Motzi Sheim Ra

The Gemora discusses what the dispute between the Sages and Rabbi Meir about the number of judges for a case of motzi sheim ra is actually about. Ulla and Rava explain that the dispute is not an inherent dispute of how many judges are needed for this case, but rather depends on an external concern that the Sages have. Ulla says the Sages are concerned with la’az – a rumor, while Rava says that the Sages are concerned with the honor of the originally convened court.

Rashi explains that according to both of these explanations, the issue brought before the court is the husband’s demand to void the wife’s kesuvah, since she was not a virgin at the time of marriage. Rashi explains that the husband is believed to void the kesuvah, as the Gemora in Kesuvos (10a) states, since the Sages, who instituted kesuvah, assumed that a man would not lie about this, since he stands to lose the money spent on his wedding meal.

Ulla is explaining that the Sages are concerned that when this case is brought to court, although the husband is not claiming infidelity, witnesses to infidelity may indeed hear of the case and come forward, transforming this to a capital case. We therefore begin with a court of twenty-three, to account for that possibility.

Rava says the case is where the husband did claim infidelity, but wasn’t able to produce witnesses to prove it. When the court then dispersed, the husband requested that the remaining judges void the kesuvah. The Sages are concerned that adjudicating that with the partial court that remains would be disrespectful the original judges, and therefore they must reconvene.

The Gemora cites a braisa, which states that if t’va’o mamon – he claimed from him money, only three judges are needed, but if t’vao nefashos – he claimed from him a capital crime, twenty-three are needed. According to Rava, the first clause is a case where there was no claim of capital infidelity, and therefore there is no issue of the judges’ honor, leaving a monetary case for three judges. However, according to Ulla, even if the case began as monetary, we should be concerned about witnesses arriving later.

Rava answers that the braisa is a case where the husband produced witnesses that testified to her infidelity, but these were fully refuted by the father’s witnesses, who put the original witnesses in a different place at the time of their testimony. The husband is now liable 100 sela to the father for his false claim. The braisa is stating that to adjudicate the father’s monetary claim, only three witnesses are necessary. According to Rashi, the Gemora is introducing the aspect of the father claiming his monetary damages only at this point in the Gemora. All earlier discussions of monetary judgment were purely of the husband’s claim to void the kesuvah.

Tosfos (8a Motzi) cites Rabbeinu Tam, who disagrees with Rashi’s reading of the Gemora’s first two answers. Rabbeinu Tam challenges Rashi’s reading based on the following points:
1. Motzi sheim ra is listed in the Mishna along with fines paid by a rapist and a seducer, indicating that it similarly is a case of a fine. The husband’s voiding the kesuvah does not fit this pattern, as it is purely a monetary case.
2. Generally, motzi sheim ra is used to refer to the money paid by the husband when his claim is found to be false.
3. The three judges required in the Mishna are experts. However, cases of voiding a kesuvah are routinely judged by non expert judges, outside of Eretz Yisroel, indicating that the Mishna is not discussing such a case.
4. Rashi’s reading translates the la’az of Ulla as the witnesses hearing about the case and coming forward. Generally, la’az has a connotation of being a false rumor, not simply news spreading.
5. In Rava’s explanation, the husband says to the remaining judges, “At least judge the monetary aspect.” According to Rashi, all the husband wants to do is not have to pay the kesuvah, not collect any money. As long as the wife is not claiming it, he has no urgency to adjudicate the matter.
6. The Gemora’s explanation of the braisa according to Rava’s opinion is that the first clause is referring to a husband who is only adjudicating the kesuvah. The braisa says tva’o mamon – if he claimed from him money. According to Rashi, it should say he claimed from her (the wife), and in fact, the husband is not claiming anything, but simply refusing to pay.
7. Finally, when Rava explains the braisa according to Ulla’s opinion, he explains that the second clause of the braisa is stating that at the outset of a husband’s claim – at which point, it may lead to a capital case – twenty-three judges are needed. The simple reading of the Gemora, however, is that it is a different circumstance of the same case as the first clause, not a new case.
8. Rabbeinu Peretz points out that Rabbi Meir, one the opinions discussed, holds that a husband is obligated from the Torah to pay a kesuvah. The Gemora is Kesuvos that states that husband is believed to void his wife’s kesuvah is based on the assumption that the obligation of kesuvah is purely Rabbinic. Therefore, Rabbi Meir may not even agree that a husband may void the kesuvah, so he cannot be disputing how many judges are needed to deal with such a claim.

Instead, Rabbeinu Tam says that the whole discussion of Motzi sheim ra is of the 100 sela the husband must pay when his claim is disproven. Ulla says the case is when the husband brought witnesses, who were contradicted by the father’s witnesses.

Rabbeinu Tam says that although the witnesses were not refuted (by being placed at a different place at the time of testimony), but simply contradicted in the details of their testimony, the husband still must pay, since his claim was dismissed by the court. (See Tosfos 8b v’haivi for further discussion of this position).

If the father’s witnesses refuted the husbands’ by putting them in a different place at the time of their testimony, we assume no further witnesses will come forward. However, since they only contradicted them, other witnesses may still come. The Sages are concerned that if the twenty-three judges are disbanded, and then a new court of twenty-three will be necessary if new witnesses come, it will lead to la’az - false rumors that the first court was incompetent and replace with the new court. We therefore leave the first court in place. Rabbi Meir is not concerned about such rumors.

Rava says that the case is where the father produced witnesses to refute the husband’s witnesses. Since the husband’s witnesses were trying to kill the wife, they are liable to the same punishment as aidim zomemim – conspiring witnesses. However, the case of the Mishna is where the court of twenty-three dispersed, due to some external event (fear of the government, or another urgent matter they needed to attend to). At that point, the father requested that the remaining judges adjudicate his monetary claim. Rabbi Meir allows this, but the Sages say that this will disrespect the original twenty-three, and they must therefore be reconvened.

Rabbeinu Tam’s reading of the Gemora addresses all of his issues with Rashi’s:
1-3: As it usually does, motzi sheim ra in the Mishna refers to the money paid by the husband to the father, which is a fine. It is therefore listed with rape and seduction, and requires three expert judges.
4: The la’az is the false rumor people may spread about the original court.
5: The request to “At least judge the monetary aspect” is made by the father, who is trying to collect money from the husband.
6: The father is claiming from him (the husband) the money of the fine of motzi sheim ra.
7: The braisa’s first clause is where the father’s witnesses refuted the husband’s before the verdict, and the husband’s false witnesses are therefore not punished by death. However, the second clause is a similar case, but instead of the witnesses being refuted, they are contradicted, leaving the possibility that new witnesses will come, and establish infidelity.
8: Since we are not discussing the kesuvah, whether it is Rabbinic or from the Torah is irrelevant.

HALACHAH ON THE DAF

Birchas Zimun

The Gemora mentions that zimun needs at least three people. The Gemora in Brachos (47a) derives the concept of zimun from the verses of “gadlu lashem iti”... and “ki shem Hashem ekra havu godel leilokeinu,” and from there, we also learn that a minimum of three is required (since the singular is speaking to the plural and together they equal three).

The person that received the honor of bentching starts off by saying “rabbosai nivarech” (some have the minhag to say it in yiddish “rabbosai mir velen bentchin”), and everyone else responds with “y’hi sheim Hashem mivorach mei’atah v’ad olam.” This originated with the Zohar. (Magen Avraham).

Immediately after that, he continues with “nivarech she’achalnu m’shelo” and the rest answer “baruch she’achalnu m’shelo uv’tuvo chayinu.” After that, he too repeats “baruch she’achalnu m’shelo uv’tuvo chayinu” (Orach Chaim 192:1). There is a machlokes Achronim if the other people bentching should answer amen, the Mishna Berurah writes that the minhag is not to answer.

If there are ten or more people that are bentching together then we add Elokeinu (nivarech Elokeinu, baruch Elokeinu). If he forgot to say Elokeinu and the others didn’t yet respond, then he may say it again properly; once they answered, however, he does not repeat it (ibid).

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Sanhedrin 7

By: Meoros HaDaf HaYomi

The First Question

A person’s judgment starts only with asking him about his learning Torah.

Our sugya cites Rav Hamnuna that a person’s final judgment in the beis din of the World to Come starts with asking him about his learning Torah. However, Tosfos (s.v. Ela) compare this statement to the Gemora in Shabbos (31a), which asserts that a person is first asked if he did business faithfully and only then asked if he set aside fixed times for Torah study.

The Gerer Rebbe, author of Imrei Emes zt”l, answers this question in the spirit of our sages’ interpretation of the verse “And you shall love Hashem” – “that you should cause His name to be loved: One should learn the Torah, serve Torah scholars, do business faithfully and speak softly with people. What do people say about him? “Happy is his father who taught him Torah! Happy is his teacher who taught him Torah! How pitiful are those people who have not learnt Torah. That person who has learnt Torah – see how he exhibits such fine behavior.” But he who learns Torah and serves Torah scholars but fails to do business faithfully or speak nicely with people – what do people say about him? “How pitiful is that person who has learnt Torah!” (Yoma 86a). Hence, even though a person is first judged about the Torah he has learnt, he must first be examined if his Torah caused a sanctification of the Name by practicing business faithfully (Imrei Emes, Likutim).

The Thieves Who Were Not Caught

If the beis din takes his garment as payment for his debt, he should sing a song and go on his way.

Our Gemora says that if a beis din takes a person’s garment in payment for some debt that they ruled he was to remunerate, he should be glad.

The Chafetz Chayim zt”l offered the following parable to explain this statement. A group of experienced bandits enlisted some new members and, so as to easily identify each other, agreed that all the members should wear the same clothing. Once, after a hard night’s work, they went to an inn where they ate and drank to inebriation. After the meal some of them refused to pay and the innkeeper let them go only if they gave him their identifying garments as a pledge. A few days later the police found out about the bandits’ “uniform” and arrested them all, with the exception of those who had left their clothing at the inn. “Aha!” they laughed, “The innkeeper did us a big favor when he forced us to give him our clothing.”

A person should know, says the Chafetz Chayim, that any stolen garment or other purloined article in his possession is a reason for the loss of the rest of his wherewithal. If, then, a beis din takes that garment and gives it to the person to whom he owes a debt, they have done him a big favor as they have saved the rest of his possessions (Ahavas Chesed, II, Ch. 1).

The Talking Tree

If the matter is as clear to you as your sister’s being forbidden to you, pronounce it, but if not, do not pronounce it.

Our Gemora emphasizes a dayan’s duty to seriously consider the ruling he intends to announce and stresses that his decision must be completely clear to him.

