Dangerous Custodians

Daf Yomi: Gittin 14a - 14b: Rabbi Achi the son of Rabbi Yoshiyah deposited a silver vessel with custodians in Nehardea. He said to Rabbi Dustai the son of Rabbi Yannai and to Rabbi Yosi the son of Kippeir, who were on their way there, “When you come back from Nehardea, bring me the vessel back.” They went and got it from the custodians. The custodians said to them: “Make with us a kinyan (that we will thereby be exempt from any further responsibilities)!” They said, “No (we do not want the labilities)!” “Then, give it back,” they said. Rabbi Dustai the son of Rabbi Yannai was willing, but Rabbi Yosi the son of Kippeir refused. The custodians started to hurt Rabbi Yosi the son of Kippeir (in order to get the vessel back). They said to Rabbi Dustai, “See what your friend is doing.” He replied, “Beat him up good!” When they returned to Rabbi Achi the son of Rabbi Yoshiyah, Rabbi Yosi said, “Look, master, not only did he not assist me, but he even said to them, ‘Beat him up good’!” Rabbi Achi the son of Rabbi Yoshiyah asked Rabbi Dustai, “Why did you act in that manner?” He replied, “Those people are very tall and their hats are very tall, and their voices comes from their midsection (since they had very deep voices), and their names are frightening - Arda and Arta and Phili as their leader. If they give instructions, ‘Tie him up,’ they tie him up; if they instruct, ‘kill him,’ you are killed. If they had killed Dustai, who would have given Yannai, my father, a son like me?” Rabbi Achi the son of Rabbi Yoshiyah asked Rabbi Dustai, “Are these men connected with the government?” He replied, “Yes.” Do they have horses and mules that run behind them?” He answered, “Yes.” Rabbi Achi the son of Rabbi Yoshiyah asked Rabbi Dustai, “If that is so, you acted properly.”

*** It is evident from the Gemora that halachically, they were not obligated to return the vessel to the custodians. The Tosfos Harosh explains: The Gemora above had stated that unless the custodian has been established as a liar, he could claim that the depositor does not want that his deposit shall be in someone else’s hands (and therefore, it should be returned to the custodian). Here, the custodian cannot make such a claim. For Rav Achi explicitly instructed them to return the vessel to him.

*** Rashi cites two explanations as to what Rav Dustai said when the custodians were hurting Rabbi Yosi. Either he said, “Beat him up good (in order that he should return the vessel to them)!” Or, he said, “He is deserving of this (since he is not returning the vessel).” Some Rishonim derive from here that it is permitted to save oneself with someone else’s body, for Rav Dustai was telling them to hit Rabbi Yosi because he was terrified that he would get hit.

*** Rabbi Dustai excused his actions by saying, “Those people are very tall and their hats are very tall, and their voices comes from their midsection, and their names are frightening - Arda and Arta and Phili as their leader.” Rashi explains that they were men of great dimensions and they wore awesome clothing. And since they had very deep voices, it appeared as if their voices were coming from their midsections. The Maharsha brings an alternative explanation according to the simple reading of the Gemora: They were one cubit tall and their hats were one cubit tall. It was because of this that their voices appeared to emanate from their midsections.

*** Rabbi Dustai concluded, “If they had killed Dustai, who would have given Yannai, my father, a son like me?” The Vilna Gaon states that it may be gleaned from here that when a son adds an honorable title to his father’s name, he is permitted to say his father’s name. It is only forbidden for one to say his father’s name without a title.

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Selling a "Runaway" Slave

The Gemora (Daf Yomi: Gittin 13a) explained the dispute between Rabbi Meir and the Chachamim as follows: The Gemora explains: Rabbi Meir said to them: You have answered me with regard to his food (the master has a right not to provide him with food), but you have not answered me with respect of terumah (if his master was a Kohen, he will lose the ability of eating terumah)! And if you will answer me that the master, if he wanted, could throw the document to the slave (against his will) and thereby disqualify him from eating terumah, this is not correct because the slave can run away and the master will not have the option to free him (and therefore the slave can still eat terumah)! For if the slave of a Kohen ran away (and he could not be found to free him), or the wife of a Kohen rebelled against him (and she could not be found for him to divorce her), would they not be able to still eat terumah! This slave (if someone is acquiring the document for him), however, will not be able to eat terumah!

