Retaining a Worker's Wages

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Payment by Proxy

The Gemora discusses the dispute of Rav Sheishes and Rabbah as to whether a worker can return to his employer when he directed him to a proxy for payment.

The Rishonim discuss the exact parameters of this dispute, and present different options.
1. If the worker explicitly agreed to forgive the employer, regardless of the whether the proxy pays him, all agree that the employer is not liable at all. If the worker conditioned his forgiving the wages on receiving the money from the proxy, all agree that he may return to the employer if the proxy did not pay him. The dispute is in the case where he accepted the arrangement, with no explicit declaration, and the proxy now refuses to pay. Rav Sheishes and Raba dispute whether the proxy has a status of a guarantor or not. Rav Sheishes says that he is a guarantor, and is obligated to pay, and therefore, the worker relied on him, and forgave his employer. Rabbah says that he is not a guarantor, and the worker did not rely on his payment. [Tosfos 112a Chozer, explanation 1]
2. The case in dispute is when the worker agreed to forgive the wages if the proxy pays, but the dispute is whether the worker can claim his wages from the employer before the proxy pays. Rav Sheishes says that as long as the proxy has not refused to pay, the worker's forgiveness is in effect, and he may not return to the employer. [Tosfos, explanation 2, Rosh]
3. Both Rav Sheishes and Rabbah agree that the worker may claim his wages from his employer. The dispute is whether the employer now will transgress bal talin. Rav Sheishes says that once he's removed the bal talin prohibition by directing the worker to the proxy, it may not return, while Rabbah says that bal talin is removed only while the worker is dealing with the proxy, but returns once the worker returns to the employer. [Tosfos, explanation 3]

The Yerushalmi (brought by the Rif and Tosfos) seems to rule like Rav Sheishes, but the Rishonim rule like Rabbah. However, if the employer had a debt owed to him by the proxy, and transferred that debt to the worker in lieu of his wages, the worker now owns the debt through ma'amad shloshton, and no one may back out of the arrangement.

Tosfos learns from the discussion of this case that one need not make a kinyan transaction to effect binding mechilah – forgiveness of a debt.

In all three explanations, the dispute does not relate to whether the worker's forgiveness is valid, but rather the parameters of the forgiveness, or other prohibitions.

Tosfos explains that a pesharah - compromise judgment does need a kinyan, since each side does not know what they are forgiving before, so their forgiveness is akin to a mistaken one, which is not binding without a kinyan.

The Rosh suggests that a kinyan is needed to be able to enforce the pesharah afterwards, not to make the forgiveness binding.

Bal Talin and Contracted Work

The Gemora tied the question of bal talin on contracted work to the question of whether a craftsman owns the improvement of the item.

Tosfos (112a Uman) says that although Rav Sheishes answered that a contracted worker's wages are subject to bal talin, he holds that a craftsman does own the improvement of the item. Rav Sheishes simply meant that some contracted work – e.g., shaking a garment for a set fee per shake – is subject to bal talin.

Extending a Worker's Oath

The Gemora says that if the worker brings witnesses that he claimed his wages at the end of his alloted period, he now has an extension of the period to swear and collect.

Rashi learns that this is a one time extension, for a period of a full day.

The Rambam (Sechirus 11:6) says that this extension can occur multiple times, and each extension is for the next time period – a day or night period – after the claim. See Sma HM 89:13 for an alternate reading of the Rambam.

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Delaying the Reward until the World to Come

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The Gemora cites a braisa: If one says to his fellow, “Go and hire workers for me,” neither of them will transgress the prohibition of holding a worker’s wages overnight. The employer cannot be liable, for he did not hire him (and the employee is therefore not regarded as “his hired worker”). The agent cannot be liable, for he is not the one who owes the worker his wages.

The Bechor Shor (Yevamos 96b) uses our Gemora to answer a famous question. Chazal say that there is no reward for the observance of mitzvos in this world; the reward will be given in the World to Come. They ask: How can this be? Isn’t there a prohibition against an employer to delay the payment of wages to his worker? How can Hashem wait until the World to Come?

He answers that since the Jewish people were not commanded to observe the mitzvos directly from Hashem; rather, it was done through Moshe, the prohibition does not apply. Hashem did not directly instruct Klal Yisroel to perform the mitzvos, and Moshe is not the employer.

This answer will be sufficient for Klal Yisroel; however, it does not answer regarding Moshe himself. He was instructed directly from Hashem to observe the mitzvos? How can his reward be delayed?

One can answer based upon the Gemora in Sotah (13b) which states that Moshe is constantly serving the Holy One, Blessed be He, and since rental is paid only at the end, his reward does not come due until the World to Come.

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Childhood Mistakes Remain Throughout Life

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Rava stated: Teachers of children, gardeners, butchers, circumcisers, and the town scribe are all regarded as being warned from beforehand (that they will be dismissed if they cause a loss). The general principle is this: If the loss is irrecoverable, the workers are regarded as being warned from beforehand.

