Laws of Heaven

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The Gemora (Kiddushin 41b) cites a Mishna: If one sends out a fire in the hands of a deaf-mute, an imbecile or a minor (and it consequently burned someone’s haystack), he is not liable to pay according to the laws of man, but he is liable according to the laws of Heaven. If, however, he sent out the fire in the hands of a competent person, the competent person is liable to pay for the damages.

It would seem that in the case where the sender sent the fire with a competent person, the sender is not liable at all, even under the laws of Heaven!

The Ram”a (C”M: 32:2) rules that if one sends out false witnesses to testify against someone, and they cause that fellow a loss, the sender is not liable at all, even under the laws of Heaven. This is because we say that there cannot be a shliach to commit a transgression.

The Sha”ch disagrees and maintains that the sender will be liable to pay under the laws of Heaven. He explains the distinction between the two cases. The sender will always be liable under the laws of Heaven. The only reason that the sender is not required to pay at all in the case of the fire is because once the competent person is liable to pay, there is no place for the sender to be liable as well!

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Price Fraud by Land

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Rav Nachman said: If brothers divide an inheritance, they are regarded as purchasers (for they are exchanging their true portions for those that they actually receive). If one brother received more than the other, but it was less than a sixth more than his brother’s share, the deal remains valid. If it was more than a sixth, the deal is void. If it was precisely a sixth, the deal is valid, but he is required to return the extra.

Rava rules: That which we said that if it was precisely a sixth, the deal is valid, but he is required to return the extra, that is only if they were dividing movable property. However, if they were dividing land, the rules for “price cheating” do not apply (and the extra would not need to be returned).

And by land, the extra does not need to be returned only if they divided it according to value. However, if they divided it according to measurement, the extra must be returned. This is in accordance with what Rabbah said, for he said: Anything which is sold according to measure, weight or number (and the amount specified was not the amount delivered), it must be returned even if it (the discrepancy) was less than the usual amount for “price cheating.”

The Ri”f rules (and this seems to be Rash”i’s opinion as well) that there is no “price fraud” by land is only if the discrepancy was exactly a sixth; however, if the discrepancy was for more than a sixth, the deal is void.

Rabbeinu Tam holds that there are no rules of “price fraud” by land as long as the discrepancy is not by more than half of its value; however, if the discrepancy was for more than half of the land’s value, the deal is void.

The Baal Hameor writes that if the discrepancy is for exactly half of its value, there is no rule of “price fraud”; however, if the discrepancy was for more than half of the land’s value, the deal is void.

The Rambam, however, rules that there are no halachos of “price fraud” by land at all, and the transaction is never voided. This is because there is no limit to the price of land.

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Honoring Shabbos Yourself

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The Gemora (Kiddushin 41a) asks: If he can betroth through an agent, he can certainly betroth himself!?

Rav Yosef answers: It is a mitzvah for him to do so rather than his agent (as by all mitzvos it is preferable for one to perform them oneself than send an agent). This is like Rav Safra who would personally singe the head of the animal and Rav who would personally salt the fish (before Shabbos in order to honor Shabbos themselves).

The Shaar Hatziyon (250:9) asks: Why did these Amoraim prepare the food for Shabbos themselves? The halachah is that one is not permitted to be interrupt his Torah studying in order to perform a mitzvah that is possible to be performed by others! These Amoraim should have instructed others to prepare the Shabbos food on their behalf!?

He answers that this is only true by a mitzvah that does not have to be performed by the person himself. However, the mitzvah of honoring Shabbos must be performed by the person himself, and therefore, they prepared the food themselves, for it is a greater mitzvah when it is done by the person himself.

The sefer Shulchan Shlomo explains that the Shaar Hatziyon does not mean that honoring Shabbos is a mitzvah similar to tefillin and sukkah, for if so, it cannot be given over to an agent at all (one cannot ask someone else to sit in a sukkah on his behalf). Rather, it is a mitzvah that is incumbent upon him, and therefore he himself must be involved with the mitzvah.

Alternatively, the Shaar Hatziyon answers that because of the severity of Shabbos, they prepared the food themselves even though it could have been accomplished through another.

The sefer Lev Yam asks that if the mitzvah of honoring Shabbos is different than any other mitzvah, and one should perform it himself even if someone else can do it, how does our Gemora bring a proof from these Amoraim that it is a greater mitzvah when he personally performs it more than when he does so through an agent? Perhaps the reason they prepared the food themselves is because of the uniqueness associated with the mitzvah of honoring Shabbos, but it will not prove anything with respect to other mitzvos!?

He cites a Shulchan Aruch Harav that answers this question.

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Craftsmen Standing for Torah Scholars

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Rabbi Yochanan states (Kiddushin 33a) : They stood before those bringing the bikkurim, but not before Torah scholars.

Rabbi Yosi bar Avin explains: Come and see how precious a mitzvah is in its proper time, for the craftsmen would rise before those bringing the bikkurim, but not before Torah scholars.