Once, the Brisker rav, Rabbi Chayim Soloveichik zt”l, wanted to impress upon his son, who became the next Brisker rav, how clear everything must be to the person who says it. One’s pronouncements, he said, must be the firm and utterly unyielding truth, and he presented the following parable: Imagine you are passing by a tree and that someone there tells you that the tree spoke a few minutes ago. You would immediately conclude that he was unbalanced and even if ten people tell you the same, you would judge them insane. But if a thousand people say the same, you would start to think they were apparently mistaken and if 100,000 insist on it, you must consider that a tree could talk. This means, then, that it was never clear to you that trees can’t speak!

A Fair Trial

This is a warning to the beis din to refrain from hearing one litigant without the presence of the other.

Rabbi A.L. HaLevi Horvitz, author of Rashei Besamim, was required to judge the validity of a beis din that had heard one litigant without the presence of the other and he cited the example of Tzelofchad’s daughters: “And they stood before Moshe and before Elozar the Kohen and before the heads of the tribes and the whole congregation” (Bemidbar 27:2). Why must we know that they stood before the whole congregation? The Torah wants to emphasize that the potential litigants, the tribe of Menasheh, were also present, for if not so, Moshe would not have listened to Tzelofchad’s daughters (Kemotzei Shalal Rav, Parashas Pinchas).


HALACHAH ON THE DAF

Being a Dayan


The Gemora discusses the responsibilities of a dayan (judge). The Shulchan Aruch (Choshen Mishpat 10:1) exhorts a dayan to be patient when judging what the halachah is, and not to answer flippantly. A dayan should make 100 percent sure in his mind that this is indeed the halachah before paskening, and a dayan that doesn’t do so is labeled a shoteh, rasha and a haughty person.

Similarly if a dayan compares the question that he is asked to another case, and doesn’t ask a Torah scholar who is greater than him for his opinion, he too is categorized as a rasha that is a haughty person.

The Torah does not look favorably on a Torah scholar who is not on the level of being a dayan, and yet judges cases. Nor does it appreciate a scholar of high caliber who abstains from becoming a dayan. However, if he abstains due to the fact that there is another dayan in town, then he is to be commended.

A dayan should always try to make a compromise rather than to judge the case, even if he is one hundred percent sure of the halachah.

A dayan has an obligation to treat each case brought before him, even if it involves a negligible amount of money, with his full attention and seriousness.

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Sanhedrin 5

Mother's Name

The Seder Hadoros (erech: Rav Shmuel bar Marsa) writes that he is uncertain if the name Marsa is the name of a man or the name of a woman.

In the Teshuvos Hageonim it is written: You asked regarding Yoav ben Tzeruyah – why was he called by the name of his mother? And what was his father’s name? His father’s name is known, for it is written (Divrei Hayamim I: 4, 14): and Serayah begot Yoav, the leader of Gei Harashim. And since his mother (Tzeruyah) was the sister of King David, he was called after her name.

This also explains why Rabbi Shimon ben Pazi was called after his mother’s name, for she was the daughter of Rabbi Chiya, as we learned in Yevamos (65b).

Rabbah bar Chanah as well can be explained in this manner, for Chanah was the sister of Rabbi Chiya.

Rav Yitzchak bar Shmuel bar Marsa is also explained in this manner, for Marsa was the sister of Rabbi Chiya, as it was taught in Sanhedrin (5a) that Aivu (Rav’s father), Chanah (Rabbah’s father), Shila, Marsa and Rabbi Chiya were all the children of Abba bar Acha Karsela of Kafri.

In other Teshuvos Hageonim, it is stated like that as well that Marsa was the mother of Shmuel and the sister of Rabbi Chiya.

Rabbeinu Gershom in Bava Basra
(52a) writes that Marsa is a woman’s name.

The Rashbam learns that Marsa is the name of a scholar, the brother of Rabbi Chiya.

Seder Hadoros cites a Zohar that Pazi was the father of Rabbi Shimon ben Pazi, not his mother.

“The scepter will not be removed from Yehudah” (Bereishis 49:10).

The Continuation of Jewish Sovereignty in Exile

By: Meoros HaDaf HaYomi

Our Gemora explains that the leaders of the Jewish exile in Babylonia, descended from the tribe of Yehudah, derived their might from Yaakov’s blessing: The scepter will not be removed from Yehudah.

Rambam adds that “the leaders of the Babylonian exile take the place of our kings and should rule the Jews everywhere and judge them, whether willingly obeyed or not, as we have been told: The scepter will not be removed from Yehudah; these are the leaders of the Babylonian exile (Hilchos Sanhedrin, 4:13).

The description of Yehudah as a “law-giver” later in the same verse is expressed by the fact that the Nesiim of Eretz Yisroel were descended from Yehudah.

Yaakov’s prophecy served as a weapon for anti-Semitic Christians for many centuries as they tried to point out “inexactitudes” in the Torah and public debates with the Christians featured the repeated question that, after all, the Torah promises eternal sovereignty to Yehudah’s descendants. “Where is Yehudah’s sovereignty and kingdom?”

Addressing this question, Ramban (on Bereishis 49:10) quotes the verse in Devarim 28:36: Hashem will lead you and your king, whom you will appoint over you, to a people unknown by you and your fathers. The Torah itself, he asserts, does not exclude the possibility that Yehudah’s sovereignty will be interrupted. “The scepter will not be removed from Yehudah” therefore means that as long as there is a Jewish kingdom, kings must be appointed only from Yehudah’s descendants, but there is no promise for a continuous monarchy. Indeed, those who ignored this commandment and crowned kings not descended from Yehudah were harshly punished. “And this,” writes Ramban, “was the punishment of the Hasmoneans, who reigned in the era of the Second Temple. They were exceedingly pious and if not for them, the Torah and mitzvos would have been forgotten by the Jews but still they were severely punished…because they reigned without being descended from Yehudah and David and removed the scepter completely. And their punishment was measure for measure, as Hashem set up their slaves over them and they eradicated them.”

The Rashba also addresses this question: “I have seen fit to record in a book my argument with one of their learned men in those matters” (Responsa Rashba, IV, 187). In his opinion, though, the verse promises that Yehudah will reign eternally, we should regard the interruptions of our exile or the reign of kings not descended from Yehudah as merely temporary as, after all, the verse concludes: “till Shiloh (the Mashiach) comes and he will gather the peoples.” In other words, Mashiach, descended from Yehudah, will finally arrive and restore the monarchy to the tribe of Yehudah.

HALACHAH ON THE DAF

Ruling in the Presence of one’s Teacher

A disciple should not issue a halachic ruling in the presence of his teacher. This is one of the many halachos that pertain to a talmid (disciple) in regard to his Rebbi muvhak (a teacher that taught him a majority of his Torah knowledge), due to the fact that he is obligated to revere him. A talmid that does issue a halachic ruling in the presence of his teacher is liable to death.

Tosfos points out that a talmid may not rule within three parsaos of his teacher, even if his teacher gave him permission to do so. A talmid that is out of the range of three parsaos may only rule in an unofficial manner, but to establish himself as a judge, he will not be permitted until his teacher gave him permission to do so, or when his teacher dies. (Yoreh De’ah 242:4)

Rif and Rambam explain that if the talmid is a talmid chaver - a student that did not learn most of his Torah knowledge from this teacher (Rambam’s definition), then he may rule even within three parsaos. Rama cites an opinion that even a talmid chaver cannot rule in the immediate vicinity of his teacher (ibid).

What exactly constitutes that a talmid has ruled?

1) Only if an actual issue came up, but if he was merely asked his opinion on a hypothetical case then he is permitted to reply (ibid 242:7).

2) Only when asked a question that is a novel halachah to the person who asked the question, but if it’s a common halachah that everyone knows about (i.e. he knows that such a concept exists, but he doesn’t know the ruling in his case), then the talmid may answer (ibid 242:8).

A talmid may rule even in front of his teacher that something is forbidden in order to stop a person from committing a transgression, since we do not give respect to a teacher when a desecration of Hashem’s Name is at stake (ibid 242:11).

A talmid that did not yet reach the level of Torah that enables him to rule and does so, is called a host of harsh names, among them shoteh and rasha (ibid 242:13).

A judge that drank wine may not issue rulings, unless the question is something that is explicitly written in the Torah, for example that blood may not be eaten (ibid). Once he is certain that the wine has left him then he may rule once again (Shach). Similarly if he is distressed, he may not rule (Bach).

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Order of the Parshiyos

Letotafos (tefillin placed on the head) occurs three times in the Torah, twice without a “vav” and once without a “vav,” - four in all. This teaches us that four compartments are to be inserted in the (head) tefillin. This is the opinion of Rabbi Yishmael. Rabbi Akiva, however, maintains that there is no need for that explanation, for the word totafos itself implies four, since it is composed of the word tot which means two in Caspi, and fos which means two in Afriki.

In both the shel rosh (head tefillin) and shel yad (arm tefillin), there are the same four passages written in them; the only difference between them is that in the shel rosh each bayis (compartment) contains one passage, while in the shel yad all four passages are written in the same bayis on one piece of parchment. (Orach Chaim 32:2). Furthermore, these four passages must be written in order as it appears in the Torah which is Kadesh, V’hayah ki yi’vi’achah, She’ma, V’hayah im shamo’a, and if they aren’t, the tefillin are invalid. (ibid 32:1).

There is a well known disagreement between Rashi and Rabbeinu Tam as to what is the correct order of the passages: Rashi holds that it is Kadesh, V’hayah ki yi’vi’achah, She’ma, V’hayah im shamo’a, starting from left to right. Rabbeinu Tam maintains that V’hayah im shamo’a goes before She’ma. The Shulchan Aruch rules in accordance with Rashi (ibid. 34:1). The Mishnah Berurah points out that Rabbeinu Tam is not arguing on the order that it must be written, rather, only on the order that it needs to be placed in the compartments.

The Bach quotes the S’mag and Mordechai, who reported that a pair of tefillin were found in the grave of Yechezkel Hanavi, and the passages appeared in the order of Rashi. Some do not consider this as proof that the ancient tefillin were in fact made according to the opinion of Rashi, since it might have been buried precisely because it was out of order. The Bach rejects this answer, since they could have simply switched it back to the proper order, as we learned that it is only the placing out of order in the compartments that invalidates the tefillin.

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"Eim" or "Av"

By: Rabbi Avrohom Adler

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Rav Yitzchak bar Yosef said in the name of Rabbi Yochanan: Rebbe, Rabbi Yehudah ben Roeitz, Beis Shammai, Rabbi Shimon and Rabbi Akiva all hold that the way a word is pronounced is determinant in Biblical exposition (yeish eim lamikra).

The Rif was questioned as to why the Gemora uses the word eim, which means mother, and not av, which means father. A similar question would be that the Gemora refers to one of the thirteen principles of Biblical hermeneutics as a binyan av and not a binyan eim.

The Rif initially responded that he never heard anyone shed light on this matter, but then he proceeded to offer a possible explanation. When the purpose of a principle is to teach a concept in a different area, the Gemora uses the term av, whereas if the discussion at hand is regarding relying on a principle, the Gemora uses the word eim.