Rashi explains that a child, who was taught incorrectly, will always remain with that mistake.

Tosfos asks: Rava himself (in Bava Basra 21a) states that a mistake learned in one’s childhood will most likely be corrected when he becomes an adult! Why then should this be regarded as irreversible?

The Rishonim answer this question by saying that the Gemora in Bava Basra is referring to a teacher who is precise in his studies; however, he is lax and doesn't see to it that the children properly understand the material. Such mistakes can be corrected at a later date. Here, Rava was referring to a teacher who didn’t understand the material in the first place. Such mistakes will not be easily corrected.

Tosfos explains our Gemora to mean that the child will never be able to recover the time spent learning incorrectly.

The Ran answers that Rava is discussing a teacher who excessively hits his students.

The Chavos Yair does not understand why that would be considered irreversible. [Perhaps the excessive force will make an indelible impression upon the student, and he will have no desire to study when he becomes an adult.]

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Bar Metzra

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Our sugya treats the definitions and halachos of a bar metzra, an adjacent neighbor whose field borders yours. If you offer land for sale, you must prefer selling it to a bar metzra if he wants it. If two or more adjacent neighbors simultaneously compete for the premises, you must sell a same-sized portion to each (see bottom of 108b). If an owner ignores a bar metzra and sells his property to one who is not an adjacent neighbor, the bar metzra may even evict the new owner, compensating him for the price at which he bought the property, and assume its possession. The following case, judged by the Chasam Sofer, allows us to understand the basic source of this halachah.

Son-in-law vs. Neighbor for Liquidated Apartment

A rich man became bankrupt and the beis din ordered him to relinquish his home to the creditors. Fortunately, one creditor was his beloved son-in-law and the house was transferred to his possession. The latter allowed his father-in-law to continue living there for free, but just as the older man started to feel more at ease, his adjacent neighbor complained to the beis din that he had been mistreated. After all, he was a bar metzra, and the beis din, as receivers of the property, should have offered to sell it to him first. However, the Chasam Sofer (Responsa, C.M. 11) refuted his claim, stressing that Chazal learnt the halachah of adjacent neighbors from the commandment in Devarim 6:18: do what is upright and good. The owner of a field next to one offered for sale profits from buying it by enlarging his property and should be preferred but not if he thus harms the seller. If, in this case, the beis din sells the home to the neighbor, he would evict the owner, who would become homeless. The house should remain the son-in-laws’s for the previous owner’s sake, who is being allowed to live there, as the neighbor is also commanded to “do what is upright and good”! (See Chasam Sofer, ibid, who cites more reasons as to why the principle of adjacent neighbors does not apply to such cases).

Buying Seats in a Shul

Buying a seat in a synagogue can become an ordeal to make people swallow their pride. The poskim mention several interesting cases and a long-discussed difference of opinions as to whether the concept of adjacent neighbors pertains to such seats. Should a person occupying a seat next to one being sold be preferred to buy it? Some Rishonim (see Beis Yosef C.M. 175:85) say the rule of bar metzra applies.

Raavad writes that the idea is inconceivable regarding synagogue seats as the original principle applies if, by buying adjacent property, a neighbor expands his use to the added area. An apartment owner, for example, may expand his premises to include a newly bought apartment next-door. A congregant, though, doesn’t need and even cannot sit on two places and therefore does not have to be preferred (see Beis Yosef, ibid, who uses this explanation and Sema’, ibid, S.K. 99). However, all agree that if a bench is too short for a certain number of congregants, they may buy a place next to them to expand their use and ensure their comfort.

Meoros HaDaf Hayomi

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Price Fraud by Land

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The Gemora rules: If an outsider (who was not the adjoining neighbor) bought the land for two hundred, and its value was actually only one hundred, they thought to say that he (the adjoining neighbor) is entitled to say to “the purchaser,” “You were sent for my benefit, not for my detriment.” [The neighbor can thus render the sale null and void. The purchaser will return the land and receive a refund, and the neighbor can go and buy the land.]

Mar Kashisha, the son of Rav Chisda, said to Rav Ashi: The Nehardeans said in the name of Rav Nachman: The rules for “price cheating” do not apply to real estate (and the sale stands, unless he wants to pay the higher price).

The Ri”f rules (and this seems to be Rash”i’s opinion as well) that the principle 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. [This would seem to be problematic from our Gemora.]

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.

The Rosh writes that it is evident from our Gemora that there is no price fraud by land even if the discrepancy is for double its value, for it was worth a hundred and he sold it for two hundred.

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Liability for an Evil Eye

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Rav Yehudah said to Ravin bar Rav Nachman: Do not buy a field close to the city. This is as Rabbi Avahu said in the name of Rav Huna who said in the name of Rav: A person is forbidden from standing near his friend’s field when its stalks are grown. [Rav Yehudah advised not buy such a field because people in the city will tend to admire it, and therefore cause it to be damaged by their evil eye.]

