Thursday, October 08, 2009

Women First

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It is written [Shmos 19:3]: Moshe ascended to Hashem, and He to him from the mountain, saying, “So shall you say to the house of Yaakov and tell the sons of Israel.” Rashi cites from Chazal: So shall you say to the house of Yaakov: These are the women. Say it to them in a gentle language. And tell the sons of Israel: These are the males.

The commentators ask: Why did Hashem speak to the women before He spoke to the men?

The Beis Halevi answers based upon our Gemora, which stated that if one purchased a field from a man and then purchased (the lien) from his wife (in order that she should not collect her kesuvah from this field), his purchase is void, for we may assume that she only consented to please her husband. Although she does not truly want to sell her rights, she agrees to sell it in order to please her husband. This is why it is the custom by acquisitions to acquire it from the wife and then her husband. This way, we can be certain that she truly intends to sell it.

Accordingly, this is what Hashem wanted at the time the Torah was given. He wanted to ensure that the women will reveal their intent that they are truly interested in accepting the Torah without any trace of coercion at all. That is why the women were asked before the men. This way, their answer was actually their own. They were not accepting the Torah based upon their husbands desires; it was purely their own decision.

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Self-imposed O’nes vs. External O’nes

By: Reb Avi Lebowitz

Rav Huna says that if one is forced into selling something and receives money for it, the sale is binding. The Gemora explains the rationale is that everyone who sells items that are dear to them only does so under pressure and financial difficulty, yet the sale is binding, so this type of force is no different.

To that the Gemora responds - ודלמא שאני אונסא דנפשיה מאונסא דאחריני, meaning that there is a difference between a self imposed o’nes and an external o’nes. When one is forced due to financial pressures, he is making a decision under the circumstances. Although he would prefer to never be in such a predicament, nevertheless, he is making a conscious decision under the circumstances - this decision is regarded as ratzon. But if one is being coerced or forced by someone else, we don’t consider his decision to be b’ratzon, so it is possible that the sale isn’t binding (which is the opinion of Rav Bibi, unlike R’ Huna who holds that so long as he receives something in return, it is binding).

This concept if very important to distinguish between what we can call an internal o’nes and an external o’nes. This issue arises in two places, but the distinction is exactly the same.

The Rambam in Yesodei Hatorah (perek 5) holds that if one’s life is being threatened unless he serves avodah zarah he is obligated to forfeit his life. But if he doesn’t do so, he is still considered an o’nes and not killed for serving avodah zarah. Yet, the Rambam writes (halachah 6) that if one is deathly ill and uses avodah zarah as a means to heal himself, he is liable for whatever punishment is normally associated with the act that he committed.

Why is it considered o’nes when he is forced by others, but not when he is ill?

The Ohr Sameach makes the distinction that is hinted to in our Gemora (but doesn’t mention the Gemora). Based on our Gemora the distinction is clear. When someone else is threatening to kill him, the decision that he makes is not considered “ratzon,” because he doesn’t at all want to do what he is being forced to do. But when he is ill and uses avodah zarah to save his life, he is deciding to benefit from avodah zarah. Surely, he is faced with extenuating circumstances, but that doesn’t change the fact that he is making a conscious decision and is therefore liable for it.

The Rama writes in Hilchos Brachos (204:8) that if one is being forced to eat non-kosher food, even though he is enjoying the taste he doesn’t make a brocha since he is considered an o’nes. But the Shulchan Aruch writes in the very next halachah that one who eats non-kosher because they are ill and they need it for medicinal purposes, makes a brocha on the food.

The Taz (12) struggles with this and elaborates about it (siman 196:1). But based on our Gemora the distinction is simple. One who is being forced to eat non-kosher by someone else is not making a decision to eat non-kosher, and would not eat it if not for being forced at gun point. Therefore, we don’t consider this eating b’ratzon, and it is not worthy of a brocha. But, one who is ill, although he has severe circumstances, he is making a decision to eat the non-kosher food under the circumstances (and being that his life is threatened it is permitted for him to eat it), so we consider this to be a decision made b’ratzon and worthy of a brocha.

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Path to Sanctity

The Gemora states: Whoever betroths a woman in Jewish marriage, betroths her subject to the will of the Rabbis.

The baalei mussar say: One who wants to sanctify and purify himself in his service to his Creator, should do so subject to the will of the Rabbis. He should go to the Rabbis and the righteous people of his generation, and they shall guide him in his quest. One who tries to forge a path himself is apt to stumble and make mistakes; nothing substantive will result from it.

