Halachos of the Daf - Bava Basra 76

(Choshen Mishpat Siman 197, 198)

As mentioned previously, in order for an object to be transferred into someone else’s ownership, a kinyan is required.

Mesirah means that it was given over. The buyer simply holds onto the object, and without lifting or pulling it, he has acquired the object, via the kinyan of mesirah.

Aside from animals, which can be acquired either through mesirah or meshicha – pulling, mesirah is a valid kinyan, only when one can’t make meshicha. An example would be, if one were to acquire a ship, which can’t be dragged. All other movable objects can not be acquired through mesirah.

Mesirah can only be valid in a Reshus Harabim, or a property which is not owned jointly by the seller or the buyer, nor do they have permission from the owner to enter.

In order to acquire an animal via mesirah, the buyer can do any of the following:
Hold onto its; leg, hair, caddle, load, muzzle, or bell.

The seller need not actually hand over the object, rather as long as the buyer holds onto the object in front or on the command of the seller, the mesirah is valid.

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Agadata

Captain of the Ship


by: Meoros HaDaf HaYomi

The captain applied his sun burnt hand to the well-worn helm as the ship crossed the ocean, now deceptively placid as if incapable of ever erupting into a life-threatening storm. The sails were taut in the quickening wind, speeding the boat to its destination, and the passengers were finishing their after-dinner drink while gazing with fascination at a school of dolphins cavorting alongside the vessel. In his youth, the captain detailed each voyage in his diary but now, he said, “Every white hair on my hair marks another crossing.” His long years at sea left their impression and sometimes it seemed as if his forehead was about to sprout the same green mildew that covered the hull. He was inseparable from his ship and even his marrying a few years ago could not persuade him to leave the sea. Twice a year he returned to France to his wife and small son, stayed a while and went back to his natural recess on the open ocean.

Once, when harboring near home, he was consumed by a yearning for his family. Having had enough of his wearying profession, he rushed home in a swift carriage and, greeting his beloved ones, soon stretched out before the warming fireplace. After a few weeks, he told his wife that he meant to take their only son on his next voyage. “He must learn the trade”, he declared, “I’m getting old and don’t know how long I can go on working. The time has come to train him in the secrets of this demanding profession.” His wife, thoroughly attached to her son, rejected the idea. He should learn a trade, she agreed, but only without leaving home. The captain, though steeled against the challenges of hurricanes and monsoons, could not withstand a mother’s pleas. “All right”, he acquiesced, “I’ll teach him to be a captain at home.”

For a few days the captain was busy in the cellar with a secret project. “I’ll show you only when I’m finished,” he told his curious family. Finally, he brought up a tiny model of his ship, marvelously identical to the original. “Here,” he told his son, pointing with a weathered hand, “is my room where, one day, you’ll sleep. The sailors’ quarters are just behind.” Opening a small door, he indicated a storeroom below deck for wood to be made into new masts to replace any broken in a storm. He then spent a long while with his attentive son learning the boat’s intricacies until the boy could tour it thoroughly in his mind’s eye. They then excitedly launched the model in a huge tub of water. The captain had lined the tub with soft sand, added some cheerfully swimming goldfish, poured in some azure ink and sketched amazingly realistic scenes along the sides. The effect was perfect. Lowering the anchor into the sand, he told his son to blow as hard as he could at the sails. Flushed crimson from the effort, he failed to move the boat in any direction and his father then said, “That is the anchor’s purpose: It keeps a ship firmly in place. Now, let’s get under way.”

Night had long fallen, but the captain and his son continued to sail around and across the tub, aided by tiny kerosene lanterns hung from the model’s hull. Using a huge bellows, they pelted the boat with winds that would have sunk it if not for the captain’s navigational skill. His wife had long gone to bed. “He’s staying with me,” ruled the captain, “At sea you can’t go to sleep whenever you want. Sometimes you have stay up two or three days till a storm abates.” The model, tossed constantly throughout the night, became a shambles. With sails tattered on the deck and broken masts, it seemed that naught had survived the trial. “And yet,” beamed the captain, “it never capsized! That is a captain’s job!”

