Keepin your Word

Rav and Rabbi Yochanan debate whether backing out of a verbal commitment is considered untrustworthy. The Halachah (C”M 204:7-9) follows Rabbi Yochanan, as he has clear support in the opinions of the Tannaim.

The Rishonim debate the parameters of their opinions.

Rashi indicates that Rav only allows one to back out of a verbal commitment when conditions changed, as in the case of Rav Kahana.

Many Rishonim, including the Rif, Ramban, Tosfos (49a Modeh) and Rashba hold that Rav and Rabbi Yochanan hold their positions regardless of whether conditions changed. In all cases, Rav says it is considered trustworthy, while Rabbi Yochanan says it is considered untrustworthy.

The Baal Hamaor and the Rosh say that both Rav and Rabbi Yochanan allow one to back out of a verbal commitment if conditions changed.

According to the Baal Hamaor, even Rabbi Yochanan would agree to the ruling Rav gave Rav Kahana, and the Gemora only used the story as a springboard for the more general debate.

In the course of the discussion, the Gemora quoted the statement that we learn that one must keep his “hin” (yes) just, by keeping his word. Abaye deflected this as a proof to Rabbi Yochanan by limiting this requirement to one meaning what he says at the time he says it. According to the Baal Hamaor, Abaye’s statement is also relevant to Rabbi Yochanan, since he allows one to violate his verbal commitment if conditions changed.

The Nimukei Yosef explains that in any case Abaye’s statement is relevant to Rabbi Yochanan, since Rabbi Yochanan agrees that one may violate a verbal commitment on which the recipient did not rely (e.g., a large gift). Therefore, the Rif quotes Abaye, although he rules like Rabbi Yochanan. Once someone is called untrustworthy, the community is allowed to employ social sanction, by calling him wicked, and announcing in public what he did.

Read more!

Benefit from Receiving

By: Reb Avi Lebowitz

The Gemora in Kiddushin (6a) says that if a woman would give a gift to someone who is an important person and doesn’t accepts presents from just anybody, she would be receiving enough pleasure from the fact that he receives her gift so that he can betroth her with that benefit that she receives.

The Taz (y.d. 160:8) explains that the reason that he must be an important person is because if he is just a regular person, then the benefit she receives, doesn’t have any cash value to it and therefore cannot create a kiddushin.

The Taz continues to apply this concept to the prohibition against lending with interest as well. If a lender tells a borrower, “I will lend you the money you need on condition that you receive this gift from me” - it depends. If the borrower is an important person, then the lender would be receiving real benefit from the borrower willing to receive his gift, which would create a ribbis (lending with interest) problem. But if the borrower is not an important person, there wouldn’t be any ribbis problem. The Taz clearly understands that if the receiver of the gift is not an important person, we consider the value of the pleasure that the giver has to be worth zero, and therefore it is not a ribbis problem.

However, R’ Akiva Eiger (y.d. 160 on Taz) cites a Ran in Kiddushin who asks based on Levi in our Gemora who holds that chalifin is done with the vessel of the seller, because the benefit that the seller receives by the buyer willing to accept his gift, provides enough benefit to the seller with which to sell the item. Clearly, we see that the seller receives benefit by the buyer receiving his gift even if the buyer is not an important person. This seems to contradict the Gemora in Kiddushin!?

The Ran answers that even if the receiver of the gift isn’t an important person, the giver has pleasure that the receiver was willing to accept, but the pleasure isn’t valued at a perutah. Therefore, in the context of kiddushin where her pleasure must equal a perutah, it only works when he is an important person. But, by chalifin, where the benefit received by the seller need not be worth a perutah, even if the buyer is not an important person, it will work.

R’ Akiva Eiger explains that Rav doesn’t disagree with Levi about this. Therefore, in the context of ribbis, where even a slight benefit that the lender receives from the borrower is a prohibition (although not a Biblical one), even if the borrower isn’t an important person, there would be a problem of ribbis. Based on this, the lender cannot say to the borrower, “I will lend you money on the condition that you receive this gift from me,” even if the borrower isn’t an important person, because the lender will be receiving some minor benefit which is forbidden.

Read more!

Kinyan through Admission

The Gemora struggles to figure out a way how Reuven can transfer his money that he has at home to Shimon, who will then use that money to redeem the ma’aser sheini of Reuven and avoid the additional fifth surcharge.

The Gemora suggests that if Reuven would have land to transfer to Shimon, he could transfer the money “agav” the property. Although Tosfos in Bava Kamma (12a) writes that kinyan agav is only Rabbinical, apparently Tosfos understands that even a Rabbinical kinyan would be sufficient to establish Shimon as an owner of the money to redeem the ma’aser sheini and biblically avoid the additional fifth surcharge.

