Halachos on the Daf - 71

By: Reb Avrahom Klein

(Choshen Mishpat Siman 215)

In the previous few dafim, the Gemora discussed which items are included when selling a house, courtyard, olive press, bathhouse, city and field. The reason why everything is not included in the sale is because when someone is for example selling a house, he’s only selling it because he’s strapped for cash. So although we assume that a seller sells b’ayin yufeh - generously, this doesn’t include items which are not part of the house. We therefore can say that the seller had no intention of selling any items, if not for the fact that he needed the money.

According to the above logic, there would be instances where everything that belongs in that particular place is included in the sale.

1. A person giving a house, field etc. as a gift. Since he wasn’t forced into giving it, then he must have given it wholeheartedly, and he is not withholding anything.
2. Brothers that divided an inheritance. Since each brother took their own field, for example, then obviously they completely divided the inheritance, and everything in each brothers field is exclusively his.
3. If someone made a kinyan chazakah (propriety act) on the property of a deceased convert.
4. One who consecrates a house, field etc., the halachah is that everything is hekdesh. Since he wasn’t forced into consecrating it, then he must have given it wholeheartedly, and he is not withholding anything.

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What's Included?

Which House?

The Gemora tells the story of the person who commanded, on his deathbed, to give someone his house, which holds 100 barrels. The house was found to hold 120 barrels, and the Gemora concludes that the whole house was given, as one who gives a gift does so generously.

The Rashbam says that this is only true if he had no house that holds 100 barrels. If he had another such house, we assume that house was given.

The Ritva (quoted by the Nimukei Yosef 37b) says that this is true because one who gives a gift is not exact, and meant the house which held 120 barrels. However, if the house held more than 120 barrels, that is above the error a person would reasonably make, and we assume that he did not mean to give the whole house.

The Nimukai Yosef disagrees, and says that there is no limit specified in the Gemora. The Nimukei Yosef further explains that we do not purchase a house holding 100 barrels for the recipient, since the giver specified that his house should be given.

The Taz (HM 253:14) says that the rationale for giving the large house is that one who gives a house generally gives the whole house, even if the discrepancy is larger than 1/5. See the Bais Yosef HM 253, who cites a variant text of the Tur that says even if the house holds 150 barrels, the house is given. The Bais Yosef reject this variant.

Take your Trees!

Rav Huna says that one who sells his land, but retains two trees, also retains the land between and around them, since otherwise the buyer can tell him to remove his trees.

The Rashbam explains that the buyer can only demand this once the original trees wither and die. If the seller would then want to plant new trees, the buyer can object.

Tosfos (71b Laima) quotes the R”i, who says that such a rationale would not suffice, since the seller may not intend to plant new trees in this land. Rather, the R”i says that if the seller does not retain the land of the trees, the buyer can demand that the seller remove his trees immediately, since they take nourishment and space from the land. Once the seller retained the land for the immediate needs of the tree, he also retained the land between them and the right to be able to plant new trees after these die.

The Rashbam explains that when one buys two trees, there is no assumption that the buyer plans to plant new trees when these die, since people often buy trees for a temporary period of time. Therefore, one who buys two trees does not automatically get their land.

The R”i explains that even in a case where a buyer bought land adjacent to his trees, he does not necessarily get any more land, since he is at the mercy of the seller.

The Grafted Carob and Cut Sycamore

Rabbi Shimon says that only the grafted carob and cut sycamore are included in a consecrated field, since they take nourishment from the consecrated field.

The Rashbam explains that since they take nourishment from a consecrated field, they themselves become consecrated, similar to the rule that something that grows from consecrated seeds is itself consecrated.

The Rashba and Ran, however, explain that since these trees take nourishment from the consecrated land, we assume the owner included them in the consecration. The difference between these explanations would be a case where the owner chopped down these trees right after consecrating the field. According to the Rashbam, the trees would not be consecrated, since they did not take nourishment from the consecrated field. According to the Rashba and Ran, the trees would still be consecrated, since the estimation of the owner’s intent is the same.

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Assets Discovered Posthumously

By: Meoros HaDaf Hayomi

Orphans are assumed to know nothing about their parents’ business and the Torah therefore empowers dayanim to represent them in case of claims, argue for them and demand claimants to take an oath or produce solid proof. Almost every Rishon expressed an opinion as to the claims a beis din may present on an orphan’s behalf. Ramban and other Rishonim hold that they may assert any claim (see Responsa Maharit, 112; Shach in C.M. §69 S.K. 26, and §297) but Tosfos on our sugya (70a, s.v. Veleima) and other Rishonim believe a beis din is limited to only reasonable claims. If, for example, someone produces a document proving he deposited funds with the deceased, the beis din may not claim they were subject to force majeure (oness), exempting the orphans, as oness such as an armed robbery is uncommon and would usually have become known. (Shulchan ‘Aruch cites both opinions in C.M. 108:4; see Shach, ibid, S.K. 8, who rules according to Ramban). Still, all agree that a beis din must not counter with utterly unreasonable claims that, if submitted by the father, would be rejected. Halachic authorities were consequently required to decide which claims should be considered realistic and acceptable.

