Monday, December 14, 2009

Shabbos Chanukah and Selling a Beis Kur

By: Meoros Hadaf Hayomi

An ancient, anonymous song for Shabbos Chanukah, Ichlu Mashmanim, appears in siddurim and is chanted in some communities. The whole composition sings the praises of food, meals, meat dishes, wine and miscellaneous culinary delights to be consumed on that Shabbos and the line ending each stanza goes: “A beis kur sell or lease; rent a beis kur for Shabbos Chanukah!”

In his Responsa (137), Mahari of Bruna, a pupil of the Terumas HaDeshen, remarks that no Torah scholar could have written the song as a Chanukah meal is not defined as a se’udas mitzvah. Others even stress that only foolhardy people could have composed it, as evident from its contents (Orchos Chayim, 670:8). On the other hand, some rebbes, such as Rebbe Pinchas of Koritz zt”l, sang it on Shabbos Chanukah and a few scholars attribute it to Rabbi Avraham Ibn Ezra as the initial letters of its lines form Avraham. Those favoring the song were somehow able to lend its contents a spiritual connotation and some surmise that beis kur is used as a pun: In Old French a yard for raising and fattening poultry was called a bas court (“low courtyard” – the final s was then, as in certain dialects today, pronounced). The message, then, is “Sell your beis kur” – your field – and rent a bas court for Shabbos Chanukah.

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Sunday, December 13, 2009

Burying a Stillborn (neifel)

By: Reb Avi Lebowitz

The Gemora says that they would make special graves inside the burial chamber especially designed for nefalim (stillborns). This would indicate that there is in fact a mitzvah to bury a neifel.

The Rema in Hilchos Yom Tov (526:10) writes that one is not allowed to bury a neifel on Yom Tov, rather he should be buried the next day.

The source is from the Hagahos Maiomonies who holds that there is no mitzvah to bury a neifel.

However, the Magen Avrohom (20) says that in his opinion, there is a mitzvah to bury a neifel.

The Hagahos Maimonies cites the Gemora in Pesachim (9a) which implies that there was a pit that was designated to throw nefalim into, implying that there isn't any mitzvah of kevurah (burial).

The Gr"a also takes this approach - that the fact that they were thrown into a pit indicates that there isn't a mitzvah of kevurah. But, the Magen Avraham disagrees and holds that being thrown into a pit would qualify as a kevurah. Furthermore, the Magen Avraham cites a proof from the Toras Kohanim which says that a Kohen cannot become tamei for his son or daughter that is a neifel; this implies that there is a mitzvah of kevurah because if there wouldn't be a mitzvah of kevurah, it would be obvious that a Kohen cannot become tamei since he can only make himself tamei for the purpose of kevurah. Finally, he cites our Gemora which says that they would make graves for nefalim, implying that there is a mitzvah of kevurah.

The Magen Avraham concludes by saying that the Gemora in Nidah implies that not only would there be a mitzvah of kevurah for a neifel, but there would even be a la’av (transgression) of ba’al talin (delaying the burial of the deceased overnight).

On this last point, the Noda Beyehudah (OC Kamma, end of 16) says that he doesn’t understand where the Magen Avraham is drawing his proof from that there is a violation of ba’al talin. The Noda Beyehudah argues that logically, the la’av of ba’al talin is a halachah in providing respect to the deceased, which would not apply to a neifel.

The Machatzis Hashekel tries to justify the proof of the Magen Avraham that there would be a la’av of ba’al talin, from Tosafos in Nidah (57) who says that the Cutheans would temporarily bury the neifel with the intent of moving them later. If they were going to move them later, why bury them temporarily? This implies that there would be a violation of ba’al talin that would compel one to bury the neifel temporarily.

