Saturday, December 12, 2009

Buying and Selling

Which Four Categories?

By: Rabbi Yechezkel Khayyat

The Gemora quoted a braisa that listed four categories of acquisition, which depend on whose utensils and domain are used for the transfer.

The Rashbam explains that categories are the four methods of acquisition:
1. At the end of filling the utensil.
2. As merchandise is placed in the utensil.
3. When merchandise is removed (or when the domain is temporarily transferred, by rental or permission).
4. Whenever seller agrees.

Tosfos (85a Arba) says that the four categories are four utensils that can be used for a transfer:
1. A utensil owned by a broker, which can be used by seller and buyer.
2. The seller’s utensil.
3. The buyer’s utensil.
4. A third party’s utensil, which the buyer must explicitly rent or receive permission, in order to acquire.

Rabbeinu Gershom says that the four categories are four domains:
1. A domain owned by neither buyer nor seller.
2. Seller’s domain.
3. Buyer’s domain.
4. Third party’s domain.

See Tosfos for the objection to Rabbeinu Gershom’s categorization.

Whose Utensils, Whose Domain?

The Gemora attempts to resolve whether a buyer’s utensils acquire merchandise in a seller’s domain, but does not definitively prove one side.

The Rosh (15) rules that this remains an unresolved question. Therefore, we default to the original ownership of the merchandise, both in a case of a buyer’s utensils in the seller’s domain, and a seller’s utensils in the buyer’s domain.

The Rif, however, had a text of the Gemora in which Rav Sheishes replied to Rav Huna that the buyer does not acquire merchandise placed in his utensils, while in the seller’s domain. As a follow up to this statement, the Gemora’s dialogue proceeded to attempt to find a source for this case in the braisa’s cited. However, even though the proof is unresolved, we remain with the original answer of Rav Sheishes, and therefore definitively rule that a buyer’s utensils do not acquire when in the seller’s domain.

The Bais Yosef (C”M 200) explains that the Rif requires that the buyer own the utensil, and have permission for it to be in its current domain, in order to acquire merchandise. Therefore, even if the seller’s utensils are in the buyer’s domain, the buyer will not acquire the merchandise.

The Rambam (Mechirah 4:1-2) also rules like the Rif on this question.

The Bais Shmuel (E”H 139: 16) explains that the distinction between the Rif and Rambam, who rule definitively that the buyer does not acquire when his utensils are in the seller’s domain, and the Rosh, who rules so only due to an unresolved question, is in a case of get. If a husband gave his wife a get in a situation where he does mind her presence in his domain (e.g., on a short bed), this is a case of a buyer’s utensils in the seller’s domain. According to the Rif and Rambam, such a transfer is not effective, and the wife is not divorced. However, according to the Rosh, such a transfer is in doubt, and the wife is therefore in an unresolved state. She may not remarry, but if someone marries her, she must be divorced.

See Ktzos Hachoshen (C”M 200:6) for a discussion of buyer’s utensil in a seller’s utensil, in the buyer’s domain.

When the Seller Agrees

Rav Ashi says that if the seller told the buyer, “go acquire,” then he acquires in his utensils, even in the seller’s domain.

The Tur (C”M 200) quotes the Rema who says that the seller must verbally tell the buyer to acquire, in order for the transfer to be effective.

However, the R”i Migash says that the seller may simply give the buyer permission to place his utensils in his domain.

The Bais Yosef (in Bedek Habayis) objects to the formulation of the Tur, and says that the R”i Migash and Rema do not argue, but were each simply providing an instance where the buyer’s utensils can acquire merchandise in the seller’s domain.

The Bach agrees that the Rema and R”i Migash disagree, and rules like the R”i Migash. The Shach (C”M 200:7) rules like the Bach, while the Nesivos (C”M 200:8) rules like the Rema.

Read more!

Halachos of the Daf

Paying for One Item
and Receiving Another

In an instance where a buyer paid for an item of a certain quality, and finds that he received either an item of a different quality, or a different type of that item, the halachah will depend in the different scenarios.

1) The buyer paid for a superior quality and received an inferior quality: This is not a mekach ta’us (a mistaken or fraudulent sale), since the item which the buyer paid for, is in fact the one he received. Rather the quality which was received is not worth the amount paid. Therefore only the buyer has a right to return the item and get a full refund. This is true even in a case where the price had risen, and the inferior is worth the same amount as he had paid; since the buyer might have specifically wanted the superior.

2) The buyer paid for an inferior and received a superior: Only the seller has a right to void the sale.

3) The buyer paid for and received the same quality: Neither the buyer nor the seller may retract. Even if the item is not the best or worst quality (i.e. the buyer can’t claim that when he paid for the superior he thought he is getting the very best).

4) The buyer paid for one type and received a different type: For example the buyer paid for red wheat and received white wheat. Since both types of wheat are commonly bought, the buyer and the seller may claim that they specifically wanted to buy/ sell this specific type, and they may both retract.

Read more!