Shearim Mitzuyanim B’Halacha explains the words of the Rif. The mother is the akeres habayis, the mainstay of the house as it is said every honorable princess dwelling within. For this reason we say yeish eim lemikra or yeish eim lemasores, as the mother is the central figure in the house and it is the mother who everyone is dependant upon. The father, on the other hand, is not usually found in the house, as he leaves the house to seek a livelihood. The principle of a binyan av, however, is that we are building from one location to another, and this is analogous to a father who influences others. (See Rabbeinu Bachye to Devarim 33:8 for further discussion on the differences between the father and mother.)

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IS IT NATURAL FOR AN OX TO GORE?

By: Rabbi Avrohom Adler

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The Gemora cited a dispute regarding the half damages that one is required to pay if his ox gores for the first time.

The Gemora in Bava Kamma (15s) explains: Concerning the payment of half damages (which are paid when a tame ox gores another animal; if the ox did not gore three times, it is regarded as an abnormal act and the animal was not intending to inflict damage; this is called a tam), Rav Papa says: This is regarded as a compensation payment. Rav Huna the son of Rabbi Yehoshua says: The half damages are considered a fine.

The Gemora explains: Rav Papa says that the half damages are regarded as a compensation payment, for an ordinary ox is not considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be liable to pay completely for its damages. The Torah had compassion on him since his ox was not yet warned (three times) and ruled that he is only required to pay for half the damage (hence the half damages that he does pay is considered compensation). Rav Huna the son of Rabbi Yehoshua says that the half damages are considered a fine, for an ordinary ox is considered guarded in respect to these types of ‘abnormal’ damages and the owner should really be exempt completely from paying for its damages. The Torah penalized him and ruled that he is required to pay half in order that he will watch his ox better in the future (hence the half damages are considered a fine).

Reb Dovid Pervarsky writes that this is not a factual dispute if ordinary oxen are accustomed to gore or not. Rather, the argument can be explained as follows: Rav Papa maintains that it is inherent in the nature of an ox to gore. Sometimes it will not gore because it does not feel the desire to gore at that time. When the animal does gore, it is not considered an abnormality at all. Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; when it does gore, it is regarded as an abnormality.

Reb Dovid is not comfortable with this explanation of the argument, for the Gemora’s language is that an ordinary ox is not considered guarded; if the animal is not goring (for whatever reason), it should be considered “guarded”!?

He therefore concludes that this is the explanation: Rav Huna the son of Rabbi Yehoshua holds that it is not natural for an ox to gore at all; if it does gore, it cannot be labeled as a “damager,” since the ox was considered guarded. Rav Papa, however, maintains that it is in the nature of an ox to gore, and when it gores, it can be labeled a “damager.” This is what obligates the owner to watch his animal even though it is not accustomed to goring.

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Monetary Cases are Judged by a Beis Din of Three

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By: Meoros HaDaf HaYomi

Should a get be delivered only before a beis din?

This week the Daf HaYomi learners have concluded Bava Basra and started tractate Sanhedrin and we take this opportunity to address an important topic connected with the beginning of Sanhedrin and the end of Bava Basra.

One of the striking subjects we most perceive as needing a beis din is divorce but, to our surprise, not all halachic authorities accept this assumption. The first posek to devote a broad discussion to this basic question was the Chief Rabbi of Prague, HaGaon Rav Yechezkel Landau, famed as the author of Responsa Noda’ BiYehudah (2nd edition, E.H. 114). The gaon was asked to judge the validity of a bill of divorce (get) arranged by a certain rabbi who had enlisted his son-in-law and another person to form a beis din. As the rabbi and his son-in-law were relatives, the group of three cannot be defined as a beis din and the question remains if the get is valid though not having been delivered in the presence of a beis din. The poskim point out that the Talmud never indicates that a divorce should be enacted only in a beis din but the Or Zarua’ (cited in Terumas HaDeshen, I, 248) states that a beis din is required, and later halachic authorities began to search the Talmud for proof for either opinion.

Bava Basra (174b) quotes Abayei’s question to Rava – “Indeed, does everyone divorce in a beis din?” – giving us to understand that there is no need for a beis din. Still, Rabeinu Gershom’s commentary, printed alongside the Gemora, offers a different text – “Indeed, does everyone divorce in a reputable beis din? One can divorce in an ordinary beis din” – and according to this version, every get must be delivered in a beis din. On the other hand, the Gemora in Bava Basra 176a rules that a get without the signatures of witnesses is valid as long as the wife received it in the presence of witnesses. Apparently, though, asserts the Noda’ BiYehudah, if a get must be delivered in a beis din, why does the Gemora omit that important detail? We must assume, then, that there is no need for a beis din.

The Noda’ BiYehudah proves, however, that a beis din is required from Rashi’s commentary at the beginning of Sanhedrin. Our Mishna lists the procedures that become valid only if performed before a beis din, such as financial or property decisions, chalitzah or mi’un (the refusal of a girl under bas mitzvah age to stay with her husband). Rashi explains the need for a beis din in the case of mi’un as “everything that the chachamim instituted (i.e., all regulations derabanan) they instituted in a form approximating that required by the Torah.” In other words, the regulation derabanan, that a girl under bas mitzvah age married off by her brother may object to the marriage and leave her husband, is performed without a get, but as mi’un resembles divorce, it must be performed before a beis din. The Noda’ BiYehudah therefore deducts that a get must surely be delivered in the presence of a beis din (see Responsa Beis HaLevi, end of Part I; Maharam Schiff, Rashash and Hagahos Rav Y.A. Chaver at the end of the Shas; and Hagahos Chasam Sofer on Noda BiYehudah, at the end of the book, who explains that Rashi intended to compare mi’un only to chalitzah, which requires a beis din).

However, some poskim try to prove the opposite from our Mishna. The Mishna, after all, lists all the procedures requiring a beis din without including divorce. Still, the Noda’ BiYehudah rejects this proof as the need for a beis din in divorce cases is based on the financial and property aspects of divorce and our Mishna states explicitly that “financial cases are judged by a beis din of three.” Referring to the specific question of the rabbi and his son-in-law, he ruled that the divorce should be performed again before a valid beis din because of the various halachic authorities requiring a beis din. Most Acharonim, however, believe that a couple is considered divorced even if the procedure was not enacted before a beis din (see a lengthy discussion of the topic in Pischei Teshuvah, 154; Seder HaGet, S.K. 8; and Sedei Chemed, Ma’areches Get, 1).

The Original City Limits of Yerushalayim

No additions should be made to Yerushalayim or the courtyards of the Temple unless approved by a beis din of seventy-one.

As we all know, Eretz Yisroel has a special sanctity and the observation of many commandments depends on one’s being there. Yerushalayim was even more sanctified for certain mitzvos decreed by the Torah to be performed in the vicinity of the Temple, such as eating ma’aser sheni, and our Mishna explains that only a beis din of seventy-one – the Great Sanhedrin – can annex and sanctify more territory to the original area of Yerushalayim. The Mishna in Shevuos (14a) adds that the Sanhedrin also requires the consent of the king, a prophet and the Urim VeTumim on the breastplate of the Kohen Gadol. According to our known historical sources, the area of the original city of Yerushalayim was enlarged only once and in the opinion of certain researchers, including HaGaon Rav Yechiel Michel Tikotchinski zt”l, this was accomplished during the reign of King Chizkiyahu (‘Ir HaKodesh VeHaMikdash, II, Ch. 5).

The Tosefta to Sanhedrin (3:4) cites Aba Shaul, that “there were two pools in Yerushalayim: the lower and the upper; the lower pool was sanctified with all these requisites but the upper pool was sanctified only with the arrival of the exiles (in Ezra’s era) without a king and without the Urim VeTumim.” (A “pool” obviously means the environs around the pool). Many researchers, Jewish and non-Jewish, have pondered the location of the Lower Pool both from the halachic and -lehavdil- the historical/archaeological viewpoints. As for the halachah, it is vital to know the boundaries of sanctified Yerushalayim as even today there are several halachos that apply only within its limits, such as the following:

i) Ma’aser sheni must not be redeemed – i.e., exchanged for money or other produce – in sanctified Yerushalayim.
ii) Human bones are not to be moved through sanctified Yerushalayim (Rambam, Hilchos Beis HaBechirah, 7:14, based on Avos deRabbi Nasan, Ch. 38).
iii) It is forbidden to bury the dead in Yerushalayim (Rambam, ibid, based on Avos deRabbi Nasan, ibid). Some poskim hold that this halachah still applies (‘Ir HaKodesh VeHaMikdash, III, Ch. 13 – in disagreement with Pe’as HaShulchan, 23 – see his discussion of the graves of the Sambuski family on the southeastern slope of Mount Zion).
iv) Bodies of the deceased must not stay in Yerushalayim overnight (Bava Kama 82b) – a halachah in practice today (Pe’as HaShulchan, Ch. 3, S.K. 23; ‘Ir HaKodesh VeHaMikdash, III, Ch. 14 – in disagreement with the Responsa Radbaz, II, 633).

We have no solid information on the original boundaries of Yerushalayim. Most of the present wall was built by the Turks and researchers rely on archaeological digs revealing older walls. The age of those walls is determined according to the artifacts found near them or by the approximate antiquity of their stones. It is only natural, then, that many opinions have been expressed but in our limited framework we shall focus on that of Rav Tikotchinski in his ‘Ir HaKodesh VeHaMikdash.

The “Old City” is not that old: All researchers agree that the area originally sanctified and walled by King David and King Shlomo (Melachim I, 9:15; Divrei HaYamim I, 11) is not contiguous with the area now called the “Old City.” The latter includes the Temple Mount and territory to the north whereas King David’s city was built to the south. A large area south of the present wall, therefore, bears the original sanctity of Yerushalayim. Between 5654-57 researchers discovered a wall far from the present one, judged to have been built in the era of the First Temple. If this estimate is correct, the pools of Shiloach and El Khamrah and the streets called Maalot Ir David, Wadi Khilwah, Malkitzedek and Ma’aleh HaShalom are within the borders of sanctified Yerushalayim. Another wall was found 16 meters east of the Old City and some therefore believe that the city’s original sanctity extends that far to the east.

Where, though, is the Lower Pool annexed to Yerushalayim by King Chizkiyahu? Rav Tikotchinski maintains that it is somewhere north of the Temple but south of the present northern wall and, in his opinion, all of the Old City bears the original sanctity of Yerushalayim. Others, however, disagree because of the presence of a few graves in the Old City from the Second Temple era discovered after Rav Tikotchinski’s demise. As it is forbidden to bury the dead in Yerushalayim, the entire Old City cannot be included in the originally sanctified area though there is the possibility that the graves were dug in opposition to the halachah (see Entziklopedia Talmudis, Vol. 25, Appendix to the article on Yerushalayim, column 707, footnotes 32 and 106). All this pertains to the sanctity of Yerushalayim as decreed by the Torah but according to the Maharit (II, Y.D. 37), we should extend its sanctity by rabbinical decree to include the Upper Pool, added to Yerushalayim without the Urim VeTumim. In his opinion, then, the sanctity of Yerushalayim stretches out to the Third Wall, near the Mandelbaum Gate west of the Old City, to the valley known as Jurat-il-Anab.