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Compliance with the Rabbis

Mar bar Rav Ashi says: In a case of kiddushin, this is certainly invalid. Being that he acted improperly, Chazal act improperly with him and take away the kiddushin (Chazal have the power to deem any type of kiddushin invalid). [They accomplished this by transforming retroactively the money of the betrothal given to the woman at her first marriage into an ordinary gift. Since the hefker of money comes within the authority of Beis Din, they are thus fully empowered to cancel the original betrothal, and the divorcee assumes, in consequence, the status of an unmarried woman who is permitted to marry any stranger.]

Ravina said to Rav Ashi: This is a satisfactory explanation where betrothal was effected by means of money; what, however, can be said in a case where betrothal was effected by cohabitation?

Rav Ashi replied: The Rabbis have assigned to such cohabitation the character of a promiscuous cohabitation. (From the moment a divorce is annulled in such a manner, the cohabitation, it was ordained, must assume retroactively the character of a promiscuous cohabitation, and since her original betrothal is thus invalidated, the woman resumes the status of the unmarried and is free to marry whomsoever she desires.)

The Rashba asks: Why don’t we apply this rule in the case in Yevamos where a man fell into water that has no end? There, we rule that the wife will remain an agunah because the husband might have exited the water from a place that was not visible to us. Why don’t we say that the Chachamim revoked the original kiddushin from him, and she may remarry another man?

He answers: It is only applicable in certain cases. If, for example, there was a get, except that it was written with a condition, and an uncertainty arose regarding the condition, the Chachamim can revoke his kiddushin. Another example where the Chachamim would revoke the kiddushin is where one witness is testifying on the woman’s behalf (that her husband died). However, when there is no get and no witness, the Chachamim did not go ahead and revoke a kiddushin.

The Gemora in Yevamos (110a) records an incident in Narsh where a girl was married off when she was a minor. When she became an adult, they sat her by a Chupah (wedding canopy, in order to validate the first marriage), and someone else snatched her away before the “wedding” (and made her his wife)! Rav Bruna and Rav Chananel, students of Rav, were present when this happened, and they did not even require her to have a get from the second “husband” (as his kiddushin is invalid).

Rav Ashi explains that being that the wife snatcher acted improperly, the Chachamim therefore acted improperly with him and removed the validity of his kiddushin. (This is following the opinion of Rav, who maintains that for the marriage of a minor to become valid, she must have marital relations with her husband when she becomes an adult, and if not the marriage is invalid.)

The Chachamim were empowered to remove the kiddushin in this case because he acted improperly in the beginning of the kiddushin.

Reb Yosef Engel in Gilyonei Hashas cites a Teshuvos haRashba who writes that we only apply the principle of “Since he acted improperly, the Chachamim acted improperly with him” in places that are specifically mentioned in Chazal. The Sages did not annul the marriage in every case where one acts with trickery. This can be proven from a Gemora in Kiddushin (58b). The Gemora states: One who instructs his fellow to marry a woman for him (as an agent), and the agent goes ahead and marries her for himself, she is married to the second one. We do not say that since he acted improperly, the Chachamim invalidated his marriage.

This can also be proven from the fact that even if one betroths a woman who is subject to a negative prohibition, kiddushin, nevertheless takes effect. This is also true if someone marries a woman who is a secondary ervah to him. Obviously, sometimes this principle is applied, and sometimes, it isn’t.

The Chasam Sofer asks: Why, in these cases (where he betroths a woman subject to a negative prohibition, or a secondary ervah) do we not say that the Chachamim revoked his kiddushin?

He answers, based upon Tosfos, who says that it is for this reason that the groom tells the bride that he is betrothing her according to the laws of Moshe and all of Israel. The kiddushin is only effective if Israel, i.e. the Chachamim consent to the marriage. However, one who is violating the Torah, or the sages, is obviously not marrying with such a stipulation and therefore, the marriage can still be effective. [According to the Chasam Sofer, not every marriage has that stipulation attached to it.]

The Shiltei Giborim states that this principle applies by a get as well. Anyone who divorces a woman does so in implicit compliance with the ordinances of the Rabbis, and the Rabbis may, in certain cases retroactively revoke the divorce.

Based upon this, the Taamei Yaakov answers the following famous question on Rabbeinu Gershom’s decree: Since the Torah expressly permits one to divorce his wife without her consent, how can this be banned? The Taz lais down a rule that the Rabbis do not have the authority to prohibit something which is explicitly permitted by the Torah!?

He answers that since the Rabbis forbid giving a get in such a manner, it is automatically nullified, for one’s betrothal and divorce can only be effective if he is compliance with the Rabbis’ ordinances. In these cases, the Rabbis did not consent to such a get.