Rava explains the Chachamim’s response in our Mishna: It is because the slave is the master’s property. The meaning is as follows: The master, if he wants, could take four zuzim from a Yisroel (selling the slave to him), which would thereby disqualify the slave from eating terumah (even if the slave runs away)!

The Reshash asks: How could the master sell his slave who ran away? This should be akin to one who stole an object from his friend. The owner is unable to sell it because it is not presently under his jurisdiction. Here too, the slave is not presently under the control of the owner!

He answers that here it is different. The slave fled from the master because he wants to remain a slave. He is therefore still regarded as being under the jurisdiction of his master.

Furthermore, the halacha is that land cannot be halachically stolen, and a slave which is compared to land has that halacha as well. Therefore, the slave, no matter where he is, would still be regarded as being under the control of the owner.

The Ayeles Hashachar answers: Since the slave is required to return himself to his master, it is considered as if he is still under his jurisdiction.

The Dvar Avraham writes that this question can be answered according to the Shitah Mikubetzes in Bava Kamma (33b). The Shitah says that if someone sells an item that was not under his control, but afterwards, it came into his jurisdiction, the sale is effective retroactively. Here too, if the slave is returned to the master, at that point the sale will be effective.

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Rashi's Retraction

The Mishna states: If one says, “Give a get to my wife,” or he says, “Give an emancipation document to my slave,” and he died, the documents should not be given after his death.

Rashi notes that our Mishna should not read, “Give this get to my wife,” or “Give this emancipation document to my slave,” rather, he merely said, “Give a get to my wife,” or “Give an emancipation document to my slave.” He instructed the agents to do so, but he did not actually give them the document. If he would have handed the document to the agents, the Chachamim would hold that the emancipation is effective immediately, for they maintain that it is advantageous for a slave to gain his freedom and the agents can acquire the document for him.

Tosfos (9b) points out that here, Rashi, is retracting from a position he took above. Rashi had stated that when the agents acquire the document for the slave, the slave does not gain his freedom at that time. He becomes free when the document is delivered into his hands. The acquisition of the document accomplishes that the master may not retract any longer. Here, Rashi says that if the agents would acquire the document, the slave’s emancipation would be effective immediately.

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Food and Medicine for the Slave

*** Rabbi Yochanan said (Daf Yomi: Gittin Daf 12b) : If a man cuts off the hands of his friend’s slave, he pays the loss of earnings and the doctor bills to the master, and that slave receives his food from charity.

The Gemora explains that Rabbi Yochanan is discussing a case where the master is providing food for the slave, and he is taking from charity for the extras.

Rashi explains that the slave requires additional food because of his medical condition.

The Nesivos Hamishpat writes that the additional food will speed up the recovery process. This, the slave must pay for himself. The damager is not required to pay for that.

The Chazon Ish disagrees: He states that if this additional food will be beneficial to improve his medical condition, he would not have to pay for it himself; it would be included in the doctor bills. Rather, the Gemora is discussing the delicacies which are given to a sick person in order to cheer him up. This is not included in the medical bills.

*** The Gemora concludes that the master can say to the slave, “Work for me, but I will not sustain you.”

Reb Yechezkel Abramsky explains that the master is not completely exempt from sustaining the slave when he is working for him. The master has the right to tell him that he should worry himself with regards to his food. This is why Tosfos says that during a famine year, where people will not have pity on the slave and he will not be able to find food, the master is obligated to feed him, and if he doesn’t, the slave can demand his freedom.

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Agent to Free a Slave

The Mishna (Daf Yomi: Gittin 11b) had stated: If someone says: “Give this Get to my wife” or “Give this document freeing my slave to my slave,” if he wants to retract the document (before it gets to his wife/slave) he may. These are the words of Rabbi Meir. The Chachamim say: He can retract by the Get of his wife, but not by the document freeing his slave. This is because a person can have someone else acquire something beneficial for him when he is not present, but not something that is a liability for him when he is not present.

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

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

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

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

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Idolater Judges

The Gemora (Daf Yomi: Gittin Daf 11a) asks: What are names that are clearly those of non-Jews?
Rav Papa answers: Names such as Hurmiz, Abudina, Bar Shibsai, Bar Kidri, Bati, and Nakim Una. Rashi explains that these are all names of idolater judges.