The Mi’un of Sulka, the Sister-in-law of Rabbi Yaakov Polak

Chalitzah and mi’un are performed in a beis din of three.

Our sages instituted a regulation whereby a girl whose father had died could be wed in certain circumstances, though still under bas mitzvah age (see Tur Shulchan ‘Aruch, E.H. 155). Such a girl may refuse to stay with her husband as long as she has not attained bas mitzvah age. Her marriage becomes void with no need for a get and our Mishna asserts that she must declare her mi’un (“refusal”) before a beis din of three. Mi’un occupies many sugyos throughout the Talmud and a chapter of 22 paragraphs in Shulchan ‘Aruch (E.H. 155).

In our era the custom to marry off young girls has ceased except in Yemen, where it persisted to save them from certain decrees. One the other hand, till 500 years ago poskim discussed questions involving such marriages and, first and foremost, mi’un. Six hundred years ago there was a posek in Germany called Rabbi Menachem of Miersburg, author of Me’il Tzedek and sometimes known as Rabbi Menachem HaMeili for his masterwork. Accoding to HaGaon Rav Shlomo Luria (Yam shel Shlomo, Yevamos, ch. 13, #17), “he instituted several regulations to protect the Torah and was a great expert and his regulations and decrees were accepted throughout Ashkenaz (Germany and the neighboring lands).” One of his decrees did away with mi’un and required any wife to leave her husband only with a get in order to prevent people from saying that couples could part without a get, eventually leading to some disregard for the mitzvah. In addition, there was the suspicion that a girl would declare mi’un in the presence of unlearned persons who would not ascertain that she was still a minor, not requiring a get.

Five hundred and ten years ago, in 5252, an orphaned girl by the name of Sulka was married off by her mother and brother to a Torah scholar, Rabbi David Tzenner. After a while, and still being under bas mitzvah age, she expressed the wish to leave him and since her husband refused to divorce her with a get, her relatives instructed her in the procedure of mi’un and she performed that requirement. Her sister’s husband was Rabbi Yaakov Polak, the founder of the pilpul method of Talmudic study, one of the leading Torah scholars of that generation and a rosh yeshivah in Prague, where he taught thousands of students. He agreed to the mi’un and allowed Sulka to remarry without a get.

Many leading halachic authorities vehemently objected to Rabbi Polak’s decision, including one of his teachers – HaGaon Rav Y. Margalios, author of Seder HaGet – and MaharY Mintz (Responsa, §13) who insisted that the procedure of mi’un should be discarded according to the regulation of Rabbi Menachem of Miersburg. They forbade Sulka to remarry without a get and even imposed excommunication (niduy) on anyone opposing their decision. Still, Rabbi Polak ignored their ruling, proved that the regulation against mi’un had not been accepted and that mi’un had been in practice since the era of Rabbi Menachem of Miersburg and married off Sulka without requiring her to receive a get. Rabbi Polak left Prague as a result of the stormy altercation and settled in Krakow, where he stayed for 35 years and established a large yeshivah which contributed greatly to turning Poland into the most important center for Torah study in Europe for hundreds of years.

How was the halachah eventually decided regarding mi’un? Maharshal (Yam shel Shlomo, ibid) offers a short description of the above event, which occurred in the previous generation, and relates that according to his knowledge, Sulka’s second marriage failed due to the annoyance of the leading Torah authorities. He holds that mi’un must no longer be performed and if enacted, the girl must not remarry without a get unless instructed otherwise by a beis din and even so, such a beis din should be thereafter discredited.

There is no “custom” regarding a rare occurrence: On the other hand, the Remo was a student of the disciples of Rabbi Polak and devotes a brief discussion to mi’un at the end of the relevant chapter in Shulchan ‘Aruch (E.H. 155). In his opinion, mi’un may be practiced even now, “as performed by Rabbi Yaakov Polak z”l in his era.” Rabbi Shneiur Zalman of Liadi, author of Tanya, explains the Remo’s reason in the responsa at the end of his Shulchan ‘Aruch (§22, based on Rambam). We cannot, he asserts, speak of an established custom regarding instances which occur only rarely, especially where an attempted regulation commands us to refrain from performing a previously accepted procedure (see ibid). We cannot claim, then, that there was a “custom” to refrain from mi’un (see Pischei Teshuvah and ‘Aroch HaShulchan, ibid). The ‘Aroch HaShulchan has doubts about the Remo’s ruling and concludes “when I was young I heard that in the previous generation there had been a mi’un and that the leading Torah authorities objected vigorously but I don‟t know how the matter ended; in our era we have never heard of any mi’un at all.”

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Who Pays for the Clock?

By: Meoros HaDaf HaYomi

The Forgers’ Scheme

A person who wants to show a specimen of his signature to a Beis Din should not sign at the bottom of a blank page. A few years ago the Torah community in Yerushalayim was outraged when a claim was presented to a Beis Din against a respected Torah scholar. The claimant produced a promissory note for a huge amount signed by the supposed debtor and the latter certified his signature but denied borrowing the money. The dayanim appointed a special investigative team who revealed that the claimant belonged to a group of swindlers who had managed to misuse the defendant’s signature. They had discovered that he was accustomed to sign his name in the middle of the front page of every book in his large library and all they had to do was just borrow one of his books, remove the blank page and compose a promissory note above the signature.

Indeed, in our sugya Abaye recommends that anyone required to demonstrate his signature should do so at the top of a page to prevent anyone from adding a fraudulent text above it. Commenting on our sugya, the Ritva clarifies that Abaye’s warning stems from an understanding of people and foreseeing their spontaneous reaction at unexpected times. Abaye’s suspicion, after all, is actually unfounded as a person may claim he has paid a debt, even if a signed promissory note is produced against him, and he is believed unless the note is signed by witnesses. The Ritva explains, though, that Abaye foresaw a typical person’s behavior: By the nature of things, when someone is faced with a false document, his spontaneous reaction is to deny there having been any loan and subsequently he is not believed to assert that he paid the debt. The best thing to do, then, is to prevent any untoward use of one’s signature (Bava Basra 6a, Kesubos 88a, and see Shulchan „Aruch, C.M. 69:2, and the Shach, ibid, S.K. 10).

A claim based on a promissory note with no indicated amount: HaGaon Rav Mordechai Yafeh, author of the Levushim, cites an unusual event in his Levush Ir Shushan (section 48). About 420 years ago a person claimed to a Beis Din that another owed him a certain sum and, as proof, presented a blank promissory note signed by the supposed debtor, with no indicated amount. “The debtor,” he asserted, “gave me this note because he trusted me to fill in the amount he owes me.” The claimant added that were he a liar, he could have written in any sum he wanted and therefore the Beis Din should believe his demand. Still, the “Levush” immediately rejected the claim as “even a fool” would never give another a signed blank promissory note and we must assume that the defendant had lost the note, which was later found by the claimant. Concluding with a sharp warning, he declares that anyone giving another such a blank note is “merely a witless person willing to believe anyone, or insane and defined as a shotah, whose actions have no validity.”

Claiming money with a blank check: Nonetheless, the situation is different today and the above topic is relevant as people do give others signed checks with no specified amount, such as when paying a sum to be determined according to the future rate of exchange of some foreign currency. The practice is most common when borrowing from a free loan fund if the loan is repaid in installments and linked to a foreign currency. Moreover, most Gemachim lending medical apparatus or other equipment require a blank signed check. Indeed, what is the halachic validity of a monetary claim based on a signed check lacking any indicated amount?

Halachic authorities assert that if people are accustomed to give others such “open” checks, the holder of the check is believed to demand any amount. This regulation is also supported by Paragraph 19a of the national ordinance for promissory notes, which states that if a note lacks an essential detail, the holder may fill in the detail as he wishes. It follows, then, that the holder is believed to present a claim against the signer of a check missing a specified amount (see Mishpatecha LeYa‟akov, I, 22:6).

Who should Pay
for a Clock for the Teacher?

Our Mishna states the regulation that the person benefiting from a document must defray the costs of its being written. A borrower pays the expenses of drawing up a promissory note as he benefits from the loan and a purchaser defrays the costs of a bill of sale or deed, which is delivered to him as proof of his purchase and protects his rights. The author of Meshech Chochmah (at the end of Parashas Behar) supports this halachah with a passage from Yirmiyahu (32:10), recounting that the prophet bought a field from his cousin Chanamel ben Shalum, attesting “And I wrote the document and signed” even though the seller is generally assumed to write the bill of sale. The verse indicates, then, that Yirmiyahu paid the scribe, as stated in our Mishna.

An obligation to contribute to charity used as bail: The scope of the above halachah is seen from a question asked of the Rosh by his son Rabbi Yechiel. A certain Beis Din suspected that Shimon would not appear for a Din Torah scheduled for a particular time and commanded him to submit a guarantee. Shimon’s friend then signed a document before the Beis Din that if Shimon failed to appear as demanded, he would donate 1,000 coins to charity. The question arose, though, as to who should pay the costs of writing the document: Shimon, his litigant, or the guarantor. At first, the Rosh ruled that Shimon’s litigant must pay as the guarantee is to his benefit. He later discovered, though, that there was no other litigant but that “Shimon had sinned and the community wanted to imprison him till his punishment will be decided.” The Rosh then changed his decision and ruled that Shimon, as the one benefiting from the guarantee, must pay the price of the writing (Responsa of the Rosh, Kelal 13:2-3).

About 500 years ago an argument arose between a teacher and a certain pupil’s parent. The teacher was hired to instruct the child for a few hours each day and needed a clock in the room to know when the session ended (pocket watches had not yet been invented). The father claimed that the teacher must pay for the clock but the teacher insisted that the father bear the expense. Rabbi Yisrael Isserlin, author of Terumas HaDeshen, ruled that the father should buy the clock, but his student, Rabbi Yisrael bar Rav Chayim of Bruna, questioned the decision: Apparently, just as one who hires a tailor to sew a garment need not buy him a needle, and just as one who hires a scribe need not provide him with a pen as all artisans are hired with their tools, the teacher should pay for the clock required for his work.

The difference between teachers and tailors: Rav Yisrael of Bruna clarified his mentor’s ruling by explaining the difference between a teache r’s clock and a tailo r’s needle. A tailor without a needle is no tailor and a penless scribe is no scribe, as they cannot practice their trades without such tools. A teacher needs no clock for his work, as he only requires the ability to speak and explain. A clock is merely meant to tell him when to finish his task. We cannot force him to pay for it as he can claim that he can estimate the elapse of time without it. If the father refuses to believe him, says Rav Yisrael of Bruna, “Buy a clock and I’ll teach by it.”