[I am uncertain as to how this answers the question. Granted, the get will be ineffective since it is prohibited to give a get without the woman’s consent; but how did the Rabbis have the authority to issue such a decree? If the Torah expressly permits it, they cannot forbid it!?]

Path to Sanctity

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Forced Get

Rav Huna holds that if one is coerced to sell property, the sale is never the less binding. [The reason for this is that a person will feel that he has no choice, and he might as well give up the property and take the money.] The Gemora says that all sales are done under duress and nevertheless, they are binding. [People only sell when they need money but they really have no desire to sell.

The Gemora asks on this logic. There might be a difference when the coercion is not internal, but coming from someone else.

Perhaps it is from the following braisa: It is written regarding a sacrifice: He shall bring it. This teaches us that we force him to fulfill his obligation. Perhaps, you might think that he brings the korban even against his will. The Torah writes: Of his will. This teaches us that we compel him to bring the sacrifice until he says that he is willing to bring it. [This shows that one can be forced by others to do something willingly, and is therefore a source for the law that a forced sale is a sale.]

The Gemora rejects this proof: Perhaps there it is different, for everyone wishes to receive atonement (and he is really willing to bring the korban).

Rather, it may be proven from the latter part of that braisa, which states: And the same is true regarding a letter of divorce and the emancipation of slaves. We compel him to give the get (in cases where he is required to do so) until he says that he is willing to give it. Evidently, the divorce and emancipation is valid even though, in his heart, he is not truly willing. This proves that words that are only in the heart are not regarded as words.

The Gemora rejects this proof: Perhaps there it is different, for he has a mitzvah to listen to the Chachamim (to issue a divorce or to free his slave).

Similarly, the Rambam discusses a case when a person is obligated to divorce his wife due to the ruling of Beis Din. When he refuses, he is beaten until he says that he is willing.

The Rambam asks: How can a get that is given by force be ruled to be valid? A coerced get is not valid at all!?

He explains that it is only considered “forced,” if a Jew is compelled to do something that the Torah does not obligate him to do. However, if he is compelled to do something that the Torah instructs him to do, this is not considered “forced.” The explanation is as follows: A Jew wants to perform all the mitzvos and distance himself from all sins, but his evil inclination convinces him to do otherwise. When he is beaten, his evil inclination is broken and when he says that he is willing, it is his actual intent and the get is valid.

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Coerced Admission

The Gemora establishes that there is a difference between the child of craftsman and a child of a robber in the case where there are witnesses that saw the father admit that he sold the property.

Tosfos asks on this that if witnesses saw an admission, even a craftsman and a sharecropper themselves would be believed!?

He therefore emends the text of the Gemora to read that the children claim that the original owner admitted to them that the land was sold to their father. In the case of the child of the sharecropper and craftsman, this claim is believed. In the case of the robber, however, it can be assumed that the owner admitted to the son because he was afraid of the father.

Rabbeinu Yonah defends the original text. He says that the case of the craftsman/sharecropper, and the case of the robber are not identical. The case of the craftsman/sharecropper is when they claim to have bought the property. In such a case, they are not believed. The case of the robber is when there are witnesses who saw the owner admit. This is teaching us a bigger novelty - that even when the owner admits in front of witnesses, which is a serious admission, it is still considered to be a false admission motivated by fear.

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AMaLeK Serves as a Mnemonic Aid

Amalek’s name as an acronym for remembering Tamudic topics:
The Gemora sometimes offers acronyms, acrostics or other sorts of words or phrases as devices to remember subjects, rulings or the like having some common denominator. Our Gemora links the topics of a guarantor (arev), who may testify for a debtor; a lender (malveh), who may testify for a debtor; a purchaser (lokeach), who may testify for another purchaser from the same vendor; and a joint principal debtor (kablan), who – according to one opinion – may testify for a debtor (all depending on certain conditions) and connects them, rather controversially using the letters of AmaLeK as a mnemonic aid.

In his commentary on our sugya, Rabbi Yaakov Emdin wonders how the Gemora could thus use Amalek, whose memory we are commanded to erase (Devarim 25:19), and asserts that we may use the name to memorize Torah, “extracting the spark of holiness in him.” Indeed, he contends, the verse hints we may do so: “…Erase the memory of Amalek from under the sky; do not forget!” (ibid). The verse seems to indicate we may use Amalek’s name to prevent forgetting the details of Torah. The Gemora in Gittin 57b also alludes to Amalek’s spark of holiness: Haman descended from Agag, king of Amalek (Esther 3:1; Shemuel I, 15:8) but “Haman’s grandchildren learned Torah in Benei Berak” (see the expanded version of Rabbi Y. Emdin’s commentary in the Wagschal edition of the Gemora).