The Maharam Shif asks: The judges are not the ones who are signing! Rather, it is the witnesses who are signing in the presence of the judges.

He answers that Rashi is only stating as to why these names are obviously idolaters, and not Jewish. There were well known idolater judges with those names, and that is why when someone signs with such a name, we are certain that he is an idolater and not a Jew.

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The Law of the Government

The Gemora (Daf Yomi: Gittin Daf 10b) notes: The Mishna did not make any distinction between a document of sale and one of a gift. It is understandable that a document of sale can be valid even if idolaters are signed on it, for when the buyer gave the money before the judges is actually the time that he acquired the land; the document is only a proof to the sale. If the buyer had not given money in front of the judges, they would not have discredited their reputation by writing the document for him. But with respect of a gift, with what did he acquire the property? It is only through this document! But this document is equivalent to a shard! [Why does the Mishna rule that even in this case, the document is valid?]

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

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

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

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

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

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

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

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Cuthean as a Witness

The Mishna (Daf Yomi: Gittin Daf 10a) had stated: Any document that has a Cuthean witness signed on it is disqualified (for he is suspected of lying) except that of a get for a woman and for the freeing of a slave.

Tosfos writes that this Mishna is only according to those that hold that the Cutheans were true converts to Judaism, and Biblically, they are regarded as full-fledged Jews. However, according to those who maintain that the Cutheans only converted out of fear of the lions, they are not regarded as Jews, and they cannot be eligible as a witness.

The Ri”f rules that nowadays, the Cutheans are disqualified from all types of testimony, for they are considered like an ordinary idolater.

Reb Isser Zalman Meltzer asks: How can a Cuthean be qualified to testify? Even if they are not suspected to lie, but they deny the Oral Law, and certainly they should be ruled ineligible!

He writes that since this was the tradition that they accepted from their fathers, they are regarded as a child who was taken captive by idolaters (and the fact that he does not believe in the truth of the Oral law does not disqualify him, for he never knew any different), and therefore, they are not disqualified from being a witness.

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Suspected of Lying

The Mishna (Daf Yomi: Gittin Daf 10a) had stated: Any document that has a Cuthean witness signed on it is disqualified (for he is suspected of lying) except that of a get for a woman and for the freeing of a slave.

The Pnei Yehoshua asks: Since they are suspect of lying, they should be regarded as a rasha (wicked person) with respect of monetary matters, and the halacha is that a thief is disqualified form all testimony!?

He answers that the Yerushalmi says that the Cutheans are eligible to sign on a get because they are only suspect with regards to monetary matters, but not with respect of illicit relations. The Pnei Yehoshua explains: The Yerushalmi holds that a witness who is suspected of stealing is only disqualified from testifying with regards to money matters, but he would still be eligible to testify on arayos (relationships). However, l’halacha we hold that such a person is ineligible to testify on all matters, so accordingly, how could the Mishna rule that the get is valid?

He answers that in truth, we do not know definitely that they would lie; it is only that they are suspect of lying. The halacha is that if they are suspected of lying, they are disqualified from testifying with respect of monetary matters, but not with respect of other testimonies.

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Get

A bill of divorce is referred to as a get. Tosfos (Daf Yomi: Gittin 2a) writes that it is the practice for a get to be written in twelve lines, because the numerical value (gematria) of the word get is twelve (gimmel = 3; tes = 9; 3 + 9 = 12).

The Vilna Gaon adds that the document could have been called differently, for there are many combinations of letters that add up to twelve, such as a “ches” and a “daled.” However, what is unique about the “gimmel” and the “tes” is that you will never find these two letters next to each other in the entire Torah. This is why the document which is used as a separation between the man and his wife is referred to as a get.

The Steipler asked that there are other combinations of letters, such as a “gimmel” and a “kuf,” or a “zayin” and a “tzadi,” or a “samech” and a “tzadi” that are also never found next to each other!? He answers that the “gimmel” and the “tes” are the first of such combinations.

It can also be said that they wanted a name that would accomplish two things; one, that its numerical value is twelve, and secondly, that the two letters are never found next to each other. The “gimmel” and the “tes” are the only two letters that have both components.