The Collection of Legal Costs

In civil courts the losing party is charged for legal expenses, generally including the court costs and the winning party’s lawye r’s fees, etc. How does the Torah view such costs and how does a Beis Din act according to halachah?

Our sugya explains that the secretaries of a Beis Din would record the litigants’ claims, as Rashbam comments, “so that they would not change their claims” (s.v. Shitrei ta’anta) and our Mishna rules that the expenses involved in writing the records must be shared equally by both litigants. The Ribash deducts from there (Responsa, 222) that the general costs of a Beis Din should also be equally shared by the litigants rather than be borne exclusively by the losing party. Both the claimant and defendant need the services of the Beis Din and should divide the expenses entailed by their case.

An uncooperative defendant pays the extra costs he causes: Still, the Ribash emphasizes that if the defendant is uncooperative and causes the claimant to suffer needless expenses, such as the issuance of a “notice of refusal” (kesav seiruv), he is regarded as guilty of causing damage by negligence and must defray such expenses. Moreover, if the Beis Din discovers that a claim is baseless and only intended to hassle the defendant, the latter is exempt from all court costs and they are then borne exclusively by the claimant (Yeshuos Yisrael by the Gaon of Kutna, C.M. 14, in Ein Mishpat, s.k.14). Nonetheless, we have yet to clarify if in such cases a defendant may also demand the claimant to defray his own costs, such as payment to a rabbinical court advocate (to’en rabani) or the like. Halachic authorities indicate that the claimant should not be so charged as such expenses are not unavoidable and a defendant may represent himself. Hiring a to’en rabani is optional and the costs involved are not considered damage caused by the claimant.

A practical implication of the above discussion is that if a Beis Din allows a person to present a claim at a civil court and he wins his case, resulting in the defendant’s obligation to pay for the claimant’s lawyer, then the claimant must return to Beis Din to ask whether he may collect that sum from the defendant.

The Tree That Wasn’t

HaGaon Rav Aharon Kotler zt”l, Rosh Yeshivah of Lakewood, was known to be extremely heedful to guard the truth. Once he was shown an advertisement with a sketch of the Yeshivah including the surrounding trees. He counted the trees, though, and found that three had been drawn instead of the actual two and not wanting to lend a hand to the misrepresentation, banned the picture. “It’s a falsification,” he said, “and the Torah is a Torah of truth and any method to maintain it must rely on the strict truth.”

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Minimum Number of Coins of Different Denominations

brought to you by:
Kollel Iyun Hadaf of Har Nof
daf@shemayisrael.co.il

The braisa teaches that when a shtar mentions that a person borrowed “gold dinarin” but it does not mention the number of dinarin, the creditor may claim only two gold dinarin, since the minimum possible amount to which the plural “dinarin” refers is two -- “mi’ut rabim shenayim.” The braisa earlier (165b) teaches the same with regard to a shtar that says “silver dinarin.” Similarly, the Mishna (165b) states that when a shtar mentions that a person borrowed “zuzim,” “sela’im,” or “darkonos,” and the number of those coins was erased, the creditor may claim only two, which is the minimum possible amount of the plural word used in the shtar.

Why does the Mishna and braisa need to repeat itself with regard to these different types of coins? The Mishna and braisa need only teach this in one case, and then we would know that whenever there is an unspecified amount of “coins” (in the plural) -- regardless of what type of coin -- the creditor may collect only two!?

The Penei Shlomo answers that the Mishna (and braisa) is teaching a novelty in each case. Since the subject of the shtar is coins, which are divisible entities, we might have thought that even though the word used is plural, it refers not to two coins but to one and a half coins. The Mishna is teaching that the creditor is entitled to more than one and a half coins -- he is entitled to take two full coins of the specified denomination, because if it is true that the borrower only borrowed one and a half coins (such as a sela and half a sela), then the value of the half-coin would have been expressed in terms of a smaller denomination (a sela and two dinarin).

The Penei Shlomo adds that this is also why the Mishna and braisa use the phrase, “It is not less than two...,” instead of saying, “He may only collect two.” “It is not less than two” excludes a “lesser” amount, and implies that we might have thought that the creditor is only allowed to collect an amount which is less than two (such as one and a half). “He may only collect two” excludes a “greater” amount, and implies that we might have thought that the creditor should collect more than two. Since the Mishna is teaching that he “may” collect more than just one and a half, it says, “It is not less than two.”

The Mishna and braisa, therefore, needed to teach this novelty with regard to each denomination of coins, since we would not have been able to learn one from the other. People might write “one and a half zuzim” without expressing the fractional zuz in terms of a smaller denomination. Therefore, the Mishna must teach us in each case that the plural word is not less than two.

The Tiferes Yisroel explains that each case in the Mishna is necessary for the following reasons. In the case of “Kesef zuzim which are...,” where the number of zuzim was erased, we might have thought that the creditor is entitled to collect four zuzim, since the words “Kesef zuzim which are...” imply that the author of the shtar is defining an equal value for “Kesef zuzim.” The lowest number of zuzim which are equivalent to a different coin is four, and the shtar originally said, “Kesef zuzim which are one sela.” Therefore, the Mishna needs to teach us that the creditor may only collect two zuzim, because perhaps the author of the shtar was giving a number of zuzim, and not an equivalent value in another denomination.

In the case of “Kesef sela’im which are...,” where the number of sela’im was erased, we might have thought that the author of the shtar was referring to two “inferior” sela’im (as mentioned earlier in the Mishna), which are equal to seven zuzim (or 6 2/3 zuzim), and not 8 zuzim, and the shtar originally read, “Kesef sela’im which are seven zuzim.” Therefore, the Mishna teaches that the creditor may collect two standard sela’im and not inferior ones.

In the case of “Kesef darkonos which are...,” where the number of darkonos was erased, we might have thought that certainly the author of the shtar was referring to inferior darkonos, for the following reason. A darkon is a large, valuable gold coin, and people do not usually pay back debts with such coins. Accordingly, we might have thought that the author of the shtar meant inferior gold darkonos, and that is why he was writing the actual value of the darkonos, which was “less” than the value of two standard darkonos. Therefore, the Mishna needs to teach us that the creditor is indeed entitled to collect two normal darkonos and not inferior ones.

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Most People are Guilty of some sort of Thievery

By: Meoros HaDaf HaYomi

Dear Customer, Please Note: This Book is not Proofread at all

Rav Yehudah asserts in the name of Rav that most people are guilty of some sort of thievery and, as Rashbam explains (s.v. Rov begezel), this means that most people transacting business allow themselves to deny others their due profit. In other words, fraud, false pretenses and financial conniving are considered gezel.

In his Sefas Tamim (Ch. 3), Rabeinu Yisrael Meir HaKohen zt”l, the Chafetz Chaim, proves that even one who causes his fellow a loss is considered a thief. True to his word, he was renowned for his extreme avoidance of anything resembling falsification or thievery, as evident from his behavior concerning the books he authored.

The Chafetz Chaim was in Warsaw when he first had his Mishnah Berurah printed and every day he would come to the printer to check that no smudged or otherwise defective pages were being sent out for sale. He left his learning for several months for this purpose and afterwards relied on his son to undertake the task. When he discovered that despite his great care, one of his books had been sold with a few defective pages, he hurried a sharp letter to his son, saying “What have you done to me, my son? All my life I’ve taken care to avoid anything resembling thievery but I never thought that I would err in outright robbery and because of you this has happened!” The Chafetz Chaim immediately ordered the printer to reprint those pages found defective and publicize in the press that anyone who had bought a defective edition should inform him of such in order to receive the corrected pages by post (Michtevei HeChafetz Chaim, p. 30).

The Chafetz Chaim knew no rest till he hired special proofreaders to examine each page of his printed books and, if approved, to mark the front page of each book as “proofread” (HeChafetz Chaim Ufo‟olav, I, Ch. 32). Some of these books are still extant.

The problem of printing errors also concerned other halachic authorities. For example, the students of the Tsadik HaGaon Rav Eliahu Lopian zt”l, led by the famed Yerushalmi Magid Rabbi Shalom Schwadron zt”l, published the popular Lev Eliahu with a warning on the front page: “Dear purchaser: This book is not proofread and I assume no responsibility – The Publisher.” We have no knowledge of the severity of the printing error discovered by the Chafetz Chaim but HaGaon Rav Yaakov Kanievski zt”l, the Steipler, states in a letter that the sale of a book containing minor errors that still allow readers to understand the text is not considered gezel. After all, anyone buying a book knows that the task of printing is complicated and hardly ever free of mistakes. In his opinion, a book with no pages missing may be sold even with some defects and therefore, when he found that the last letters on a page were omitted in an entire edition of his Kehilos Yaakov, he continued to sell that edition as the defect did not prevent understanding the text (Karyana D’igarta, I, p. 351). Of course, this principle applies only to publishers of new books but one is not permitted to sell defective sidurim, as finely proofread sidurim are available on the market and they are expected to be free of errors.

All the above is just a fraction of the material pertaining to this broad topic. The Gemora in Brachos (6a) explains that one who fails to respond to a greeting is called a robber, indicating that depriving a person even of his due word is defined as gezel (Sefer “Mamon Kasher”).

Once, Rabbi Elazar Shulevitz zt”l, Rosh Yeshivah of Lomzha, was standing praying Shemoneh Esreh at the entrance to a synagogue and Rabbi Yisrael Salanter, standing near him, approached him and whispered, “Robber! The synagogue is packed full and you’re robbing the congregation of air!” Rabbi Shulevitz immediately interrupted his prayer to move away (Lev Eliahu, Bereishis). Similarly, though in an opposite circumstance, the Vilna Gaon zt”l would take care to shut the door to the bathhouse immediately after entering lest he rob the bathers of the warm air inside (Tosefes Maaseh Rav, S.K. 29). According to the Chafetz Chaim, even someone who participates in a wedding or sheva berachos meal without enhancing the joy of the chassan, about whom the Gemora in Berachos (ibid) states that he transgresses “five voices”, might be guilty of robbery (Michtevei HeChafetz Chaim, p. 46).

Why the Labor Cost More

A simple tailor became close to Rebbe Noach of Lechovitz and the Rebbe persuaded him to refrain from the custom then common among tailors to demand clients to bring them extra cloth in order to benefit from the quantity remaining after their work. “This custom is outright thievery,” explained the Rebbe, “You may charge more for your labor but you mustn’t practice that foul custom.”

“And what should I tell my customers,” questioned the tailor, “if they ask me why I charge more yet need less cloth?”

“Tell them,” replied the Rebbe, “that you learnt to cut in a new way that doesn’t need a lot of cloth but that learning the method cost a great deal.”

