Wednesday, December 30, 2009

Admitting the Truth

Rava initially said that if two wives of a man gave birth to sons in the same dark house, and it was unclear which was born first, the two sons can give each other power of representation and together claim one extra portion for whomever is the true first born.

Rav Pappa told Rava that Rabbi Yannai said (due to the braisa cited above) that if the firstborn was never identified, neither gets an extra portion. Only if the firstborn was first identified, but subsequently mixed up, may they use the power of representation to claim the extra portion.

Rava accepted Rav Pappa’s statement, and publicly announced his mistake, and its correction.

HaGaon Rav Chayim Kanievski relates that he was once a student at the Lomzha yeshiva in Petach Tikvah, where HaGaon Rav E.M. Shach zt”l was then a rosh yeshivah. After delivering a shiur Rav Shach would sometimes recheck a chidush and retract his words. He would then quickly pass among his students and call their attention to his error.

Rabbi Y.Z. Winograd zt”l, rosh yeshivah at Etz Chayim in Yerushalayim, told a similar story about his sojourn in Brisk to collect funds for charity. Attending a lesson by HaGaon Rav Chayim of Brisk, it seemed to him that the gaon‟s statements contradicted a passage in tractate Chulin that he had learnt that morning and he whispered, “It seems that in Chulin…” “Yes? What did you want to say?” asked Rav Chayim. “It seems”, replied Rav Winograd, “that the Gemora in Chulin says otherwise.” “Not only “seems”! cried Rav Chayim, “It certainly says just the opposite!” Rav Winograd related that Rav Chayim ended the lesson then and there. At any rate, he became famous throughout Brisk and his charitable mission was crowned with success. Before leaving town, he asked Rav Chayim what he should know to succeed as a rosh yeshivah. “A rosh yeshivah must know”, the gaon advised, “that even if he toils a whole night to prepare a shi’ur and it seems to be excellent and then the weakest student asks a good question that undermines its whole foundation, he should admit his error, even if he is sharp enough to reconcile it because he truly knows that the student is right” (Peninei HaGeriz, p. 173).

Compensation for a Cornea Stolen from the Deceased

by: Meoros HaDaf HaYomi

A doctor performing an autopsy stole a cornea for a transplant and the heirs wanted to sue him for the cost of the eye, assuming that it could be likened to any stolen article. Our next paragraphs do not address autopsies, which constitute a topic on their own, but merely relate to the financial aspect of paying for the theft.

Apparently, the doctor cannot evade compensation to the heirs for the purloined cornea. The organ was worth something and if he stole it, he should pay for it. On closer examination, though, we shall discover that the matter is far from simple.

In our sugya the Amoraim try to find a situation where a person can acquire property without the ability to transfer its ownership to others and the Gemora concludes that such a situation characterizes a person in his final moments (goses) who has lost the power of speech. His inability to speak robs him of the possibility to grant ownership but he can still acquire assets such as by inheritance. It is evident that after his demise he can no longer acquire property or inherit.

The inheritance of posthumous rights

Returning to the cornea, we should first review the halachic treatment of theft. A thief must repay the value of any stolen item to the heirs of the person from whom he stole (Tur, Shulchan Aruch, C.M. 367:4) as heirs take their father’s place and payment to a son, or another heir, is regarded as payment to the father (Beis Yosef, ibid). However, who exactly owns the cornea? If the heirs claim compensation with the assertion that they are the injured party, we must first determine if they inherited the cadaver. As, however, it is obvious that no one inherits his father’s body, that possibility becomes invalid. What, though, about inheriting the right to collect compensation from the thief as in any instance of theft? Still, only the living can gain the right to collect compensation and when the cornea was removed, the deceased, of course, could no longer acquire any rights. No ordinary halachah of inheritance, then, enables the heirs to collect from the doctor (see the topic discussed in HaGaon Rav Y.Y. Fisher’s Responsa Even Yisrael, VII,