The Gemora asks: Perhaps they would only rise before those bringing bikkurim (but not for an ordinary mitzvah) because if not, they will not bring the bikkurim in the future (for they will think that the people living in Yerushalayim have no respect for them).

The Pnei Yehoshua writes that although it is obvious that the studying of Torah is greater than the performance of mitzvos, and even a mitzvah which has a set time, nevertheless, here, those that are performing a mitzvah are greater than Torah scholars. This is because it is quite possible that the Torah scholar is not engrossed in learning as he is walking.

The Chasam Sofer asks: And is a Torah scholar not occupied in performing mitzvos as he is walking? The Gemora Brochos states that a Torah scholar does not walk even four amos without thinking in Torah!? Why shouldn’t they stand before him?

He answers that according to halachah, thinking in learning is not equivalent to studying out loud, and therefore it is not in the same category as one who is performing a mitzvah while he is walking.

The Noda BeYehudah answers that a mitzvah which does not apply every day is more significant than the mitzvah of studying Torah, which applies every day.

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Honoring Parents; Bein Adam l’Makom, or Bein Adam l’Chaveiro?

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The Gemora (Kiddushin 32a)inquires: From whose money are the needs of the parents provided for? [Do the children pay with their own money, or are they just responsible to ensure that their parents are taken care of?]

Rav Yehudah says: The son must pay for it. Rav Nosson bar Oshaya says: The father must pay for it.

Reb Zeidel Epstein in the sefer Afikei Ayil writes that their argument is based upon the following question: Is the mitzvah of honoring one’s father and mother a mitzvah which is between man and Hashem, and therefore the son would be obligated to use his own money just like any other mitzvah? Or perhaps the mitzvah is one that is between man and his fellow, and therefore one would not be required to use his own money.

The Dvar Yaakov asks: If it is a mitzvah that is between man and his fellow, the son would not be required to disrupt his work in order to honor his father!?

Rather, he explains: Everyone agrees that it is in the category of a mitzvah which is between one man and another, but Reb Boruch Ber explains that even in those mitzvos one would be required to spend money, provided that the money being spent is a part of the mitzvah, such as the mitzvah of giving charity. The dispute in the Gemora is regarding this point. Is the money being spent to honor one’s father a part of this mitzvah, or not?

The Minchas Chinuch writes that if honoring one’s parents is included in the category of mitzvos that are between people, Yom Kippur would not atone for these transgressions unless one would appease his father and mother beforehand.

The Ramban writes that the Ten Commandments were written on two tablets. This illustrates to us that the first five are different than the second five. The purpose of the first five is to honor Hashem. Honoring your parents is included in this category because when one honors his parents he is in fact honoring Hashem, for the parents were Hashem’s partners in the child’s creation.

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Miracle of Prayer

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The Mishna in Rosh Hashanah states that whenever Moshe held up his hand, Israel prevailed (against Amalek). The Mishna asks, do Moshe's hands make or break the battle? Rather, this teaches you that so long as Israel were looking upwards and subjugating their hearts to their Father in Heaven, they were victorious; if not, they would fall.

The Netziv in Merumei Sadeh asks on the Mishna's question. What was so strange about Moshe's hands making the battle? Didn’t Moshe’s hands split the sea and perform other miracles as well through his hand?

He answers that the fight against Amalek had to be won in a natural way and not through a miracle. Perhaps we can add that fighting Amalek is in essence the fight that we have daily with our evil inclination. This fight could not be left to miracles. This is what is bothering the Mishna. Could the battle have been won through Moshe's hands like the other miracles? The Mishna’s answer is no, it could not have been since this battle required a victory through natural means.

Let us examine the answer of the Mishna. Rather, this teaches you that so long as Israel were looking upwards and subjugating their hearts to their Father in Heaven, they were victorious; if not, they would fall. Isn't the Mishna stating that they relied on a miracle from Above. They looked upwards and they were victorious. How can this be explained?

The Gemora in Kiddushin (29b) relates an incident with Abaye and Rav Acha bar Yaakov. There was a certain demon that haunted Abaye’s Beis Medrash, so that when two people entered, even by day, they were injured. Abaye instructed the community not to provide Rav Acha shelter when he would arrive in the city, thus forcing the father to spend the night at the Beis Medrash; perhaps a miracle will happen [in his merit]. Rav Acha entered the city and spent the night in that Beis Medrash, during which the demon appeared to him in the guise of a seven-headed dragon. Every time Rav Acha fell on his knees in prayer one head fell off. The next day he reproached them, “Had not a miracle occurred, you would have endangered my life.”

The Maharsha in his commentary to Kiddushin asks that how did Abaye have permission to place Rav Acha in such a precarious position. One is forbidden to rely on a miracle? He answers that Abaye understood the potency of Rav Acha’s prayer. Abaye was certain that Rav Acha’s prayers to the Almighty would be answered and that this is not a miracle. Hashem has instilled in this world the power of prayer and incorporated it into the natural order of the world.

This is what our Mishna is answering. Amalek has to be defeated through natural means and that is what Klal Yisroel did at that time. They cried out to Hashem and subjugated their hearts towards Him and were answered.

