Thursday, May 07, 2009

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.

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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.

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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.

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Partners Stealing

By: Rabbi Avi Lebowitz

The Gemora says that if partners steal they are both liable, but if Reuven asks Shimon to steal for him, only Shimon is liable.

Rashi explains that the case of partners stealing is when one partner does the act of stealing for both of them. Since he does it on behalf of both of them, they are both liable.

Tosfos disagrees because we would only say that one cannot be an agent for a transgression on the act of shechitah to be liable four or five, but on the act of stealing, even if Reuven and Shimon are partners, we would not say that Shimon can serve as Reuven’s agent to make Reuven liable for stealing. Therefore, the only case that Reuven would be liable is when he commits the act of stealing together with Shimon.

The Maharitz Chayus points out that this is difficult even according to Tosfos. Why would we say that when Reuven and Shimon pick it up together - since he acquires it for himself, he may also acquire it for his fellow? Even when they steal it together, since we have a principle that one cannot be an agent for a transgression, Reuven is not able to serve as Shimon’s agent to steal it, and Shimon cannot serve as Reuven’s agent, so it should be considered from each one’s perspective as if the other half of the cloak is still lying on the ground and they cannot acquire it?

He explains based on the Sm”a (C.M. 182), who says that one cannot be an agent for a transgression is based upon the idea that the sender doesn’t really expect the agent to violate the prohibition, because he knows that the agent should listen to Hashem rather than him. This only makes sense in a case where the sender maintains his innocence, but in our case, where both Reuven and Shimon are doing an act of stealing, they aren’t innocent and cannot claim that they didn’t expect the other person to follow through with the agency of a transgression. Therefore, in the case where Reuven and Shimon are doing the transgression together, we say that one can be an agent for a transgression and each one serves as the agent of the other to help him acquire it.

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The Mishna had stated: If two people were riding on an animal, or one was riding and one was leading the animal, and each of them claims that he owns the animal, each should swear that they do not own less than half of the animal, and they should then split the animal.

Rav Yosef said: Rav Yehudah told me: I have heard from the Master Shmuel two rulings regarding a rider and a leader. One of them does acquire the animal, and one does not. However, I do not know which of them acquires and which does not.

It is evident from the Gemora that the “leader” is acquiring the animal with an act of meshichah (pulling it).

Many Rishonim understand the kinyan by the “rider” as follows: The animal is walking due to the weight of the person sitting upon it. This is tantamount to “pulling it.”

Tosfos explains: The rider is holding onto the animal’s reins and it is moving a little because of him.

Rashi seems to say that the “rider” can acquire the animal even if it doesn’t move at all. It would seem that “riding” would be a new type of kinyan.

The Reshash cites the Ritzvash that the “rider” acquires it because he is “using” the animal. This would be similar to a propriety act done with land.

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Halachic Rulings

By: Rabbi Yechezkel Khayyat

The Gemora discusses the status of a disputed bathhouse, and whether either claiming party can consecrate it. The Gemora's conclusion is that the power needed to consecrate an item depends on the type of item. If the item is real estate, anyone who can retrieve the item in court may consecrate it, even before retrieving it. However, a movable item can only be consecrated when the one consecrating has de facto and de jure possession.

The Baal Hamaor and the Ramban (BK 18 in Rif pages) discuss why one may not consecrate an item which was stolen from him. The Baal Hamaor says this is simply because it is out of his reach, and an item must be accessible to be consecrated. The Ramban says it is because the thief has certain liability for the item, and therefore has acquired some ownership by his theft.

Based on the Ramban's opinion, Rabbi Akiva Eiger (BM 7 bemasusa) asks how our Gemora reaches its conclusion. The Gemora distinguishes between stolen real estate and movable items, since real estate is immutable, and cannot be acquired through the standard acquisitions of theft. However, this distinction seems irrelevant in the case of the bathhouse, where neither party did any acquisition.

Rav Elchanan Wasserman (Kovetz Shiurim BK #9) points out that the Baal Hamaor brings our Gemora as a proof to his opinion. He therefore states that the Ramban agrees that inaccessibility precludes consecration, but adds that the partial ownership acquired by theft also blocks consecration. In our Gemora, where the bathhouse is inaccessible, both Rishonim agree that neither can consecrate it.

The Ramban and Baal Hamaor only disagree about a thief who is ready to hand over the item, but has not yet done so. (In fact, that is the context for their discussion of the rules of consecration).

Rav Elchanan therefore answers Rabbi Akiva Eiger's question by explaining that the distinction of acquisition between real estate and movable items is only relevant when the consecration is prevented by theft acquisition. However, when the consecration is prevented by sheer inaccessibility, if one can retrieve a real estate asset in court, he may consecrate it, since the one holding the real estate cannot truly hide the item from its owner. If he cannot retrieve it in court, he cannot consecrate it, since it is still inaccessible.
Grabbing vs. Holding
The Gemora states that the Mishna, which evenly splits a garment held by two parties, is a case where each side is only grabbing a fringe, which doesn't confer any possession. Therefore, they swear and take half. However, the braisa of Rav Tachlifa discusses a case where each party is holding a segment of the garment. In that case, each party takes what they are grabbing, and then split the rest.