Halachos regarding Bikkurim

Bringing Bikkurim and not Reciting

Bikkurim are the first fruits (of the seven species), which ripen. One brought to them to the Bais Hamikdash, and part of the procedure was to recite a few verses of thanksgiving (mentioned in Parshas Ki Savo). However in certain instances, one would bring the bikkurim, but not recite the verses, since there are parts of those verses which do not apply to him.

1) Women, tumtum and androiganus – for they can’t recite “I am bringing the first fruits of the land which you gave me”, since only men received the land.
2) One who buys two trees within another’s field – since we are unsure if the two trees entitle him to the ground as well, therefore, he brings bikkurim since it may well be that he has land, however he does not recite, because maybe he does not own land.
3) One who separated bikkurim and then sold his land – since he does not own land at the time of the recital. The buyer does not have to separate bikkurim again, however if he did, then he too, brings but does not recite. This only applies if he separated again from the same species, but if it was from a different species, then he does recite (because in regard to this species it’s the first fruits).
4) One who buys a field for its fruits, meaning he’s only entitled to the fruits, not the land – since he has does not own land.
5) One who separated bikkurim and then became dangerously ill, the one who will be his heir, brings and does not recite – since the one that separates must ideally bring it (V’lakachta Uvasa).
6) One who separated and then sent a shliach, even if the shliach dies and he himself ends up bringing it, he does not recite – since the one who separates it is supposed to bring it.
7) One who separated and then lost it before he reached Har Habayis, reseparates and does not recite – since it’s not the first fruits.
8) One who brought bikkurim to the Azarah, and then it became tamei, does not recite.
9) One who brought bikkurim twice, the second time he does not recite, even if it’s the first fruits of a different species.
10) One who brought bikkurim from Sukos to Chanukah, does not recite.

Read more!

Halachos on the Daf - Bava Basra 80

(Choshen Mishpat Siman 220)

When one sells a dovecote, the birds are included in the sale. If one sold the birds, the dovecote is included in the sale, only in a case where the seller specified that he’s “selling the entire production (all the birds offspring) of the dovecote, without excluding anything.” By way of introduction, doves lay two eggs, male and female, once a month (except for the month of Adar). After two months, the second generation doves, they too lay eggs once a month.

In an instance where the seller sold the production of the dovecote, without specifying, then the dovecote is not included in the sale. Furthermore, the buyer is not entitled to all of the future offspring, rather he must leave over three pairs of newly born doves. This means as follows. At the time of sale, in the dovecote there were a pair of doves (first generation), and their offspring – a pair of doves (second generation). The buyer must wait until the first generation lays another pair, and the second generation lays two pairs.

The reason being, that in order not to depopulate the dovecote, there has to be two pairs to each of the first two generations. For if the doves do not have companionship, they will leave. Therefore, at the time of sale, the first generation already had one pair, and only one additional pair is required, and the second generation didn’t have any pairs, so the buyer must wait until they have two pairs. Although this is not the way the Rashbam and other Rishoinim learned the Gemora, rather they understood the gemara, that the buyer must wait until the first generation has a pair (second generation) and the second generation has a pair (third generation). Nevertheless, this is how the Shulchan Aruch (as clarified by the S’ma) and the Rambam (as clarified by the Maggid Mishnah), understood the Gemora.

Read more!

Halachos of the Daf - Bava Basra 78

(Choshen Mishpat Siman 220)

When selling a donkey, the following items are included even if the donkey is not wearing it at the time of the sale:
1) Blanket – the donkey wears it the whole day to keep warm.
2) Saddle.

Not included in the sale, even if the donkey is wearing it at the time of sale:
1) Sack – used to store cargo.
2) Sidesaddle – used by women when riding donkeys.

In an instance where the seller specified that “I’m selling the donkey and everything that is on it”, then even the sack and sidesaddle are included in the sale.

The reason why the blanket and saddle are included, and not the sack or sidesaddle, is because only the items that are used to ride the donkey are included in the sale, and not the cargo. Even though a woman rides on the sidesaddle, it is still considered cargo, since the women sit in a position similar to cargo.

As mentioned yesterday, the amount paid is not an indication if other items are included in the sale.

Read more!

Included in a Sale

by: Reb Yechezkel Khayyat

A Donkey’s Use

Ulla says that Nachum Hamadi and the Sages only dispute whether cargo utensils are included in the sale of a donkey. The Sages say that a donkey is used for riding, and cargo utensils are not included, while Nachum Hamadi says that a donkey is used for cargo, so these utensils are included. The Rashbam implies that Nachum Hamadi holds that donkeys are used only for cargo, while the Rashba and Ritva say that Nachum Hamadi holds that donkeys are used for both cargo and riding.

Utensils on or off?