The tailor obeyed the Rebbe’s instructions but after a while his customers remarked that he had already covered the expenses of learning the new method and asked why he continued to charge more.

“The new method,” he answered, “is a whole system to be learnt again every day and every week” (Hizaharu Bemamon Chavreichem, p. 366).

The Old Man Fell Asleep on His Coat

On the night following the demise of HaGaon Rav Elchanan Wasserman’s wife, his son Rabbi Naftali sat down and wept incessantly while several yeshivah students slept in an adjacent room. Rav Wasserman approached his son and told him, “You shouldn’t cry so loudly now. The boys might wake up and you would rob them of their sleep” (Or Elchanan, I, p. 13).

A similar story is told of Rabbi Avraham of Purisov. Despite his known tendency to conceal his behavior, he once learnt all night in the beis midrash, later explaining that an old man had fallen asleep on the edge of his coat. “I couldn’t, after all, stand up for fear of waking him!” (Chasidim Mesaperim, I).

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Mentioning the Praise of Others

Another time Rabbi Shimon was sitting in Rebbe’s presence when he finished a section of the Book of Psalms (one of the five books that Tehillim is divided into). Rebbe said, “How neat is this writing!” Rabbi Shimon replied, “I did not write it; Yehudah Chayata wrote it.” Rebbe rebuked him by saying, “Stay away from this lashon hara.”

The Gemora asks: In the first case (by the tied document), one can understand Rebbe’s rebuke, since there was lashon hara involved; what lashon hara, however, was there in this case?

The Gemora answers: It is based upon the teaching of Rav Dimi, for Rav Dimi, the brother of Rav Safra, taught a braisa: A man should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well.

The Gemora in Gittin (67a) relates that Issi ben Yehudah used to specify the praiseworthy merits of the various Sages.

The Chidah challenges this from our Gemora, which rules that one should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well!?

He initially answers that Issi ben Yehudah specified their merits after their death; it would then be permitted, for there was no concern that he would talk about their faults after their deaths.

He retracts from this answer, for it is evident from the Avod d’Rabbi Nassan that Issi ben Yehudah spoke about their praises even during their lifetime!

It would seem that the Chidah’s question can be answered according to the words of the Rashbam here. He writes that a person should never speak excessively in praise of his friend, because by mentioning his praise, he will come to mention his faults as well. Apparently, it is only prohibited if one offers excessive praise; this will lead to the listener or the speaker interjecting that the person does possess some faults as well. Issi ben Yehudah, however, was not exaggerating at all when specifying the merits of those Sages.

The Maharsha challenges this explanation, for it does not seem from our Gemora that Rabbi Shimon was excessively praising Yehudah Chayata; he was merely stating that it was he who wrote that book of Tehillim, and that it was a neat handwriting.

The Rambam is of the opinion that this prohibition applies only in public, for there are bound to be enemies of the subject of the praise in the crowd, and they will almost certainly begin to talk disparagingly about him. In private, however, this prohibition would not apply.

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No Person is Saved from these Transgressions

brought to you by Kollel Iyun Hadaf of Har Nof

The Gemora states: Rav Amram said in the name of Rav that there are three transgressions from which no person is saved every day. They are: thoughts of sin, examining one’s prayers (Rashbam – feeling overconfident that his tefillah will be answered positively; Tosfos – lack of concentration during tefillah), and lashon hara. The Gemora explains that lashon hara refers to avak lashon hara (close to being lashon hara).

What does the Gemora mean that “no man is saved” from these transgressions? Certainly there are great Tzadikim and Talmidei Chachamim who -- even if not entirely free of sin (see Koheles 7:20) -- do not transgress all of these transgressions every single day! How can the Gemora say that “no person” is saved from these three transgressions every day?

In addition, if no one is saved from these three transgressions, then why are they transgressions? Hashem certainly would not give commandments that are impossible to keep.

The Iyun Yaakov explains that the Gemora means to say that because the temptation for these three transgressions is so great, no person is saved from these three transgressions without putting forth much effort. Someone who puts forth the effort to protect himself from these transgressions, though, will succeed and will not succumb.

The Toras Chaim, however, does not seem to agree with this explanation. He asks why the Gemora says that “no person is saved” from these three transgressions, instead of saying simply that “there are three transgressions which a person transgresses every day.” He answers that the Gemora is teaching that even one who attempts to avoid these transgressions will not be saved from transgressing them inadvertently, since the frequency of the challenge of these transgressions is so great.

How, though, does the Toras Chaim explain that there are Tzadikim who are able to avoid these transgressions?

The Maharsha explains that when the Gemora says that “no person is saved” from these three transgressions, it is referring to an ordinary person, but not to Tzadikim, who indeed are saved from these transgressions. He explains that while only a Jew, and not a gentile, is called “Adam” (Yevamos 61a), there is still a much higher level that a person can reach. The verse in Zecharyah (3:7) says that when a person follows the ways of Hashem, then “I will give you strides among these [Mal’achim] standing here.” Similarly, the Gemora in Chagigah (15b) explains that the verse, “The lips of the Kohen shall safeguard knowledge, and they shall seek Torah from his mount, because he is an agent (Mal'ach) of Hashem...” (Malachi 2:7), is teaching that when a Torah teacher is similar to an angel, then one should seek to learn Torah from him. This teaches that a person should strive to reach a level of absolute submission to Hashem, like the level of the angels.

When the Gemora here says that “no person (Adam) is saved” from these three transgressions, it is referring to a person who has not yet reached this level of perfection in his Avodas Hashem. The Maharsha explains that the word “Adam” is an acronym for the words, “Efer” (ashes, dust), “Dam” (blood), and “Marah” (bile), as the Gemora in Sotah (5a) says. An ordinary person, whose physical composition dominates his actions, is not able to prevent himself from transgressing these three transgressions. The fact that he is comprised of “Efer” negates his ability to activate his spiritual strengths in order to pray properly, and thus he sins with the transgression of iyun tefillah. The heat of the “Dam” within him causes him to lust for immoral pleasure, and thus he is not saved from thoughts of sin. His element of “Marah,” bile, creates in him the bitterness that causes him to have bad Middos and leads him to speaking lashon hara.

A person who conquers the lusts created by his physical composition overcomes the pull of those elements and rises above the status of “Adam” (“Efer, Dam, Marah”) and becomes comparable to an angel. Such a person certainly is able to avoid transgressing these transgressions.

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Amount of Lines that Invalidate a Document

The Gemora asks: And how much is the space that disqualifies a document?

Rav Yitzchak ben Elozar said: As much space as would be required for the writing of “lecha, lecha” above each other. [The “lamed” is a tall letter, and that should not touch the “end of chaf,” whose leg hangs low.] This indicates that he is of the opinion that the limit is two written lines and four blank spaces (for each of those words needs a blank space above for the “lamed” and a blank space below it for the “end of chaf”).

Rav Chiya bar Ammi said in the name of Ulla: As much space as would be required for the writing of a “lamed” on the top line and an “end of chaf” on the lower line. This indicates that he is of the opinion that the limit is two written lines and three blank spaces (for there is no “lamed” on the bottom line, and there is no “end of chaf” on the upper one).

Rabbi Avahu said: As much space as would be required for the writing of “Baruch ben Levi” on one line. Evidently he holds that the limit is one written line and two blank spaces (one space above for the “lamed,” and one space below for the “end of chaf”).

The commentators ask on Rabbi Avahu’s opinion: How can he maintain that the document is invalidated with one line of text and two spaces (one above and one below it) when the Gemora above clearly ruled that it is a space of two lines of text that invalidate a document!?

Some Rishonim answer that Rabbi Avahu disagrees with Chizkiyah and hold that the amount of space needed to disqualify the document is not measured according to the handwriting of the witnesses; rather, it is based upon the handwriting of the scribes. Accordingly, it is sufficient with one line of text and two empty spaces, for the scribe may manage to use the space for two lines of text with an empty space between them. According to this explanation, Rabbi Avahu agrees with the braisa above, which ruled that a space of two lines of text invalidates a document.

Tosfos Ri”d answers that Rabbi Avahu maintains that the space of two lines of text which invalidate a document is without any space above them or below them; it is referring just to the lines of text and the space between them (not like Rav Nachman bar Yitzchak). According to this interpretation, Rabbi Avahu’s amount and the ruling of the braisa are precisely identical, for one line of text with two spaces is exactly the same as two lines of text with one space between them.

The Ritv”a writes that Rabbi Avahu holds that the two lines mentioned above that invalidate a document refer to two blank spaces surrounding one line of text.

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Invalidated Contracts and Gaps in Sechach

Last Line of the Contract

Rabbi Yochanan says that a contract must review its content in the last line, and Rav Amram explained that this is because we disregard anything in the last line before the signatures.

The Rishonim explain that we fulfill this by writing vkanina – and we (the witnesses) received authorization regarding everything stated above.

The Rosh rules that if a contract does not summarize its content at the end, it does not conform to the required format of a contract, and is invalid.

The Ramban rules that it is valid, but we disregard whatever is written in the last line.

The Shulchan Aruch (HM 44:1) rules like the Ramban.

The Rishonim state that our custom is to fill in the last line with the phrase “v’hakol sharir v’kayam” - and all of this is in force and validated.

The Rashbam says that this phrase is a form of validation, and gives the line above it full legal force.

Other Rishonim disagree and state that even with our contracts, the last line has no legal validity.

Rabbeinu Tam explains the form of a get, in which we write the following last 2 lines:
v’dain etc. – this should be a contract of divorce
k’das moshe v’yisrael – as instituted by Moshe and Yisrael
Rabbeinu Tam says that the first of these lines is an integral part of the get, and not just a review of the earlier text. The last line takes the place of the validation of sharir v’kayam, and gives the preceding line legal validity.

The Rosh says that nowadays we require a contract to end with sharir v’kayam, and any contract without it is invalid. We therefore give all the preceding lines full legal validity.

The Shulchan Aruch (HM 44:9) rules like the Rosh.

See Shach (10-12, 21) for a deeper discussion of the rationale and ruling regarding sharir v’kayam.

The Gemora explains that a contract with two blank lines is invalid, since we are concerned that one will put false information in one of the blank lines.

The Ramban explains that on a contract with more than one blank line, we are concerned that there may have been more than two blank lines, and the last lines are false.

The Ri Migash says that even if we see nothing that would indicate that (no content at the end to the advantage of the creditor), the contract is invalid, since he could have forged part of the contract.

The Rema says that this is a fine on the holder of the contract, since he made forgery accessible.

1 ½ lines

The Gemora discusses whether a contract with 1 ½ blank lines before the signatures is valid or not, and resolves that it is not.

