Pain to the Deceased

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

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

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

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

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

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

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

Read more!

200 - 1,000!!??

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

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

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

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

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

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

Read more!

Taking Away a Sixtieth

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

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

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

Read more!

Evil Eye

Subscribe to the Daily Daf Yomi Summary Daf Yomi

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

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

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

Read more!

Brothers Sent Specifically the “Coat of many Colors”

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

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

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

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

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

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

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

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

Read more!

Proximity and Majority

Subscribe to the Daily Daf Yomi Summary http://www.daf-yomi.org




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









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



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



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



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

Read more!

Majority of Jews

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

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

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

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

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

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

Read more!

Forgetting your Learning

Subscribe to the Daily Daf Yomi Summary Daf yomi

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

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

Read more!

Metzios and Yeush

Subscribe to the Daily Daf Yomi Summary Daf yomi

by: Rabbi Yechezkel Khayyat

Scattered Produce

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

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

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

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

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

Two Halves make a Whole?

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

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

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

Taiku in Lost and Found

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

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

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

Yeush Shelo Midaas

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

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

How Important

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

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

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

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

Read more!

An Ignorant Person’s Recognition

Subscribe to the Daily Daf Yomi Summary Daf Yomi

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

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

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

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

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

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

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

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

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

Read more!

Lesser of the Luminaries

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

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

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

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

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

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

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

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

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

Read more!

Shliach l'dvar Aveirah

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

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

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

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

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

Shliach l’dvar Aveirah

By: Rabbi Avi Lebowitz

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

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

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

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

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

Read more!

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

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

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

Read more!

Partners Stealing

By: Rabbi Avi Lebowitz

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

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

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

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

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

Read more!

Riding

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

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

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

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

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

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

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

Read more!

Halachic Rulings

By: Rabbi Yechezkel Khayyat

Ownership
The Gemora discusses the status of a disputed bathhouse, and whether either claiming party can consecrate it. The Gemora's conclusion is that the power needed to consecrate an item depends on the type of item. If the item is real estate, anyone who can retrieve the item in court may consecrate it, even before retrieving it. However, a movable item can only be consecrated when the one consecrating has de facto and de jure possession.

The Baal Hamaor and the Ramban (BK 18 in Rif pages) discuss why one may not consecrate an item which was stolen from him. The Baal Hamaor says this is simply because it is out of his reach, and an item must be accessible to be consecrated. The Ramban says it is because the thief has certain liability for the item, and therefore has acquired some ownership by his theft.

Based on the Ramban's opinion, Rabbi Akiva Eiger (BM 7 bemasusa) asks how our Gemora reaches its conclusion. The Gemora distinguishes between stolen real estate and movable items, since real estate is immutable, and cannot be acquired through the standard acquisitions of theft. However, this distinction seems irrelevant in the case of the bathhouse, where neither party did any acquisition.

Rav Elchanan Wasserman (Kovetz Shiurim BK #9) points out that the Baal Hamaor brings our Gemora as a proof to his opinion. He therefore states that the Ramban agrees that inaccessibility precludes consecration, but adds that the partial ownership acquired by theft also blocks consecration. In our Gemora, where the bathhouse is inaccessible, both Rishonim agree that neither can consecrate it.

The Ramban and Baal Hamaor only disagree about a thief who is ready to hand over the item, but has not yet done so. (In fact, that is the context for their discussion of the rules of consecration).

Rav Elchanan therefore answers Rabbi Akiva Eiger's question by explaining that the distinction of acquisition between real estate and movable items is only relevant when the consecration is prevented by theft acquisition. However, when the consecration is prevented by sheer inaccessibility, if one can retrieve a real estate asset in court, he may consecrate it, since the one holding the real estate cannot truly hide the item from its owner. If he cannot retrieve it in court, he cannot consecrate it, since it is still inaccessible.
Grabbing vs. Holding
The Gemora states that the Mishna, which evenly splits a garment held by two parties, is a case where each side is only grabbing a fringe, which doesn't confer any possession. Therefore, they swear and take half. However, the braisa of Rav Tachlifa discusses a case where each party is holding a segment of the garment. In that case, each party takes what they are grabbing, and then split the rest.