The Rishonim point out that the word used in the Mishna is ochazin – holding on to, since the parties are only holding onto the edge. However, Rav Tachlifa uses the word adukin – attached, since the parties are grabbing a segment of the garment. The Gemora says Rabbi Avahu indicated that the split in the adukim case is done with each side swearing.

The Rosh (1:13) and Tosfos (7a Machvei) say that they must swear on everything that they will take, including the portion they are grabbing. The Rosh proves this from the statement of the Gemora on 3a that the oath in the Mishna is to prevent people from forcibly grabbing other people's garments. This logic applies to the whole garment, including the portion they are currently grabbing.

The Ramban agrees, and proves it from the language of the Gemora, which says that Rabbi Avahu machvei – showed – that the split should be with an oath. Rabbi Avahu was physically showing that the whole garment is subject to an oath.

The Rambam (To'ain v'nit'an 9:9) says that the oath is only on the section that they are not grabbing, but each can cause the other party to swear on the part they are grabbing through gilgul – an ancillary oath.

The Shulchan Aruch (HM 138:3) rules like the Rambam. The Gra (12) supports this position from the Gemora's statement that holding on to a portion of the garment is sufficient for chalipin, indicating that grabbing a section of a garment is full ownership, with no need for proof or swearing. The Shach (5) and Sma (11) dispute this, and rule like the Rosh.

The Shita discusses why the Gemora didn't resolve the contradiction by stating that the Mishna was a case of each grabbing exactly half the garment. The Shita quotes a number of answers:
1. They wouldn't swear in this case, since they are not splitting anything out of their direct possession. This answer follows the Rambam's ruling above.
2. It is a rare (even impossible) case, and therefore not a good answer.
3. The Mishna would not need to tell us such an obvious halacha in that case.
How to Split a Contract?
The Gemora cited statements of Rabbi Elazar and Rabbi Yochanan about splitting a contract held by the debtor and creditor. Rabbi Elazar said they only split it evenly when they are both holding the detail and form section of the contract, but if one is holding the details and one the form, they each get the section they are holding. Rabbi Yochanan said that they also split the contract evenly when the detail and form section are in the section not held by either side.

The Rif and Rambam do not cite these opinions and limitations on the rules of splitting a contract, and the Shulchan Aruch (HM 65:15) follows their ruling in the first version of this halacha.

The Rosh does cite the statement of Rabbi Elazar, and the Shulchan Aruch cites this opinion as well.

The Gra explains that this dispute depends on the understanding of how a split is done when each is holding the detail or form section. The Gemora says that the advantage of holding the detail section is the increased value a date adds to a contract. Rashi (7b Shtara) states that Rabbi Elazar is discussing Rabban Shimon ben Gamliel's statement that we split the contract, even if the signatures were not validated, since Rabban Shimon ben Gamliel does not require validation of the signatures. Therefore, the value of the detail section is not in the signatures, since they need not be validated. The value is not in the names of the parties, since those are repeated in the form section. The only element which is crucial in the detail section is the date of the contract, and that is the increased value of that section.

Tosfos (7b d'is) disagrees, and says that elements of each section that would render the contract unfit are not included in the possession gained by grabbing, since each party doesn't want the counter party to remove such elements. The only element which is nonessential is the date.

According to Rashi, the statement of Rabbi Elazar, and the discussion following it, are only according to Rabban Shimon ben Gamliel's opinion, that a contract that is not forged need not have its signatures validated. We, however, rule like Rebbi, and therefore will not hold of Rabbi Elazar's statement. However, according to Tosfos, Rabbi Elazar's statement is in accord with Rebbi as well, and therefore halacha includes it. See Gra HM 65:45 and Note 1 on the Rosh for further discussion.

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By: Rabbi Avi Lebowitz

Rabbi Chiya says that included in the case of modeh b’miktzas where the person partially admits and partially denies is also a case of “heilech”. Meaning, Reuven claims that Shimon owes him one hundred zuz. Shimon responds by denying fifty and admitting on the other fifty, saying “heilech”. Rabbi Chiya holds that Shimon is required to take an oath on the fifty that he denies. Rav Sheishes disagrees and holds that heilech is exempt, because the fifty that he is admitting on is as if it has already been returned to the lender and the entire claim is only on the fifty that is being denied, so it is a case of kofer hakol, which does not require an oath.

Rashi implies that in order to qualify as heilech in a case of a loan, the borrower must say that he didn’t spend the money, but if he would have spent the money and is presenting the lender with other money, that would not qualify as heilech.

The Hagahos Ashri understands Rashi exactly like this, and therefore holds that if the borrower spent the money and is now replacing it by returning other money, even though we rule in accordance with Rav Sheishes that heilech is exempt, the borrower would have to swear because this isn’t a case of heilech.