The lessons continued in the next days until the boy learnt the secrets of the profession and succeeded in keeping the ship afloat throughout all the 16 hours of artificial storms and tsunamis his father created. “Now he’s a captain!” he cheerily announced to his wife and clapped the youth’s shoulder. Calm and confident, he returned to sea, satisfied that his son had learnt the profession.

Rabbi Yosef Chayim zt”l used this story in his Rav Pe’alim (III, Sod Yesharim, 1) to answer a “scholar in another town who asked questions about learning Kabbalah.” We, he explains, in the post-Talmudic era, are like the captain’s son who learned to steer a ship in a tub. Rabbi Chayim’s correspondent delved into the Kabbalah and sometimes encountered incomprehensible topics. But if he would only be aware of his own level, Rabbi Chayim replied, he would realize the limits of his cognition and accept the tradition as it is. The same applies to the tales (aggados) of Rabbah bar bar Chanah learned this week. An outstanding Torah scholar, with many years of experience delivering a Daf HaYomi shi’ur to prestigious congregations, introduces the tales with Rabbi Chayim’s parable. The anecdotes about a monstrous fish or a very peculiar bird, he admits, seem wildly imaginary, but we must understand that the topics are described on the level of the greatest tzadikim and according to their wisdom, unfathomable to us.

With the sublime feeling that we have the merit to repeat the Torah of the most exalted tzadikim, we go on learning each sugya, hoping the time will soon come to comprehend the depth of their statements, as Yesha’yahu says (11:9): “…The earth will be full of knowledge of Hashem, as water covers the sea.”

An Eighth of an Eighth of Pride

Our sugya informs us that the height of Mt. Tavor is four parsaos. A parsah is four mil, a mil is 2,000 cubits and Mt. Tavor is therefore 32,000 cubits high.

The Midrash relates that when Hashem was about to give us the Torah, Mt. Tavor wanted the honor because of its height. Hashem, though, ignored all other mountains and chose low Mt. Sinai to teach us the value of humility (Sotah 5a), as stressed by Yeshayahu (57:15): “...I dwell…with the lowly…” (Midrash Rabah, Vilna ed., 99). According to Midrash Rabah (Parashas Bo), Mt. Sinai is 500 cubits high, one sixty-fourth (an eighth of an eighth) the height of Mt. Tavor. Hence, Rebbe Heshel of Krakow zt”l asserted that the Gemara learns therefrom that a Torah scholar should have an eighth of an eighth of pride (Chanukas HaTorah).

The Stick that Saves

Sailors told Rabbah that a wave threatening to sink a ship is seen from afar, preceded by a white flame. To save themselves, they hit it with a beam inscribed with certain words, including Hashem’s name, and the wave recedes.

Rabbi Nachman of Breslav zt”l interpreted this description as a parable for our constant struggle with life’s challenges: “A wave that can sink a ship” is the yeitzer hara attacking the ship of Israel. It appears like a white flame, assuming an aura of sanctity and purity to lead us astray. The only remedy is to hit it with a stick bearing Hashem’s name – the Torah – for “Hashem and the Torah are one” and, as said in the name of Rabbi Yishmael, “If that despicable being (yeitzer hara) attacks you, drag him to a beis midrash” (Sukkah 52b).

The Chasam Sofer comments on our Gemora that the parable corresponds to the sea of life threatening us with its storms. The only way to protect ourselves is to fortify our faith in Hashem, who saves us from distress. The letters of makel (“stick”) form the initials of me’olam kivinu lach: “We have always hoped in You”.

The Frog, the Snake and the Raven

Rabbah bar bar Chanah saw a frog as big as a town with sixty houses. A huge snake swallowed it and an enormous raven devoured the snake and flew to a branch of a tree which, despite the bird’s weight, did not break.

Ritva comments that the tale is a metaphor for the Arabian empire, which assimilated and mixed a number of ethnic groups: Mohammed and his followers conquered and united the peoples of southwest Asia, North Africa and Iberia and then ruled over a great percentage of our people. The living tree is Hashem’s constant miraculous care and concern which give us the strength to survive: “The tree is sturdy enough”, concludes the Ritva, “to enable us to live with the Arabs and observe the Torah among them. Were we not seeing this with our own eyes, we would never believe it!”