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Women Plowing during Shemitah

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The Gemora in Moed Katan presents a dispute between Rabbi Yochanan and Rabbi Elozar whether one would incur the thirty-nine lashes if he would plow during Shemitah.

Rashi (2b) states that there is a positive commandment which forbids plowing on Shemitah. It is written [Shmos 34:21]: From plowing and harvesting you shall desist. The point of contention between the two Amoraim is if there is a negative commandment as well.

The Rambam in Hilchos Shemitah rules that one who plows during Shemitah does not incur the thirty-nine lashes. Kesef Mishna explains: Since in our Gemora, it was left ambiguously regarding which Amora held what, we cannot administer the lashes when there is uncertainty.

Sha’ar Hamelech in the beginning of Hilchos Shemitah writes that the Yerushalmi in Shabbos (7:2) states that Rabbi Yochanan is the one who maintains that he does not receive the lashes and the rule is that when Rabbi Yochanan and Rabbi Elozar argue, the halacha is in accordance with Rabbi Yochanan.

Minchas Chinuch (112) comments that women are obligated in this mitzvah even though it is a positive commandment that has a time element to it and the principle is that women are exempt from any positive mitzvah which is governed by time. He explains that this is applicable only regarding a positive mitzvah that is incumbent on the body of the person and not a mitzvah like Shemitah, which is a mitzvah that is dependent on the land (mitzvos hateluyos ba’aretz).

Proof to this is cited from the Ritva in Kiddushin (29a). The Gemora rules based on a Scriptural verse that women are not obligated to perform a circumcision on their sons. Tosfos asks: Why is a verse necessary; circumcision is a positive mitzvah which is governed by time since the mitzvah can only be performed by day, and women are exempt? The Ritva answers: Any mitzvah which is not related to the person themselves; this principle does not apply. The mitzvah of milah is to perform the circumcision on the son and therefore women would be obligated if not for the special verse teaching us otherwise.

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Don't Call him Evil

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The Gemora Kiddushin Daf 28 states: One who calls someone else a slave should be excommunicated! If he calls him a mamzer, he receives lashes! If he calls him an evil person, he (the insulted person) may descend against his life (he is permitted to hate him to such an extent that he may attempt to reduce his income).

Rashi in Bava Metzia (71a) explains this to mean that the insulted person may fight with him as if the libeler hit him, and it is as if he was coming to kill him. Furthermore, Rashi heard that he can compete against him in his line of business in an attempt to decrease his income.

Rashi asks that it is hard to understand how the Chachamim would allow this person to take revenge.

Some answer that here it is permitted because he suffered personally and he was subject to a public humiliation. The Chafetz Chaim, however, writes that it is unclear if this is the accepted halachah, and therefore, one should be stringent in the matter and not take revenge.

Others answer that it is permitted because if people think that he is indeed an evil person, his income will suffer tremendously, for people will not have compassion on him.

Tosfos in Bava Metzia writes in the name of the Gaonim that it is permitted to burn one-third of his grain. Tosfos concludes that this is bewildering, for where is the source for this?

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Akiva ben Yosef (Kiddushin 27)

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It happened once that Rabban Gamliel and some elders were traveling on a ship. Rabban Gamliel said to them: The tithe (ma’aser rishon) which I shall measure off when I come home is given to Yehoshua (ben Chananyah, who was a Levi) and the place where it lies is leased to him. [Rabbi Yehoshua gave him a perutah for the rental and acquired the ma’aser together with the land with kinyan agav.] And the other tithe (ma’aser ani) which I shall measure off is given to Akiva ben Yosef that he may acquire possession of it for the poor, and the place where it lies is leased to him.

The commentators ask: Why by Rabbi Akiva, does the Gemora mention his father’s name, Yosef, and By Rabbi Yehoshua, it does not?

Reb Tzadok HaKohen (Peri Tzadik; Ki Seitzei) answers that this is to hint to us that the root of Rabbi Akiva was from Yosef HaTzadik. Just as Yosef was the provider of the food in Egypt, so too, Rabbi Akiva was the treasurer and the one responsible to sustain the poor people.

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Kinyan Agav

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The Gemora (Kiddushin 26) inquires: Must the movable property be piled on the real property in order for the kinyan agav (by making a kinyan on the land, he automatically acquires the movable property) to be effective?

The Rishonim ask: If the halachah would be that kinyan agav is only effective if the movable property is piled on the land, why would it be necessary to use agav? The movable property should be acquired because it is resting in his courtyard!?

The Ritv”a answers: The Gemora is referring to a case where the courtyard is not protected and therefore it cannot be used to make a kinyan. That is why agav is necessary.

The Shitah Mekubetzes answers that a courtyard can acquire for a person only movable property that entered it after it became his. However, a courtyard cannot acquire property that was in it before the courtyard became his.

The Steipler Gaon writes that the Shach states this halachah only with respect to the acquisition of a courtyard without the knowledge of the owner. However, if he intends to use the courtyard to acquire the movable property which is found in it, it will be effective even if the property entered the courtyard before it became his.