Ulla limits the dispute of Nachum Hamadi and the Sages to cargo utensils. The Gemora then raised the question of whether the dispute is only when the utensils are on or off the donkey. The question was unresolved. The Rambam (Mechira 27:4) rules that riding utensils are included, even when not on the donkey, while cargo utensils are not included, even when on the donkey. The Rashba and Rema, however, rules that only riding utensils are included, and only when they are on the donkey. The Rashba and Rema understand that the Gemora’s question is on both elements of the Mishna – the case of riding utensils and cargo utensils. The Rambam and Rif, however, understand that Ula was makinga categorical statement that riding utensils are included, whether on or off the donkey. The Gemora’s question was only on the disputed items. Since the Gemora’s question is unresolved, we cannot transfer the cargo utensils from their original ownership, since the buyer needs a bona fide proof to remove it from the current possession. See Taz HM 220:7, and Gra HM 220:9 for further discussion of the differing opinions.

Empty Beehive and Dovecote

The Mishna lists items that are included in a sale – a pit includes its water, a waste pit includes its manure, a beehive includes its bees, and a dovecote includes its doves. The Rashbam says that these are all cases of ancillary items being included in the sale of the main item. Therefore, if one sells only the ancillary items, the main item is not included. The Rosh, however, quotes a Tosefta that says that if one sells all the bees or doves, the beehive or dovecote is included, since one has no need for an empty beehive or dovecote.

A Pit’s Water

The Mishna says that when one sells a pit, its water is included. The Rambam (Mechira 27:10), Rif, and Shulchan Aruch (HM 220:16) rule that the water is not included, while the Rama (ibid), based on the Rashbam and Rosh, rules that the water is included. Although the Mishna says the water is included, Rava (BB 79b) says that Rabbi Nasan, a minority opinion, is the author of the Mishna, while the Sages say the water is not included. The Rashbam explains that when the Gemora identifies a statement of an amora as following a minority opinion, the statement is being rejected. However, all Rava said is that the Mishna is following the minority opinion of Rabbi Nasan, but we still rule like the Mishna. The Rambam and Rif, however, infer from the language of Rava that he doesn’t rule like the Mishna. If Rava simply wanted to identify the author of the Mishna, Rava could have simply said that the Mishna’s author is Rabbi Nasan. Since Rava mentioned the fact that it’s a minority opinion, he was ruling against it.

Read more!

Halachos of the Daf - Bava Basra 76

(Choshen Mishpat Siman 197, 198)

As mentioned previously, in order for an object to be transferred into someone else’s ownership, a kinyan is required.

Mesirah means that it was given over. The buyer simply holds onto the object, and without lifting or pulling it, he has acquired the object, via the kinyan of mesirah.

Aside from animals, which can be acquired either through mesirah or meshicha – pulling, mesirah is a valid kinyan, only when one can’t make meshicha. An example would be, if one were to acquire a ship, which can’t be dragged. All other movable objects can not be acquired through mesirah.

Mesirah can only be valid in a Reshus Harabim, or a property which is not owned jointly by the seller or the buyer, nor do they have permission from the owner to enter.

In order to acquire an animal via mesirah, the buyer can do any of the following:
Hold onto its; leg, hair, caddle, load, muzzle, or bell.

The seller need not actually hand over the object, rather as long as the buyer holds onto the object in front or on the command of the seller, the mesirah is valid.

Read more!


Captain of the Ship

by: Meoros HaDaf HaYomi

The captain applied his sun burnt hand to the well-worn helm as the ship crossed the ocean, now deceptively placid as if incapable of ever erupting into a life-threatening storm. The sails were taut in the quickening wind, speeding the boat to its destination, and the passengers were finishing their after-dinner drink while gazing with fascination at a school of dolphins cavorting alongside the vessel. In his youth, the captain detailed each voyage in his diary but now, he said, “Every white hair on my hair marks another crossing.” His long years at sea left their impression and sometimes it seemed as if his forehead was about to sprout the same green mildew that covered the hull. He was inseparable from his ship and even his marrying a few years ago could not persuade him to leave the sea. Twice a year he returned to France to his wife and small son, stayed a while and went back to his natural recess on the open ocean.

Once, when harboring near home, he was consumed by a yearning for his family. Having had enough of his wearying profession, he rushed home in a swift carriage and, greeting his beloved ones, soon stretched out before the warming fireplace. After a few weeks, he told his wife that he meant to take their only son on his next voyage. “He must learn the trade”, he declared, “I’m getting old and don’t know how long I can go on working. The time has come to train him in the secrets of this demanding profession.” His wife, thoroughly attached to her son, rejected the idea. He should learn a trade, she agreed, but only without leaving home. The captain, though steeled against the challenges of hurricanes and monsoons, could not withstand a mother’s pleas. “All right”, he acquiesced, “I’ll teach him to be a captain at home.”

For a few days the captain was busy in the cellar with a secret project. “I’ll show you only when I’m finished,” he told his curious family. Finally, he brought up a tiny model of his ship, marvelously identical to the original. “Here,” he told his son, pointing with a weathered hand, “is my room where, one day, you’ll sleep. The sailors’ quarters are just behind.” Opening a small door, he indicated a storeroom below deck for wood to be made into new masts to replace any broken in a storm. He then spent a long while with his attentive son learning the boat’s intricacies until the boy could tour it thoroughly in his mind’s eye. They then excitedly launched the model in a huge tub of water. The captain had lined the tub with soft sand, added some cheerfully swimming goldfish, poured in some azure ink and sketched amazingly realistic scenes along the sides. The effect was perfect. Lowering the anchor into the sand, he told his son to blow as hard as he could at the sails. Flushed crimson from the effort, he failed to move the boat in any direction and his father then said, “That is the anchor’s purpose: It keeps a ship firmly in place. Now, let’s get under way.”