Shulchan Aruch cites this halachah; however, the Ramabm omits it.

The Maggid Mishnah explains that the Rambam maintains that this is not actually a prohibition; rather, it is a midas chassidus - one who wishes to act piously should avoid standing near his fellow’s field when there is standing grain. This is why we do not force neighbors, whose roofs are adjacent to each other, to build a fence so one should be prevented from looking into the other’s area.

The Raavad disagrees, and holds that a wall of four amos is required by a garden.

The Steipler Gaon quotes from a wise man that one who damages by casting an evil eye on another will not be liable to pay. It is for this reason that the Gemora utilizes the term “it is forbidden,” and not that “one is liable.” The Steipler disagrees, and explains that the reason the term “liable” is not used is because we have no way of determining without a doubt that the damage occurred on account of this person’s evil eye. However, if we would know for certain that it was due to him, he would be liable (except according to the Rambam).

Evil Eye

The Gemora (30a) 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.

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Specifics in Tefillah

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by: Rabbi Avi Lebowitz

The Gemora inquires: What if the landowner said to the tenant-farmer, “Plant wheat,” and he went and planted barley, and then the greater part of the valley was blasted, and his barley too was blasted? Do we say that the tenant-farmer can claim, “Had I planted wheat, it also would have been blasted,” or perhaps the landowner can respond, “Had you planted wheat, the Scriptural blessing of “You will make a plan, and it shall be established for you” would have been fulfilled for me?

Rashi writes that the landowner counters by saying, “If you would have planted wheat, the field would have quite possibly been spared, for I was praying at the beginning of the year regarding a successful wheat crop; not for barley.”

The focus on the “beginning of the year” is that even though the landowner realized later that the farmer planted barley rather than wheat, and from the time of planting he was praying for a successful barley crop, he can still claim that before the planting season, he has already been praying for success regarding wheat, not barley, and perhaps it was that prayer that would have been listened to.

This idea that a prayer will only work for what a person is explicitly requesting, and not merely for what he was intending, can be traced to a Rashi in Chumash (Parshas Chukas 21:1). Rashi explains that the Amaleikites dressed as Canaanites so that the Jews should pray that the Canaanites should be delivered in their hands. Since in fact, they were fighting with Amaleik, their prayers would be useless.

The Mesech Chochmah makes the connection to our Gemora. He explains that even though they would have surely prayed against Amaleik had they known their true identity, tefillah does not accomplish when one is praying for the wrong thing.

We learn from here that when we daven, although it is important to make the tefillah specific (as we see from Chazal in the way they instituted the Shemoneh Esrei, asking for specific requests, not just “all good things” - this is also clear from Tosfos that if one davens very generally for success, it is not a strong tefillah, so Hashem is less likely to listen and he therefore has no claim, but when he davens for something specific, Hashem is more likely to listen and therefore he has a claim), we should leave our tefillos open enough, so that if we are mistaken about certain facts, the tefillah will still be applicable; rather than limiting the tefillah based on facts that will be realized to be wrong, rendering the entire tefillah futile.

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The Designation of Money and the Timeliness of a Mitzvah

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The Gemora cited a braisa: The Purim collections must be used for Purim only, and we are not required to be so precise in the matter (how much is needed for Purim, and how much the poor of the city needs). The poor may not even buy straps for their shoes, unless it was stipulated in the presence of the townspeople that such shall be granted; these are the words of Rabbi Yaakov, who said it in the name of Rabbi Meir. Rabban Shimon ben Gamliel is lenient in the matter (and allows the poor person to use the charity funds for other uses besides the Purim feast).

The Chavos Yair quotes a Sefer Chasidim, who derives from this Gemora that if one sends his fellow a gift of food to be eaten on Shabbos, it is forbidden for the recipient to eat it during the weekdays. If he has leftover, he should let the rest of household partake in it, but only on Shabbos. If the donor explicitly stipulated that he should be the only one to eat from it, he may not give it to others.

It would seem from our Gemora that this is not merely an act of piousness; but rather, it is halachically mandated. We can extrapolate further that if one gives money or wine to his fellow and he tells him that is should be used for Kiddush, he must use it for Kiddush, and nothing else. It would be forbidden to buy fish for Shabbos with this money, for Kiddush is a Biblical mitzvah, and eating fish on Shabbos is merely a Rabbinic one.

However, according to the prevailing custom that money is given to Torah scholars, and they are told to use it for Shabbos and Yom Tov, that is only out of respect, but they are not actually being particular as to what it should be used for; in such cases, they could use the money for whatever they desire.

Reb Yosef Engel cites the following Yerushalmi: If one vows to bring a flour-offering on Yom Tov, he should not bring it on a weekday. This is why the seforim write that a transgression committed on Shabbos is more severe than one committed on a weekday, for the holiness of the day plays a role. So too it may be said regarding the performance of a mitzvah; There will be a greater reward for a mitzvah performed on Shabbos or Yom Tov.