The Rishonim point out that the word used in the Mishna is ochazin – holding on to, since the parties are only holding onto the edge. However, Rav Tachlifa uses the word adukin – attached, since the parties are grabbing a segment of the garment. The Gemora says Rabbi Avahu indicated that the split in the adukim case is done with each side swearing.

The Rosh (1:13) and Tosfos (7a Machvei) say that they must swear on everything that they will take, including the portion they are grabbing. The Rosh proves this from the statement of the Gemora on 3a that the oath in the Mishna is to prevent people from forcibly grabbing other people's garments. This logic applies to the whole garment, including the portion they are currently grabbing.

The Ramban agrees, and proves it from the language of the Gemora, which says that Rabbi Avahu machvei – showed – that the split should be with an oath. Rabbi Avahu was physically showing that the whole garment is subject to an oath.

The Rambam (To'ain v'nit'an 9:9) says that the oath is only on the section that they are not grabbing, but each can cause the other party to swear on the part they are grabbing through gilgul – an ancillary oath.

The Shulchan Aruch (HM 138:3) rules like the Rambam. The Gra (12) supports this position from the Gemora's statement that holding on to a portion of the garment is sufficient for chalipin, indicating that grabbing a section of a garment is full ownership, with no need for proof or swearing. The Shach (5) and Sma (11) dispute this, and rule like the Rosh.

The Shita discusses why the Gemora didn't resolve the contradiction by stating that the Mishna was a case of each grabbing exactly half the garment. The Shita quotes a number of answers:
1. They wouldn't swear in this case, since they are not splitting anything out of their direct possession. This answer follows the Rambam's ruling above.
2. It is a rare (even impossible) case, and therefore not a good answer.
3. The Mishna would not need to tell us such an obvious halacha in that case.
How to Split a Contract?
The Gemora cited statements of Rabbi Elazar and Rabbi Yochanan about splitting a contract held by the debtor and creditor. Rabbi Elazar said they only split it evenly when they are both holding the detail and form section of the contract, but if one is holding the details and one the form, they each get the section they are holding. Rabbi Yochanan said that they also split the contract evenly when the detail and form section are in the section not held by either side.

The Rif and Rambam do not cite these opinions and limitations on the rules of splitting a contract, and the Shulchan Aruch (HM 65:15) follows their ruling in the first version of this halacha.

The Rosh does cite the statement of Rabbi Elazar, and the Shulchan Aruch cites this opinion as well.

The Gra explains that this dispute depends on the understanding of how a split is done when each is holding the detail or form section. The Gemora says that the advantage of holding the detail section is the increased value a date adds to a contract. Rashi (7b Shtara) states that Rabbi Elazar is discussing Rabban Shimon ben Gamliel's statement that we split the contract, even if the signatures were not validated, since Rabban Shimon ben Gamliel does not require validation of the signatures. Therefore, the value of the detail section is not in the signatures, since they need not be validated. The value is not in the names of the parties, since those are repeated in the form section. The only element which is crucial in the detail section is the date of the contract, and that is the increased value of that section.

Tosfos (7b d'is) disagrees, and says that elements of each section that would render the contract unfit are not included in the possession gained by grabbing, since each party doesn't want the counter party to remove such elements. The only element which is nonessential is the date.

According to Rashi, the statement of Rabbi Elazar, and the discussion following it, are only according to Rabban Shimon ben Gamliel's opinion, that a contract that is not forged need not have its signatures validated. We, however, rule like Rebbi, and therefore will not hold of Rabbi Elazar's statement. However, according to Tosfos, Rabbi Elazar's statement is in accord with Rebbi as well, and therefore halacha includes it. See Gra HM 65:45 and Note 1 on the Rosh for further discussion.

Read more!

Heilech

Heilech
By: Rabbi Avi Lebowitz

Rabbi Chiya says that included in the case of modeh b’miktzas where the person partially admits and partially denies is also a case of “heilech”. Meaning, Reuven claims that Shimon owes him one hundred zuz. Shimon responds by denying fifty and admitting on the other fifty, saying “heilech”. Rabbi Chiya holds that Shimon is required to take an oath on the fifty that he denies. Rav Sheishes disagrees and holds that heilech is exempt, because the fifty that he is admitting on is as if it has already been returned to the lender and the entire claim is only on the fifty that is being denied, so it is a case of kofer hakol, which does not require an oath.