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Learning while Standing

The Mishna (Daf Yomi: Sotah 49a) had stated: When Rabban Gamliel the Elder died, the glory of the Torah terminated and purity and abstinence perished.

Rashi cites the Gemora in Megillah ((21a) which states that from the days of Moshe until Rabban Gamliel, they would study Torah standing. Afterwards, people became weaker and they would study torah while sitting; they didn’t have the strength to stand.

The Gemora in Brochos (28a) says that when Rabban Gamliel was the Rosh Yeshiva, his policy was that any student who was not "tocho c'baro," his inside was not like his outside, would not be allowed to enter the Beis Medrash. Not everyone who applied was automatically accepted into his Yeshiva. Rabban Gamliel only accepted students who were honest and sincere, through and through, without any hints of fakery or hypocrisy.

The Gemora relates that there was a subsequent change in the leadership and Rabbi Elozar ben Azariah was appointed the new Rosh Yeshiva. He implemented a new policy: Everyone was invited into the Beis Medrash even someone who was not "tocho c'baro." As a result, the Gemora records: Many benches were added to the Beis Medrash.

Two questions can be asked. Firstly, how were they able to ascertain who was a “tocho c’baro” and who wasn’t; only Hashem is capable of peering into someone’s heart? Secondly, why does the Gemora state that many benches were added; we are not interested in the amount of chairs there were; it should have said that there were many more students learning on the account of the new policy?

Rav Nosson Gishtetner answers based on our Gemora: In the days of Rabban Gamliel, the sincere students would be learning standing; that was a symbol that he was learning Torah for the sake of the mitzvah and not for any ulterior motive. When the new policy was enacted, more benches were added because the generation was weaker and they did not have the ability to stand while they were learning.

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Prophecy Compared to Torah

Rabbi Il’a bar Yeverechyah said (Daf Yomi: Sotah 49a) : If there are two Torah scholars traveling on the road and they are not discussing Torah, they deserve to be burned, as it states: And as they (Eliyahu and Elisha) walked, walking and speaking, that behold, a chariot of fire appeared etc. The reason why the chariot of fire passed between them and did not burn them was because there was a discussion of Torah between them; if there had not been such a discussion, they would have deserved to be burned.

The Gemora in Taanis (10b) cites a Scriptural verse where Yosef instructed his brothers not to discuss Torah on their way back from Egypt since they might become distracted and lose their way. The Gemora questions this from our Gemora. The Gemora answers that one should review his learning on the road since it will not require much attention; however he should not delve into Torah study since that will distract him.

Tosfos cites a Medrash that the reason the fire appeared and they deserved to be burned was because they were discussing worthless words at the time.

The Brisker Rav asks that the Metzudos explains the conversation that Elisha was having with Eliyahu at that time. Elisha asked Eliyahu that the spirit of prophecy should rest on him with a higher level than that of Eliyahu. Eliyahu answered him that under certain conditions, that will occur. It emerges that at the time that the fire appeared they were discussing matters that should be regarded as holy and not futile words. They were discussing how the Heavenly presence will rest on Elisha. For this, they deserved to be burned?

The Brisker Rav answers that that this discussion pales in comparison to a discussion regarding Torah. When traveling on the road, one must make sure that there is Torah discourse being discussed and not other matters even if those matters are dealing with the Shechina and Prophecy.

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Terifah on the Mizbe'ach

The Gemora (Daf Yomi: Sotah 48a) asks: Who are the “strikers?” Rav Yehudah said in the name of Shmuel: They would cut a calf between its eyes in order that blood should fall into its eyes (and it would become easier to slaughter). He stopped this, because it looked like they were making a blemish on the animal (which would render it invalid to be brought as a sacrifice).

The braisa taught: They would hit it with sticks, just as is done with sacrifices brought before idols. He asked them: Until when are you going to bring animals that are not killed via slaughtering (neveilah) as sacrifices on the altar?

The Gemora asks: How could he say this? They slaughtered the animals! The Gemora answers: Rather, he said that they were bringing animals that are too sick to be kosher, as he suspected that they were causing a puncture in the covering of the brain (rendering the animal unkosher as a “tereifah” even if it would be slaughtered properly). He therefore instituted that they should have rings on the ground (of the courtyard of the Beis HaMikdash that would hold the animal in place during slaughtering).