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Taking Care of Tefillin

by: Rabbi Yechezkel Khayyat

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The Gemora discusses the parameters of what may be on one’s head at the same time as tefillin. The Gemora cited three statements:
1. A braisa that states that if one has a burden on his head, which presses down on the tefillin, it is prohibited. The braisa clarifies that a burden of four kavs or more is prohibited. (This is the measure which the Beis Medrash of Rabbi Yannai referred to.)
2. Rabbi Chiya’s braisa, which said that if one is carrying refuse on his head, he must remove the tefillin and keep them respectfully on his arm.
3. Rabbi Shila’s students said that even the bag of the tefillin may not be placed on the head. Abaye explains that this is very light.

Rabbi Chiya’s statement need not contradict either statement, since Rabbi Chiya was limited to a case of refuse, which is qualitatively a disgrace to place next to tefillin, regardless of the burden’s size.

However, at first glance, Rabbi Shila’s position is at odds with the first braisa. In fact, the Rambam (Tefillin 4:23) rules like Rabbi Shila, permitting nothing aside from a usual head covering.

The Gr”a explains that the Rambam allowed normal head coverings, since the Gemora refers to Dovid Hamelech wearing a crown together with tefillin (Avoda Zara 44a), and the Kohen Gadol wearing the mitznefes together with the tefillin (Zevachim 14a-b).

However, the Rif (Brachos 14b) and the Rosh (Brachos 3:31) cite all three statements, without ruling like any one in particular.

To explain this position, the Rishonim and Acharonim suggest various distinctions between the statements to reconcile the seeming contradiction:
1. Rabbi Shila is stating that optimally one should not place anything on his head with tefillin, while the braisa is stating that if one placed the burden on, he may leave it there unless it is four kavs or heavier. [Bais Yosef (OH 41) in the name of Mahari Abuhav]
2. The braisa is referring to one who is carrying a load for his work, and therefore is more lenient. [Bais Yosef in the name of Mahari Abuhav]
3. The braisa is referring to one who is first carrying the burden, and then wants to put on tefillin, while Rabbi Shila is referring to one who is first wearing tefillin, and wants to place the burden on his head. When the burden was there first, it need not be removed unless it is four kavs or heavier. [Bais Yosef]
4. The braisa is referring to a burden that is on one’s head, but not on the tefillin. Since a burden of four kavs is likely to be heavy enough to crush tefillin, the Sages prohibited one from putting such a burden on his head. Rabbi Shila is referring to a burden on the tefillin itself, which is prohibited at any size. [Bais Yosef]
5. Rabbi Shila is referring to a burden not usually placed on the head, which is never allowed, since it is a disgrace to the tefillin. The braisa is referring to a normal head covering (e.g., hat), which is only prohibited when it is heavy enough to crush the tefillin. [Rama] (See MB 41:4, who rules that one should not place a hat on the tefillin if it rests heavily on it).
6. Rabbi Shila is referring to someone wearing tefillin at home, who has no need to put anything on his head, while the braisa is referring to someone outside who is transporting the burden. [Aruch Hashulchan]
See Taz and Prisha for more details.

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Wicked Olives

by: Rabbi Yosef Dov Karr

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The Mishna records a dispute about peritzei zeisim – wicked olives – which will never ripen. Beis Shammai says that since they have reached the end of their ripening, they are considered food, and may become impure, while Beis Hillel says that since they are not edible as regular olives, they are not considered food, and may not become impure.

What is the meaning behind these “wicked olives”? People may be righteous or wicked, but not food!?

The Ben Yehaydah explains that a wicked person can come back as a gilgul (reincarnation) as fruit and his neshamah (soul) gets a tikkun in that a person makes a blessing on this fruit. Unfortunately, there are some evil people that are so wicked that when they return as fruit, they come back as peritzim, or fruit that will never ripen. They are not even considered a food (and therefore cannot become tamei). One does not say a blessing on peritzim and the wicked person does not receive his tikkun.

Now we can conclude how important it is to say a proper blessing before we eat food, and perhaps, we should have a new kavanah when we recite a brochah, and keep I mind that that this brochah may be a tikkun for a neshamah that seeks to repent.

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A Woman's Sacrifices and Recital

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Rabbi Yehudah used to expound common terms. For it has been taught in a braisa: Rabbi Yehudah said: A rich person is obligated to bring a rich person’s korban for his wife, and likewise, he is obligated to provide her with the animals for any of her korbanos that she must bring, for the following is what he wrote for her in the kesuvah: My properties are pledged for every claim you may have against me from before up to now.

Rashi explains that it is the husband’s obligation to provide for the sacrifice of his wife, and Rabbi Yehudah rules that when the husband is doing so, he must bring a sacrifice according to his financial status. He cannot claim and say, “My wife has no possessions of her own and she is therefore poor, and I should therefore only be obligated to bring a poor man’s sacrifice for her.”