It would seem that Tosfos in Pesachim (9a) also holds that there is a mitzvah to bury a neifel. Tosfos writes that the Kohen who leaned over to check if there was a neifel in the pit was a fool. Why? It was because even if it was his own child, a Kohen can only make himself tamei for a viable person, not a neifel. Tosfos continues by saying that the Kohen couldn’t make himself tamei because it wasn’t a need of the deceased. This implies that if it were for the purpose of burying the deceased, he would be able to make himself tamei, presumably because there would be a mitzvah of kevurah (proof to Magen Avraham).

But, perhaps Tosfos means to say that a neifel is always considered not for the need of the deceased since there isn’t any mitzvah of kevurah (like the Hagahos Maimonies).

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Halachos on the Daf - Bava Basra 101


When one sells a ma’amad, the buyer gets the area of 4 kavs. The purpose of a ma’amad was to allow the people returning from burying a dead person, to reflect on the vanities and hollowness of this world and to repent. Its main purpose though, was to comfort the mourners and to cry along with them. So they would walk along this area, and repeatedly sit and then get up again.

When one sold a grave and included in the sale was the path to the grave and the room for eulogies and the area for ma’amad, the relatives of the dead person in the grave may bury another family member there, even over the objections of the buyer. The reason being, since it was the custom to bury all the family members in one area, the buyer is of course entitled to a full refund on the grave. However, the buyer is not forced to give back the area used for ma’amad and eulogies, rather he allows them to use it as needed for the funeral, and then he takes it back.

When one sells an area for the purpose of making a grave, then he gets an area 4 amos by 6 amos. The custom in those days, was not to bury the dead in single graves in a cemetery, rather they would dig out an area 4 by 6 amos, and they would bury up to 8 people in that area, usually all belonging to one family. The design was as follows. Along the length of the wall (6 amos) they would bury 3 on each side, in individual chambers, and along the width – the back wall (4 amos), they would bury two more. The front wall was used as an entranceway or a stairwell to get underground. Each chamber was 6 tefachim wide and 4 amos deep and the height was 7 tefachim (basically the shape of a coffin). Between the chambers on the length, there was a space of an amah and a half, and between the two along the back wall, there was a space of two amos.

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Halachos of the Daf - Bava Basra 100

Public Paths

A path that is used by the public is considered public property. Therefore, if a path is used by the public passes through a private field, the owner may not take away the path. Such a scenario can happen if this path was always used, even before this owner came along and bought this field.

Furthermore, if the owner of the field decided to provide a path for the public on the edge of his field instead of the one running through the middle of his field, the public may use both the old and new paths. Even though this seems unfair to the owner, for after all, he has provided an alternate means to walk across his field, nevertheless, they may use both.

The reason Chazal instituted such a law is because they were afraid that the owner would provide a circuitous route, which would inconvenience the public. Another reason is that even if the new path is straight, it will still inevitably inconvenience some people. Since people from both sides of the field use this path, if it’s moved to the right, it will trouble those who come from the left, and vice versa.

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Avraham Walking the Land

By: Reb Avi Lebowitz

The Gemora cites a braisa: If one walked in it through the length and width of it, he has acquired the place where he walked; these are the words of Rabbi Eliezer. The Chachamim, however, say: Walking accomplishes nothing unless he makes a propriety act.

Rabbi Elozar said: What is Rabbi Eliezer’s reason? It is written: (Hashem said to Avraham:) Arise walk through the land in the length and width of it, for I will give it to you. [Evidently, he acquired it through walking.] The Chachamim, however, hold that there, Hashem told him that (since He loved him), that his children will be able to conquer the land with ease (for they will not be accused of being thieves).

There are several explanations in the Chachamim’s opinion.

1. Rashbam - It is a way to demonstrate to the Satan that Eretz Yisroel belonged to Avraham’s descendants and they cannot be accused of stealing it.

2. Ramban in Lech Lecha explains that it was a ma'aseh avos siman l'banim. It was symbolic of the Jews taking over Eretz Yisroel in the future.

3. Rambam and Kesef Mishneh in hilchos Bikkurim write that Avraham became the av hamon goyim - - “the father of all nations,” which means that all the nations of the world could theoretically have an equal claim on Eretz Yisroel. Based on this, we can explain that Avraham had to display ownership over it prior to his name being changed to Avraham.