Night had long fallen, but the captain and his son continued to sail around and across the tub, aided by tiny kerosene lanterns hung from the model’s hull. Using a huge bellows, they pelted the boat with winds that would have sunk it if not for the captain’s navigational skill. His wife had long gone to bed. “He’s staying with me,” ruled the captain, “At sea you can’t go to sleep whenever you want. Sometimes you have stay up two or three days till a storm abates.” The model, tossed constantly throughout the night, became a shambles. With sails tattered on the deck and broken masts, it seemed that naught had survived the trial. “And yet,” beamed the captain, “it never capsized! That is a captain’s job!”

The lessons continued in the next days until the boy learnt the secrets of the profession and succeeded in keeping the ship afloat throughout all the 16 hours of artificial storms and tsunamis his father created. “Now he’s a captain!” he cheerily announced to his wife and clapped the youth’s shoulder. Calm and confident, he returned to sea, satisfied that his son had learnt the profession.

Rabbi Yosef Chayim zt”l used this story in his Rav Pe’alim (III, Sod Yesharim, 1) to answer a “scholar in another town who asked questions about learning Kabbalah.” We, he explains, in the post-Talmudic era, are like the captain’s son who learned to steer a ship in a tub. Rabbi Chayim’s correspondent delved into the Kabbalah and sometimes encountered incomprehensible topics. But if he would only be aware of his own level, Rabbi Chayim replied, he would realize the limits of his cognition and accept the tradition as it is. The same applies to the tales (aggados) of Rabbah bar bar Chanah learned this week. An outstanding Torah scholar, with many years of experience delivering a Daf HaYomi shi’ur to prestigious congregations, introduces the tales with Rabbi Chayim’s parable. The anecdotes about a monstrous fish or a very peculiar bird, he admits, seem wildly imaginary, but we must understand that the topics are described on the level of the greatest tzadikim and according to their wisdom, unfathomable to us.

With the sublime feeling that we have the merit to repeat the Torah of the most exalted tzadikim, we go on learning each sugya, hoping the time will soon come to comprehend the depth of their statements, as Yesha’yahu says (11:9): “…The earth will be full of knowledge of Hashem, as water covers the sea.”

An Eighth of an Eighth of Pride

Our sugya informs us that the height of Mt. Tavor is four parsaos. A parsah is four mil, a mil is 2,000 cubits and Mt. Tavor is therefore 32,000 cubits high.

The Midrash relates that when Hashem was about to give us the Torah, Mt. Tavor wanted the honor because of its height. Hashem, though, ignored all other mountains and chose low Mt. Sinai to teach us the value of humility (Sotah 5a), as stressed by Yeshayahu (57:15): “...I dwell…with the lowly…” (Midrash Rabah, Vilna ed., 99). According to Midrash Rabah (Parashas Bo), Mt. Sinai is 500 cubits high, one sixty-fourth (an eighth of an eighth) the height of Mt. Tavor. Hence, Rebbe Heshel of Krakow zt”l asserted that the Gemara learns therefrom that a Torah scholar should have an eighth of an eighth of pride (Chanukas HaTorah).

The Stick that Saves

Sailors told Rabbah that a wave threatening to sink a ship is seen from afar, preceded by a white flame. To save themselves, they hit it with a beam inscribed with certain words, including Hashem’s name, and the wave recedes.

Rabbi Nachman of Breslav zt”l interpreted this description as a parable for our constant struggle with life’s challenges: “A wave that can sink a ship” is the yeitzer hara attacking the ship of Israel. It appears like a white flame, assuming an aura of sanctity and purity to lead us astray. The only remedy is to hit it with a stick bearing Hashem’s name – the Torah – for “Hashem and the Torah are one” and, as said in the name of Rabbi Yishmael, “If that despicable being (yeitzer hara) attacks you, drag him to a beis midrash” (Sukkah 52b).

The Chasam Sofer comments on our Gemora that the parable corresponds to the sea of life threatening us with its storms. The only way to protect ourselves is to fortify our faith in Hashem, who saves us from distress. The letters of makel (“stick”) form the initials of me’olam kivinu lach: “We have always hoped in You”.

The Frog, the Snake and the Raven

Rabbah bar bar Chanah saw a frog as big as a town with sixty houses. A huge snake swallowed it and an enormous raven devoured the snake and flew to a branch of a tree which, despite the bird’s weight, did not break.

Ritva comments that the tale is a metaphor for the Arabian empire, which assimilated and mixed a number of ethnic groups: Mohammed and his followers conquered and united the peoples of southwest Asia, North Africa and Iberia and then ruled over a great percentage of our people. The living tree is Hashem’s constant miraculous care and concern which give us the strength to survive: “The tree is sturdy enough”, concludes the Ritva, “to enable us to live with the Arabs and observe the Torah among them. Were we not seeing this with our own eyes, we would never believe it!”