Apropos Haman, Beis Yosef (O.C. 690) cites Rabbi Aharon of Luneil, author of Orchos Chayim, that the children’s custom to scrawl Haman’s name on stones and knock them together while hearing the Megillah comes from a midrash on the verse “…I shall erase the memory of Amalek” (Shemos 17:14): “Even,” stresses the Midrash, “off the trees and stones.” Hence, he concludes, we must not ridicule the custom.

Erasing Amalek while testing pen: Kav Hayashar (Ch. 99) recounts that HaGaon Rav Heshel of Krakow would test his quill by writing Amalek or Haman and striking the name out as a reminder of the commandment to erase his memory.

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Getting the Wrong Clothes from a Dry Cleaner

The members of our beis midrash became engrossed in an unusual din Torah because of its direct connection to our sugya. Reuven collected his suit from a dry cleaner and paid for it but was shocked to discover that the suit was not his! He asserted that he was quite sure it wasn’t his and demanded compensation, whereas the cleaner insisted that Reuven had given him the very same suit to be serviced.

The beis din hearing the case based their verdict on our sugya: Our Gemora addresses the possibility of a person, similar to our Reuven, giving a garment to a worker, such as a cleaner, dyer or tailor, to be professionally serviced. If the professional returns him another’s article, claiming it’s Reuven’s, the latter must not use it.

Rambam adds that he must not use the other’s belongings till that person “returns the missing item and takes his own” (Hilchos Gezeilah VaAveidah, 6:6). In other words, Reuven may take the article home but must not use it, and should wait for its owner to appear with his missing property.

Now, if Reuven is forbidden to use the article, why must he take it home? Why can’t he blame the professional for losing his garment and demand compensation? Surely he recognizes his clothing better than anyone, so why don’t we believe his claim?

Still, the general rule of torts applies even here: “Anyone demanding payment or property must produce evidence.” Reuven must show clear proof that the article is his and the cleaner, having been paid for his usual service, does not have to remunerate him. Nonetheless, Reuven is forbidden to use the item: He knows it’s not his and must not use another’s property without permission (Piskei Din Yerushalayim, Dinei Mamonos Uveirurei Yahadus, V, p. 141).

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Taking another’s Coat in a Synagogue

By: Meoros HaDaf HaYomi

Our sugya explains that if a person hung his coat somewhere, found it missing and, next to that place, discovered a similar garment, he must not use it, even knowing his own was removed by mistake, as no one may use another’s property without permission (Shulchan Aruch, C.M. 136:2).

Taking another’s Footwear at a Mikveh or Bathhouse

The Gaon of Buczacz zt’l, author of Kesef HaKodoshim on Shulchan Aruch (ibid) devoted much discussion to the topic of people taking each other’s clothes at a mikveh, bathhouse or – to update the context – sauna or swimming pool. Till a few decades ago, streets in many European towns were unpaved and at the entrance of public buildings a place was provided for people to leave their muddy galoshes. HaGaon Rav Y.M. Epstein, author of Aroch HaShulchan (ibid), relates: “In places frequented by the public, where they leave their galoshes at the entrance and often inadvertently exchange them, they don’t mind and each one wears the other’s till being able to return them. There is no reason to consider this as thievery since their custom proves mutual consent.”

Is other wear regarded differently?
People usually don’t mind temporarily switching galoshes. Concerning more personal or representative wear, though, such as shoes or a coat, a person may resent another’s donning them. However, HaGaon Rav Shemuel HaLevi Wosner (Shevet HaLevi, VI, 38) mentions that boys in large yeshivos often unwittingly take each other’s hats. By the logic expressed in Aroch HaShulchan, they may wear each other’s hats till having a chance to return them, and even never having a chance, we assume that the original owner harbors no resentment.

Rav Moshe Feinstein, though, treated the question of jackets switched in a synagogue (Responsa Igros Moshe, O.C. V, 9) and asserted that Aroch HaShulchan permits their temporary use where the custom proves mutual consent. Where there is no definite custom, however, we must apply the Gemora forbidding using another’s property without permission.

A notice to allow one who took your garment to use it: Rav Feinstein further stresses that the leaders of every congregation should record and publicize a community regulation, displayed on a prominent bulletin board that people who inadvertently exchange clothing allow each other to use it until returned.

The Chazon Ish’s cane:
To cite an appropriate anecdote, the Chazon Ish zt”l once noticed that someone had switched canes with him. Wanting to use the other’s temporarily, he hung a notice in shul, saying “I beg permission to use your cane till you have an opportunity to return mine” (II, Letter 155).

