at a much more advanced level, they are actually more exalted than others, since they teach Torah to children who are pure and untainted by sin.

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Chazakah on a Sukkah

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By: Reb Avi Lebowitz

The Gemora says that generally, if a person builds a hut which infringes on his friend’s property, there is a grace period of thirty days in which the owner graciously permits the hut owner to use the area and doesn’t have to protest. But, after that grace period has passed, if the owner doesn’t protest, the hut owner will have an established right to be able to claim that he purchased the rights of use. But, if the hut is built for a sukkah on Sukkos, then immediately after the seven days of s Sukkos passes, the lack of the owners protest enables the builder to claim that he purchased the right to leave it there permanently. [This is according to Rashi, but the Hagahos Ashri cites other opinions that it is seven days in addition to the thirty days.]

Tosfos points out that in truth, the builder doesn’t have a chazakah after seven days; he only has a chazakah after eight days since on the eighth day, which is Shemini Atzeres, it wasn’t possible to remove the sukkah.

The Ya’avetz asks: What compelled Tosfos to say that he will not have a chazakah until the eighth day is over. Perhaps we assume that the owner would have allowed him to use the space for the mitzvah, but as soon as the mitzvah ends, the owner is expected to protest. The fact that the owner fails to protest would not enable the builder to claim that he has acquired permanent rights to this area!?

It would seem that Tosfos holds that although the owner can protest the sukkah immediately after the seven days pass, even before the eighth day ends, he is not expected to do so. Why? It is because he is well aware that his protest is futile. The owner can claim that for the duration of Sukkos, he allowed the hut owner to fulfill his mitzvah. On the eighth day he also did not protest because he knew that his protest would be in vain, since the hut owner could not remove the sukkah until after Sukkos. Therefore, Tosfos holds that the owner has the right to protest through eight days.

From this we can learn that even after one has been machzik for enough time to create a chazakah, it is only effective if by the owner protesting he could have forced the hut owner to leave. But in a situation, where the owner could not have forced the hut owner to leave, such as when the chazakah concludes on a Shabbos or Yom Tov, the owner is not expected to protest and is given an extra day to voice his protest.

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Stealing for Pain

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Runya had a field which was enclosed on all four sides by fields of Ravina. Ravina fenced them and said to Runya, “Pay me (your share) what I have spent for the fencing.” Runya refused to pay. Then Ravina said, “Pay me at least the cost of a cheap fence of reeds.” He again refused. Ravina said, “Then pay me the hire of a watchman.” He still refused. One day Ravina saw Runya harvesting dates from his palm trees, and he said to his sharecropper, “Go and (in Runya’s presence) take a cluster of dates from him.” He went to take them, but Runya shouted at him, whereupon Ravina said, “You have demonstrated through this that you are satisfied with the fence (and happy that it offers protection for your trees). Even if it is only goats that you are afraid of, does your field not need guarding?” He replied, “A goat can be driven off with a shout (so there is no purpose for a fence).” Ravina asked him, “But don’t you require a man to shout at it?”

They went before Rava, who said to him: Go and appease Ravina with what he accepted (the payment for half a watchman), and if not, I will issue judgment against you according to Rav Huna’s interpretation of the ruling of Rabbi Yosi (and you would be required to pay for half the actual cost of the fence).

The Ritva asks from a Gemora in Bava Metzia (61b), which states that one should not steal in order to pain someone. If so, how was Ravina allowed to send his agent to steal?

He answers that the dates in this case were ready to be sold and their price was set. Accordingly, one is permitted to take them with the intent of paying for it. Ravina did it in this manner in order to demonstrate that Runya was pleased with the protection afforded by the fence. It was therefore not regarded as stealing at all; it only appeared that way.

He also answers that it is only forbidden if the person’s intent is to pain his fellow. Here, it was done to bring about a correct judgment.

This answer, however, is somewhat problematic, for the Gemora there states that it is forbidden to steal even if the intent is to provide him with the keifel (double the value; if someone wishes to give charity to a poor person, but he refuses, he could steal from him and the keifel will serve as his charity).