The Gemora in Nedarim (35b) cites a verse which teaches us that a man is required to bring a korban for his wife, whether she is normal or insane. This, however, is only true regarding sacrifices that are offered for someone who lacks atonement, for these korbanos are different in the following respect: Korbanos are only brought with the owner’s consent; however, a korban, which is brought for one who lacks atonement, can be brought even without the owner’s consent. Therefore, all other korbanos, the woman would be required to bring them; her consent is a necessity.

Rabbi Yaakov Emden in Mor U’Ketziah (47) writes that women, in general, have no connection to korbanos, except for those that are her personal obligations, e.g. the birds of a zavah or for a woman who gave birth.

The Peri Megadim disagrees and writes that they are included in the general sacrifices, and certainly with the recital of the korbanos, which we do nowadays, as a replacement for the actual offering of the sacrifices.

The sefer Toras Hayoledes brings that a woman who gave birth, on the forty-first day if she had a son, and on the eighty-first day if she had a daughter, should recite the verses in Parshas Tazria dealing with the korbanos she would have been required to bring if there was a Beis HaMikdash in existence. And she should conclude with the following prayer, “Master of the Universe, it should be the will of our G-d and the G-d of our forefathers that this recital which I said should be significant and accepted before You as if I actually brought my prescribed sacrifices. And it should be the will of our G-d and the G-d of our forefathers that You should build the Beis HaMikdash speedily in our days.”

The Pischei Zuta discusses if she would be required to recite the passages that deal with the sacrifices that she would bring if she was poor and could afford the animals. For perhaps that dispensation was only in the times of the Beis HaMikdash, when korbanos were being brought; however, now, that we are merely reciting the verses, every woman should say the same thing.

In the siddur Keser Nehura, it is written that on the day following a woman’s immersion in a mikvah for her menstrual impurity, she should recite the passages from Parshas Metzora that deal with those halachos. And she should conclude by saying, “It should be the will of our G-d and the G-d of our forefathers that this recital which I said should be significant and accepted before You as if I actually brought my prescribed sacrifices.”

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B'tuvo

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Rav Nachman says: A person can ask his friend to borrow something “b’tuvo” -- “when good,” and (if his friend acquiesces) borrow it anytime thereafter (even after he returns it, provided that it is in good condition, for that is what he meant when he said “b’tuvo” ).

Rav Mari, the son of the daughter of Shmuel, said: This is only if they made a kinyan to this effect.

The Ritva writes that the main novelty of this halachah, according to Rashi’s explanation, is that we expound his language. We assume that this was the borrower’s intent when he used the word “b’tuvo.”

Tosfos cites an Aruch, who offers a different explanation. If the borrower did a favor for the lender, the borrower may use the borrowed utensil forever.

The Ritva explains: The borrower, after doing a favor to the lender, requests of him to borrow his utensil in exchange for the favor that he did. The novelty of this halachah is that he is not regarded as a renter, even though the utensil is being lent to him in exchange of the favor which he provided. He is, nevertheless, regarded as a borrower.

The Rif suggests an alternative explanation of the Gemora: The borrower said to the lender, “Lend me, on account of your goodness, this utensil that I can use it.” Since a term limit was not mentioned, he may borrow it forever, or until it breaks. The novelty of this ruling is that by adding the words, “your goodness,” he may borrow it forever. This is unlike an ordinary unspecified borrowing, which is only for thirty days.

The Rosh asks: Why do these words make a difference? It is extremely common for someone to say to his fellow, “Can you do me a favor please and lend me a utensil?”

The Sm”a answers that we are referring to a case where the borrower said to the lender, “You are such a good person, one who is not particular at all as to the amount of time your utensil is lent out.” In this case, we assume that he is lending it forever.

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Mezuzah's Protection

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The Gemora cites a braisa: If one rents a house to his fellow, the tenant must provide a mezuzah. And when he leaves, he must not take it with him, unless he rented it from a gentile, in which case, he must remove it when he leaves. And it once happened that a man took the mezuzah away with him, and he buried his wife and two children.

The Gemora asks: Do we relate a story in contradiction of what we had just learned?

Rav Sheishes answers: It refers to the first clause (where he rented from a Jew).

Tosfos writes that there are mazikin - supernatural forces that enter a house bereft of a mezuzah.

The Ritva explains that this punishment was measure for measure. Since he was not concerned about the danger that could befall the future residents (for now, they will not be protected by the mezuzah), he himself suffers, and he is not afforded any protection.

The Kesef Mishnah writes that a mezuzah, which is written correctly, will protect the residents of the house. The protection is not afforded because of the names of Heavenly angels that are written there. And, he concludes, it will only protect a person if it was affixed to the doorpost for the sake of the mitzvah; not if it was placed there solely for protection.