4. It was a psychological acquisition. The purpose was to make the children of Avraham feel that Eretz Yisroel was theirs, so that they would be moser nefesh to conquer it in the future.

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Space for the Holy Ark

The Gemora states that neither the body of the keruvim, nor the ark itself took up any space in the inner sanctum.

The Maharsha says that this miracle was done to indicate that Hashem has no physical aspect, and therefore the ark and keruvim which were designated as the ultimate resting place of Hashem's presence did not use up any physical space.

The Ben Yehoyada says that the ark took up no space to hint that any expenditures that one makes for Torah do not come off his general budget set by Hashem for a year (as per Beitza 16a). The keruvim, which symbolize the Jewish nation, took up no space to hint that all sustenance provided to the Jewish nation is done miraculously by Hashem, and is not part of the general account made for the world's sustenance. He quotes his son, Yaakov, as explaining that this miracle was done to teach us that when one is involved in Torah (symbolized by the ark) and mitzvos (symbolized by the keruvim), he should do so without any earthly intentions, just as these items were not related to the physical space where they were situated.
Shabbos in the Daf
The Gemora states that the Aron, the Holy Ark, did not take up any room in space in the Mishkan and in the Bais HaMikdash. This was truly a miracle. Similarly, we can suggest that Shabbos, despite the prohibition from refraining to work, does not take up any space either.

The Zohar states that one’s sustenance is blessed from Shabbos. Although one refrains from work on Shabbos and it would seem that this would be detrimental to ones livelihood, one should not be concerned, because by observing Shabbos, his efforts during the week will be blessed.

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Halachos of the Daf - Bava Basra 93

Selling Defective Seeds

If one sold seeds which are not eaten, rather they are only used for planting, and the buyer after planting them sees that nothing grew out of those seeds, the seller is responsible and must pay back the money to the buyer, even if he didn’t know that there was anything wrong with the seeds. The buyer is not reimbursed for his money or efforts to plant the defective seeds. This is true only in a case where it is readily apparent that the seeds were defective. If however the field was flooded or a similar type of outside factor, then the seller is not responsible, since it may not have grown because of the flooding. On the other hand, if the buyer had not yet paid and he planted them and there was a flood, the seller cannot demand payment, since it could have very well not grown even without the flood, because maybe they were defective. In an instance where the seller can prove that his seeds were not defective, and the buyer’s field was flooded, the buyer must pay.

If one sold seeds which are also eaten, and the buyer plants them and it does not grow, the seller is not responsible, and does not have to give back the money to the buyer. If, however, the buyer said that he’s buying these seeds to plant them, then the seller is responsible. In an instance where the buyer had not yet paid, and he planted them and they did not grow, he may still claim that he had bought it for planting, and the seller would be responsible.

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Majority in Monetary Halachah

Shmuel states that we do not follow the majority in monetary halachah. We rule in accordance with Shmuel (Tur and Shulchan Aruch C”M 232:23). The Rishonim and Acharonim discuss the rationale and parameters of Shmuel's position, in context of other sources in Shas.

The Gemora implies that if the buyer always buys for plowing, we assume this sale was for plowing as well, and the sale is void. Rashbam says that this is true only when the seller knows the buyer, and therefore had to assume that he was buying it for plowing. Rashi (BK 46a) says that even if the seller does not know the buyer, if we know that he only buys animals for plowing, he may void the sale.

The Gemora also implies that if the price of oxen for plowing is different than the price for meat, then the sale price can prove what the purpose of the purchase was. Although the Sages (77b) rule that we cannot use the sale price to prove what was included in an ambiguous sale, they agree that the sale price can resolve the doubt in the sale of an ox. Rashbam explains that in the earlier case, the simple understanding of the sale (for a plow attachment) would not support the buyer, and the buyer must therefore prove his position. Simply paying a higher price is not a sufficient proof. However, in the case of Shmuel, since we already know that this buyer does sometimes buy oxen for plowing, the sale price can resolve that this sale followed a normal pattern of purchase.