Taxation in German Communities

Poskim subsequently discussed the autonomous taxation methods practiced in German Jewish communities. Each member of the community had to submit a periodic declaration of assets to enable proportional collection of internal revenue tax to cover expenses such as maintenance of public services (synagogues, medical care, mikvaos, etc.); wages of rabbis, shochatim, lobbyists and the like; and incidental costs. Declarations had to detail promissory notes, deposits, cash, silver, gold, wine and grain, all to be assessed for taxation (Minhagei Vormaiza, II, p. 134). A relevant incident occurred in Nikolsburg, Moravia, now in the Czech Republic but then ruled by Germans.

Fisk’s Tax Declaration

About 350 years ago Yaakov Fisk was one of the richest men in Nikolsburg and, like his companions, periodically declared his assets and paid his taxes. After his demise, his heirs found the inheritance to be worth 300% more than his last assessment and the gabaim of the community demanded arrears. Some dayanim, though, countered on the heirs’ behalf that Fisk could have become richer just before his death, after the last taxation, and they could hence not be forced to pay arrears for previous years (Responsa Tzemach Tzedek HaKadmon, 24).

We don’t all have the Luck of Yosef Mokir Shabos

A similar case is judged in Responsa Chavos Yair (57-58) and ruled that claims of sudden enrichment are unrealistic as most people become wealthy gradually, over a long period: “Should we assume he opened a fish and found a precious stone like Yosef Mokir Shabos or got rich by a stroke of luck?” A beis din, then, cannot make such claims and the heirs must pay the demanded arrears.

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What Furnishings are Included in the Sale of Property?

By: Meoros HaDaf Hayomi

Approaching retirement, Reuven sold his shop and, in the purchaser’s presence, began to clear out his personal effects. The new owner was astounded, though, when Reuven ordered the movers to dismantle a partition forming a wall in the middle of the shop and bring it for storage in his home. The partition, he claimed, served no current purpose but was installed long ago only to reduce the shop’s area and thus avoid paying a high municipal tax. The new owner retorted that the partition was just like any other wall, surely included in the sale. Rav Moshe Feinstein justified Reuven (Igros Moshe, I, 53) as Shulchan Aruch (C.M. 214:11) rules, in accordance with our sugya, that decorative window frames are excluded from the sale of a home, shop, etc., because they are not one of the items that give a house its name. Likewise the partition, which had been installed for extraneous reasons, was superfluous for the shop and excluded from the sale.

What is Sold with a House?

Commenting on our sugya, the Rishonim indicate that anything not affixed to a dwelling is excluded from its sale, unless otherwise specified, and anything affixed thereto and needed for normative habitation, e.g. doors or windows, are included.

Keys Now and Then

Keys are virtually the only items now defined differently than in Talmudic times. The Mishnah (65a) states that keys were excluded from the sale of property. They were not attached to a house or the like and came in just a few models, fitting the simpler locks of the era. Slightly altered, a key could fit other locks and therefore could not be defined as unique to any house. A modern key fits only a certain lock and must be included in the sale. HaGaon Rav Yaakov Bloy (Pischei Choshen, VII, 14, S.K. 64) adds that as purchasers of property now take care to prevent strangers from having keys, former owners must relinquish all keys to a new resident.

Lighting Fixtures

Lighting fixtures sold with a home, office or the like must be in working condition, being essential for habitation. However, a seller may remove chandeliers present at the sale and replace them with cheaper fixtures, as they are merely decorative.

Wall safes may likewise be removed, being non-essential.

Air-conditioners

These fixtures present a serious problem. About 30 years ago, all halachic authorities would agree that air-conditioners were luxuries not assumed to be included with homes. Thirty years from now, all will apparently define them as essential items for normal habitation. Today, then, we are in a dubious interim that requires asking a Rav for a decision according to local conditions.

Inventorying the Property

In conclusion, we cite Rav Y. Bloy (ibid), that sellers and buyers would act wisely to list the articles included in the sale in writing. Rambam, albeit, asserts that local custom determines practice (Hilchos Mechirah, 26) and halachic rulings are meant to solve problems where there is no obvious custom. Still, there may always be some item open to debate.

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Comparing Slaves and Land

By: Reb Yonataon Sapir

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.

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Giving Generously

The Gemora states that one who gives a present to another gives it away generously (with a favorable eye).