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The Witnesses have an Interest in the Case

By: Meoros HaDaf HaYomi

The Reinterment of HaGaon Rav Mordechai Benet zt”l

The Gemora, here and often elsewhere, disqualifies anyone suspected of having an interest in a case from serving as a witness or dayan.

The Chasam Sofer zt”l was known for his sensitivity to this issue, which he expressed at the burial of HaGaon Rav Mordechai Benet. The Gaon, whom the Chasam Sofer called the “teacher of all Israel” (Responsa, VI, Likutim, 37), passed away in 5589 far from his town of Nikolsburg, Moravia – now in the Czech Republic – and was buried in Lichtenstadt. His family and members of his community claimed he had instructed them to bury him in Nikolsburg or, at least, Prague and asked the Chasam Sofer’s permission to move the body. The Chasam Sofer, though, replied that all Nikolsburg were unfit to be witness, as they had an interest in the affair, wanting to pray at his grave especially as he had assured them that whenever they needed anything they should pray at his grave. Still, he allowed the reinterment since they claimed he had asked to be buried alternatively in Prague and this admission showed they had no personal interest (Responsa, ibid, and see Responsa Shoel Umeshiv, I, 231).

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Kosher Judges the Entire Time

By: Reb Avi Lebowitz

The Gemora says that when a Sefer Torah is stolen from a city, the judges of that city may serve as judges to convict the thief so long as they would relinquish their portion in the Sefer Torah. However, the Gemora concludes that by a Sefer Torah where they will anyway be benefiting from the reading, it is not sufficient to relinquish their ownership since they will still be considered biased (nogei’ah b’davar) because they are ultimately benefiting from the Sefer being returned to the city.

Tosfos asks that the Gemora holds that for items other than a Sefer Torah, it would help to relinquish their ownership thereby removing their negi’os. Why don’t we require techilaso v’sofo b’kashrus? Meaning, we should require the judges to be kosher not only at the time of the judgment, but even at the time of the crime?

Tosfos answers that the requirement of techilaso v’sofo b’kashrus only applies to a passul in the guf, such as a relative, but doesn’t apply to a monetary passul.

Tosfos in Niddah (50a) makes a distinction between a witness where we have such a requirement, and a judge, where we don’t have such a requirement.

The Ramban explained by the Nemukei Yosef has a very interesting approach to this question. When one testifies on a monetary issue, he is not testifying on the money, rather he is testifying for the owner of the money. While it is true that we require techilaso v’sofo b’kashrus, and therefore one, who was a relative through marriage at the time he witnessed a crime, cannot testify on that crime even if he has divorced, since then and is no longer a relative. The rationale is that at the time one witnesses the crime he must be kosher for testimony. But with a monetary issue, such as a communal item that is stolen, he is considered kosher for testimony for all those that he is not related to, and passul for testimony for the share of all those he is related to, including himself. Therefore, by removing himself from this money, he is no longer testifying for himself, rather, he is testifying for others and for them he was kosher all along to serve as a witness.

The R"I Mi’gash answers that one who is passul as a nogei’a, is not considered a witness at all. He is not like a relative who is considered a passul witness, rather, he is not in the subject of testimony. Therefore, when he removes himself and becomes a valid witness, he is considered techilaso b’kashrus, since that is the first moment that he assumes a status as a witness. This seems to be an exact opposite logic from Tosfos. Tosfos considers the negi’ah of money so mild that we don’t apply the din of techilaso b’kashrus, whereas the R"I Mi’gash considers it so severe that we don’t even consider him to be a witness. [In truth, there is a lot of discussion as to why a nogei’ah is passul. He is only passul to testify l’zechuso, but kosher l’chovaso, so he is not like a regular passul who is passul for chov and zechus. Some say it is a din of karov eitzel atzmo, some say it is a chashash meshaker, and some say he is not an eid at all - the latter seems to be the opinion of the R"I Mi’gash.]

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The Testimony of a Shtar

By: Reb Yonatan Sapir

The Mefarshim are bothered how does a shtar (document) work? Chazal have a rule that testimony must be said orally and not written. If this is the case, how can we rely upon the testimony of a shtar?

There are a number of different answers to this question. Rabeinu Tam says the prohibition of writing testimony only refers to someone who is mute. Anyone who can say testimony may also write testimony. This follows a principle taught by karbonos. We are commanded in the Torah to mix the meal offering with oil. Chazal tell us that it if there is enough oil that it can be mixed, the mixing is not necessary. The same is true here; as long as a person can speak, speaking is not necessary.