Tosfos (92a vLechze) says that in this case, either side has a support to their position – the buyer has a majority, and the seller has possession. Therefore, the sale price is enough to tip the case to either one's supported position. In the earlier case, the sale price is not enough to support the buyer against the seller, who is supported by both majority (of people who mean only to the plow accessory) and possession (of the purchase money).

The Ramah (quoted by the Tur CM 232) states that Shmuel only precludes following the majority when it would remove money from one currently in possession. Therefore, in the case of the goring ox sold, we allow the seller to retain the purchase money, and may not remove the money based on a majority. However, if the buyer has not yet paid, we allow the buyer to retain the money.
Tosfos (B”K 27b Ka mashma lan) asks how Shmuel is consistent with the fact that we follow majority rule in monetary court cases. Tosfos answers that in a court case, the minority is subsumed in the majority, and neither party is considered in possession, since the court has the power to remove money from anyone's possession.

The Terumas Hadeshen (314) quotes Tosfos saying that Shmuel only precludes majorities that are based on general rules (deductive), but not observed majorities (inductive). This will explain how we can follow a majority in a court case.

The Ketzos in Kuntras hasefeikos (2) quotes the Maharam Chaviv, who explains that the dissenting judges nullify their opinion to the majority opinion, and therefore we are no longer following merely a majority. The Ketzos himself (3) explains that Tosfos is saying that a court has the power to nullify a litigant's possession. Since Shmuel only precludes majorities in monetary halachah due to the possession of a litigant, a court's majority is applicable in monetary cases.

Rav Shimon Shkop (Sha'arai Yosher 3:3) explains Tosfos's explanation of court majority. He states that Shmuel's principle is based on the fact that in monetary halachah, we follow possession, due to simple logic. To defy the current possession, we need a clear proof, and majority is a Torah rule, not a clear proof. However, the Torah rules for a court mandate that its decisions are decided by majority. Once that is decided, the court has full power to render and impose judgments, even in monetary halachah. [See also Chidushei Rabbi Shimon Shkop BK 27, where he explains that court rulings are an attempt to arrive at an intellectual conclusion, based on a majority of opinions. Once that intellectual conclusion has been reached, it has full force in all areas of halachah].

Rav Dovid Lifshitz (Chulin Shiur 22:2) explains, based on Rav Shimon Shkop, that Tosfos means that the minority is subsumed in the majority, just as a minority of non kosher meat is subsumed in a majority of kosher meat. Once that occurs, the court is not simply a majority, but a full unit, all ruling the majority's conclusion. To prove this idea, he notes that if a court of three imposed a judgment based on a 2-1 ruling, if the ruling is reversed, all three judges must equally make amends. This indicates that even the dissenting judge is considered to have ruled the majority's opinion.

Tosfos (Kesuvos 15b l'hachazir) says that Shmuel only precludes majority in a case where the buyer willingly gave his money to the seller, in the context of a sale. To remove that money requires more than a majority. However, in the case of a lost object, whose owner never willingly parted with his property, we do apply majority, to decide if it was lost by a Jew or non Jew.

Tosfos (Sanhedrin 3b Dinei Nefashos) asks why Shmuel does not apply majority to monetary cases. The Gemora proves that we follow a majority of judges in monetary cases with a kal vachomer (a fortiori) from capital court cases. Tosfos asks why this kal vachomer will not apply to Shmuel's case. Tosfos further explains that we apply even deductive majorities in capital cases, and therefore should do so in monetary halachah, as well. Tosfos answers that Shmuel only rejects inferior majorities in monetary halachah, but accepts bona fide majorities in all areas of halachah.

See Bach (CM 232) who explains that an inferior majority is one where only one aspect of the case is a majority. For example, although most oxen sold are for plowing, most buyers buy oxen for meat. A buyer who buys oxen for plowing buys many more than any individual buyer who buys for meat.