The Pardes Yosef quotes from the Vilna Gaon the following explanation: Hashem promised that He would give Eretz Yisroel to Avraham Avinu’s descendents. Avraham asked Him [Breishis 15:8]: How will I know that I will inherit it?

A righteous person obtains rewards for one of two reasons: either as a reward for his observance of mitzvos, or as a matnas chinam – it is given gratuitously. Something that is given to him as a reward can be negated if he commits a sin, for that nullifies the good actions that he performed. However, that which is given out of the kindness of the Holy One, Blessed be He, cannot be negated by a sin, for it is given gratuitously - with a good eye.

Accordingly, it can be explained that whenever Hashem promised Eretz Yisroel to Avraham Avenue, Avraham thought that it was a matnas chinam, and therefore, he was confident that his descendants will receive it. However, then it was said to him [ibid: 7]: I am Hashem who took you out from the fire at Kasdim. Now that the giving of Eretz Yisroel was dependant on the fact that Avraham threw himself into the furnace, Avraham was concerned that perhaps, he had committed a sin which would negate the mitzvah that he performed. Hashem replied to him that this inheritance will not be nullified for any reason whatsoever, and that is why Hashem said: To your children, I gave the land, for it was regarded as if it was already given to them, for nothing can prevent its happening.

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Selling a House

A Roof

The Gemora attempts to prove that a standard house sale does not include airspace from the statement in the Mishna that a roof with a fence ten tefachim high is not included.

The Rashbam (as explained by Tosfos 64a v’hee) says that the Gemora understood the exclusion of such a roof to be in a case where no inclusion of airspace was made. The Gemora concludes that airspace is not included in a standard sale, because it is illogical for one to own the house under the roof, as well as the airspace above the roof, but not the roof. The Gemora’s answer is that since the roof is substantial enough to have a fence of ten tefachim, this is the way the sale works.

The R”i challenges this explanation, since the Gemora’s answer does not address the assumption of the question. The R”i instead explains that the Gemora was stating that if it is so easy to acquire extensions of the house (such as depth and airspace), that the acquisition takes effect even if not explicitly included, then a roof should be included, even if it has a ten tefachim fence. The Gemora’s answer is that such a roof is so substantial, that it is still not included in a sale, even one that is expansive enough to implicitly include airspace and depth.

A Roof’s Dimensions

The Rambam (Mechira 25:2) says that a roof with a ten tefachim fence, and a width of four amos is excluded from a house sale. The Kesef Mishnah quotes the Magid Mishnah who asks what’s the Rambam’s source for the minimum width of four amos. The Kesef Mishnah points out that the Rambam does not specify any such minimum dimensions for an inner room, which is also excluded from a house sale. The Kesef Mishnah explains that an inner room is excluded, since it serves a different purpose than the house – whereas the house is for living, the room is for storage. Therefore, no matter how small the room is, it is excluded. However, a roof is excluded since it is substantial, and therefore considered a different domain than the house. To be a different domain, it must be a minimum width of four amos.

A Generous Gift

The Gemora explains the dispute of Rabbi Akiva and the Sages to be whether a seller is generous or stingy in his sale. The Rashba (Responsa 3:116) rules that all agree in the case of a gift that the giver is generous. Therefore, if one gave his friend a pit or house on his property, that gift included access rights to the given property as well.

Another Path

The Rama (HM 214:2) rules that although we rule that one who bought a pit or house on someone else’s property is assumed to have acquired the access rights to it, if he already owns a path to it, we do not give him a new access route.

Types of Pits

The Mishna lists two types of pits that are excluded from a home sale – an earthen pit, and a paved pit. The Rashbam explains that both types of pits have to be explicitly listed. If only an earthen pit was listed, we may have thought that a paved pit, which is similar to the house, which is not land, but built on land, would be included. If only a paved pit was listed, we may have thought that such a pit is significant, and is therefore not ancillary to the house. However, an earthen pit would be considered ancillary to the house, and included in its sale.

No Path?

The Sages say that if one sells a house, he retains his pit, and a pathway, while if he sells his pit, the buyer must buy access rights. Rabbi Akiva says that if one sells a house, he retains his pit, but not access rights, while if he sells his pit, the buyer gets access rights. The Reshash says that even when one does not get access rights, this simply means that he does not own a path four amos wide to his pit. However, he does have a narrow path to his pit.

The Yad Ramah asks what the buyer of a pit bought according to the Sages, if he does not have access rights. The Yad Ramah says that all the buyer bought was the right to be a bar matzra – a neighbor, with first rights to purchase adjoining land.

The Reshash is inconsistent with this Yad Ramah, since according to the Reshash, the buyer does have access to his pit, albeit in a less comfortable manner.