Tosfos raises a question: Even without a kinyan agav or kinyan chalifin, can’t Reuven very directly transfer to Shimon the money by “admitting” that it actually belongs to Shimon?

In this question, Tosfos evidently assumes that an admission doesn’t merely allow Beis Din to act as if witnesses testified, but it actually transforms the ownership of the item to belong to Shimon and would be considered Shimon’s money for ma’aser sheini redemption purposes.

The Ketzos HaChoshen (40) answers Tosfos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily state that we are dealing with a case where there are no witnesses available to allow the kinyan hoda’ah (admission) to go into effect.

The Ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transferring chametz that is another place to belong to a gentile. We see from the fact that it works for ma’aser sheini that it not only works for monetary purposes, but even for prohibition purposes, therefore it should work for chametz as well.

However, Tosfos in Bava Kamma (104b) implies that it would not work on a Biblical level and wouldn’t work for ma’aser sheini purposes. Nevertheless, the Ketzos argues that it should still work for chametz since one has nullified the chametz and the requirement to rid himself of the chametz is only Rabbinical. But in truth, the Ketzos points out that even if kinyan hoda’ah is only Rabbinic in origin, it shouldn’t be any worse than kinyan agav which works for ma’aser sheini.

Reb Avi Lebowitz suggests that Tosfos in Bava Kamma doesn’t necessarily contradict our Tosfos because Tosfos in Bava Kamma is speaking about a case where he is admitting that he owns property by which he will transfer the money through a kinyan agav - to which Tosfos says that it doesn’t work on a Biblical level. But our Tosfos speaks of directly transferring the money through an admission, which would work on a Biblical level.

The rationale for the distinction is that admitting to owning property would require two Rabbinical allowances - one for the kinyan hoda’ah and a second for kinyan agav. A kinyan which is based on a combination of two Rabbinical allowances is weaker and perhaps would not work on a Biblical level.

Read more!

Is a Coin a Utensil?

It was stated: Rav and Levi have the following dispute. One of them holds that a coin can be used to effect an acquisition of chalifin (the buyer gives the seller something as a token exchange to settle the transaction), and the other one says that a coin cannot be used to effect an acquisition of chalifin.

Rav Pappa explains: A coin cannot be used as chalifin for the seller focuses on the figure which is stamped on the coin, and that figure may eventually become outdated (by the government; it is therefore not regarded as “whole,” and it is different from a “shoe,” which is the torah’s model of a utensil used for chalifin).

Rashi writes that both opinions hold that one does not need to use a utensil in order to effect an acquisition of chalifin (unlike Rav Nachman), for a coin is not a utensil, and nevertheless, they argue if it may be used. And even according to the Amora who holds that it cannot be uses, maintains that way for a different reason altogether.

The Rishonim ask: How can it be that Rav Nachman (who holds that chalifin can only be accomplished with a utensil) disagrees with his predecessors (Rav and Levi)?

Tosfos answers that a coin can be regarded as a utensil, for it may be used as a weight for a scale. Alternatively, it can be used for a necklace for one’s daughter.

The Ritva writes that Rav Nachman does not require an actual utensil; as long as it is something that lasts – similar to a shoe. This would exclude produce. A coin, however, would be included.

The Rashba writes that Rav Nachman is only excluding things that are not similar at all to a shoe.

Tosfos cites an opinion who holds that a coin is a utensil, for it is used for purchasing items.

The Hagaos Mordechai answers that anything which is man-made is regarded as a utensil. This would exclude produce. A coin, however, would be included.

Read more!

B'kiyus or b'Iyun?

Subscribe to the Daily Daf Yomi Summary Daily Daf Yomi

The Mishna states: Gold can acquire silver, but silver cannot acquire gold.

The Pappa Rav opened the winter zman with the following thought: The Torah is likened to gold and to silver. It is compared to gold, as it is written [Tehillim 19:11]: Torah is to be desired more than gold, even more than very fine gold. It is compared to silver, as it is written [Mishlei 2:4]: If you seek it like silver. It is also written [Tehillim 119:72]: The Torah of your mouth is better for me than thousands of gold and silver.

Now, one’s primary focus should be on learning in depth, using all his full capacity of his mind and thoughts. It is through this that a person will have the ability to negate evil thoughts that might enter his mind, for the nature of man is that he cannot concentrate on two different things at the same time. Accordingly, if one delves into the depths of the holy Torah, he will most certainly be protected from all which is evil This is when the Torah is likened to gold, for gold is untainted and pure.