See Shev Shma'atsa (4:8-9), who explains that Tosfos in Sanhedrin and Tosfos in Bava Kamma disagree on whether a bona fide majority can be used in monetary halachah.

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Halachos of the Daf - Bava Basra 91

Fasting and Blowing Trumpets

The Torah commands us to blow trumpets when a community faces a calamity or danger. In such circumstances, we fast and pray as well, in order that Hashem should have mercy on us.

The reason we blow trumpets explains the Chinuch, is because a person needs to be jolted out of his complacency.

The Pri Megadim elaborates: The whole point of blowing trumpets and praying when there is an impending calamity is so that we take to heart the fact that everything that happens is from Hashem, even the calamity that is imminent. Therefore we fast and pray, and most of all repent, and Hashem will take away the danger. The primary reason why Hashem sent it in the first place is to get us to repent.

There are many different types of dangers that would require us to fast and blow trumpets. Among them include the following:

1) A non-Jewish army is on the way to wage war against the Jews, or to impose taxes, or to forcibly take away a piece of land, or even if they would decree that Jews may no longer adhere to a particular Mitzvah.

2) A plague that kills people (even non-Jews), or pigs. Pigs are of concern since they have similar intestines to people, therefore we are afraid that the plague will travel to people.

3) If the price of any item (or items) which is largely the sole profit of the region, would plummet to nearly half the price. Although at first glance this would seem to be good news, since the poor can now afford these items, it is a serious calamity, for without this item being sold at the regular profit, the population will find themselves in a depression.

Whenever a fast day was instituted, there was a specific schedule. From after Shacharis until midday - the Beis Din would analyze the actions of the community, to determine if there was any area that could use strengthening. If they would find a problem, they would immediately fix it. From after midday until nightfall – in the first half the community would read from the Torah and Neviim, and in the second half the community would pray Mincha intensely.

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Halachos of the Daf - Bava Basra 90

Basic Staples

Basic staples are food items which are needed to live, they include wine, flour and oil. There are special laws in regard to commerce when dealing with basic staples.

1) One may not sell these items above the common price. Items which are added to the basic staples (i.e. spices), the limit one may profit from them, is double the cost. There is no limit that one may charge, for all other items.

2) When one buys these items, he may not stockpile them. One can do so however, if he grew them himself. In times of famine, one may only store away enough of these items to last him a year.

3) One may not export such items from Eretz Yisroel or from a place which is mostly populated by Jews.

4) In Eretz Yisroel one may not make a business out of selling these items, rather everyone brings his little bit of produce to the marketplace and sells them. This does not apply in a place where it is mostly populated by Jews.

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Halachos of the Daf - Bava Basra 89

Accurate Weights

It is a Torah prohibition to weigh something with an inaccurate measure, weight or scale. Furthermore, one may not keep such items in his home. However if everyone in his community uses scales weights or measures which are engraved with a certain symbol, then he may keep the inaccurate ones in his home. This is because no one will buy from him if he uses those weights.

One may not store his weights in salt. Some Rishonim understand the reason to be, because the salt would make the weights heavier, and the buyer might use these weights to his advantage. Since if for example the weight weighs a pound, and after it was kept in salt it weighs a little more, the buyer stands to gain more merchandise for his money. Other Rishonim explain that the reason weights may not be stored in salt is because the weights will decrease in volume, and the seller might use it to his advantage.

One should cover the weights which are used to weigh gold and silver, for even the slightest nick can cause a large discrepancy in price.

A scale must be perfectly balanced. The proper size of the scale is essential to achieve accurate results.

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Halachos of the Daf - Bava Basra 87

A Minor as a Shliach

A non-Jew cannot be made a shliach (agent), for any type of shlichus. Nor can a Jew be made a shliach for a non-Jew for any type of shlichus.