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Judges Decision

by: Rabbi Yaakov Montrose

The Gemora discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemora presents two versions of Rava’s position on the matter. According to both versions, if the fourth boundary is “muvla” -- “absorbed” (see sketch in Rashbam D”H v’Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no hedge of palms on it or nine kav of seeds could be planted there), the area is included in the sale. In the opposite case, where the fourth boundary is not muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is muvla but the area is important, or the area is not important but it is not muvla). The Gemora concludes that the halachah is “shuda d’dayanei.”

The Rishonim explain that although “shuda d’dayanei” usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision, the application of “shuda d’dayanei” in this case is different. The Rishonim quote a tradition, which some say dates from the Rabbanan Savorai, that although in such a case the halachah should follow the second version of Rava, or the halachah should be “ha’Motzi me’Chaveiro Alav ha’Re’ayah” – the one who is exacting money from his fellow must bring the proof, the ruling of “shuda d’dayanei” here is “an logical decision” by the judges. What does this mean?

The Rosh explains that Rava actually said both statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava’s two statements are not contradictory; the halachah may differ depending on the details of the specific case. The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.

The Nimukei Yosef similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.

The Pilpula Charifta notes that the Rosh and Nimukei Yosef certainly take into account that the halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of “Damim Modi’im” – “the money shows” to decide a case. However, in this case, in which the ruling is “shuda d’dayanei,” the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.

The Rashbam writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do.

The Rambam (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account.

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Rav did not Reveal the “Sod”

A person sold a field to his friend, and drew one border long and one border (on the opposite side)short. Rav says: In such a case, the buyer only acquires the amount of field that is opposite the short side.

Rav Kahana and Rav Assi asked Rav: Why shouldn’t the border should be from the small side to the long side (a diagonal line)?

Rav was quiet, and did not answer.

The Chavos Yair (responsa: 152) quotes the Rema who writes that it is well known that Rav is in fact Rav Abba, the chosen disciple of Rabbi Shimon ben Yochai. And everytime that the Gemora says, “Rav was quiet,” it does not mean that he was silent because he did not know; rather, he knew how to answer according to “sod” – the hidden secrets of the Torah, and he did not want to reveal them.

The Chavos Yair explains the Gemora in Bava Kamma (11a), which relates that since Rav Kahana and Rav Assi asked Rav, “Is this truly the halachah?” and he kept quiet, we can conclude that the law of assessment does indeed apply. Although it couls have been said that Rav remained silent for he did not want to reveal the hidden secrets of the Torah, nevertheless, we do not rule in halachic matters based on “sod,” rather, it is solely dependent on the “revealed” portion of the Torah.

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Intent of the Seller

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By: Rabbi Yaakov Montrose

The Gemora discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemora presents two versions of Rava’s position on the matter. According to both versions, if the fourth boundary is “muvla” -- “absorbed” (see sketch in Rashbam D”H v’Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no hedge of palms on it or nine kav of seeds could be planted there), the area is included in the sale. In the opposite case, where the fourth boundary is not muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is muvla but the area is important, or the area is not important but it is not muvla). The Gemora concludes that the halachah is “shuda d’dayanei.”

The Rishonim explain that although “shuda d’dayanei” usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision, the application of “shuda d’dayanei” in this case is different. The Rishonim quote a tradition, which some say dates from the Rabbanan Savorai, that although in such a case the halachah should follow the second version of Rava, or the halachah should be “ha’Motzi me’Chaveiro Alav ha’Re’ayah” – the one who is exacting money from his fellow must bring the proof, the ruling of “shuda d’dayanei” here is “an logical decision” by the judges. What does this mean?

The Rosh explains that Rava actually said both statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava’s two statements are not contradictory; the halachah may differ depending on the details of the specific case. The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.

The Nimukei Yosef similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.

The Pilpula Charifta notes that the Rosh and Nimukei Yosef certainly take into account that the halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of “Damim Modi’im” – “the money shows” to decide a case. However, in this case, in which the ruling is “shuda d’dayanei,” the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.

The Rashbam writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do.

The Rambam (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account.

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Rav did not want to Reveal the "Sod"

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A person sold a field to his friend, and drew one border long and one border (on the opposite side) short. Rav says: In such a case, the buyer only acquires the amount of field that is opposite the short side.

Rav Kahana and Rav Assi asked Rav: Why shouldn’t the border should be from the small side to the long side (a diagonal line)?

Rav was quiet, and did not answer.

The Chavos Yair (responsa: 152) quotes the Rema who writes that it is well known that Rav is in fact Rav Abba, the chosen disciple of Rabbi Shimon ben Yochai. And everytime that the Gemora says, “Rav was quiet,” it does not mean that he was silent because he did not know; rather, he knew how to answer according to “sod” – the hidden secrets of the Torah, and he did not want to reveal them.