The Maharsham in Daas Torah asks: Since they knew where the animal was hit, why couldn’t they check to see if the animal was a tereifah or not?

The Minchas Keneos answers: It is forbidden to slaughter an animal which is a tereifah in the Beis HaMikdash because the Rabbis placed a tumah on a kodoshim animal which is a tereifah (and therefore it would help finding out afterwards that it was indeed a tereifah).

Furthermore, he states that we are concerned that when they hit the korban with a stick, it is regarded as if they were destroying kodoshim with their hands (if it becomes a tereifah), and therefore they instituted that it shouldn’t be hit at all.

Dayan Weiss, in Minchas Yitzchak answers that since this procedure was constantly done, it was impossible to institute that the animal should always be checked afterwards to see if it became a tereifah. There is a grave concern that sometimes, they will forget.

The Avnei Neizer writes that in the Beis HaMikdash, they never examined the animal to see if it was a tereifah, for anytime an uncertainty arose in the Beis HaMikdash regarding the kashrus of a korban, they would not offer it as a korban. This is based upon the passuk: Hakrivehu na l’phechasecha.

According to this answer, we could explain why the Gemora states that the concern was that a tereifah will be brought on the mizbe’ach. Shouldn’t we be concerned that they will be eating from an animal which is a tereifah? The answer could be that for that, they could have checked, but for what is going to be brought on the mizbe’ach, they were not allowed to check, and that was the primary concern.

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Accepting Charity from an Idolater

The Gemora (Daf Yomi: Sotah 47b) states: When there increased the number of Jews who accepted charity from idolaters, the idolaters were on top and Israel was on bottom.

The Gemora (Nazir 62a) cites a Scriptural source to teach us that an idolater can vow vowed-offerings and freewill-offerings just like Jews.

The Haga’os Ashri (in Bava Basra) brings the following question in the name of the Maharich: Why are we not allowed to accept charity from an idolater, but we are permitted to accept his korbanos?

He answers in the name of his Rebbe: A voluntary korban is not brought to serve as atonement, and therefore, we are not concerned if they offer a sacrifice, for those do not bring about forgiveness and they will not serve as a protection for them. However, one who gives charity receives atonement for his sins, and merits protection for his good deed. It is not in our best interests to assist them in this matter.

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The Murderer's Testimony

The Mishna (Daf Yomi: Sotah 47b) states that an eglah arufah is only brought in a matter of uncertainty; however, if the murderer was discovered, we do not bring an eglah arufah.

The Minchas Chinuch (§ 530) writes that if a person comes and says, “I killed him,” if he said that he did it inadvertently, he would be believed and we would not bring an eglah arufah. However, if he said that he killed him intentionally, he is not believed, because there is a principle that a person is not believed to render himself into a wicked person. In that case, we would bring an eglah arufah.

Rav Shach in Avi Ezri disagrees because the reason why a person is not believed when his testimony will render him an evil person is because based upon his testimony, he is a rasha, and a rasha cannot offer testimony. However, with respect to eglah arufah, one who is disqualified from testifying is allowed to testify that he can identify the murderer. Even a thief is allowed to offer such testimony. Accordingly, a person should be able to say and be believed that he himself killed him!

Rav Shach explains that the reason a rasha is believed regarding an eglah arufah is because his testimony is not affecting the murderer whatsoever. He is merely stating that he can identify the murderer. Every other place where one witness or a woman is believed, and nevertheless, we do not believe a thief, that is only because he is accomplishing something. Through his testimony (that a woman’s husband died), we will be permitting a woman to get married, and if he is a rasha, he is not believed, for we suspect that he is lying. By eglah arufah, where there is nothing being accomplished (with respect to the murderer), there is no reason for the rasha to lie and he can therefore be believed.

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Yaakov and Yosef; Eglah and Agalos

Rav Yehudah said in the name of Rav (Daf Yomi: Sotah 46b): Whoever escorts his fellow four amos in the city, insures that no harm will come to him during his journey.