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L'chatchilah and B'dieved

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The Gemora (Kiddushin 25) explains that while it is true that Rebbe holds that the water is not required to enter the person’s mouth, it must, however, be a place which is fit for the water to enter (and since a bone was lodged between her teeth, the water could not touch her entire mouth; this invalidated her immersion).

This logic follows the opinion of Rabbi Zeira, who says in regards to a korban minchah: A flour-offering that is fit for mixing (of the flour and the oil of the offering; with one log of oil for sixty esronim of flour, and a maximum of sixty esronim in one pan, perfect mixing is possible), the mixing is not critical to it (and the offering will be valid even without mixing); whereas, a flour-offering that is not fit for mixing (where, the proportions of the mixture were less than a log for sixty esronim or where more than sixty esronim were placed in one pan), the mixing is critical (and the offering will not be valid).

Tosfos asks: If the Torah repeated the halachah of “mixing,” it should be critical to the minchah, and if it did not, why is it necessary for it to be “fit for mixing”?

Tosfos answers: Although it is written many times in the Torah, it is not mandatory for it to be mixed, since it is not written in the language of a commandment. We may only derive that the flour and oil should be fit for mixing.

Tosfos in Niddah writes that none of those verses are extra, for they are all necessary to teach various halachos. If so, they ask: Why is it necessary for it to be “fit for mixing”?

Tosfos answers: Since the Torah was particular that a mixing should be done, it is only logical that it should be fit for mixing, for otherwise, the mitzvah would be negated completely.

The Rishonim similarly ask with regards to immersion: Why is it required that his mouth (or other areas) should be a place where water is fit to enter?

Tosfos answers: It is because it is written: And he shall immerse all his flesh in the water. This would seemingly include even all the hidden areas. However, since we expound the verse “his flesh” to be referring only to the exposed parts of the body, the term “all his flesh” teaches us that all parts must be fit for the water to enter.

Evidently, Tosfos holds that this halachah is a Biblical requirement. Other Rishonim hold that it is only a Rabbinical obligation.

Tosfos in Niddah asks: Why isn’t there a requirement at least l’chatchilah that the water should enter even the hidden areas (the same way there is a halachah that the minchah should l’chatchilah be mixed)?

Tosfos answers: With respect to immersion, there is no logic to mandate that the water should enter even the hidden areas of his body, for the Torah is only interested in the person becoming tahor; since b’dieved he will be tahor anyway (even if the water does not come into contact with these areas), what sense is there to require it in the first place? However, with respect to mixing the minchah, which is a mitzvah, it is understandable that the Torah desires that the minchah should be mixed, even though it will be valid even if it isn’t.

My Rosh Yeshivah, Rabbi Avrohom Chaim Levin Shlit”a explains this Tosfos in the following manner: When the discussion pertains to a chalos (something taking effect), it is either valid, or it is not. It is not logical to state that in order for something to be effective, the Torah wants it done in this specific manner. However, even if that is done, it is effective anyway. [L’chatchilah and b’dieved cannot be said regarding a Torahdike chalos.] However, when we are discussing a mitzvah, it is possible to say that there are different levels with respect to the fulfillment of the mitzvah. One will fulfill the mitzvah regardless, but it is still preferable to do it in a certain specific manner.

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Afflictions Purge a Person's Sins

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

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

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

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

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

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

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

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

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Kohanim as Agents

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Rabbah inquired: Can a Canaanite slave make a messenger to accept his Get for him from his master? Do we say that being that we derive his laws from a woman (who can make a messenger), he too can make a messenger? Or do we say that a woman who can accept her Get can make a messenger, but he, who cannot accept a Get cannot make a messenger? After Rabbah asked the question, he resolved that he can make a messenger, based upon the above gezeirah shavah.

The Gemora asks: Rav Huna the son of Rav Yehoshua says that Kohanim are Hashem’s messengers. If we would say that they are our messengers, is it possible that there is something that a person themselves cannot do, yet they have the power to create a messenger to do it for them?
However, based on what we just said, this logic seems flawed. After all, a slave cannot accept his own Get, yet, he can make a messenger who will accept it for him!?

The Gemora answers: This question is incorrect. A regular Jew cannot have anything to do with bringing a korban. A slave, however, has a connection with emancipation documents. This is as the braisa states: It appears that a slave can act as a messenger to accept his friend’s Get from his friend’s master. However, he cannot accept a Get from his own master.

The Gemora in Nedarim (35b) poses the identical inquiry and states that a practical difference between the two perspectives is with regard to someone who declared that he would not derive benefit from a certain Kohen. If the Kohen is our agent, he will not be permitted to perform the service for the one who vowed against him. However, if the Kohen is an agent of Heaven, he would be permitted to perform the service for him.

The Rishonim ask: Why didn’t the Gemora there resolve this inquiry from that which Rav Huna said here that if we would say that they are our messengers, is it possible that there is something that a person themselves cannot do, yet they have the power to create a messenger to do it for them?