The Chavos Yair explains the Gemora in Bava Kamma (11a), which relates that since Rav Kahana and Rav Assi asked Rav, “Is this truly the halachah?” and he kept quiet, we can conclude that the law of assessment does indeed apply. Although it couls have been said that Rav remained silent for he did not want to reveal the hidden secrets of the Torah, nevertheless, we do not rule in halachic matters based on “sod,” rather, it is solely dependent on the “revealed” portion of the Torah.

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Graves and Cemeteries

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The Gemora states that Rabbi Bana’ah used to mark out caves and it relates what happened when he went into the Cave of Machpeilah (where the Patriarchs and Matriarchs were buried).

The Rashbam explains that he did this in order to determine the precise dimensions of the crypts, and after marking its borders on the ground above, people, and especially Kohanim, would be able to avoid becoming tamei (through tumas ohel – forming a tent over a corpse).

Tosfos asks from the Gemora in Yevamos (61a): Rabbi Shimon ben Yochai said: The graves of idolaters do not transmit tumah through the roof (if the tumah source and a person or object is under the same roof). If so, how could there be any tumah from the Cave of Machpeilah?

Tosfos continues that even according to the Rabbis, who disagree and hold that there is tumas ohel from an idolater’s grave, nevertheless, regarding a grave before the Giving of the Torah, the Gemora in Nazir (54a) only includes it for tumah with respect to touching, but not through roof association!?

The Ramban explains that Rabbi Bana’ah did this out of respect to our forefathers, for although they cannot transmit tumah, they accepted and observed the entire Torah.

Reb Chaim Brisker writes that if not for these Rishonim, he would have said that a corpse which is in a grave after the ?Giving of the torah is considered as if it was freshly buried, and it will transmit tumah.

Tosfos answers that the reason idolaters are excluded from tumas ohel is because it is written [Yechezkel 34:31]: Now you my sheep, the sheep of my pasture; you are adam. You, Israel, are referred to as “Adam,” man, but an idolater is not regarded as “Adam.” [The word “Adam” is the term used in the Torah regarding the laws of tumah by way of a roof; thus we see that the grave of an idolater does not transmit this tumah.] However, we find that Avraham Avinu was referred to as “Adam,” and Adam Harishon as well; accordingly, the halachos of tumas ohel would apply to the Cave of Machpeilah.

According to these Rishonim, our Gemora would seemingly be a proof that the graves of the righteous transmit tumah.

Tosfos in Bava Metzia (114b) writes that when Eliyahu said that the reason he was involved in the burial of Rabbi Akiva (although he was a Kohen) was because there is no tumah by a Torah scholar, that was only an excuse; the real reason was because the corpse had to be treated like a “meis mitzvah,” for everyone else was too frightened (from the government) to bury him.

There are, however, some Acharonim who rule that the righteous do not transmit tumah. Over the ages, some Kohanim have relied on this to attend the funerals of tzadikim (see Shut Minchas Eliezar 3:64). However, the vast majority of poskim have not relied on this Midrashic statement and forbid Kohanim from attending the funeral of tzadikim (See discussion in Beit Yosef YD 373; Pischei Tshuva YD 372:2; Kitzur Shulchan Aruch 202:14; Bach YD 374; Shut Divrei Yatziv (by Klausenburg rebbe) YD:231; Yechave Daat 4:58).

Rabbi Gil Student cites other halachic authorities who deal with this topic. The contemporary greats, including Rav Moshe Feinstein, Rav Yaakov Kamenetzky, Rav Yaakov Yitzchak Ruderman, Rav Yitzchak Hutner, and Rav Shlomo Zalman Auerbach all come down as prohibiting in their letters of approbation to the book Ziyon L'nefesh Zvi. [See footnotes 50 and 51 to Al Hadaf Kesubos 7/No.65/July 2 '00.] The only exception would be the actual Nasi, for whom the Shulchan Aruch (YD 374:11) says all (even Kohanim) may become tamei.

[See the responsum on this topic of graves of tzadikim causing tumah in Eliyav ben Achisamach (written by Rav Sender Friedenberg, formerly Rav of Prashvitz and then of Bastravtza, in 5671[1911]). See also the specific responsa of Rav Shlomo Kluger (1785-1869; Tuv Taam v'Daas 2:Aveilus:231) who ruled that Kohanim could not go near the grave of the great chassidic Rebbe Rav Aaron of Chernobil, or of any other tzadik. See Kitzur Shulchan Aruch 202:14) that "Kohanim hedyotim" rely on this rule to visit the graves of the righteous, but they are mistaken and one should correct them.]