The Rambam is of the opinion that testimony in a shtar is only Rabbinic. According to Biblical law, a shtar is invalid. Since, however, they are necessary for the functioning of society, the Rabbis decreed that this form of testimony should be considered valid.

Rashi and the Baal HaMaor have a different explanation. They explain that a shtar is written by the person obligating himself in some fashion (i.e. a borrower or a seller). The witnesses here are not regular witnesses in a court case, rather, they are agent of an obligated party who which to obligate themselves by means of a shtar. This form of testimony is not what the Torah was referring to when it disqualified written testimony.

The Gemora Chagigah (10b) cites Shmuel who states that one who resolves to make a vow must express the vow with his lips; otherwise, it is meaningless.

The Noda b’Yehudah (Y”D I: 66) inquires if an oath that was written down but not expressed would be valid as an oath. His underlying question is: Do we regard his written word as an expression of his lips?

This should be dependent on the dispute mentioned above regarding the validity of testimony from a written document. The Rambam maintains that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony. Rabbeinu Tam disagrees and holds that one who is physically capable of testifying may testify through the means of a document.

He concludes, however, that even the Rambam would agree that writing is considered testimony and yet, a written document cannot be accepted by Beis Din. The logic for this is as follows: An act of writing can constitute speech, but only during the time that it is being written. Beis Din will only accept an oral testimony when they hear it directly; hearsay is disqualified. Witnesses who signed a document are testifying, but Beis Din is not present at that time. If they would sign in front of Beis Din, that would be considered valid testimony.

With this principle, you can answer what would seemingly be a contradiction in the Rambam. He rules in Hilchos Eidus (3:7) that testimony must be from the mouth of the witnesses and a document will not be Biblically acceptable for testimony; yet later in Perek 9:11, he writes that one is required to testify with his mouth or at least that he is fitting to testify with his mouth. This would imply that if he is fitting to testify with his mouth, he would be permitted to testify through the means of a document. According to the Noda b’Yehudah’s explanation, it can be said that the Rambam allows witnesses to testify through the means of a document, but only if they sign the document when Beis Din is present. Accordingly, we can say that an oath taken through writing will be binding.

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Tale in Front of Three is not Subject to Lashon Hara

By: Reb Avi Lebowitz

The Chofetz Chaim dedicates an entire chapter (klal three) to discuss the various interpretations of Rabbah bar Rav Huna who says that disparaging remarks related in the presence of three people do not constitute slander.

Rashbam understands that he is discussing a case where Reuven violated the prohibition of lashon hora by saying something negative in the presence of three people about Shimon. It would then be permitted for these people to repeat to Shimon what Reuven said about them, since it was said in the presence of three - it is assumed that Shimon will find out anyway.

The difficulty with this approach is that it seems somewhat circular - the three people are allowed to repeat the tale to Shimon because they will repeat it to him anyway, so he is bound to find out.

Therefore, the Chofetz Chaim writes (2:5) that if one of the three is a G-d fearing person and is not likely to repeat the lashon hora by saying the tale to Shimon, it would be forbidden for any of the three to repeat it, because it is as if it wasn't said in the presence of three.

The Rambam seems to take a similar approach, but rather than explaining it based on rechilus, he simply says that the three people who heard the lashon hora are permitted to repeat it to others since they are bound to find out anyway. But the Rambam stipulates that when one of the three repeat over the lashon hora, they cannot intend to degrade the person they are speaking about or make it more revealed (for example, if it a local group knew about it, it would be forbidden to publish in the papers for the purpose of spreading the news to others).

Tosfos has an entirely different approach where he completely avoids the permission of the Rashbam and Rambam. The Gemora is speaking of an avak lashon hora, which can be interpreted both for good and for bad. The idea of telling it over in front of three people is a litmus test whether it is actually lashon hora. If the teller is not embarrassed to say it over in front of three people which will likely lead to the one being spoken about hearing that he was spoken about, it is not lashon hora. But if the speaker would be afraid to tell it over to three people out of fear that the person being spoken about will find out, it is lashon hora. [The Chofetz Chaim proves that Tosfos cannot be matir outright lashon hora even if told to three.]

Rabbeinu Yonah (Shaarei Teshuva 228) has an alternate approach where he explains the case to be when the lashon hora is being spoken about a person who there isn't any real prohibition to speak about - see there.

According to all the approaches, the connection to the protest is very simply that we find by lashon hora an assumption that word travels when told in the presence of three, therefore a protest must be done in the presence of three. But, as the Rashbam points out, there is no violation of lashon hora at all to spread a protest because it is being done for a constructive purpose, so that the occupier holds on to his contract to prove that the field belongs to him.