However, the Bach on the Rosh says that Rashi is not coming to define heilech, rather he is coming to explain Rabbi Chiya who says that even by heilech the borrower must swear. Rashi is coming to say that even if the money has never been spent and it is a supercharged heilech, Rsbbi Chiya would still hold that the borrower must swear. But it is entirely possible that Rashi would hold that according to Rav Sheishes that heilech is exempt, it would even be exempt if the original money was spent so long as now the borrower is presenting the lender with other money in its place.

The Gr”a quotes from the Ran that a case of a loan is always considered as if the money has been spent since it is given to spend, and therefore a loan never qualifies as heilech. The only situation of heilech is when one gives another something to watch, and then presents him with only part of it at the time he returns it and denies the other part of it. Based on these Rishonim, in a case of a loan, even if it hasn’t yet been spent, the borrower would have to swear.

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Save us from Brazenness

We conclude the daily morning blessings with the following: Blessed are You, Hashem, who bestows beneficent kindness upon His people Israel (Hagomel chasadim tovim l’amo Yisroel). This is immediately followed by the tefillah, May it be Your will, Hashem, my God, and the God of my forefathers, that You rescue me today and every day from brazen men and from brazenness etc. What is the connection between the two tefilos?

Reb Shmuel Leider in Nitei Eishel explains as follows: Our Gemora states: Rabbah said: Why did the Torah say that one who admits part of a claim must swear? It is because we assume that no man would be so insolent to deny his obligation in the face of his creditor. And since the Holy One, Blessed be He has showered us with beneficent kindness without any limits whatsoever, so much so that we cannot even thank Him sufficiently. As we say in nishmas: Even if our mouths would be as full of song as the sea, and our tongue as full of joyous song as its multitude of waves, and our lips as full of praise as the breadth of the heavens etc., we still could not thank You sufficiently for even one of the thousand thousand, thousands of thousands and myriad of favors that You performed for our ancestors and for us. Accordingly, we are debtors to Hashem, so immediately after we thank Hashem for all the kindness He does for us, we pray that He should save us from brazenness, i.e. we should not Heaven forbid act insolently towards Hashem after all the kindness that He bestows upon us.

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Cloak or Talis?

When the Belzer Rebbe was but a child, they asked him, “What is the meaning of the Mishna when it stated that two people are holding onto a talis?”

He replied, “It means that two people were holding onto a cloak.”

They persisted, “Perhaps the Mishna means a talis literally?”

He replied, “I can prove that it is referring to a cloak from the explanation of the Rosh. The Rosh explains the Mishna to be referring to a case where the object will belong to the finder, for example – if it was found in a city where a majority of the residents are idolaters. If the Mishna would be referring to a talis which has tzitzis on four corners, one would be obligated to announce that he found such an item even in a city of idolaters, for a talis obviously would not belong to them!”

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Three Fellows Holding on

The Mishna had stated: Two people are holding on to a cloak. This one says that he found it, and the other says that he found it. This one says that it is all his, and the other claims that it is all his. This one should swear that he does not own less than half of the cloak, and the other should swear that he does not own less than half of the cloak, and they should then split the cloak.

If one says that the entire cloak is his, while the other one claims that only half of it is his, the first one should swear that he does own less than three quarters of the cloak, while the second one should swear that he does not own less than one quarter of the cloak. The first one then takes three quarters, while the second one takes one quarter.

They asked the Maharil Diskin when he was only a child: What would be the halachah if three people were holding onto the cloak? One of them said, “It is all mine,” and each of the other two said, “Half of it is mine.” We cannot say that the one who claimed that it is all his should receive half, and the other two should get a quarter each, for it would emerge that only the one who said that the entire cloak is his would be losing out because there is a third party in the case. Perhaps the halachah should be that we should give half to the one who claims that it is all his, for the other two are admitting that this half is his, and regarding the other half, it should be split in thirds between all of them, for they are all claiming on that half that it is completely theirs. This is also not correct, for the two that were claiming that half is theirs are not admitting that the other half belongs to the one person who claimed that it is all his, for although each one of them is admitting that it does not belong to them, perhaps it belongs in partnership to the other two?

He answered on the spot as follows: The one who claimed that the cloak is completely his receives half the cloak, plus a third of one of the remaining quarters. Each of the other two receives a third of one quarter and half of the remaining quarter. And he explained: Each one of the fellows who claimed that only half of the cloak is theirs is in essence admitting that the other half belongs to the other two – half to the one who said that it is completely his, and half to the other one who said that only half is his. It emerges that the fellow who said that it is completely his has an admission from each one of them that a quarter of the cloak is his. He therefore receives a quarter of the cloak. Each one of the fellows who are claiming that half the cloak is theirs is also admitting to the other fellow claiming a half that a quarter of the cloak is his. They each would be entitled to a quarter of the cloak except for the fact that the fellow claiming that the entire cloak is his is disputing their claim. Therefore, the two fellows claiming half the cloak is theirs each split a quarter with the one claiming that the entire cloak is his. On the last remaining quarter, all three of them are claiming that it is completely theirs. They therefore split that quarter in thirds.

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