All Jewish men and women, and non-Jewish slaves and maidservants, may be used as a shliach. A deaf-mute, a deranged person and a minor (boy younger than 13, girl younger than 12), may not be made a shliach. Therefore if the father sent a minor to a store with a dollar and a flask in order to buy oil which costs 50 cents, and then the storekeeper measured for the child 50 cents worth of oil, and gave him 50 cents change, and on the way home, the child lost the flask of oil and the change, the storekeeper is liable to pay the father for the flask, oil and the 50 cents change.

The reason being, since the father only sent the child to the store to let the storekeeper know that he needs 50 cents worth of oil, and the father expected the storekeeper to send it with someone else. According to the Rema the storekeeper is liable to pay for the flask only if the storekeeper took the flask from the child and measured the oil. However if the storekeeper merely poured the oil into the flask which never left the child’s hands, then he does not have to pay for the flask.

The S”ma and others disagree. They maintain that the storekeeper is never liable for the flask, since by giving the flask to the child, the father essentially was mafkir it, and the storekeeper is not required to guard it. Rather the storekeeper is liable for the dollar (50 cents change, and 50 cents worth of oil), since he should have either sent back the dollars worth (the oil and change) with someone else, or waited until he met the father and then given him back the money. If the storekeeper gave back the dollar to the child, then he is not liable at all.

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Halachos of the Daf - Bava Basra 86

Selling with a Measurement

In an instance where the seller is selling items that require measurement (i.e. fruits), using his own utensils, in a simta (alleyway), or even in the buyers property, the halachah will depend on how the sale was phrased.

If the seller said, “I’m selling you thirty pounds for thirty dollars,” then the buyer may retract, as long as the seller did not yet measure the entire thirty pounds. The reason is because we consider the expression “thirty pounds for thirty dollars” to be one big sale. Therefore since the seller did not finish measuring, the buyer had not yet bought anything, and may retract.

According to the Mechaber, if the fruits were being measured with the buyers utensils, then we say that whatever was already measured, the buyer may not retract, since the sale is taking place in the buyers property, and his utensils are being used, we understand that the buyer agrees to immediately acquire whatever was measured. However the Rema maintains that even if the buyer’s utensils were used, since the expression “thirty pounds for thirty dollars” was used, the buyer wants to get the full thirty pounds for his thirty dollars. Therefore he may retract until the entire thirty pounds was measured.

If the seller said, “I’m selling you thirty pounds at a dollar a pound” (or if he said, “I’m selling you at a dollar a pound, thirty pounds”), then we consider each pound to be a separate sale. In a case where the buyer’s utensils were used and the sale is taking place in the buyers property (or even in a simta), then as soon as they decided on the price, even before measuring, the buyer has acquired the fruits and may not retract. The Rema disagrees and holds that even in such an instance, if the buyer did not yet pay, then he may not retract.

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Normal Way of Carrying

Abaye sat and related the above halachah. Rav Ada bar Masnah asked him from the following braisa: [There is a halachah of kim leih bid’rabbah minei -whenever someone is deserving of two punishments, he receives the one which is more severe.] If one steals a purse on Shabbos, he is obligated to pay for the purse as well, as he had already stolen before he had been liable to be stoned (for desecrating Shabbos). If he was dragging the purse little by little out of the original owner’s domain, he is exempt from paying for the purse, as the act of desecrating Shabbos and the act of stealing happened at the same time. Now, a purse is something that is normal to be lifted, and nevertheless, it is acquired through meshichah!?

Abaye answered: It is referring to a purse that is tied by a string.

Rav Ada (thinking that Abaye meant that it was small) asked him back: I also understood it to be referring to a small purse (and that is why I asked my question that it should not be acquired through meshichah; rather, through hagba’ah)!?

Abaye responded: It is referring to a purse that needs a string attached to it (due to its large size, it can only be dragged; not lifted).

Tosfos asks: How could the Gemora think that the braisa is referring to a small purse which can be lifted? If so, he should not be liable for violating the Shabbos, since it is not the normal way of carrying something!?

Tosfos answers that although with respect to acquisitions, the item can only be acquired through lifting, for this is its normal mode of transport; nevertheless, with respect to Shabbos, it is regarded as normal.

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