The Maharal uses our Gemora to explain the famous Medrash. It is written [Breishis 45:27]: And he (Yaakov) saw the wagons that Yosef had sent to carry him. Chazal say: The Hebrew word “agalah,” wagon, is similar to the word “eglah,” calf. Yosef was hinting to his father that he was alive by making a reference to the eglah arufah, which was the last topic of Torah that Yaakov and Yosef had studied together before Yosef was sold as a slave.

The Maharal notes: It cannot be merely coincidence that they were studying that passage, for if so, how would Yosef know that Yaakov would remember that it was this precise topic that they were studying together before he left.

Rather, this is what transpired: Yaakov was escorting Yosef to Chevron. Yosef said to him: Go back to the house and do not trouble yourself. Yaakov responded that it is a great mitzvah for one to escort another in the beginning of a journey. If one does not escort his friend, it is regarded as if he spilled his blood. One who does escort his fellow insures that no harm will befall him on his journey. It was through this that Yosef realized that Yaakov will definitely remember the topic of Torah that they were studying, for he will remember escorting him out of the city. It was for this reason that Yosef sent the wagons. He was indicating to his father that he was not damaged in any manner, physically or spiritually, and that it was due to the fact that Yaakov escorted him out of the city.

Rabbi Yissochar Frand explains the Medrash differently: He states that a profound lesson is learned from Yosef and Yaakov. When Yosef wanted to give irrefutable proof to his father Yaakov that he was indeed Yosef, the incontrovertible piece of evidence he presented was the Torah portion that they were studying together. Serious Jews identify themselves by the Torah discussion that they were having at a certain time; not by any mundane activities that they were enjoying together. Yosef identified himself to Yaakov by the essence of Jewish identity - the Torah topic that they last discussed.

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Eglah Arufah from Yerushalayim

The Mishna (Daf Yomi: Sotah 45b) had stated: The city of Yerushalayim does not bring an eglah arufah (the law is that upon finding a corpse, and being unable to solve the murder, the leaders of the city closest to the corpse are required to bring a calf to an untilled valley, decapitate it, wash their hands over it, and then they must recite a verse, declaring publicly that they did not kill the person).

The Gemora explains the reason for this: It is written: If a corpse will be found on the land that Hashem your God gives you to inherit it. The Tanna of our Mishna holds that Yerushalayim was not apportioned among the tribes. It was given to all of Klal Yisroel, and therefore, it is not included in the verse of being “land that was given to inherit it.”

The halacha would be that the city, which is next closest to the spot where the body was found, would bring the eglah arufah.

The Gemora in Bava Basra (23b) states that the halacha of eglah arufah is only applicable when the city is located between two mountains, and therefore, people do not frequent that area. For if it would be a city where many people from the world pass through, we would say that the murderer did not come from the nearest city; but rather, he came from the majority of the world.

Tosfos there asks: If so, why is it necessary to exclude Yerushalayim from bringing an eglah arufah based upon the verse “to inherit it”? Yerushalayim should be excluded because it is a city where all people from the world pass through. They come for the pilgrimage and they come during the year to offer their sacrifices and to eat their ma’aser! It emerges that we would never attribute the murderer to the residents of Yerushalayim, for most of the people there are from the rest of the world!?

Tosfos answers that there were streets in Yerushalayim that were only frequented by the residents of Yerushalayim, and it is on account of those areas that the verse is necessary to exclude Yerushalayim from bringing an eglah arufah.

HaRav Elyashiv derives from this Tosfos the following halacha: If there would be a city that a portion of it would not be fit to bring an eglah arufah, but a different part of the same city would be suitable to bring it, that city would be required to bring an eglah arufah.

Accordingly, if they would add on to the city of Yerushalayim (like the Gemora in Shavuos 14b states that this can be done with a Beis Din of seventy-one and the Kohen Gadol), and the added area would be apportioned to all the tribes, Yerushalayim would be required to bring an eglah arufah on account of the extra area.

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Women in Battle

The Mishna (Daf Yomi: Sotah 44b) had stated: When do these words (the exemptions mentioned in the Mishna) apply? It is only with respect to a voluntary war; however, with respect to wars of mitzvah, everyone is required to go out, even a bridegroom from his chamber and a bride from her chupah.