Tosfos (162b iba’ya) debates what was the case that the Gemora was discussing. Tosfos says that if the contract finished in the middle of a line, and the remainder of that line, in addition to the next line, was left blank, such a contract is clearly invalid, since the holder of the contract can fill in the space after the text of the contract. The other option is a case where the contract ended at the end of a line, a blank line was left, and the witnesses started signing half way through the next line. Tosfos says that such a case should clearly be valid, since the only line that can be filled in is the one before the signatures, and we disregard that line. Tosfos concludes that the Gemora’s question was a width of 1 ½ lines, similar to the measure of one and two lines, discussed in the braisa.

Filling in with Relatives

The Gemora cites Chizkiyah’s statement that if one filled in blank space in a contract with witnesses that are relatives to the parties, the contract is still valid.

The Rishonim debate in what context Chizkiyah made his statement. Rabbeinu Chananel says that Chizkiyah is referring to a get kereyach – a bald contract, i.e., a closed contract (mekushar), which is missing witnesses. Such a contract must be signed by three witnesses on each of its enclosures. Chizkiyah is saying that if one used relatives for the extra signatures necessary, the contract is valid.

The Mishna in Gittin (81b) records a dispute between Rabbi Akiva and Ben Nanas about this case and Chizkiyah is ruling like Rabbi Akiva, who only allows relatives to fill in the necessary signatures.

The Rashbam challenges this position, since Chizkiyah, an Amora, would not need to rule or discuss a case that was already discussed in a Mishna, nor would he need support from a braisa, since he is supported by Rabbi Akiva in a Mishna.

Rather, the Rashbam says that Chizkiyah is discussing the case of our Gemora, i.e., a contract that had too much blank space before the signatures, and is stating that if one filled in this space with related witnesses, the contract remains valid.

The Mishna in Makkos (5b) states that if a group of witnesses testify, and one is found to be invalid, the whole testimony is invalidated.

Tosfos (162b nimtza) cites different opinions regarding how to reconcile this Mishna with Chizkiyah’s statement, validating a contract in which relatives signed to fill in blank space.

The Rambam (Edus 5:6) rules that a contract with two valid witnesses is assumed valid, even if the remaining witnesses are not valid. If the witnesses are available, or if others were there, we investigate whether they signed together. If they signed together, the contract is invalid, but it is otherwise valid.

Rav Chaim Brisker explains that the Rambam considers witnesses on a contract to have two parts to their testimony – the witnessing, which takes place at signing, and the testimony, which occurs when the contract is brought to court. When a contract is brought to court, the Gemora says that witnesses signed in a contract are considered to be fully examined and accepted, and they therefore exist independently, and the invalid witnesses do not affect the valid ones’ testimony. However, if they signed together, they have joined together in their witnessing, and therefore fall under the ruling in Makkos, invalidating the contract they signed.

Invalid Schach and Gaps

Chizkiyah cites the rules for gaps in s’chach, and invalid s’chach, as a precedent for his ruling that invalid witnesses can be better than blank space in a contract.

Tosfos explains that the measures given for invalid s’chach (4 tefachim) and gaps (3 tefachim) are only in a case where these areas go from one end of the sukkah to the other, and thereby make the valid s’chach not be surrounded by three walls, or when there isn’t the minimum area of valid s’chach (7 x 7 tefachim). However, if the valid s’chach surrounds these areas, or if these areas are in a location where the valid s’chach has 3 walls around it, and there is at least 7 x7 tefachim of valid s’chach, they do not invalidate the sukkah, but only their location itself.

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Get Mekushar Bizman Hazeh

The Mishna states: A plain document - its witnesses are inside it (on the bottom). And a tied one - its witnesses are on the reverse (between one fold and the next). [They began by wring a single line or a number of lines of the essence of the document, and they folded the written part upon the part below and sewed them together. Another line or lines were written, and again the parchment was sewn down, and the procedure was repeated until the last fold. Each such fold was known as a kesher, and that is why it is called a get mekushar. The Gemora explains that the tied document type was ordained by the Rabbis primarily for gittin. They instituted it for the hot-tempered Kohen who might in a fit of anger decide to divorce his wife. Unlike any other Jew, a Kohen may not marry a divorcee, including his own ex-wife. They therefore instituted the tied deed which cannot easily be written quickly in order to allow time for the Kohen’s temper to cool. As this document type was ordained for divorce, the Rabbis also instituted it for other documents, for bills of indebtedness as well as for bills of sale so that one may choose the tied document, so as not to differentiate between bills of divorce and other documents.] A plain one whose witnesses signed on its reverse and a tied one whose witnesses signed inside it - both are invalid. Rabbi Chanania ben Gamliel says: A tied one whose witnesses signed inside it is valid, because he can make it a plain one (by not sewing the knots; and even though there are spaces between one line and the next, one need not be concerned about that, as there are many unskilled scribes who leave considerable space between one line and another). Rabban Shimon ben Gamliel says: All is in accordance with the custom of the place. A plain document requires two witnesses, while a tied document requires three witnesses. If a plain document contained one witness or a tied document contained two witnesses, they are both invalid.

According to the Ramban, the Tannaim of the Mishna disqualified even a shtar where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document. The reason for this is because the “ba’al hashtar” – the owner of the document – is particular as to how the shtar should be written. If he instructed them to write it as a plain document, the signatures of the witnesses on the back side of the shtar will ruin its “openness”; and if his instructions were to make it a tied document, their signatures on the front side remove the document from being called a tied document.

The Nimukei Yosef infers that according to the Ramban, there could be room to validate a tied document nowadays. This is because it is not the custom at all to make a tied document, and it does not enter the mind of the ba’al hashtar to instruct them to make it opened and not tied.

However, he says, according to other Rishonim’s explanation of the Mishna, it would still be invalid. They explain that the reason that a plain document is invalid when the witnesses sign their names on the back is because it was not done in the manner that the Chachamim instituted; it has nothing to do with the ba’al hashtar’s instructions. Accordingly, nowadays, a document where the witnesses signed on the back will be invalid, for it is not being done according to the established practice of the Chachamim.

The Rem”a (42:1) cites both opinions regarding this.

The Shac”h understood that the Rem”a, at least in one opinion, is validating a shtar that was completely made like a tied document – meaning, the witnesses signed only on its back side. The Shac”h disagrees and holds that this would be disqualified according to everyone, for it was not done according to the established practice of the Chachamim.

The Tumim writes that this was never the intention of the Rem”a. He was only referring to a case where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document.

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Grandson vs. buyer

The Gemora rules: If a son sold the estate of his father (the portion which he was supposed to inherit) during the lifetime of the father, and he died (first the son and then the father), his son (the son of the son) may seize it from the purchasers (for it has now been clarified that it was never in the son’s possession to sell it, for he died before the father and never inherited it). The Gemora concludes that there is no clear proof to this halachah.

The Rashbam writes that the halachah is in fact that the grandson may take back the field, but it is difficult to understand (according to the Gemora’s discussion), since there is no conclusive proof.

Rambam (Hil. Mechira 22:7) rules explicitly in this very case that the grandson may take the field, and although the Shulchan Aruch (Choshen Mishpat 211:3) does not give this exact example, it is clear that the ruling would be the same.

The question is: Does the grandson need to repay the buyer?

A very important part to this is a concept that one cannot sell something that is not yet in this world, which is precisely what the son did, since the inheritance did not yet belong to him at the time of the sale (it should be as if it was not yet in existence). Therefore, the grandson has every right to take back the field. Tosfos and the Ra”n explain that the Gemora’s difficulty was not with this part of the halachah, but rather, it was with the ruling that the grandson may seize the field without compensating the buyer.

The Rashba further explains that we are forced to say that the grandson does not have to pay back the buyer because if the halachah were to be that the buyer must be reimbursed, then it should emerge that even the father should be able to take back the field.

The Baal Ha’itur and the Baal Haterumos both follow the opinion of the above Rishonim as well. The Shulchan Aruch (ibid) rules that the buyer is not reimbursed.

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Dancing at a distant Wedding

DISTANT CELEBRATION OF
REB AKIVA EIGER’S WEDDING

Reb Wolf Eiger, the uncle of Reb Akiva Eiger was unable to attend his nephew’s wedding. He made a simultaneous banquet of his own to celebrate the occasion. Reb Shaya Pik and other Rabbanim attended the festivities. He wrote to his nephew about the halachic issues (if one can fulfill the mitzvah of counting the omer by way of writing) which were discussed at the banquet.

What was the point of such a celebration? They weren’t dancing before the groom or the bride; they weren’t praising the groom in front of the bride. What caused these Rabbonim to celebrate in such a manner?

In the West (Eretz Yisroel) they would say: (A man who does not have a wife lives) without Torah.

Why is not having a wife like living without Torah; if anything, there exists more time for Torah study, not less?

Our Gemora refers to Ben Azzai as the “Talmid chaver” of Rabbi Akiva. Ben Azzai was considered somewhat of a disciple of Rabbi Akiva.

Rabbeinu Gershom comments: Since Ben Azzai was a “bochur,” he was unable to comprehend halachic logic as well as Rabbi Akiva.

What is the connection between being a “bochur,” and not comprehending to the fullest extent?

I once heard from my Rosh Yeshiva, HaRav Chaim Schmelczer zt”l that Rabbeinu Gershom means that Ben Azzai was a bachelor, and one who is not married does not have the same level of contentment as one who is married. Torah study requires one to be at ease; one must have a menuchas hanefesh in order to comprehend the depths of the Torah. This is what Ben Azzai was lacking.

This is the explanation of the Gemora. One who is not married is akin to living without Torah. He may have more time for Torah study, but he is lacking the inner contentment which is a prerequisite for Torah.

Perhaps this can explain what caused Reb Wolf Eiger to celebrate the wedding of his nephew Reb Akiva Eiger even though the bride and the groom were not present; in fact, they were miles away. Reb Wolf understood that the marriage of Reb Akiva Eiger will result in his becoming the Reb Akiva Eiger that we know now. The wedding was not only a private joy for the families of the bride and groom, but rather, it was a simchas hatorah; a celebration in the honor of Torah. Reb Akiva Eiger’s Torah would spread throughout the world. This could be celebrated anywhere, even without the choson and kallah.

HALACHOS OF THE DAF


A Husband and Wife Die in a Building

The Shulchan Aruch (Even Ha’ezer 90:6) rules in accordance with Beis Hillel. In the case where both the husband and wife die due to a building collapsing and it’s not clear who died first, the halachah is that the kesuvah goes to the inheritors of the husband; the nichsei melog to the inheritors of the wife, and the nichsei tzon barzel they split evenly. Obviously this only applies if they didn’t have children together, for if they did, it wouldn’t make a difference who died first, since the children would inherit everything.

Although a woman normally needs to take an oath (that she never collected it yet) in order to collect nichsei tzon barzel (ibid 96:1), in this case, we allow her, and now that she died - her inheritors collect it. Since the reason why a woman needs to take an oath is because we are suspicious that she might have taken some items before he died, in our case, where he died suddenly, we don’t assume that she took anything (Celkas Michokek).

