Law of the Kingdom

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

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

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

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

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

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

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

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Borrower Lending to Another

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

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

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

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

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

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

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Save us from Brazenness

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

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

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Oath Taken Outside of Beis Din

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

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

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

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

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

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Abstaining from Wine

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

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

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

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Afflictions Purge a Person's Sins

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

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

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

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

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

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

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

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

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Humiliation with Words

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

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

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

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

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

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Hekdesh and a Lien

Hekdesh vs. Lien

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

Type of Hekdesh

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

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

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

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

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

How?

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

Konam

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

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Paying for Humiliation

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

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

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

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

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

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Permission to Heal

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

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

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

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

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

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

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

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

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Insights for Bava Kamma 83

By: Reb Yechezkel Khayyat

Dovecotes of Non Jews

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

Slave Value

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

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

Ayin Tachas Ayin

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

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

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Raising Dogs

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

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

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Greek Wisdom

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

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Seudas Mitzvah

Seudas Mitzvah

By: Reb Avi Lebowitz

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

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

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

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

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

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

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

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Mumar l'hachis and l'teavon

Desecrating Shabbos

By: Reb Avi Lebowitz

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

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

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

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

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

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Replacing the Lost Esrog

By: Rabbi Mendel Weinbach
Ohr Sameach

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

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

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Night before Execution

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

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Insights on Bava Kamma - 76

Too late to redeem?

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

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

Tahi bah

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

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

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

Sacrificial slaughtering

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

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

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

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

Just as if...

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

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

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Whose Money is it?

By: Reb Yechezkel Khayyat

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

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

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

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

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

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

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

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

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Freeing a Slave

by: Reb Avi Lebowitz

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

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

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

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

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