Rabbi Yehudah says: These words were only said with respect to wars of mitzvah; however, with respect to an obligatory war, everyone is required to go out, even a bridegroom from his chamber and a bride from her chupah.

The commentators ask: What does the Mishna mean whit it says, “even a bride from her chupah”? Women are not obligated to go to war! The Chinuch (§ 403) writes with respect of the mitzvah of erasing Amalek’s name that it is only applicable to men, but not to women, for it is the practice of men to wage war against their enemies, not women. The Radvaz on the Rambam also rules like that, and he bases it upon the verse: The complete glory of the princess is within. Accordingly, he asks from our Mishna, which would seem to indicate that they do go out for war! They also ask from the Gemora in Nazir (59a) which states: Rabbi Eliezer ben Yaakov said: How do we know that a woman shall not go out wearing weapons of war? It is because it’s written: A man’s attire shall not be on a woman.

The Radvaz answers: The Mishna simply means that when the bridegroom goes to fight, the bride will leave the chupah, but not to go to war.

Alternatively, he answers that she does go to war, but not to fight. They provide water and food for their husbands. The Reshash adds that they go to the battlefield to cook and to bake for the soldiers. (The Tzitz Eliezer understands that the Radvaz and the Reshash are arguing if the women supply food only to their husbands or to all men.)

The Ben Yehoyadah writes that she goes out to war to guard the weapons.

In the sefer Hon Ashir, he writes that even if a woman is confident that she can stand up to the enemy and she will not back down; we do not allow her to fight.

The Minchas Chinuch writes that according to our Gemora, a woman would be obligated to fight in all wars of mitzvah and to wage war against Amalek. Evidently, this mitzvah overrides the prohibition of wearing weapons of war.

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Reasons for the Exemption

The Mishna states: One, who builds a house, betroths a woman or plants a vineyard is exempt from going to battle.

There are various reasons to explain these exemptions: The Rashbam states: These people are similar to the ones who are faint of heart. They are concerned that they will not merit inaugurating their house, marrying their wife or redeeming their vineyard. They are scared that they will die during battle and are therefore exempt from going to war.

The Ibn Ezra explains: These people are preoccupied with their desire to inaugurate their house, marrying their wife or redeeming their vineyard, and will therefore not pay attention completely to the war. This will cause them to retreat during the heat of the battle and will constitute a danger to the remainder of the army.

The Mishna enumerates all the various people that may return from the battle. The Minchas Chinuch (§ 526) writes that it is not clear from the Gemora or the Rambam if these people have the option of remaining at the battlefield or not. He states that it is logical to assume that the faint of heart are required to go home, for otherwise, he will cause the hearts of the others to melt. He adds that according to Rashi, who writes that these people will definitely die during the war if they do not heed the words of the Kohen, they would not have the option of staying.

Seemingly, according to the reasons mentioned above, they would not be allowed to remain at the battlefield, for according to the Rashbam, they are similar to the faint of heart, and they are required to go home. And according to the Ibn Ezra, they would also be required to return home, for otherwise, they would constitute a danger to the other soldiers.

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Addressing in Hebrew

The Mishna (Daf Yomi: Sotah 42a) states: The Kohen must speak to the nation before the war in the Holy Tongue.

The Ir Binyamin explains why he was required to address them in Hebrew.

The Gemora below states: Rabbi Yochanan said in the name of Rabbi Shimon ben Yochai: Hashem is communicating to Bnei Yisroel that even if you only say Kerias Shema at morning and night, I will ensure you do not fall in their hands. [This does not mean they do not have to keep the other commandments, but rather that they do not have to study Torah during the war more (if they do not have time to do so) more than the minimum of reciting Shema every morning and night.]

It can be suggested that Rabbi Shimon ben Yochai is following his own opinion, for he says (Menachos 99b): Even if only recites the shema in the morning and at night, he has discharged his obligation of studying Torah day and night. And then he adds: It is forbidden to say this over to an am ha’aretz (ignorant person; for then, they will not study Torah; they will only recite kerias shema).

It is now understandable why the Kohen addresses the nation only in Hebrew. Since he is informing them that it is sufficient if they merely recite shema in the morning and at night, even if they do not study Torah the remainder of the day, he must speak in Hebrew, a language that the ignorant people do not understand.

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