The Maharitz Chayus compares the protection afforded by the mezuzah to the protection that comes from the studying of Torah or the performance of any mitzvah. It would emerge that that there is no greater protection afforded by the mezuzah more than any other mitzvah in the Torah.

Reb Avi Lebovitz points out that seemingly, there will be no protection afforded to a person who is exempt from the mitzvah of mezuzah, and does so anyway. It is not the mezuzah that provides the protection; it is the mitzvah of the mezuzah.

However, the Maharsham cites an opinion of the Shevus Yaakov, who holds that even if one is exempt from placing a mezuzah on a certain doorpost, he may do so for protection purposes, and he would not be called a hedyot.

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Swept Away Olive Trees and Settling in Eretz Yisroel Nowadays

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The Mishna had stated: A river swept away a person’s olives trees and deposited them (together with their roots) in someone else’s field. The owner of the trees says, “My olive tree grew this,” while the owner of the land says, “My land grew this.” They should split the olives.

The Maggid Mishnah writes that that if the olive trees were not uprooted together with their clods of earth, the trees would be regarded as a lost article that is permitted to all. This would be similar to the Gemora above (22a), which states: If a river washed away someone’s beams, timber, or stones, and has deposited them in someone else’s field, they belong to the field owner because the owner has given up hope. Accordingly, in our case, the trees would belong to the landowner, and he would not be required to pay the original owner of the trees at all. However, if they were uprooted together with their clods of earth, since the trees`are growing as a result of his land, it emerges that the tree owner is also contributing towards the growth of the olives; they therefore would divide it.

Alternatively, it can be said that if the trees were uprooted together with their clods of earth, the river cannot sweep them a great distance away from their point of origin, and therefore, the owner does not despair about getting them back.

Settling in Eretz Yisroel Nowadays

The Mishna had stated: A river swept away a person’s olives trees and deposited them (together with their roots) in someone else’s field. The owner of the trees says, “My olive tree grew this,” while the owner of the land says, “My land grew this.” They should split the olives.

A Tanna taught: If he said, “I wish to take back my olive trees,” we do not listen to him.

The Gemora asks: Why is that?

Rabbi Yochanan said: It is because of the significance of settling Eretz Yisroel.

Rabbi Yirmiyah said: For such an answer, a great man is necessary (for we would not have said like this using our own logic).

The Ramban says that this mitzvah is a Biblical commandment. The Rambam omits this mitzvah is his Sefer Hamitzvos. There are those that explain that the Rambam holds that it’s only a Rabbinical mitzvah. Other say that the Rambam holds it is not a mitzvah at all; the only reason why a man can force his family members to move to Eretz Yisroel is because this way, they will be able to fulfill the mitzvos which are dependent upon the Land of Israel.

The Ritva writes that the applications of the Mishna apply to nowadays also. Proof to this is from the fact that Rebbe incorporated these halachos into the Mishna even though he was living in the times after the destruction of the Beis Hamikdosh.

Tosfos (Kesuvos 110) cites Rabbeinu Chaim Kohen that there is no mitzvah nowadays because there are many mitzvos there which entail many punishments, and it will be impossible for one to be careful regarding all of them. This can be simply understood to mean that although there might be a mitzvah to live in Eretz Yisroel, it is simply not worth it, for one will lose out by transgressing many aveiros there. Reb Avi Lebovitz (and afterwards I found this logic in the Beis Halevi) explains a little differently: Rabbeinu Chaim is actually describing the mitzvah of living in Eretz Yisroel to be for the purpose of fulfilling the mitzvos that apply there. If one were to live in Eretz Yisroel without properly performing the mitzvos, they are not only losing out on these additional mitzvos; they are also not fulfilling the mitzvah of living in Eretz Yisroel.

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Borrowing with the Owner

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By: Reb Avi Lebovitz

Rav Hamnuna holds that the exemption of borrowing an animal with its owner only applies to a case where the owner is borrowed to work in the same labor as the animal, AND that the owner was there at the time that the accident occurred.

This approach in שאלה בבעלים is certainly the most rationale, because the reason for the exemption is that since the owner was there at the time of the accident doing the same work, he should have watched his own animal.

This is the approach of the GR"A in Aderes Eliyahu to explain the concept of שאלה בבעלים. However, the Meshech Chochma (Mishpatim 22:3) points out that this approach doesn’t at all work with the halachic ruling, rejecting Rav Hamnuna entirely. We hold that שאלה בבעלים is completely dependent on the time that the object was borrowed, the owner must have already been in the borrower service (or at least begin immediately), AND it makes no difference if the owner is working with the object that has been borrowed or in something else. What then is the rationale behind this halachah?

The Meshech Chochma suggests that the rationale is based on a Gemora in Megillah (26b) which states that the sanctity of a Shul would go away, not only through a sale, but even if it is given as a gift because: if they would not have received any benefit from the recipient, they would not have given it to him (therefore it is like a sale). Here too, it is not common to do such a huge favor for the borrower to lend him an object and work for him at the same time. Therefore, we assume that the owner is only lending and working in exchange for something that he received. Since the owner received something in exchange, the borrower is no longer a borrower, but has been downgraded to a renter, who is exempt if an unavoidable accident occurs.