The Kaftor va’Ferech writes that Rabbi Bana’ah marked these graves in order for the future generations to know where our forefathers were buried, and this way, we would be able to pray by their gravesite that no tragedies should befall Klal Yisroel. This would be just as Calev separated himself from the plan of the spies and went and prostrated himself upon the graves of the Patriarchs, saying to them, “My fathers, pray for mercy on my behalf that I may be spared from the plan of the spies.”

The Ritva writes that although the Gemora in Taanis (16a) states that it was the custom to visit a cemetery on a fast day, they didn’t go to the cemetery in order to daven there because that is forbidden on the account of “loeg lerosh” – it is considered mocking to the dead who cannot perform the mitzvos; rather they davened in the streets and went to the cemetery afterwards. The Ran adds that they did not take the sefer Torah with them when they went to the cemetery.

The Noda B’yehuda (O”C 2:109) was asked on a year that there was no rain and there was tremendous suffering; if they would be permitted to go to a cemetery with a sefer Torah and daven there for rain.

He cites a Zohar (Acharei Mos) which states that davening by a cemetery inspires the souls of those buried there to inform those that are buried in Chevron (Patriarchs and the Matriarchs) who subsequently will arouse Hashem’s compassion.

However, there is a Gemora in Brochos (18a) which rules that a person should not enter a cemetery with tefillin on his head or read from a sefer Torah in his arm. We can infer from this Gemora that reading from the sefer Torah is forbidden but holding it would be permitted. The Kesef Mishna in Hilchos Sefer Torah (10:6) learns that both are forbidden; reading from the sefer Torah or holding it.

The Noda B’yehuda concludes that although he is not an expert in the hidden portions of Torah, the Zohar cited does warn against bringing a sefer Torah that might be missing letters into a cemetery since this can cause terrible consequences.

The sefer Igra D’taanisa wonders why the Noda B’yehuda makes no mention of the Gemora in Taanis, which would indicate that one can go daven by a cemetery.

The Minchas Elozar discusses the permissibility of people davening by Kever Rochel. Some say that we are not mocking Rochel since she was living before the Torah was given; she was never obligated in mitzvos.

The Netziv rules that in his days, it would be permitted because the custom was to bury them deeper than ten tefachim from the ground and it is considered like a different domain.

The Rama (O”C 581:4) writes that there are places that have the custom to go to cemeteries on Erev Rosh Hashanah and to recite lengthy Tefillos there. The Chidah asks on this Rama from the Ritva in Taanis that states explicitly that one should not daven in the cemetery.

There are those that create a distinction between a compulsory tefillah and a tefillah which is only voluntary.

The Elya Rabbah (581) quotes from the Maharil that one should be careful when going to the graves of Tzadikim that your tefillos should not be directed towards those that are buried there, rather one should daven to Hashem and ask for compassion in the merit of these Tzadikim. Some say that you can ask the dead to be an advocate on your behalf.

The Bach (Y”D 217) rules that it is forbidden to daven to the dead because of the prohibition of being “doresh el hameisim.” He points out that even though we find that Calev did daven in Chevron by the Meoras Hamachpeila, he wasn't davening to the Avos. Rather, since a cemetery is a place of holiness and purity, the tefillos davened there will be more readily accepted.

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Mentioning a Father's Name

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The Gemora cites a braisa: Rabbi Yosi said: When my father, Chalafta, went to Rabbi Yochanan ben Nuri to study Torah, or, as others recorded: When Rabbi Yochanan ben Nuri went to study Torah by my father, Chalafta, he said to him: Suppose a man occupied a piece of land for one year as testified by two witnesses, for a second year as testified by two other witnesses, and for a third year as testified by still two other witnesses (totaling three years, constituting a chazakah), what is the halachah? He replied: This is a proper chazakah. He said to him: I also say like that, but Rabbi Akiva disagrees, for Rabbi Akiva used to say: When the Torah said (regarding witnesses testimony), “a matter,” it means that they must testify regarding a complete matter, and not about half a matter.

Rashi in Shabbos (115a) explains that Chalafta was the name of Rabbi Yosi’s father. Reb Akiva Eiger asks: If so, how was Rabbi Yosi permitted to mention the name of his father? It is explicitly ruled in Shulchan Aruch (Y”D 240:2) that one is forbidden from mentioning his father’s name, during his lifetime and after his death as well!?

He quotes an answer from his son, Reb Shlomo: It emerges from Rashi in Sanhedrin (100a) that if a title of honor precedes the mentioning of one’s father’s name, it is permitted. Since “Abba” is a title of honor, Rabbi Yosi was permitted to say “Abba Chalafta.”