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Yahrtzeit; Paying a Father's Debt; Davar shelo ba L'olam

A Yahrtzeit

Rabbi Meir Shapiro, the founder of the Daf Hayomi passed away on the day that those who were studying the daf during that cycle were learning Kesuvos 91.

The Gemora states: The orphans have a mitzvah to pay the debt of their father.

Hundreds of Reb Meir Shapiro’s students, who viewed themselves as only children of their beloved Rebbe swore by his coffin that they would continue building the illustrious Yeshiva of their Rebbe spiritually and financially. It was in this manner that they felt that they were paying the debt of their father; continuing his legacy.

And so it was. For the next six years, until the Holocaust, his Yeshiva flourished; his spirit was present in the walls of the Yeshiva, and served as a tremendous influence to all of his disciples.

Mitzvah to Pay the Father’s Debt


By: Reb Avi Lebowitz

Tosfos explains that the concept of their being a mitzvah on inheritors to pay the debts of their fathers depends on a few variables:
a. whether the father left them property from which to collect.
b. whether a debt without a contract is collectible from the orphans.
c. whether the orphans inherited anything from their father.

1. If the father leaves over property on which there is a loan with a contract - the orphans have a mitzvah to pay and we force them in beis din to pay.

2. If the father doesn’t leave over property - the orphans have a mitzvah to pay, but we don’t force them to pay [Rashash points out that the Shulchan Aruch (107) rules like the Hagahos Ashri that if the father doesn’t leave over anything, they don’t even have a mitzvah to pay at all].

3. If the father leaves them property on which there is a verbal loan, it depends: One opinion holds that a verbal loan is collected from orphans, so we force them to pay. But according to Rav and Shmuel that a verbal loan isn’t collected from orphans, they have a mitzvah to pay but we don’t force.

Perhaps the concept of forcing the orphans to pay is under the rubric of forcing for positive mitzvos. This seems to be supported clearly by Tosfos who quotes this Gemora not only for the reason that one must repay their own debt, but to justify why we force orphans to pay their fathers debt (when it is a contractual debt and he leaves over property). The difficulty is: if we force for mitzvas aseh, why don’t we force in all situations where they have a mitzvah to pay, even when he doesn’t leave over property on which there is a lien?

Conveying Properties that are not in Existence

By: Meoros HaDaf HaYomi

Our sugya says that this principle applies to dinei mamonos [cases involving monetary matters]. As long as an article is nonexistent, it cannot be acquired (C.M. 209:4). However, under certain circumstances, when a kinyan [an act of acquisition] is made for something nonexistent, the seller must carry out the transaction.

Two Jews, one a Turkish chacham and businessman and the other captain of a cargo ship, went to the Maharit for a ruling. The Turkish chacham told the Maharit that he had recently signed a contract in which he had committed to sell four hundred skins to the captain. Now, after the chacham had reneged on his side of the deal, he argued that he had never been obligated to deliver the goods. He only intended to sell skins that were nonexistent at the time of sale and therefore the transaction is null and void since “nonexistent items cannot be sold.”

However, the Maharit ruled that the chacham could not use this excuse to sidestep his obligation. We can differentiate between selling a nonexistent article and obligating oneself concerning such an article. Although the sale of the nonexistent item is invalid, this is because there is nothing tangible for the sale to take effect upon. However, an obligation to sell such an article is binding because the obligation lies upon the person, who does exist. We regard his obligation as a monetary debt in the form of an object. The monetary debt is binding, for surely one can undertake to give money to someone else (see Ktzos HaChoshen 203:4).

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Kinyan Kesef

The Mishna had stated: If a man verbally divides his property among his inheritors, Rabbi Elozar says that whether he is healthy or dangerously ill (he is required to make a formal kinyan to transfer his property), real property (land) can be transferred only by money payment, by document, or by an act of possession (chazakah; displaying ownership), and movable property may be transferred only by pulling (a kinyan meshichah).

This would be a proof that one may give a gift through a kinyan of money, for the words of a shechiv mei’ra are merely a gift, and yet, Rabbi Eliezer said that he may transfer property through a kinyan of money.

The Netziv points this out in his He’emek Shailah. However, he cites a She’iltos that omits the kinyan of money. The She’iltos writes that his transfer of property can be accomplished through a chazakah (propriety act), a document or chalifin (exchange), but there is no mention of money. It would seem that the Tur also holds like this.

This would be dependent on the dispute between the S”ma and the Ta”z regarding the mechanism of a kinyan with money. The S”ma holds that money is the value of the purchase and it is used as part of the payment. Accordingly, this would not apply when one is giving a gift to another. However, according to the Ta”z, who holds that money is an act of acquisition similar to others; one can use the kinyan of money to acquire a gift.

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POST 2000!!!!!!! --- Testimony

Real Estate Testimony

Mar Zutra says that one between thirteen and twenty may testify on matters related to movable property, but not on real estate. Rashbam says that someone that age does not have a clear understanding of transactions involving real estate.

Tosfos (155b Lo amru) disagrees, and says that a lack of business sense should not prevent one from testifying. Instead, Tosfos says that he is only unsuited for a formal appraisal of real estate. Tosfos notes that the Gemora says that one at this age is overly impressed by money, and will therefore underestimate the value of the field.

The Shulchan Aruch (HM 35:3) rules that one who is below twenty, and does not exhibit any business sense, may not testify on real estate cases, seemingly like the Rashbam.

The Shach (3) says that the Shulchan Aruch only is referring to cases of real estate appraisal, in line with Tosfos.

The Gemora says that one under eighteen or twenty may not sell his father’s property.

Rashbam and the Rif say that this is limited to his father’s property, since he will decrease the equity inherent in that property by selling at such a young age. However, if he purchased property himself, he may sell it.

Rabbeinu Tam (155a Mochair) says that this applies equally to his own property, since he will sell it as well for a severely discounted price.

The Shulchan Aruch (HM 235:1) rules like Rabbeinu Tam.

How Old and how Sharp?

Rava rules that if someone understands business, he may sell real estate even before the minimum age. The Shulchan Aruch (HM 235:8) therefore rules that one above the age of thirteen who understands business may sell real estate.

For selling movable property, the Gemora cites the age of pe’utos, at which a child’s transactions are valid. The Gemora (Gittin 59a) defines this as ranging from 6-10, based on the sharpness of the child.

The Shulchan Aruch (HM 235:1) rules that as young as six, if a child understands business, he may conduct transactions.

The Rosh learns that the Gemora in Gittin is stating that until the age of ten we must investigate to see if the child understands enough, but from the age of ten and older, we assume a child understands enough, unless he acts irrationally.

The Rambam does not include the distinction at the age of ten, but simply says that a young child’s transactions are valid, if he understands.

The Gr”a (2) explains that the Rosh learns that the Gemora in Gittin was only requiring a level of sharpness until the age of ten, but not beyond.

The Rambam learns that the Gemora in Gittin is to be read as a continuing list of ages, depending on the sharpness of the child. Although the Gemora stopped at the age of ten, the intent was that at any age between six and thirteen, a child’s transactions may be valid, based on the sharpness of the child.

The Shulchan Aruch rules like the Rambam, while the Rama quotes the Rosh’s distinction.

The Shulchan Aruch (OH 199:10) rules that a boy at the age of pe’utos may be counted as the last one for a zimun.

The Magain Avraham (6) defines this as nine or ten, possibly based on the Rif’s formulation.

The Yechave Da’as (4:13) rules that this can be as young as six, as long as the child understands whom he is blessing.

HALACHOS FROM THE DAF

By: Meoros HaDaf HaYomi

The Testimony of a Minor that could make him Bar Mitzvah

Our sugya explains that a minor cannot serve as a winess, as the Torah says: “And the two men will stand” – i.e., men who are qualified to testify but not minors (the verse could have just said “And the two will stand”).

In his Minchas Chinuch, HaGaon Rav Yosef Babad asks an interesting question: There is a halachic rule that a beis din must accept the testimony of any witnesses who comes to them. Now, as explained in tractate Rosh HaShanah, there is a mitzvah to determine the beginning of each month according to witnesses who testify that they have seen the new moon. The mitzvah was in practice till 4119, when Rabbi Hilel ben Rabbi Yehuda Nesiah – called Hillel II – convened a special beis din to fix our present calendar to overcome the worry that there would not be an expert beis din and other conditions necessary for determining Rosh Chodesh each month, due to the long galus.

The Minchas Chinuch raises the question of two young men who come to beis din at the end of Nisan, claiming they saw the new moon and that that day, then, should be announced as 1 Iyar. The beis din, however, discovers that the witnesses will celebrate their thirteenth birthday on 1st Iyar. As long as the beis din does not announce that day as 1 Iyar, they remain minors but if they accept their testimony, they are considered adults and that day may be announced as 1 Iyar. May or must the beis din accept their testimony?

Indeed, the Minchas Chinuch asserts that the matter is up to the beis din. They may accept the testimony, as once they announce that day as 1 Iyar, the witnesses are retroactively qualified. Still, they are not obligated to accept their testimony, as when they came to the beis din, they were minors (see Minchas Chinuch, ibid, that this solution is according to one answer of Tosfos in Makos 2).

Another question related to our sugya arises from Rashi’s commentary on Bava Kamma 88a (s.v. Pesulah l’edus). Rashi adds his own idea as to why the Torah disqualifies minors as witnesses. A minor, he explains, can’t be punished by beis din and if his testimony is revealed as false, he cannot be penalized. He therefore cannot testify, as the halachah is that a beis din may accept only such witnesses that can be refuted. Why, then, did Rashi feel the need to add to the above exclusion of a minor on the strength of the verse “And the two men will stand” and, on the other hand, since Rashi’s reasoning is so wonderfully valid, why must we learn the halachah from the verse at all?

The Acharonim offer several solutions: HaGaon Rav David Rapaport suggests a case that necessitates Rashi’s reasoning in addition to the halachic interpretation of the verse: If a beis din accepted the testimony of two witnesses and a doubt was later raised as to if they were adults or minors, we must behave as the halachah requires in any instance of a doubt – to act strictly in the case of a prohibition stemming from the Torah. According to Rashi, though, we have no need to behave strictly as the rule is that a beis din cannot punish anyone for a doubtful transgression. The witnesses could have been minors when they testified and, as such, can’t be punished if their testimony is revealed as false. A beis din may accept only such witnesses as can be refuted and their testimony is definitely invalid (Hagahos Tzemach Tzedek on Responsa Rabbi Akiva Eiger, 1st edition, 176).

HaGaon Rabbi Akiva Eiger approaches the question from the other direction. Why do we need the verse if we learn the same halachah from Rashi’s reasoning? Indeed, though, not all testimonies proven false are punishable. Someone who testified, for example, that he saw the new moon and was discovered to have lied did not mean to harm anyone physically or financially and goes unpunished. We need the verse, therefore, to exclude minors from testifying in any instance.

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