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Counseling an Idolater to Avoid Divine Retribution

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The Gemora asks: How could Bava ben Buta give advice to Hurdus, seeing that Rav Yehudah has said in the name of Rav, or alternatively, Rabbi Yehoshua ben Levi, that Daniel was punished only because he gave advice to Nevuchadnezzar, as it is written: Nevertheless, O king, let my counsel be acceptable to you; redeem your sins through charity and your iniquities by showing mercy to the poor; if there may be a lengthening of your tranquility etc. And later on it is written: All this came upon the King Nevuchadnezzar, and afterwards it is written: At the end of twelve months etc.?

The Gemora answers: Either you can say that this does not apply to a slave, who is under obligation to keep the Torah’s commandments, or you can say that an exception had to be made in the case of the Temple which could not have been built without the assistance of Royalty.

The Gemora asks: How do we know that Daniel was punished? Shall I say that it is from the verse: And Esther called to Hasach, who, as Rav has told us, was the same as Daniel? This is a sufficient answer if we accept the view of those who say that he was called Hasach because he was “cut down” (chatach) from his greatness. But according to the view of those who say that he was called Hasach because all affairs of state were “decided” according to his counsel, what answer can we give?

The Gemora answers that he was thrown into the den of lions.

The Meiri writes that one who constantly sins, his iniquities are so great that the ability to repent is removed from him. This is why one should not divulge to them the appropriate ways of penance, for these people are not supposed to escape the Divine punishment. This is why Daniel was punished, for without solicitation, he proffered advice to Nevuchadnezzar, as to how to escape Hashem’s anger.

The Yad Ramah adds that this prohibition applies only to an idolater who is oppressing a Jew – one is forbidden from counseling him to perform mitzvos or dispense charity to the poor in order to evade retribution for their sins. It emerges that it would be permitted to offer such advice to an ordinary idolater.

However, it is evident from the Rambam that he maintains that it is forbidden to give any positive counsel to an idolater, as long as he remains steadfast in his evil ways.

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Destroying a Shul

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By: Reb Avi Lebowitz

The Gemora says that one cannot destroy a synagogue until the replacement is rebuilt. The Gemora quotes two reasons for this prohibition:
1. Negligence - maybe an accident will occur (Rashi) that prevents the building of the new synagogue.
2. No place to pray - in the meantime there won't be anywhere to pray.

The Shulchan Aruch (152) rules like the first reason, therefore it would be prohibited even if there was another place to pray.

The Mishnah Berurah (5) says that when there is another synagogue in town that can fit the entire congregation, the Taz permits its destruction, but the Magen Avraham is stringent.

The Biur Halachah explains that one can rely on the Taz since we are only dealing with a Rabbinical prohibition, and many Rishonim allow the synagogue to be destroyed, even according to the first reason, when there is an established synagogue to pray in; not just a place to pray (Tosfos). Based on this, a synagogue may be destroyed in order to rebuild, so long as there are other synagogues in the community that can hold all the members of the one that is rebuilding.

The Gemora says that the entire prohibition only applies when the synagogue is in good condition, but if it starting to decay and therefore not functional in its present state, one can destroy it to build another.

The Gemora also says that the only Bava ben Buta gave Hurdus advice to destroy the Beis Hamikash in order to rebuild it because they began to see cracks there.

The Mishnah Berurah (2) proves from here that even if the intent is to make a much nicer synagogue, it is forbidden, so long as the first one is still functional.

However, the Taz (quoted in M.B. 9) is liberal about the definition of “rotting.” The Taz holds that when the first synagogue is too far from where the community lives, such as outside the wall of the city, “there is no greater crack than this,” and it can be rebuilt in a more appropriate location. Similarly, Tosfos explains that a summer synagogue in winter or vice versa, can qualify as a “crack,” and it may be destroyed.

It is important to note that the entire issue of destroying a synagogue is only considered a Rabbinic prohibition because it is being done for constructive purposes, i.e. to rebuild another in its place or elsewhere. However, when the synagogue is being destroyed for a destructive purpose, it is a Biblical prohibition, at the Mishnah Berurah (11) points out that it is derived from the verse: One should not do this to Hashem, your G-d.

The Biur Halachah explains that this not only applies to items that are attached to the ground, but even destroying movable items, such as the bimah and amud are Biblical prohibitions.