The following is the explanation of the proof: Rabbi Yochanan said: Geichazi was punished for calling Elisha, his Rebbe, by his name. Rashi writes: He did not say, “My teacher, my master, So-and-So.” Evidently, one is permitted to mention his Rebbe’s name if he says, “My teacher, my master” first. Accordingly, Reb Shlomo derived from here that the same would be true regarding one’s father. A son would be permitted to mention his father’s name if he mentions a title of honor before the name. Reb Akiva Eiger agreed to this logic.

Reb Shlomo, in his teshuvos, adds that the honor that one must give to his teacher is greater than the honor he must provide to his father, for his teacher leads him to the World to Come. So if it is permitted to call one’s teacher by his name when it is preceded by a title of honor, it is most certainly permitted to call one’s father by his name if it is preceded by a title of honor.

He also rules that although Rashi said that Geichazi did not say, “My teacher, my master,” it is not necessary to say both, “teacher and master.” One of them would be sufficient.

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The Quantification of Shabbos Prohibitions: Practical Applications

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By: Meoros HaDaf HaYomi

Cooking is a labor (melachah) forbidden on Shabbos, occurring when liquid or solid foods or other substances improved by heating, like pigments, are even parboiled. Utensils containing hot liquids are defined in three categories: A primary utensil (keli rishon) holds a boiling liquid and continues to be primary even off the fire or electric plate as long as an average adult’s hand recoils from its contents. Liquid poured directly from there cooks the external layer of any solid, uncooked food and a small amount of any cold liquid, even water (Shulchan ‘Aruch, O.C. 318:10; see Mishnah Berurah, ibid, S.K. 82). A container having received liquid from a keli rishon is called a second utensil (keli sheni) and likewise cooks in many circumstances as long as one’s hand recoils from its contents. A container receiving liquid from a keli sheni is a third utensil (keli shelishi) and virtually never cooks.

Making a glass of tea on Shabbos: A person wanting to make a hot drink on Shabbos might rinse a cup, inadvertently neglect to dry it or shake it out thoroughly and pour boiling water into it from a keli rishon. Most halachic authorities forbid this as the boiling water cooks the small amount of cold water in the cup (see Responsa Igros Moshe, O.C., I, 93; Responsa Minchas Yitzchak, IX, 30). They raise the question as to whether cooking a few drops of water is actually prohibited by the Torah – d’oraisa – or by rabbinical decree (derabanan). As we shall see, the topic is linked to Rashbam’s interpretation of a certain example cited in our sugya.

Rabbi Yochanan holds that “half a prohibited quantity is forbidden by the Torah” (Yoma 74a). Forbidden substances or acts are quantified according to measures received by Moshe Rabbeinu at Sinai. The minimal amount of food prohibited on Yom Kippur, for example, is equivalent to the volume of a large date. A person eating less is not punishable but, according to Rabbi Yochanan, is still forbidden to do so by the Torah. [“Half a quantity” does not mean only a half but rather, less than the halachically prohibited amount; we shall therefore hereon use the term “subquantity.”] Many Rishonim maintain that this rule also applies to Shabbos (Rashi, Shabbos 74a, s.v. Vechi mutar; Ritva and Hagahos Ashri, ibid; see Mishneh LeMelech, Hilchos Shabbos, 18:1). For instance, according to Rambam, the quantity of water forbidden to heat on Shabbos is enough to wash a baby’s pinky (Hilchos Shabbos, 9:1). Following the above opinion, someone boiling less is not punishable in any earthly beis din, but is still prohibited from doing so by the Torah. Some halachic authorities, though, cite Rashbam’s reasoning that this principle does not pertain to Shabbos.

The amount of food forbidden to carry on Shabbos from a reshus hayachid (literally, a “private domain” but actually any area, even ownerless, bound by certain enclosures) to a reshus harabim (a public domain having a certain breadth and other conditions) is equivalent to the volume of a dried fig. Our sugya mentions a person who carries out a subquantity of food and, according to Rashbam (s.v. Bemaseches Shabbos), he is innocent of any transgression as the Torah calls Shabbos labor meleches machsheves: “skilled” or “important” work. Shabbos labor is quantified by its importance, a condition that defines melachah, and a subquantity is therefore not melachah at all. By comparison, eating a subquantity on Yom Kippur is still eating and a partial transgression of the “affliction” demanded by the Torah (Vayikra 17:29). [This meaning is just one definition of meleches machashaves; see also Rashi in Chagigah 10b.] A subquantity of any prohibition, though, is outlawed at least derabanan (see Shabbos, ibid) and we must therefore assume that Rashbam would rabbinically forbid pouring from a keli rishon on a subquantity of cold water, such as in our example (see Responsa Divrei Yatziv, O.C. 156; Responsa Shevet HaLevi, VII, 136).