Read more!

Halachos on the Daf - Bava Basra 72

An Ancestral Field

S’dei Achuzah is a field in Israel that was inherited throughout the generations, from the time of Yehoshua. If it has the specific parameters, which will be elaborated below, then there are unique laws when someone consecrates this type of field. Usually, a field that is hekdesh, may be redeemed at full value (if redeemed by the owner, then he must pay an additional fifth of the value). However a S’dei Achuzah, has a specific price tag.

Dimension: 75,000 square amos of land, which can be planted upon. This size enables one to plant a chomer (30 se’ah) of barley.

Price: 50 shekalim for the entire 50 years of Yovel. This price is for each chomer. If the field is the size of ten chomers, then the price would be 500 shekalim for the entire 50 years. This is the amount one pays, regardless of the field’s real value.

As mentioned, the price of 50 shekalim is for the entire 50 years. This means, in a case where person redeemed the field, within the first year after Yovel, then he has to pay that amount. However, if for example there are only 8 years left to Yovel, then he has to pay 8 shekalim. If there are 4 years left, then he has to pay 4.

He cannot pay a shekel a year; rather, he must pay the entire amount when he redeems the field.

One may not redeem the field within the last year before Yovel, nor on Yovel. One may not consecrate the field on Yovel.

If there are trees on the field, although they are also hekdesh, they must be redeemed separately, at their own price. If there are 3 trees in a beis se’ah, and he did not specify that he is only consecrating the trees, then he consecrated the trees, the ground and the little trees in between, and they are part of the S’dei Achuzah. Meaning, they don’t need to be redeemed separately; rather, they are included in the 50 shekalim. However, if the 3 trees were planted closer or further apart (i.e. each tree has either more or less space than 250 square amos), or he consecrated the 3 trees one after another, then the halachah is that the ground and the little trees in between are not hekdesh, and the trees are redeemed at their regular value.

Read more!

Halachos on the Daf - 71

By: Reb Avrahom Klein

(Choshen Mishpat Siman 215)

In the previous few dafim, the Gemora discussed which items are included when selling a house, courtyard, olive press, bathhouse, city and field. The reason why everything is not included in the sale is because when someone is for example selling a house, he’s only selling it because he’s strapped for cash. So although we assume that a seller sells b’ayin yufeh - generously, this doesn’t include items which are not part of the house. We therefore can say that the seller had no intention of selling any items, if not for the fact that he needed the money.

According to the above logic, there would be instances where everything that belongs in that particular place is included in the sale.

1. A person giving a house, field etc. as a gift. Since he wasn’t forced into giving it, then he must have given it wholeheartedly, and he is not withholding anything.
2. Brothers that divided an inheritance. Since each brother took their own field, for example, then obviously they completely divided the inheritance, and everything in each brothers field is exclusively his.
3. If someone made a kinyan chazakah (propriety act) on the property of a deceased convert.
4. One who consecrates a house, field etc., the halachah is that everything is hekdesh. Since he wasn’t forced into consecrating it, then he must have given it wholeheartedly, and he is not withholding anything.

Read more!

What's Included?

Which House?

The Gemora tells the story of the person who commanded, on his deathbed, to give someone his house, which holds 100 barrels. The house was found to hold 120 barrels, and the Gemora concludes that the whole house was given, as one who gives a gift does so generously.

The Rashbam says that this is only true if he had no house that holds 100 barrels. If he had another such house, we assume that house was given.

The Ritva (quoted by the Nimukei Yosef 37b) says that this is true because one who gives a gift is not exact, and meant the house which held 120 barrels. However, if the house held more than 120 barrels, that is above the error a person would reasonably make, and we assume that he did not mean to give the whole house.

The Nimukai Yosef disagrees, and says that there is no limit specified in the Gemora. The Nimukei Yosef further explains that we do not purchase a house holding 100 barrels for the recipient, since the giver specified that his house should be given.

The Taz (HM 253:14) says that the rationale for giving the large house is that one who gives a house generally gives the whole house, even if the discrepancy is larger than 1/5. See the Bais Yosef HM 253, who cites a variant text of the Tur that says even if the house holds 150 barrels, the house is given. The Bais Yosef reject this variant.

Take your Trees!

Rav Huna says that one who sells his land, but retains two trees, also retains the land between and around them, since otherwise the buyer can tell him to remove his trees.

The Rashbam explains that the buyer can only demand this once the original trees wither and die. If the seller would then want to plant new trees, the buyer can object.

Tosfos (71b Laima) quotes the R”i, who says that such a rationale would not suffice, since the seller may not intend to plant new trees in this land. Rather, the R”i says that if the seller does not retain the land of the trees, the buyer can demand that the seller remove his trees immediately, since they take nourishment and space from the land. Once the seller retained the land for the immediate needs of the tree, he also retained the land between them and the right to be able to plant new trees after these die.