1) Tosfos answers that the Gemora wished to resolve the inquiry from a Mishna or a braisa, not from an Amoraic statement.

2) Furthermore, Tosfos notes that we can only prove from Rav Huna that the Kohanim are also agents of Heaven, and not only our agents, for if they would only be our agents, how can they perform the service when the Yisroel, who sent them, cannot perform it! However, it can still very well be that they are the agents of both.

3) The Ritva answers that we can prove from Rav Huna that the Kohanim are agents of Heaven only when they are offering the korbanos of a Yisroel; however, there would still be a matter of doubt with respect to a case when they are sacrificing the korbanos for another Kohen. Here, Rav Huna’s logic would not be applicable, for the sender is able to perform the service himself!

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The Beautiful Captive

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The Gemora teaches regarding a “beautiful captive” that she should not be subjugated by the soldier during battle.

Rashi learns that the soldier should not cohabit with her during the battle. Cohabitation is not allowed until the captive is brought to the soldier’s house and converts to Judaism.

Tosfos asks four questions on Rashi.

1) Why does the braisa state that the Torah’s permission for a soldier to have relations with a captive is based upon the Torah’s recognition of the strength of one’s Evil Inclination? If according to Rashi, he may not cohabit with her until she converts in his house, how is his desire appeased during the war? Shouldn’t we still be concerned that the beautiful female captives would represent an overwhelming temptation for the Jewish soldier, and he will engage in illicit relationships with them?

Tosfos answers that since she will be permitted to him after some time, we are not concerned that he will be tempted to engage in an illicit relationship with her during the war. He will be able to overcome this desire and wait until she will be permitted to him. This is based upon the concept of having “bread in his basket.”

2) Why does the braisa compare the permission of the beautiful captive with eating meat from a slaughtered animal that had been dangerously ill? It is not so proper to eat such meat, as the Gemora in Chullin (37b) considers it repulsive to eat such meat! But according to Rashi, cohabitation with the captive after her conversion is completely permitted and allowed! What is the comparison between the two?

Tosfos answers that it is nevertheless regarded as a permission b’dieved, because since the conversion is done without her consent, it is not regarded as a bona fide conversion.

3) The Gemora in Sanhedrin (21a) records that Tamar was the daughter of a beautiful captive, Maachah, whom David had taken as a wife. Tamar was therefore permitted to Amnon, David’s son, for she was not regarded as David’s daughter. However, according to Rashi that David did not have relations with Maachah until she converted, why would Tamar be permitted to Amnon? Since she was born from her mother after she converted, it emerges that she was Amnon’s sister, for they shared the same father!?

Tosfos answers that Rashi will learn that Tamar was not the daughter of David at all; rather, Maachah was pregnant with her even before David had taken her from the battle.

4) However, Tosfos concludes that he has no explanation according to Rashi why the Gemora above said that there is a distinction with respect to a Kohen between the initial act of cohabitation and the second act. This is only understandable if the initial act is done during the battle and the second act is done after she converts (which is the way Rabbeinu Tam learns the Gemora). However, according to Rashi, both the second act of cohabitation and the first one are only after she converts! Why would the first be permitted and the second would be forbidden?

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Using a Kohen

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The Rambam rules that a Jewish servant who is a Kohen cannot become a nirtza, for he will be rendered a baal mum (a blemish, which will disqualify him from performing the Temple service).

The Mishnah La’melech asks that the Maggid Mishnah understands in the Rambam that there is no required amount for how large the piercing of the servant’s ear must be. If so, why can’t the Kohen servant become a nirtza, and they will pierce his ear in a manner which will not cause a blemish?

He answers based upon a Yerushalmi which says that we are concerned that they will forget and create a large hole, which will render him a baal mum.

The Sma”g writes that it is evident from our Gemora that it is permitted to have a Kohen work for you as a servant. He says that the prohibition is only when the Kohen is working for free; however, if he is receiving compensation for the work, it is permitted.

The Makneh asks: Accordingly, the Kohen servant should not be allowed to become a nirtza because then, he will be working for free!?

He answers based upon the Mordechai in Gittin, who says that the Kohen, if he so desires, can be mochel, and then it would be permitted for him to work for you.

The Mordechai (Gittin 461) relates that Rabbeinu Tam once instructed a Kohen to pour him some water. This caused one of his students to inquire as to how he could allow a Kohen to serve him, being that the Yerushalmi states that whoever uses a Kohen for his own needs is in violation of the prohibition of me’ilah (since the Kohen is sacred). Rabbeinu Tam's response was that the Kohen who served him in 12th century France was without the clothing of the Kohen and, therefore, not a Kohen (based upon the Gemora Sanhedrin 83b). The student persisted that if so, we shouldn’t give a Kohen the first aliyah. Rabbeinu Tam remained quiet. Rabbeinu Peter then suggested that a Kohen can voluntarily forfeit the respect due to him as a Kohen and, therefore, there was no problem with Rabbeinu Tam's use of him.

The Ta”z asks that the Kohen is not permitted to forfeit his kedushah and marry a divorcee!? What is the difference between the two?