This approach doesn’t explain those who hold that negligence is also exempt, and it also doesn’t explain why he is exempt for theft according to those who hold a renter is normally liable for theft (like a spaid custodian). Perhaps we will have to assume a “lo p’lug” (no distinction) to explain those opinions.

With this, we can somewhat explain the Gemora’s question (96a) whether שאלה בבעלים applies when the owner sends his messenger rather than going himself. Does the sending of a messenger also indicate that the owner must have received something significant in return for lending and supplying a worker, or do we only assume that when he himself goes? However, if this is in fact the question of the Gemora, it shouldn’t really be dependent on the halachah of שלוחו של אדם כמותו anywhere else; it should be an isolated question regarding the assumption in this specific situation. Yet, the Gemora compares it to the general halachah of שלוחו של אדם כמותו by the annulment of vows.

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Kal Vachomer

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The Gemora states that something which may be derived through a kal vachomer (literally translated as light and heavy, or lenient and stringent; an a fortiori argument; it is one of the thirteen principles of biblical hermeneutics; it employs the following reasoning: if a specific stringency applies in a usually lenient case, it must certainly apply in a more serious case), the Torah may anyway take the trouble to write it explicitly.

The Bnei Yissoschar explains the reasoning for this: A kal vachomer is based upon logic. One might say that the reason this halachah (derived through a kal vachomer) is correct is because it is understandable to me; it makes sense. The Torah therefore goes out of its way to write it explicitly in order to teach us that the halacha is correct because the Torah said so; regardless of whether it is understood or not.

The Ra”n in Nedarim (3a) notes that this concept is applicable by a hekesh (when the halachos from one topic are derived from another one) as well. The Gemora in Bava Metzia (61a) states that it also applies to a gezeirah shavah (one of the thirteen principles of Biblical hermeneutics; it links two similar words from dissimilar verses in the Torah).

According to the explanation of the Bnei Yissoschar, we could say that the concept should only apply to a kal vachomer, for that is based upon logic. The Torah would not find it necessary to state explicitly a halachah which is derived through a hekesh or gezeirah shavah, for they are not based upon logic at all, and it would be superfluous to write it.

The Yad Malachei writes that if the Torah does explicitly write a halachah which was derived through one of the thirteen principles of Biblical hermeneutics, we must treat it more stringently than an ordinary halachah. This is comparable to a Rabbinical prohibition, which has a slight support from something written in the Torah. Tosfos in Eruvin (31b) rules that such a prohibition is stricter than an ordinary one, which does not have any Scriptural support.

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Stipulation regarding Marital Relations

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The Gemora cited a braisa: If someone says to a woman that she is betrothed to him on condition that he does not owe her support, clothes, or marital relations, the kiddushin is valid, but the conditions are invalid; these are the words of Rabbi Meir. Rabbi Yehudah says: In monetary matters, the condition is upheld.

The Gemora explains that Rabbi Yehudah holds that one can make a condition modifying the obligations stipulated by the Torah regarding monetary law.

This would explain why Rabbi Yehudah holds that the condition is valid when he stipulated that he does not owe her support or clothing; however, why is it valid when he stipulates that he will not have marital relations with her? This is not a monetary law!?

Rashi, because of this, writes that the husband remains obligated to have marital relations with her, for this is not a financial right. Depriving a wife from relations would cause her physical distress and therefore the condition is void.

The Mishnah Lamelech challenges this from a Gemora which states that one can say to his fellow, “Hit me and you will be exempt.” Evidently, one can waive physical anguish! Furthermore, we find that a woman can release the husband from his marital relations!?

Some answer that Rashi himself, cited in the Shitah Mikubetzes in Kesuvos (56a), states that the condition is void, for we assume that a woman will not waive her rights regarding anything which causes physical anguish; however, if she explicitly forfeits those rights, they are forfeited.

Rabbeinu Chananel holds that a man may stipulate on marital relations, and a wife can waive her rights to it as well. This is because the pleasure of relations belongs to her and it would be regarded as a financial right.

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Fly like a Bird

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The Gemora cites a braisa: If a husband says (this is your get), “On condition that you go up into the sky,” “that you go to the depths of the earth,” “that you swallow a reed of four cubits,” “that you bring me a reed one hundred cubits long,” “that you walk over the Great Ocean with your feet,” if the condition is fulfilled, the get is valid; if not, the get is invalid. Rabbi Yehudah ben Teima says: Something such as this is a get. He said the following rule: Any condition that cannot eventually be fulfilled and the husband stipulates at the outset, he is just doing that to pain his wife, and the get is therefore valid.

There is another case brought down in the Tosefta: If the husband said, “On condition that you fly in the air.”