The Rashbam explains that when one buys two trees, there is no assumption that the buyer plans to plant new trees when these die, since people often buy trees for a temporary period of time. Therefore, one who buys two trees does not automatically get their land.

The R”i explains that even in a case where a buyer bought land adjacent to his trees, he does not necessarily get any more land, since he is at the mercy of the seller.

The Grafted Carob and Cut Sycamore

Rabbi Shimon says that only the grafted carob and cut sycamore are included in a consecrated field, since they take nourishment from the consecrated field.

The Rashbam explains that since they take nourishment from a consecrated field, they themselves become consecrated, similar to the rule that something that grows from consecrated seeds is itself consecrated.

The Rashba and Ran, however, explain that since these trees take nourishment from the consecrated land, we assume the owner included them in the consecration. The difference between these explanations would be a case where the owner chopped down these trees right after consecrating the field. According to the Rashbam, the trees would not be consecrated, since they did not take nourishment from the consecrated field. According to the Rashba and Ran, the trees would still be consecrated, since the estimation of the owner’s intent is the same.

Read more!

Wednesday, December 09, 2009

Assets Discovered Posthumously

By: Meoros HaDaf Hayomi

Orphans are assumed to know nothing about their parents’ business and the Torah therefore empowers dayanim to represent them in case of claims, argue for them and demand claimants to take an oath or produce solid proof. Almost every Rishon expressed an opinion as to the claims a beis din may present on an orphan’s behalf. Ramban and other Rishonim hold that they may assert any claim (see Responsa Maharit, 112; Shach in C.M. §69 S.K. 26, and §297) but Tosfos on our sugya (70a, s.v. Veleima) and other Rishonim believe a beis din is limited to only reasonable claims. If, for example, someone produces a document proving he deposited funds with the deceased, the beis din may not claim they were subject to force majeure (oness), exempting the orphans, as oness such as an armed robbery is uncommon and would usually have become known. (Shulchan ‘Aruch cites both opinions in C.M. 108:4; see Shach, ibid, S.K. 8, who rules according to Ramban). Still, all agree that a beis din must not counter with utterly unreasonable claims that, if submitted by the father, would be rejected. Halachic authorities were consequently required to decide which claims should be considered realistic and acceptable.

Taxation in German Communities

Poskim subsequently discussed the autonomous taxation methods practiced in German Jewish communities. Each member of the community had to submit a periodic declaration of assets to enable proportional collection of internal revenue tax to cover expenses such as maintenance of public services (synagogues, medical care, mikvaos, etc.); wages of rabbis, shochatim, lobbyists and the like; and incidental costs. Declarations had to detail promissory notes, deposits, cash, silver, gold, wine and grain, all to be assessed for taxation (Minhagei Vormaiza, II, p. 134). A relevant incident occurred in Nikolsburg, Moravia, now in the Czech Republic but then ruled by Germans.

Fisk’s Tax Declaration

About 350 years ago Yaakov Fisk was one of the richest men in Nikolsburg and, like his companions, periodically declared his assets and paid his taxes. After his demise, his heirs found the inheritance to be worth 300% more than his last assessment and the gabaim of the community demanded arrears. Some dayanim, though, countered on the heirs’ behalf that Fisk could have become richer just before his death, after the last taxation, and they could hence not be forced to pay arrears for previous years (Responsa Tzemach Tzedek HaKadmon, 24).

We don’t all have the Luck of Yosef Mokir Shabos

A similar case is judged in Responsa Chavos Yair (57-58) and ruled that claims of sudden enrichment are unrealistic as most people become wealthy gradually, over a long period: “Should we assume he opened a fish and found a precious stone like Yosef Mokir Shabos or got rich by a stroke of luck?” A beis din, then, cannot make such claims and the heirs must pay the demanded arrears.

Read more!

What Furnishings are Included in the Sale of Property?

By: Meoros HaDaf Hayomi

Approaching retirement, Reuven sold his shop and, in the purchaser’s presence, began to clear out his personal effects. The new owner was astounded, though, when Reuven ordered the movers to dismantle a partition forming a wall in the middle of the shop and bring it for storage in his home. The partition, he claimed, served no current purpose but was installed long ago only to reduce the shop’s area and thus avoid paying a high municipal tax. The new owner retorted that the partition was just like any other wall, surely included in the sale. Rav Moshe Feinstein justified Reuven (Igros Moshe, I, 53) as Shulchan Aruch (C.M. 214:11) rules, in accordance with our sugya, that decorative window frames are excluded from the sale of a home, shop, etc., because they are not one of the items that give a house its name. Likewise the partition, which had been installed for extraneous reasons, was superfluous for the shop and excluded from the sale.

What is Sold with a House?

Commenting on our sugya, the Rishonim indicate that anything not affixed to a dwelling is excluded from its sale, unless otherwise specified, and anything affixed thereto and needed for normative habitation, e.g. doors or windows, are included.