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A Disputed Vehicle

By: Meoros HaDaf HaYomi

Levi was known to have a car and Shimon started using it but when Levi asked him to desist, Shimon retorted that he bought it from him. The licensing bureau was on strike and the true ownership could not be documented, so Levi summoned Shimon to a beis din. Shimon claimed the above-mentioned right of chazakah that anything a person now holds is assumed as his (Shulchan Aruch, C.M. 133:1). Apparently, the solution to the problem depends on the two explanations in Rashbam’s commentary on our Gemora: Anyone purporting to own real estate known as another’s must produce a bill of sale or other proof and, if not, relinquish his claim. Regarding chattels, though, the present holder of the goods may claim the above right of chazakah without further proof of acquisition as his physical possession proves his ownership: We assume he did not enter the owner’s premises and steal them, but made a legal purchase.

Our sugya, though, tells of a person with goats in his possession, claimed by the original owner, and asserts that chazakah in this case is inapplicable but that he must prove he bought them. Rashbam (s.v. Hagoderos) offers two reasons to differentiate goats from other chattels: (a) They move about by themselves, as opposed to other, immobile chattels. (b) Other chattels are kept at home whereas goats are usually out grazing. Chazakah, we said, stems from the assumption that a holder of chattels has not stolen them as most people are not so brazen to rob others’ homes. Goats, though, may be stolen in two ways without invading another’s premises: (a) They could wander into the holder’s premises by themselves. (b) He could take them from a public or ownerless area. The ease of their theft undermines the claim of chazakah.

How is a goat different from a car? In his Netzach Yisrael (41), HaGaon Rav Yisrael Grosman asserts that accoding to Rashbam’s first reason, cars are not like goats: They don’t move by themselves. According to his second reason, however, cars may be compared to goats as they are not kept at home.

To decide if chazakah applies to a car, then, we must determine whether Rashbam links the two reasons – i.e., chazakah doesn’t apply only if both reasons prevail, as in the case of goats – or if merely one reason suffices to overrule chazakah. Rav Grosman learns from Tosfos in Gittin (20b, s.v. Ta shema) that one reason is enough and Shimon must therefore prove his ownership.

Still, in his Darchei Choshen (I, p. 197), HaGaon Rav Y. Silman insists that entering and driving another’s car is the same as breaking and entering into his premises. Most people are not suspect of such crimes and Shimon does not have to prove his ownership.

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The Disputed Boat

By: Rabbi Mordechai Kornfeld

The Gemora discusses two cases in which two litigants argue over the ownership of an object (a boat) which neither one of them is holding in his possession. In the first case, one of the litigants asks the court to appropriate the object and hold it until he brings testimony of witnesses to support his claim (so that the other litigant should not seize the object in the meantime and sell it to a third party, from whom the litigant with witnesses will not be able to get it back in court). In the second case, the Gemora asks who is entitled to keep the object when neither litigant asks the court to hold it. In that case, Rav Nachman rules: “Kol d’Alim Gevar” – “whoever is stronger prevails.” The Gemora itself says that the same halachah, “Kol d’Alim Gevar” applies in the first case.

If the same halachah applies in both cases, why does the Gemora change the other details of the case? In the first case, the Gemora says that each of the litigants claims that the boat is his. In the second case, the Gemora says that each of the litigants claims that the boat was his father’s. Why does the Gemora not present the second question as a case in which each litigant claims that the object is his, in which the halachah is still “Kol d’Alim Gevar”?

Perhaps the Gemora prefers to give a case in which it is clear that neither defendant expects to find proof to support his claim of ownership, and therefore neither will request from the court to hold the object. When each one says, “The object is my father’s and I received it as an inheritance,” it implies that he does not know how his father obtained it, but just that he left it as part of his estate. If the claimant does not know how his father acquired the object, he will not to be able to prove his ownership. [Although he might be able to prove that the object was seen in the possession of his father, such proof will not suffice to resolve the case, because -- at the present moment -- the object is in the possession of neither litigant, as Tosfos writes on 33b, DH v’Iy Ta’in.]

In addition, the Gemora asks why the halachah here should differ from that in the case of “Shtei Shtaros” – “two documents,” where the halachah is either “Yachloku” – “they divide it” (or "Shuda d’Dayanei"), and the Gemora answers that “Yachloku” (or "Shuda d’Dayanei") applies only when neither litigant can bring proof for his claim. In contrast, in the case here of the disputed boat, it is possible for one of the litigants to prove that the boat belongs to him. Had each litigant said that “the object is mine,” this answer would have been obvious. The Gemora assumed, however, that when each one says that the object belongs to his father (implying that he has no knowledge about how his father obtained it), one might have thought that the halachah is “Yachloku” (or "Shuda d’Dayanei") since the case will remain unresolved. The Gemora answers that even though, at present, neither litigant expects to find proof to his claim, nevertheless he can search and perhaps find proof of his father’s ownership. Therefore, the halachah in such a case remains “Kol d’Alim Gevar.”