Reb Yosef Engel in Gilyonei HaShas asks: Isn’t this something that is possible? Don’t we find such an occurrence by Alexander the Great? And in today’s age (of Reb Yosef Engel), people fly in the air using air balloons!?

He answers that the language “fly” connotes “by himself,” similar to a bird, and floating in the air using exterior devices is not what he had in mind. A condition must be fulfilled according to the language of the stipulator!

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Samson and the Lion

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It is written [Shoftim 14: 5 – 6]: And Shimshon and his father and mother went down to Timnah, and they came to the vineyards of Timnah, and behold, a young lion roared towards him. And there rested on him a spirit of Hashem, and he rent it as one would rent a kid, although he had nothing in his hand, but he did not tell his father and mother what he had done.

The question is asked: How did his father and mother not see what he did? The verse explicitly states that he went together with them!?

The Vilna Gaon answers based upon our Gemora, which states that that we tell a nazir, “Go around and do not come near the vineyard,” for we are concerned that the nazir will eat from the grapes.

Accordingly, it can be said that when Shimshon, who was a nazir, came across the vineyard, he immediately separated from them in order not to stumble by the vineyard. It was at this time that he met up with the lion.

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Pareve Bread

by: Rabbi Yechezkel Khayyat

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Bread - only Pareve?

The Gemora introduces the prohibition on producing and eating meat or dairy bread. The Tur and Shulchan Aruch discuss this prohibition at length in YD 97. Below are a number of issues related to this topic.

Rationale

The Gemora explains that these breads are forbidden due to a concern that one may eat the bread with meat of milk. This is true even if the bread was baked with bird fat, even though bird meat and milk is only Rabbinically prohibited.

The Poskim question why this is not a gezeirah l’gezeirah – a Rabbinic decree applied to a Rabbinic decree.

The Pri Megadim (Sifsei Da’as 97:1) answers that bread is such an essential staple that indiscriminately eating bread with meat or milk – i.e., assuming it is pareve – is so pervasive and common as to be certain. Therefore, the Rabbinic prohibition on a milk and bird meat mixture includes the prohibition of such bread.

Other Applications

The Taz (YD 97:1) applies this prohibition to other essential foods that are assumed pareve, including spices. Therefore, the Taz says that if one had a spice grinder which was used as pareve, and then one ground meat in it, it may not be used for any spices, even for use with meat.

Exceptions

The Gemora (Pesachim 36a) allows one to make such bread when made k’ain tura – like an ox. Rashi says this means that when one bakes only a small amount, which will be eaten in one meal, we are not concerned that it will be accidentally eaten with the wrong type of food, and is therefore permitted.

The Rif says that this means that if the bread baked has a distinctive shape and/or appearance, we are not concerned that one will eat it with the wrong food. For example, a muffin type of bread, or bread with obvious cheese or meat in it, would be permitted.

The Rama (YD 97:1) says that this is why it is customary to bake bread with milk for Shavuos, and with fat for Shabbos, since the bread looks different, and only a small amount is baked this way.

Taste Once Removed

The braisa says that if one coated an oven with fat, one may not bake bread in it until he burns out the fat.

The Rishonim discuss why simply cleaning the fat from the surface is not sufficient. The Rashba says that cleaning the surface is sufficient, but the braisa gave the more common action of burning it out.

Tosfos (Pesachim 30 Dilma) says that since the fat is so hard to clean at the surface, we assume that cleaning the surface will not be done thoroughly enough, and therefore one must burn it out.

The Poskim discuss whether the case of the oven whose surface is cleaned out is a case of nat bar nat – an embedded taste that is one step removed. If it is, the question and answers given by the Rishonim may indicate their position on whether one may intentionally create food that is nat bar nat for eating with meat or milk. See Yalkut Yosef YD 89, footnote 35.

Coffee Breaks

The Mishna discusses at what point in the work day a worker can eat from the food he is harvesting. Most Rishonim read the Mishna and Gemora as saying that from the Torah, while the worker is working with the fruit – until it is harvested – he may eat, while the Sages allowed them to eat during breaks between sections of the vineyard.

The Rambam (Sechirus 12:2) says that from the Torah a worker may only eat after he has harvested, since before then he will be wasting work time on eating. The Sages allowed the workers to eat before the harvest is fully done, during breaks between sections, to limit the break time taken once the harvest is done.

The Rambam’s text in the Mishna seems to be like the Rif’s - that one may eat only “b’shas gmar m’lacah” - at the time of the end of work, as opposed to our text - “b’shas m’lacha” - at the time of work.

The Maggid Mishnah says that the Rambam’s position is similar to Rashi’s. Rashi says that the Mishna says that a worker may not take a break from his work in order to eat, indicating that eating out of the permitted time is prohibited due to idling from the required work. See Drisha HM 337:4 for further details on the positions of the Rambam and Rashi. See Even Haezel for an alternate explanation of the Rambam’s position.

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