Keys Now and Then

Keys are virtually the only items now defined differently than in Talmudic times. The Mishnah (65a) states that keys were excluded from the sale of property. They were not attached to a house or the like and came in just a few models, fitting the simpler locks of the era. Slightly altered, a key could fit other locks and therefore could not be defined as unique to any house. A modern key fits only a certain lock and must be included in the sale. HaGaon Rav Yaakov Bloy (Pischei Choshen, VII, 14, S.K. 64) adds that as purchasers of property now take care to prevent strangers from having keys, former owners must relinquish all keys to a new resident.

Lighting Fixtures

Lighting fixtures sold with a home, office or the like must be in working condition, being essential for habitation. However, a seller may remove chandeliers present at the sale and replace them with cheaper fixtures, as they are merely decorative.

Wall safes may likewise be removed, being non-essential.


These fixtures present a serious problem. About 30 years ago, all halachic authorities would agree that air-conditioners were luxuries not assumed to be included with homes. Thirty years from now, all will apparently define them as essential items for normal habitation. Today, then, we are in a dubious interim that requires asking a Rav for a decision according to local conditions.

Inventorying the Property

In conclusion, we cite Rav Y. Bloy (ibid), that sellers and buyers would act wisely to list the articles included in the sale in writing. Rambam, albeit, asserts that local custom determines practice (Hilchos Mechirah, 26) and halachic rulings are meant to solve problems where there is no obvious custom. Still, there may always be some item open to debate.

Read more!

Comparing Slaves and Land

By: Reb Yonataon Sapir

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.

Read more!

Giving Generously

The Gemora states that one who gives a present to another gives it away generously (with a favorable eye).

The Pardes Yosef quotes from the Vilna Gaon the following explanation: Hashem promised that He would give Eretz Yisroel to Avraham Avinu’s descendents. Avraham asked Him [Breishis 15:8]: How will I know that I will inherit it?

A righteous person obtains rewards for one of two reasons: either as a reward for his observance of mitzvos, or as a matnas chinam – it is given gratuitously. Something that is given to him as a reward can be negated if he commits a sin, for that nullifies the good actions that he performed. However, that which is given out of the kindness of the Holy One, Blessed be He, cannot be negated by a sin, for it is given gratuitously - with a good eye.

Accordingly, it can be explained that whenever Hashem promised Eretz Yisroel to Avraham Avenue, Avraham thought that it was a matnas chinam, and therefore, he was confident that his descendants will receive it. However, then it was said to him [ibid: 7]: I am Hashem who took you out from the fire at Kasdim. Now that the giving of Eretz Yisroel was dependant on the fact that Avraham threw himself into the furnace, Avraham was concerned that perhaps, he had committed a sin which would negate the mitzvah that he performed. Hashem replied to him that this inheritance will not be nullified for any reason whatsoever, and that is why Hashem said: To your children, I gave the land, for it was regarded as if it was already given to them, for nothing can prevent its happening.

Read more!

Selling a House

A Roof

The Gemora attempts to prove that a standard house sale does not include airspace from the statement in the Mishna that a roof with a fence ten tefachim high is not included.

The Rashbam (as explained by Tosfos 64a v’hee) says that the Gemora understood the exclusion of such a roof to be in a case where no inclusion of airspace was made. The Gemora concludes that airspace is not included in a standard sale, because it is illogical for one to own the house under the roof, as well as the airspace above the roof, but not the roof. The Gemora’s answer is that since the roof is substantial enough to have a fence of ten tefachim, this is the way the sale works.

The R”i challenges this explanation, since the Gemora’s answer does not address the assumption of the question. The R”i instead explains that the Gemora was stating that if it is so easy to acquire extensions of the house (such as depth and airspace), that the acquisition takes effect even if not explicitly included, then a roof should be included, even if it has a ten tefachim fence. The Gemora’s answer is that such a roof is so substantial, that it is still not included in a sale, even one that is expansive enough to implicitly include airspace and depth.

A Roof’s Dimensions

The Rambam (Mechira 25:2) says that a roof with a ten tefachim fence, and a width of four amos is excluded from a house sale. The Kesef Mishnah quotes the Magid Mishnah who asks what’s the Rambam’s source for the minimum width of four amos. The Kesef Mishnah points out that the Rambam does not specify any such minimum dimensions for an inner room, which is also excluded from a house sale. The Kesef Mishnah explains that an inner room is excluded, since it serves a different purpose than the house – whereas the house is for living, the room is for storage. Therefore, no matter how small the room is, it is excluded. However, a roof is excluded since it is substantial, and therefore considered a different domain than the house. To be a different domain, it must be a minimum width of four amos.

A Generous Gift

The Gemora explains the dispute of Rabbi Akiva and the Sages to be whether a seller is generous or stingy in his sale. The Rashba (Responsa 3:116) rules that all agree in the case of a gift that the giver is generous. Therefore, if one gave his friend a pit or house on his property, that gift included access rights to the given property as well.

Another Path

The Rama (HM 214:2) rules that although we rule that one who bought a pit or house on someone else’s property is assumed to have acquired the access rights to it, if he already owns a path to it, we do not give him a new access route.