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The Stronger Wins Self-sacrifice Pays

By: Meoros HaDaf HaYomi

Our sugya explains that if two people argue about the ownership of a boat and each has equal proof, “the stronger wins.” According to the Rosh, this means that “he who is right is willing to endanger himself to get what is truly his.”

HaGaon Rav Natan Gestetner uses our Gemora to clarify the following topic: The Torah praises Moshe at his demise, saying: “No other prophet arose in Israel like Moshe… [known for] the strong hand… that Moshe made” (Devarim 34:10-12). Rashi comments: “for receiving the tablets with his hands.”

Why does the Torah specially praise Moshe for accepting the tablets with his hands? In his Gur Aryeh, Maharal of Prague explains, according to the Yerushalmi, that when the people worshipped the golden calf, Moshe held on to the tablets by two handbreadths, Hashem held on to two handbreadths and two handbreadths remained between them. [Each tablet was six handbreadths wide, six tall and three thick, as we learned in Bava Basra 14a; their corners were thus square and not round, as depicted by certain gentile artists.] When the people sinned, Hashem tried to seize the tablets from Moshe, but Moshe was stronger and grabbed them back and the Torah therefore praises him for his strong hand.

Rav Gestetner adds another aspect: The Torah cannot be divided piecemeal: “Hashem’s Torah is whole, restoring the soul” (Tehilim 19:8). It restores our souls only when whole, and could not be divided between Hashem and Moshe. The Torah therefore praises Moshe, that by his self-sacrifice in seizing the tablets with all his might (from Hashem and fearless of the consequences!), we have indeed received the whole Torah – known as Toras Moshe! (Lehoros Nasan on the Torah IV p.212).

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Paying when he cannot Swear

By: Reb Avi Lebowitz

In a situation where two witnesses would require someone to pay, one witness would require him to swear, but he is not completely denying the testimony of the witness and therefore cannot take the oath that is incumbent upon him, we apply the concept of מתוך שאינו יכול לישבע משלם – if he cannot swear, he must pay. Therefore, when a single witness testifies that Reuven grabbed something from Shimon, we assume that it belongs to Reuven since he was holding on to it. Had Shimon been willing to swear that he didn’t grab it from Reuven, we would believe him against the single witness. However, since Shimon admits to grabbing it, but is claiming that it rightfully belongs to him, he is unable to make the oath demanded of him, and therefore must return the item.

Tosfos asks that if Shimon would deny that he grabbed it and make an oath, he would be believed. Why don’t we believe Shimon to say that he grabbed it and swear that it belongs to him, with a migu that he could have said that he never grabbed it? If he would not make an oath that it belongs to him, it would not be a valid migu since he prefers to use the claim that would exempt him from a oath. But since he is now making an oath that it belongs to him, it should be a valid migu (assuming that he can use a migu even if the migu claim would require a Biblical oath)?

Tosfos explains that this is exactly the point of argument between Rav and Shmuel against Rabbi Abba. Rav and Shmuel (Shavuos 47a) hold that since he has a migu, we don’t require him to return the item. But Rabbi Abba holds that even though he has a migu, we require him to either swear to contradict the witness by saying that he didn’t grab it, or pay - no other options. Tosfos doesn’t clearly speak out the point of argument between Rav and Shmuel against Rabbi Abba.

It seems that the point of dispute is whether a single witness obligates Shimon to support his claim with an oath, or is he obligating him to pay with an option to exempt himself using an oath. According to Rav and Shmuel, a single witness obligates an oath - meaning, that he obligates Shimon to support his claim with an oath. By Shimon swearing that it is his, and using a migu that he could have sworn that he didn’t grab it, he is, in essence, using an oath to support his claim. But, Rabbi Abba holds that a single witness does not obligate him to merely support his claim with an oath. The fact that Shimon can prove he is correct by swearing it is his in conjunction with a migu isn’t sufficient. The single witness obligates Shimon to pay with the only option out of paying being an oath to contradict a single witness. Shimon’s only option out of paying is by making a oath to contradict the testimony of the single witness by swearing that he didn’t grab it. Since Shimon admits to grabbing it and cannot make this claim, we resort to the default that he must pay.

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