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The Law of the Kingdom

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The Poskim deal with when do we say the law of the land is binding. Rav Moshe Feinstien was asked about a bankruptcy case. One of the creditors had taken the money he was owed. This was against the law, for the company was protected under bankruptcy laws. On the other hand, according, to Torah law, he was entitled to the money.

Rav Moshe brings two opinions found in the Rema. The first opinion is that we only say the law is binding when the king has direct benefit like paying taxes, otherwise, we go according to our laws. The second opinion is that we always say the law is binding. Rav Moshe qualifies this opinion. This means that the king has a right to make laws so that commerce runs orderly. If there are no uniform rules for commerce and debt collection, the country would fall apart. The laws of the land would not be binding, however, in laws of damages or laws governing marriage and divorce. In these areas, one must follow Torah laws. Since we hold like the second opinion, Rav Moshe ruled that the debt could not be collected and had to be returned.

Obeying a Jewish King
in Eretz Yisroel

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

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

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

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

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

The Law of the Kingdom is the Law

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

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

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

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

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

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

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

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Doors on the Third Beis Hamikdash

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Rashi (several places in Shas) wonders how the Beis Hamikdash could be built on Shabbos (which Chazal say is a distinct possibility); isn’t that a desecration of Shabbos? Rashi answers that it is only regarding a Beis Hamikdash built by humans that there is a restriction of building it on Shabbos. The third Beis Hamikdash, however, will descend from Heaven miraculously, thus there are no restrictions regarding its building.

The Maharil Diskin is troubled by this answer, as the Jewish People have an obligation to build the Beis Hamikdash, so why would Hashem prevent us from performing this mitzvah?

He answers based on a Medrash in Eichah (2:9). It is written: "Tavu b'Aretz She-areha..." -- the gates of the Beis Hamikdash were hidden away, sunken into the ground, before the Beis Hamikdash itself was destroyed. When the Beis Hamikdash was destroyed, its gates sunk into the ground, and in the future, the Jewish People will excavate the gates and affix them to the Beis Hamikdash.

Our Gemora rules as follows: If a man builds a large mansion on the estate of a deceased convert (with no heirs) and another man comes and puts the doors on, the second person becomes owner. Why is this? It is because the first one merely arranged bricks there (for without the doors, there is no use for the mansion more that there already was with the land itself; it is the installation of the doors that completes the building).

Accordingly, we can say that we will fulfill the mitzvah of building the Beis Hamikdash when the Third Beis Hamikdash will descend from Heaven; it will be missing one thing. It will not have doors! The mitzvah will be fulfilled when we secure its gates.

This can also be the explanation of the words that we recite in the Shemoneh Esrei of Mussaf on the festivals: Show us its rebuilding (v’har-eynu b’vinyono) and gladden us with its perfection (v’samchenu b’tikuno). “Show us its rebuilding” refers to the sending down of the virtually completed third Beis Hamikdash. We will then complete the Beis Hamikdash by attaching the doors and will be gladdened by its perfection and by the fact that we fulfilled the mitzvah of building it.

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Ripening Grapes for the Spies

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When the spies were sent out to Eretz Yisroel, it is written [Bamidbar 13, 20]: It was the season when the first grapes begin to ripen.

The commentators ask: What is the purpose of this information? What is the Torah teaching us?

In the sefer Misbar Kerai, he answers based upon the Rambam (Mechirah 1, 16), who rules that the eating of produce constitutes an acquisition of a field. Accordingly, Moshe instructed the spies to eat from the fruits of the land, for this way, they will be acquiring Eretz Yisroel for the Jewish people.

And, he continues, even according to the Raavad, who disagrees with the Rambam and holds that the eating of produce does not constitute an acquisition of a field, for one must perform an act that is beneficial to the field in order to acquire it, such as locking a door, fencing it or making an opening, even a small amount, nevertheless, here, the eating of the produce would constitute an acquisition. For the Gemora in Bava Basra (119a) states that Eretz Yisroel was regarded as if it was in the possession of the Jewish people (even before the conquest). It therefore follows that a formal act of acquisition was not necessary; they just needed to demonstrate ownership. The Gemora in Pesachim (6b) states: If there are in a man’s field late figs (which will never ripen), and he is guarding his field on account of the grapes (which have not ripened yet); and similarly, if there are late grapes, and he is guarding his field on account of his cucumbers, the halachah is as follows: If the owner is not particular about them, they are not forbidden as theft and are not subject to the halachos of tithing, for ownerless produce is exempt from tithing. Evidently, produce at the end of their season are considered ownerless. If someone would take this produce at that time, he would not be demonstrating ownership at all. This is why the Torah stressed that the spies went at the time when the grapes were beginning to ripen, for then, the eating of the grapes would be demonstrating ownership.

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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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