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Three Insights

By: Rabbi Avrohom Adler

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ANOTHER WIFE!?

Rav Nachman bar Yitzchak answers: It means that if he comes into slavery with a wife and child, his master can give him a Canaanite slavewoman (to have relations with). Otherwise, he cannot.

The commentators ask: Isn’t this illogical? If he doesn’t have a wife, the master should be able to give him a slavewoman, and if he does have a wife, why should the master give him another wife?

The Daas Zkeinim explains that if he is married to a Jewish woman, he will not be so attracted to the Canaanite slavewoman and will not follow her ways. However, if she is his only wife, he is liable to follow her ways. The Torah did not want this.


REPENTANCE IN THE
SAME SITUATION

It is written [Yirmiyah 22:10]: Cry intensely for one who leaves, because he will not return again and see the land of his birthplace. Rav Yehudah said: This is referring to one who departs this world without children.

Rav Huna said: The verse is referring to a person who committed a sin and repeated it. The Gemora states: Rav Huna is following his reasoning stated elsewhere that one who commits a sin and repeats it; it has become permitted to him.

The Gemora asks: Do you actually think that it is permitted? The Gemora answers: Rav Huna means that it becomes to him as if it was permitted.

The Gemora (Yoma 86b) explains that a true penitent is one who committed a sin in the past and then the opportunity for the same sins comes again a first time and a second time and he is saved from the sin on both occasions.

The Sefer Chasidim writes that a person should not put himself into a situation where he is tempted to sin, because he may not be able to withstand temptation.

The Tzlach questions the words of the Sefer Chasidim from the commentary of the Kli Yakar in Parshas Chukas, who writes regarding the phenomena of the Parah Adumah that the Parah Adumah was capable of rendering pure those that were impure and conversely, rendering impure those that were pure.

The Kli Yakar likens this idea to certain medicines that are beneficial for one who is ill but can prove fatal for one who is healthy. There is a parallel between remedying the body and remedying the soul. One who wishes to repent must be with the same woman that he sinned with the first time, at the same time of the year in which he had sinned, and at the same place where he sinned with her. Thus, the temptation to sin is particularly strong, as his Evil Inclination will entice him to respond exactly as he did before. By resisting the temptation, he demonstrates that he is a true penitent.

The Kli Yakar adds that this is what the Gemora (Brochos 34b) means when it states that in the place where penitents stand, the completely righteous do not stand, i.e. the completely righteous cannot stand in a place of temptation. Yet, according to the Sefer Chasidim, a righteous person is not permitted to endanger himself by entering into such a situation.

TRANSGRESSION COMMITTED ONLY ONCE

The Gemora states that if one commits a transgression and repeats it, it becomes like it is permitted to him.

Rav Shach was once giving rebuke and he questioned if there is any among us that have committed a sin and not repeated it. Woe is to us.

The Mabit in Beis Elokim (shaar hateshuva ch 11) writes that our sages have said if one commits a transgression three times, it becomes like it is permitted to him. Did he have a different version in the Gemora than us? Our Gemora states this to be correct if a person commits a sin even twice.

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Condition against the Torah

The Gemara cites a Machlokes between Rebbi Meir and Rebbi Yehudah regarding whether a person may make a Tenai modifying the obligations stipulated by the Torah regarding monetary law ("Masneh Al Mah she'Kasuv ba'Torah"). Rebbi Meir says that if a man is Mekadesh a woman on condition that he not be obligated to give her She'er, Kesus, and Onah, the Tenai is invalid and the Kidushin takes effect fully (and he is obligated to provide her with She'er, Kesus, and Onah). Rebbi Yehudah says the Tenai is valid, and the Kidushin takes effect and he is not obligated to provide her with She'er, Kesus, and Onah.
Rebbi Meir's view is difficult to understand. If the Tenai is null and void, then why should the Kidushin take effect at all? The man was Mekadesh the woman on condition that if he is not obligated to give her She'er, Kesus, and Onah, then he wants the Kidushin to take effect, and conversely, if he will be obligated in She'er, Kesus, and Onah, then he does not want the Kidushin to take effect! (Rebbi Meir requires a "Tenai Kaful" -- both sides of the condition stated explicitly -- whenever a Tenai is used, as the Mishnah says in Kidushin 61a.) Since the man specified clearly that he does not want the Kidushin to be valid if he will be obligated to give She'er, Kesus, and Onah, then how can the Kidushin take effect and obligate him in She'er, Kesus, and Onah? He did not have in mind for the Kidushin to take effect under such circumstances! (TOSFOS DH Harei Zu)


ANSWERS:

