Friday, July 25, 2008

Dangerous Custodians

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

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

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

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

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

Read more!

Thursday, July 24, 2008

Selling a "Runaway" Slave

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

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

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

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

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

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

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

Read more!

Rashi's Retraction

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

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

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

Read more!

Wednesday, July 23, 2008

Food and Medicine for the Slave

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

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

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

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

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

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

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

Read more!

Monday, July 21, 2008

Agent to Free a Slave

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

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

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

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

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

Read more!

Idolater Judges

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

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

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

Read more!

Sunday, July 20, 2008

The Law of the Government

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

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

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

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

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

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

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

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

Read more!

Cuthean as a Witness

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

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

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

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

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

Read more!

Suspected of Lying

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

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

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

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

Read more!