Types of Pits

The Mishna lists two types of pits that are excluded from a home sale – an earthen pit, and a paved pit. The Rashbam explains that both types of pits have to be explicitly listed. If only an earthen pit was listed, we may have thought that a paved pit, which is similar to the house, which is not land, but built on land, would be included. If only a paved pit was listed, we may have thought that such a pit is significant, and is therefore not ancillary to the house. However, an earthen pit would be considered ancillary to the house, and included in its sale.

No Path?

The Sages say that if one sells a house, he retains his pit, and a pathway, while if he sells his pit, the buyer must buy access rights. Rabbi Akiva says that if one sells a house, he retains his pit, but not access rights, while if he sells his pit, the buyer gets access rights. The Reshash says that even when one does not get access rights, this simply means that he does not own a path four amos wide to his pit. However, he does have a narrow path to his pit.

The Yad Ramah asks what the buyer of a pit bought according to the Sages, if he does not have access rights. The Yad Ramah says that all the buyer bought was the right to be a bar matzra – a neighbor, with first rights to purchase adjoining land.

The Reshash is inconsistent with this Yad Ramah, since according to the Reshash, the buyer does have access to his pit, albeit in a less comfortable manner.

Read more!

Judges Decision

by: Rabbi Yaakov Montrose

The Gemora discusses a case in which a person draws three boundaries of the field that he is selling, but he does not include the fourth boundary. The Gemora presents two versions of Rava’s position on the matter. According to both versions, if the fourth boundary is “muvla” -- “absorbed” (see sketch in Rashbam D”H v’Lo Amaran) and there is no important piece of property in the area of the fourth boundary (meaning that there are no hedge of palms on it or nine kav of seeds could be planted there), the area is included in the sale. In the opposite case, where the fourth boundary is not muvla and the area is important, it is assumed that it is not included in the sale. The difference between the two versions is in a case in which only one of the two factors is present (it is muvla but the area is important, or the area is not important but it is not muvla). The Gemora concludes that the halachah is “shuda d’dayanei.”

The Rishonim explain that although “shuda d’dayanei” usually means that the judges of the Beis Din may do whatever they see fit without any reason or proof for their decision, the application of “shuda d’dayanei” in this case is different. The Rishonim quote a tradition, which some say dates from the Rabbanan Savorai, that although in such a case the halachah should follow the second version of Rava, or the halachah should be “ha’Motzi me’Chaveiro Alav ha’Re’ayah” – the one who is exacting money from his fellow must bring the proof, the ruling of “shuda d’dayanei” here is “an logical decision” by the judges. What does this mean?

The Rosh explains that Rava actually said both statements quoted in his name. How, though, could he have said two contradictory statements? The Rosh explains that Rava’s two statements are not contradictory; the halachah may differ depending on the details of the specific case. The judges should assess the mindset of the seller, the mindset of the buyer, the local custom, and the amount of money paid in the sale. Only then should they make a decision, which could follow either statement of Rava, depending on the details of the case.

The Nimukei Yosef similarly mentions that the mindset of the seller and the amount of money paid is a factor in the decision of the judges, although he does not mention the mindset of the buyer and the local custom. It is unclear whether his view differs from that of the Rosh.

The Pilpula Charifta notes that the Rosh and Nimukei Yosef certainly take into account that the halachah follows the Chachamim (76b) who do not apply, in most situations, the principle of “Damim Modi’im” – “the money shows” to decide a case. However, in this case, in which the ruling is “shuda d’dayanei,” the Chachamim directed the Beis Din to utilize all means possible to determine the correct verdict.

The Rashbam writes that the judges should assess the intentions of the seller, and based on that assessment they should decide what to do.

The Rambam (Hilchos Mechirah 21:15) similarly states that the intention of the seller is the only factor taken into account, in contrast to the view of the Rosh and Nimukei Yosef who write that the amount of money paid should also be taken into account.

Read more!

Rav did not Reveal the “Sod”

A person sold a field to his friend, and drew one border long and one border (on the opposite side)short. Rav says: In such a case, the buyer only acquires the amount of field that is opposite the short side.

Rav Kahana and Rav Assi asked Rav: Why shouldn’t the border should be from the small side to the long side (a diagonal line)?

Rav was quiet, and did not answer.

The Chavos Yair (responsa: 152) quotes the Rema who writes that it is well known that Rav is in fact Rav Abba, the chosen disciple of Rabbi Shimon ben Yochai. And everytime that the Gemora says, “Rav was quiet,” it does not mean that he was silent because he did not know; rather, he knew how to answer according to “sod” – the hidden secrets of the Torah, and he did not want to reveal them.

The Chavos Yair explains the Gemora in Bava Kamma (11a), which relates that since Rav Kahana and Rav Assi asked Rav, “Is this truly the halachah?” and he kept quiet, we can conclude that the law of assessment does indeed apply. Although it couls have been said that Rav remained silent for he did not want to reveal the hidden secrets of the Torah, nevertheless, we do not rule in halachic matters based on “sod,” rather, it is solely dependent on the “revealed” portion of the Torah.

Read more!