(a) The RI explains that we learns all the laws of Tenai, including the very fact that one may make a Tenai, from a verse (in Kidushin, ibid.) If not for the fact that the Torah teaches that there is such a thing as making a Tenai, we would not have known that there is a concept of Tenai at all. Had the Torah not taught us the concept of Tenai, that one may make a stipulation when making a Kinyan, we would have thought that when a person makes a Tenai as a precondition to a certain Kinyan, we just ignore the Tenai and the Kinyan takes effect. By teaching that a Tenai does work, the Torah is teaching that if the condition is not fulfilled, the Kinyan is annulled retroactively. In the situations in which the Torah does not teach that a Tenai works (such as a situation in which the Tenai counters that which is written in the Torah), we revert back to the original way we would have ruled had the Torah not taught us the concept of Tenai, and the Kinyan works regardless of the fulfillment of the Tenai.
This answer of Tosfos is very difficult to understand. Even without the Torah teaching us the laws of Tenai, we should know, logically, that if a person sells an item to his friend and stipulates that the sale should not be valid unless his friend gives him something or does something, then if the friend fails to fulfill the Tenai the sale should not be valid, since the person did not fully commit himself to the sale!
To answer this question, we must first analyze a related Halachah -- the Halachah of Bereirah. In many places in the Gemara we find the view that holds "Ein Bereirah," which means that a Kinyan cannot be effected if -- at the moment that it takes effect -- it is not clear upon what it takes effect. For example, a person cannot pick up an item in order to be Koneh it and say, "If it rains tomorrow, I want this act of Kinyan to be for Reuven, and if it does not rain tomorrow, I want this act of Kinyan to be for Shimon." If a person does make such a stipulation, then even if it rains the next day, the object will not belong to Reuven. Similarly, a person cannot eat fruits today, "The portion that I will choose to separate tomorrow will be Terumah on these fruits starting from now." If he does so, then even if he separates a portion tomorrow, it will not serve as Terumah.
The logic for this, as the RAN explains in Nedarim (45b), is that "it is not appropriate for a Kinyan to take effect in a way that leaves a doubt as to how it took effect." This means that the Kinyan must take effect at the same moment at which the action which accomplishes the Kinyan is performed (such as the act of Hagba'ah (lifting up an item) in the case of a purchase, or Dibur (speech) in the case of making something Terumah). The Kinyan cannot take effect after the act, because the act which makes the Kinyan is no longer present. Thus, if at the moment that the act is performed, the Kinyan "does not know" where to take effect, the Kinyan does not take effect (or it takes effect on one of the two, regardless of what happens the next day; see Insights to Eruvin 37b). The Kinyan cannot see into the future, so to speak.
What is the difference between Bereirah and a Tenai? No Tenai should ever work if we say "Ein Bereirah," because the Kinyan cannot know what will happen in the future (whether the Tenai will be fulfilled or not) in order to be able to take effect now!
RASHI and TOSFOS (Gitin 25b, DH u'l'Chi Mayis) explain that when a person makes a Tenai, it is in his ability, and it is his intention, to fulfill the condition (for otherwise he would not have made the Kinyan in the first place). Hence, the Kinyan is not taking effect in a matter that leaves doubt. Rather, it takes effect for certain at the time the act of Kinyan is made, since he intends to fulfill the Tenai. What, then, is it that revokes the Kinyan retroactively when the condition is not fulfilled? The Kinyan has already been made and completed; it took effect, so how can it be revoked retroactively? The answer is that this is the reason why the Torah has to teach us the novel concept of Tenai -- even though the Kinyan was made, it can be revoked through not fulfilling the condition. This is what the Ri means to say -- since the Torah did not teach the concept of Tenai in a case where the Tenai contradicts the obligations of the Torah, then we revert to saying that the Kinyan is completed and nothing can uproot it retroactively, since it has already been done and has already taken effect. The person who made the Kinyan did intend for the Kinyan to take effect for certain, since he was expecting the Tenai to be fulfilled.
For this reason, when a man makes a Kidushin on condition that he not be obligated to give She'er, Kesus, and Onah, he obviously thinks that he is able to create such a Kidushin and he has in mind that the Kidushin should be completed, except that it should be uprooted if it turns out that he is obligated to give She'er, Kesus, and Onah. But by that time, it is too late to revoke the Kidushin, since it already took effect.
(b) RABEINU TAM (cited by the Tosfos Yeshanim and the Tosfos ha'Rosh), the RITVA, and the RASHBA (cited by the Shitah Mekubetzes) explain that when a person makes a Tenai that contradicts the Torah, he does not really mean it, but he is just being "Mafligah b'Devarim" -- he is just frightening her with words. The Beraisa in Gitin (84a) teaches such a concept with regard to a person who says to his wife that he is giving her a Get on condition that she does something that is physically impossible to do (see Rashi there, DH Mafligah). Since he knows that the Halachah of the Torah requires that Kidushin be done in a certain way with certain obligations, it must be that he is not serious about his condition to alter those obligations, and therefore he probably has in mind to make a Kidushin, and he is just saying this condition in order to frighten her.
Rabeinu Tam might have rejected the explanation of the Ri because his explanation is logically sound only when the condition is something that will be fulfilled or not fulfilled at a point after the Kinyan is completed. In the case of Kidushin, though, the Kidushin takes effect at the same time that the obligations of She'er, Kesus, and Onah take effect (or do not take effect). Thus, since the Kidushin does not depend on a future event but on a present event, the Kidushin should not take effect (since he did not have in mind to make such a Kidushin that obligates him in She'er, Kesus, and Onah). (See also Rebbi Akiva Eiger.)
The Ri might have explained like the Rashba, who says that the condition that the husband was stipulating was not that Kidushin should take effect without the obligations of She'er, Kesus, and Onah. Rather, the husband was stipulating that Kidushin should take effect only if the woman forgoes her entitlement to She'er, Kesus, and Onah. This can take place after the Kidushin is effected. (This is not like the opinion of Rabeinu Elchanan as quoted later in Tosfos.)
The Ri, on the other hand, did not accept Rabeinu Tam's explanation, because "Mafligah b'Devarim" can only be applied to a Tenai made against something written in the Torah, but not when any of the other details of Tenai were omitted. However, we find that if a person makes a Tenai in the wrong order ("Ma'aseh Kodem le'Tenai"), then the Kinyan takes effect and we ignore the Tenai even though the logic of "Mafligah b'Devarim" does not apply (as the RE'AH points out)!