However, it is impossible to consistently study on such a level, and one has an obligation to learn the entire breadth of the Torah. The Gemora in Shabbos (63a) teaches us that a man should study and subsequently understand (the understanding will come eventually). Studying Torah at a quicker pace is likened to silver, for although silver is also valuable, it is nevertheless less significant than gold.

This is what our Gemora meant when it stated that Rebbe in his youth taught that silver acquires gold, but when he was older, he taught that gold acquires silver. Initially he thought that one should diligently study at a swift pace in order that he should learn the entire Torah even if he will lack understanding. However, when he aged, he came to the realization that gold acquires silver, and one’s primary learning should be focused on the depths and understanding of Torah.

Read more!

A New Thief

Rabbah ruled: If someone stole a barrel of wine from his fellow and it was worth one zuz at the time it was stolen and four zuzim at the end (when it was destroyed), the halachah is as follows: If he broke the barrel or drank the wine, he would pay four (for up until the time of destruction, it belongs to the owner; the thief would have been obligated to return the barrel which was worth four zuzim; if he directly destroys it, he pays four). If it broke by itself, he pays one (for that is what it was worth at the time it was stolen).

The Ketzos Hachoshen explains that the reason he must pay four zuzim when he breaks it or drinks it is because he is regarded as a damager, and he pays for the object’s value at the time of the damage. It cannot be considered stealing at that time, for once an object has left the possession of the owner and enters the thief’s domain, there can be no more responsibility for stealing. This is because it is written: and it was stolen from the owner’s house. The Gemora learns from there that something cannot be stolen if it is in the house of the thief. Here, where, at the time it was damaged, it was in the thief’s domain, there cannot be a new “stealing.” This would be similar to one who steals from a thief, where the halachah is that the second thief is exempt from paying the principle. Therefore, in our case, when the thief breaks it or drinks it, he can only be liable for damaging it, not for stealing it.

The Nesivos Hamishpat disagrees and holds that while it is true that one who steals from a thief is exempt from paying the principle and he is not regarded as a thief, that is only when he did not add anything to the original thievery. This is why the second person cannot be regarded as a thief. However, if he caused a change to the stolen object, he has added to the thievery and can now also be regarded as a thief. Therefore, when the thief breaks it or drinks it, he has added to the original stealing by the fact that he has destroyed the object. He is therefore responsible on account of stealing.

Read more!

Shomer Rulings

Money Matters
The Gemora begins by stating that a custodian should keep deposited money on his body, and then later quotes Shmuel’s statement that money must be buried. The Rambam (She’eila u’Pikadon 4:6) explains that when the money is deposited with the custodian at home, he must bury it, while if the deposit was to transport the money somewhere, he must keep it on his body.

Shmuel states that a custodian must guard money entrusted to him by burying it, and anything short of that is negligence.

The Rosh quotes Ri Barceloni that says that Shmuel is only discussing a situation where burglary is common. However, if it is not common, a custodian need only guard the money as he guards his own. The Gemora implies this in its follow up discussion of different ways of storing the money, which the Gemora explicitly ties to the prevailing form of burglars at the time.

The Rambam (She’eila u’Pikadon) seems to imply that Shmuel’s statement is not subject to variation in different times and situations.

The Shulchan Aruch (HM 291:18) rules like the Rosh. See the Gra (HM 291:28) for a discussion of how this debate depends on differing texts in our Gemora.

The Sma (C”M 291:24) says that now that our houses are much more solid than in the Gemora’s time, and therefore a custodian may store the money in a locked house.

Shmuel is also implicitly stating that if the custodian did bury the money, and it was stolen, he is not liable.

The Rishonim debate what the rule for a paid custodian is. Unlike an unpaid custodian, a paid custodian is fundamentally liable for theft, but he is also not liable for unavoidable loss of the deposited item.

The Gemora states a number of times that a paid custodian is not liable for an item that is taken through armed robbery, since that is unavoidable. When a paid custodian buries money, but it is still stolen, he may be liable, since it is theft, but he may not be liable, since it seems like an unavoidable loss.

Rabbi Akiva Eiger (HM 303:2) lists three positions of the Rishonim on this question:
1. Tosfos (BK 57a K’gon) and the Rosh (BM 3:21) say that a paid custodian is liable, even if he buried the money, since that is included in the liability for theft. Every theft is akin to an unavoidable loss, so a theft that is more unavoidable is still a theft. Only in the case of an armed robber, where the paid custodian was present and powerless to stop the theft is considered truly unavoidable.
2. The Ramban says that a paid custodian must keep the money in his presence. Therefore, theft of buried money is not considered unavoidable, and a paid custodian is liable. However, if something unavoidable occurred to the paid custodian, making it impossible to keep the money with him (e.g., a sudden severe sickness), he is not liable.
3. Tosfos (BM 42a Amar Shmuel) says that a custodian is not liable for unavoidable theft, which includes buried money, as well as an unavoidable event which prevented his guarding.

