Saturday, June 13, 2009

Keepin your Word

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

The Rishonim debate the parameters of their opinions.

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

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

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

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

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

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

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Friday, June 12, 2009

Benefit from Receiving

By: Reb Avi Lebowitz

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

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

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

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

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

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

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Kinyan through Admission

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

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

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

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

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

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

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

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

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

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Is a Coin a Utensil?

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

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

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

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

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

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

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

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

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

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Monday, June 08, 2009

B'kiyus or b'Iyun?

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

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

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

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

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

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Sunday, June 07, 2009

A New Thief

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

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

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

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Shomer Rulings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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