The Maharam Padawa allows the removal of the tangible items from the synagogue, and it is not a violation of this prohibition, since it is not destroying the actual structure (unlike the removal of bricks).

Ariach and Levainah

By: Reb Binyomin Adler

The Gemora cites a Mishna, which states that the beam has to be wide enough to support an ariach, a half-brick. We find that the term ariach is used in other instances, i.e. by the Shiras Hayam, the Song sung by the Jewish People at the Red Sea. There the Gemara mentions that the Shirah is written ariach al gabei levainah, a half-brick on top of a full brick, which means that one line of the Song is written like a half-brick, and the line beneath it is a full brick. We can interpret the terms ariach and levainah homiletically. A half-brick symbolizes that a person’s heart should be contrite and broken, and by demonstrating sincere remorse for one’s transgressions, Hashem will grant him atonement, as the word levainah connotes atonement. The word lavan, which is closely associated to the word levainah, means white, and white reflects atonement.

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Unrecognizable Damage

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By: Reb Avi Lebowitz

The Gemora quotes from a braisa that if one fails to fence his vineyard, thereby causing the adjacent produce owned by someone else to become forbidden as kilayim, the owner of the vineyard is responsible to pay for the damage.

Tosfos asks: Why is the owner of the vineyard liable to pay? It should qualify as a hezek sh’eino nikar - an unrecognizable damage, which is not considered a damage?

Tosfos answers that even if the damage isn’t recognizable in the object, so long as the context of the situation looks like a damage, i.e. the vines growing near the produce without a fence separating, it is considered a damage that is recognizable and the owner is liable.

Tosfos asks: If this is considered “recognizable,” why do we considered it to be an unrecognizable damage when one takes a sheretz (creepy insect) and places it on his friends taharos? There too, the context of the situation should qualify as a damage recognizable?

Tosfos answers that since tumah requires not only contact between the sheretz and the taharos, but also requires hechsher (the food must become moist willingly to be susceptible to tumah), that aspect is still not recognizable and therefore qualifies as a damage which is not recognizable.

The question is, however, that Tosfos just got finished saying that kilayim is not merely a situational prohibition of mixing produce and grape vines. Kilayim is only created if the owner “wants it.” Based on this, Tosfos explains that so long as the owner is doing whatever possible to build a fence, even though the kilayim grew .5% prior to the fence being erected, it is not considered a kilayim violation. Since kilayim also has its own set of prerequisites to become forbidden - only if the owner fails to put in the effort of building the fence, which is not necessarily recognizable, we should consider kilayim a damage which is not recognizable, just as we consider tumah a damage which is not recognizable (due to the lack of recognition that it became huchshar l’kabel tumah)?

Tosfos apparently holds that by kilayim the prohibition is a metzius of growth. We don’t require the consent of the owner to create the prohibition; just that if the owner makes an effort to build a fence and demonstrates that he doesn’t want the kilayim, the prohibition can be avoided. Tumah requires a positive act of hecsher to create the status of tumah, therefore it is considered “not recognizable,” but kilayim doesn’t require a positive act to become forbidden (rather, a positive act to repair the fence will prevent the prohibition).

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Evil Eye

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Rabbi Abba said in the name of Rav Huna who said in the name of Rav: A person is forbidden from standing near his friend’s field when its stalks are grown.

Shulchan Aruch cites this halachah; however, the Rambam omits it.

The Maggid Mishnah explains that the Rambam maintains that this is not actually a prohibition; rather, it is a midas chassidus - one who wishes to act piously should avoid standing near his fellow’s field when there is standing grain. This is why we do not force neighbors, whose roofs are adjacent to each other, to build a fence so one should be prevented from looking into the other’s area.

The Raavad disagrees, and holds that a wall of four amos is required by a garden.

The Steipler Gaon quotes from a wise man that one who damages by casting an evil eye on another will not be liable to pay. It is for this reason that the Gemora utilizes the term “it is forbidden,” and not that “one is liable.” The Steipler disagrees, and explains that the reason the term “liable” is not used is because we have no way of determining without a doubt that the damage occurred on account of this person’s evil eye. However, if we would know for certain that it was due to him, he would be liable (except according to the Rambam).



Evil Eye

The Gemora (Bava Metzia 30a) 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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