Rashi implies that in order to qualify as heilech in a case of a loan, the borrower must say that he didn’t spend the money, but if he would have spent the money and is presenting the lender with other money, that would not qualify as heilech.

The Hagahos Ashri understands Rashi exactly like this, and therefore holds that if the borrower spent the money and is now replacing it by returning other money, even though we rule in accordance with Rav Sheishes that heilech is exempt, the borrower would have to swear because this isn’t a case of heilech.

However, the Bach on the Rosh says that Rashi is not coming to define heilech, rather he is coming to explain Rabbi Chiya who says that even by heilech the borrower must swear. Rashi is coming to say that even if the money has never been spent and it is a supercharged heilech, Rsbbi Chiya would still hold that the borrower must swear. But it is entirely possible that Rashi would hold that according to Rav Sheishes that heilech is exempt, it would even be exempt if the original money was spent so long as now the borrower is presenting the lender with other money in its place.

The Gr”a quotes from the Ran that a case of a loan is always considered as if the money has been spent since it is given to spend, and therefore a loan never qualifies as heilech. The only situation of heilech is when one gives another something to watch, and then presents him with only part of it at the time he returns it and denies the other part of it. Based on these Rishonim, in a case of a loan, even if it hasn’t yet been spent, the borrower would have to swear.

Read more!

Save us from Brazenness

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

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

Read more!

Cloak or Talis?

When the Belzer Rebbe was but a child, they asked him, “What is the meaning of the Mishna when it stated that two people are holding onto a talis?”

He replied, “It means that two people were holding onto a cloak.”

They persisted, “Perhaps the Mishna means a talis literally?”

He replied, “I can prove that it is referring to a cloak from the explanation of the Rosh. The Rosh explains the Mishna to be referring to a case where the object will belong to the finder, for example – if it was found in a city where a majority of the residents are idolaters. If the Mishna would be referring to a talis which has tzitzis on four corners, one would be obligated to announce that he found such an item even in a city of idolaters, for a talis obviously would not belong to them!”

Read more!

Three Fellows Holding on

The Mishna had stated: Two people are holding on to a cloak. This one says that he found it, and the other says that he found it. This one says that it is all his, and the other claims that it is all his. This one should swear that he does not own less than half of the cloak, and the other should swear that he does not own less than half of the cloak, and they should then split the cloak.

If one says that the entire cloak is his, while the other one claims that only half of it is his, the first one should swear that he does own less than three quarters of the cloak, while the second one should swear that he does not own less than one quarter of the cloak. The first one then takes three quarters, while the second one takes one quarter.

They asked the Maharil Diskin when he was only a child: What would be the halachah if three people were holding onto the cloak? One of them said, “It is all mine,” and each of the other two said, “Half of it is mine.” We cannot say that the one who claimed that it is all his should receive half, and the other two should get a quarter each, for it would emerge that only the one who said that the entire cloak is his would be losing out because there is a third party in the case. Perhaps the halachah should be that we should give half to the one who claims that it is all his, for the other two are admitting that this half is his, and regarding the other half, it should be split in thirds between all of them, for they are all claiming on that half that it is completely theirs. This is also not correct, for the two that were claiming that half is theirs are not admitting that the other half belongs to the one person who claimed that it is all his, for although each one of them is admitting that it does not belong to them, perhaps it belongs in partnership to the other two?

He answered on the spot as follows: The one who claimed that the cloak is completely his receives half the cloak, plus a third of one of the remaining quarters. Each of the other two receives a third of one quarter and half of the remaining quarter. And he explained: Each one of the fellows who claimed that only half of the cloak is theirs is in essence admitting that the other half belongs to the other two – half to the one who said that it is completely his, and half to the other one who said that only half is his. It emerges that the fellow who said that it is completely his has an admission from each one of them that a quarter of the cloak is his. He therefore receives a quarter of the cloak. Each one of the fellows who are claiming that half the cloak is theirs is also admitting to the other fellow claiming a half that a quarter of the cloak is his. They each would be entitled to a quarter of the cloak except for the fact that the fellow claiming that the entire cloak is his is disputing their claim. Therefore, the two fellows claiming half the cloak is theirs each split a quarter with the one claiming that the entire cloak is his. On the last remaining quarter, all three of them are claiming that it is completely theirs. They therefore split that quarter in thirds.

Read more!