INSIGHTS INTO THE DAILY DAF
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Esav the Apostate

Rabbi Chiya bar Avin said in the name of Rabbi Yochanan that an idolater inherits his father according to Torah law! This is apparent from the verse, “For an inheritance to Esav I gave Mount Seir.”

The Gemora asks: Perhaps an apostate Jew, suchas Esav, is different (and this law does not apply to a genuine gentile)?

The Gemora answers: Rather, the proof is from the verse, “For to the children of Lot I gave Ar as an inheritance.”

Rabbeinu Bachye writes that Esav was considered an apostate because he was the child of the Forefathers, but yet, he did not follow in their path.

Reb Tzadok HaKohen writes that he was regarded as an apostate because he was not circumcised. Although the Chasam Sofer (responsa Y”D 245) writes that this was because he was red (Admoni) and that exempted him from performing this mitzvah (on account of the danger), this argument can be rejected because before the Giving of the torah, there was no commandment of “You shall live by the mitzvos,” and therefore, even though there was a health concern, he still would have been obligated to be circumcised.

In the sefer Torascha Shashuay, he explains why Yaakov was allowed to say, “I am Esav, your first-born” based upon the fact that Esav was an apostate. Accordingly, it would have been forbidden for Yitzchak to eat from Esav’s shechitah. The halachah is that one is permitted to lie in order to prevent someone else from transgressing a prohibition. If one is allowed to lie for the sake of peace, he certainly can lie to protect someone from sinning!

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Father (outside) and Mother (inside)

The braisa (Daf Yomi: Kiddushin 18) states: A person can accept kiddushin for his daughter again (if she became widowed or divorced after betrothal), he can sell her again, and he can marry her off after selling her as a maidservant. However, he cannot sell her after marrying her off. Rabbi Shimon says: Just as he cannot do this, he cannot sell her as a maidservant after he already sold her once.

This is like the argument of the following Tannaim. The braisa says: “When he betrayed her.” Once he spread his cloak over her (in marriage), he cannot sell her; these are the words of Rabbi Akiva. Rabbi Eliezer says, “When he betrayed her,” teaches that once he betrayed her (sold her as a maidservant) he cannot sell her.

What is their argument? Rabbi Eliezer says: The way the word is written in the Torah is important. Rabbi Akiva says: The way it is read is important. Rabbi Shimon says: Both are important. [“Important” here refers to how we understand the intent of the Torah. If we focus on the word as it is read, it refers to clothing, while if we focus on the letters, it refers to being sold.]

This is similar to a debate in the Gemora in Sukkah which discusses if a sukkah requires two full walls and a third wall that is at least a tefach, or should there be three complete walls. This debate is based on whether one reads the word Sukkos in the Torah with the letter vav or without the letter vav. The Chachamim maintain that we say yeish eim lemasores, the transmitted written form has primacy, whereas Rabbi Shimon maintains that yeish eim lemikra, the pronounced form has primacy.

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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Yovel for a Runaway Servant

Rav Sheishes (Daf Yomi: Kiddushin 17) explained a braisa (which ruled that a servant who runs away does not receive gifts) to be referring to a case where the servant ran away, and Yovel intervened. The braisa is teaching us that he does not receive gifts in this case (and he is not considered as if the master has freed him).

The Ramba”m rules that the runaway servant does gain his freedom when Yovel intervenes. The Ritv”a explains that there is no servant who remains by the master after Yovel.

The Sma”g, however, disagrees, and he bases his ruling upon a Yerushalmi which indicates that a servant who is not under the jurisdiction of his master when Yovel intervenes, does not go free by Yovel.

The Kesef Mishna asks: Why would the Sma”g rule in accordance with the Yerushalmi when the Bavli (our Gemora) rules that he does go free?

The Lechem Mishna explains that the Sma”g will explain our Gemora differently. He would learn that the Gemora’s conclusion is that the runaway servant does not go free in this case, and that is why he does not receive any severance gifts.

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