The Rambam (She’eila uPikadon 4:4) applies Shmuel’s statement to any item that has two things in common with money:
1. Valuable enough that burglars look for it
2. Not ruined by being underground
Therefore, blocks of precious metals and stones also must be buried when being guarded.
Diversification
Rav Yitzchak says that one should split his assets in three, with one third going to land. The Maharshsa offers two explanations for this:
1. Buried underground, as Shmuel requires of the custodian
2. Invested in real estate
Unobserved Blessings
The Gemora says that blessing only occurs to items that are not measured and observed.

The Meiri explains that the Gemora is referring to the blessing of successful returns on investments.

Rabbeinu Manoach says that the Gemora means that the blessing will be that the ultimate measure will be larger than the original estimate, in a miraculous fashion.

The Sfas Emes echoes this position, by explaining that Hashem does not make miracles that openly subvert nature, and therefore this blessing only occurs before the produce is measured.

The Ritva quotes the Ramban who says that one makes a brachah on this occurrence only when measuring produce for the purpose of separating tithes, since Hashem promised us a blessing for fulfilling this mitzvah. When otherwise measuring, one is not certain a blessing will occur, so he may not make a brachah.
Household Custodians
The Gemora states that a custodian may entrust his deposited item with members of his household.

The Rishonim debate what the rule is if the ones entrusted were negligent.

Rabbeinu Tam (42b kol) says that the custodian is ultimately liable for the negligence of members of his household, while the Ramban, Rashba (BM 36a) and Rambam (She’eila u’Pikadon 4:9) say that the member entrusted with the item is liable.
The Ox who couldn’t Eat
Rami bar Chama debates how to judge the case of an estate administrator who gave an ox without teeth to a herdsman, where it died. The Gemora explained that the orphans had already voided the sale, so the potential litigant is the seller.

Tosfos (42b Hacha) explains that Rami bar Chama is assuming that we rule like Rabbi Yosi (35b), who says that an owner of an item can directly deal with a custodian appointed by his custodian. Within Rabbi Yossi’s position, Rami bar Chama was unsure whether the seller can address the herdsman via his appointment by the orphans, or whether the orphans are removed from the transaction, since the sale was retroactively voided. Rami bar Chama’s conclusion is that the orphans are considered unpaid custodians, and the seller does have legal standing vis a vis the herdsman.

Rami bar Chama says that the herdsman must pay the seller the value of the ox, when sold for discounted meat.

Rashi explains that this is a compromise. Technically, the herdsman is not truly at fault and not liable, but he does compensate the herdsman minimally for his loss.

Rabbeinu Tam (42b Demai) says that this rule was a bona fide legal obligation. The herdsman should have notified the seller of the ox’s lack of teeth, and therefore is liable for its death. However, since an ox without teeth must be sold for meat, and may not even wait until the day of the market, it would have only been worth the price of discounted meat.

Read more!

Pain to the Deceased

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

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

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

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

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

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

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

Read more!

200 - 1,000!!??

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

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

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

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

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

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

Read more!

Taking Away a Sixtieth

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

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

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

Read more!

Evil Eye

Subscribe to the Daily Daf Yomi Summary Daf Yomi

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

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

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

Read more!

Brothers Sent Specifically the “Coat of many Colors”

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

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

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

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

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

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

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

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

Read more!

Proximity and Majority

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




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









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



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



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



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

Read more!

Majority of Jews

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

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

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

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

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

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

Read more!

Forgetting your Learning

Subscribe to the Daily Daf Yomi Summary Daf yomi

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

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

Read more!

Metzios and Yeush

Subscribe to the Daily Daf Yomi Summary Daf yomi

by: Rabbi Yechezkel Khayyat

Scattered Produce

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

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

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

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

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

Two Halves make a Whole?

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

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

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

Taiku in Lost and Found

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

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

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

Yeush Shelo Midaas

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

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

How Important

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

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

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

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

Read more!

An Ignorant Person’s Recognition

Subscribe to the Daily Daf Yomi Summary Daf Yomi

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

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

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

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

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

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

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

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

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

Read more!

Lesser of the Luminaries

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

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

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

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

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

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

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

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

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

Read more!

Shliach l'dvar Aveirah

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

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

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

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

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

Shliach l’dvar Aveirah

By: Rabbi Avi Lebowitz

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

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

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

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

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

Read more!

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

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

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

Read more!