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Halachos on the Daf - Bava Basra 72

An Ancestral Field

S’dei Achuzah is a field in Israel that was inherited throughout the generations, from the time of Yehoshua. If it has the specific parameters, which will be elaborated below, then there are unique laws when someone consecrates this type of field. Usually, a field that is hekdesh, may be redeemed at full value (if redeemed by the owner, then he must pay an additional fifth of the value). However a S’dei Achuzah, has a specific price tag.

Dimension: 75,000 square amos of land, which can be planted upon. This size enables one to plant a chomer (30 se’ah) of barley.

Price: 50 shekalim for the entire 50 years of Yovel. This price is for each chomer. If the field is the size of ten chomers, then the price would be 500 shekalim for the entire 50 years. This is the amount one pays, regardless of the field’s real value.

As mentioned, the price of 50 shekalim is for the entire 50 years. This means, in a case where person redeemed the field, within the first year after Yovel, then he has to pay that amount. However, if for example there are only 8 years left to Yovel, then he has to pay 8 shekalim. If there are 4 years left, then he has to pay 4.

He cannot pay a shekel a year; rather, he must pay the entire amount when he redeems the field.

One may not redeem the field within the last year before Yovel, nor on Yovel. One may not consecrate the field on Yovel.

If there are trees on the field, although they are also hekdesh, they must be redeemed separately, at their own price. If there are 3 trees in a beis se’ah, and he did not specify that he is only consecrating the trees, then he consecrated the trees, the ground and the little trees in between, and they are part of the S’dei Achuzah. Meaning, they don’t need to be redeemed separately; rather, they are included in the 50 shekalim. However, if the 3 trees were planted closer or further apart (i.e. each tree has either more or less space than 250 square amos), or he consecrated the 3 trees one after another, then the halachah is that the ground and the little trees in between are not hekdesh, and the trees are redeemed at their regular value.

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Halachos on the Daf - 71

By: Reb Avrahom Klein

(Choshen Mishpat Siman 215)

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

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

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

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What's Included?

Which House?

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

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

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

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

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

Take your Trees!

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

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

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

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

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

The Grafted Carob and Cut Sycamore

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

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

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

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Assets Discovered Posthumously

By: Meoros HaDaf Hayomi

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

Taxation in German Communities

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

Fisk’s Tax Declaration

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

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

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

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What Furnishings are Included in the Sale of Property?

By: Meoros HaDaf Hayomi

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

What is Sold with a House?

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

Keys Now and Then

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

Lighting Fixtures

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

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

Air-conditioners

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

Inventorying the Property

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

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Comparing Slaves and Land

By: Reb Yonataon Sapir

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

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

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Giving Generously

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

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

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

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

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Selling a House

A Roof

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

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

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

A Roof’s Dimensions

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

A Generous Gift

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

Another Path

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

Types of Pits

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

No Path?

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

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

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

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Judges Decision

by: Rabbi Yaakov Montrose

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

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

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

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

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

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

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

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Rav did not Reveal the “Sod”

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

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

Rav was quiet, and did not answer.

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

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

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Intent of the Seller

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By: Rabbi Yaakov Montrose

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

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

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

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

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

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

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

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Rav did not want to Reveal the "Sod"

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

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

Rav was quiet, and did not answer.

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

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

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Graves and Cemeteries

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Mentioning a Father's Name

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

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

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

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

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

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

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The Quantification of Shabbos Prohibitions: Practical Applications

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By: Meoros HaDaf HaYomi

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

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

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

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

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The Law of the Kingdom

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

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

Obeying a Jewish King
in Eretz Yisroel

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

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

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

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

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

The Law of the Kingdom is the Law

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

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

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

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

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

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

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

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Doors on the Third Beis Hamikdash

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

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

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

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

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

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

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Ripening Grapes for the Spies

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

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

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

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

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