Thursday, December 31, 2009

Inheritor or Guardian?

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The Gemora rules: It is obvious that if he designated all of his property to his adult son, we assume that he only appointed him to be a guardian (for he would not want to take away his other children’s inheritance).

The Rishonim ask: How can our Gemora say that the father’s stipulation is not effective when the Gemora above (130a) explicitly rules that the halachah follows Rabbi Yochanan Ben Berokah?

The Rash”bam (ibid) says that the halachah follows Rabbi Yochanan Ben Berokah only when the father uses the expression “as an inheritance”; however, our Gemora is referring to a case where he used “as a gift” expression, and in such a case, the Gemora here rules that his real intention is to make him a guardian.

The Ram”ban answers that the halachah follows Rabbi Yochanan Ben Berokah only when the father stated his stipulation, however, our Gemora is referring to a case where he wrote it down.

The Ro”sh quotes Rabbeinu Chananel who says that before, the Gemora was referring to a case where he wanted to increase the portion to one son and decrease the portion of another; he did not give his entire estate to one person. Here, we are dealing with a case where he gave one of them his entire estate. In such a case, we may assume that he meant for that person to be a guardian on the estate on behalf of the others.

The Rash”ba explains that the Gemora before was discussing a specific case where he clearly said that he wants that particular person to inherit him and he does not want him to be a guardian.

The Baal Hameor understands our Gemora to be referring to a case where the sons are minors, or they are overseas. In such a case, we assume that the designated son will be appointed as a guardian.

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Wednesday, December 30, 2009

Bequeathing to One Son

Rava said: Rabbi Yochanan ben Berokah’s reason is based upon the following verse: It shall be on the day that he bequeaths to his sons. This indicates that the Torah gave authority to a father to bequeath to whom he desires to inherit his estate.

It is brought in the Sifri that the father has such a right even on prospective property, i.e. those that he does not currently own, but they will become his. He can say that he wants property that is not actually in existence yet to be inherited by whomever he desires. Reb Akiva Eiger, however, cites the R”if, who holds that the father cannot give away property that is not yet in existence.

There is another dispute regarding this halachah: The Nesivos quotes a Rit”va, who holds that the father may retract from this stipulation up to the moment he dies. The Ketzos Hachoshen disagrees.

The Mikdash David explains these two arguments with the following chakirah: When the father bequeaths his property to one of the sons, is he establishing that this particular son is his sole inheritor, or are all the children inheritors; the father is merely designating this property that it should belong to this particular son?

If the father is establishing that this particular son is his sole inheritor, this stipulation will be effective even on property that is not yet in existence, for once this son has been established as the inheritor, he will inherit whatever potentially should have belonged to the father. If, however, he is merely designating this property to belong to one of his sons, he can only do that on property which currently belongs to him.The same can be said regarding retraction: If the father is establishing that this particular son is his sole inheritor, he cannot retract from that (he may, however, in the future, add other inheritors, for he is not taking away the inheritor status from this son). If, however, he is merely designating this property to belong to one of his sons, he may retract up until the moment that they actually take possession of the property.

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Within the Period of an Utterance

The Gemora issues a halachic ruling: The halachah is that a statement which follows another statement within the period of an utterance is regarded as if it were made together with the first one except in the case of blasphemy, idolatry, betrothal and divorce (according to the Gemora in Nedarim 87a). [If one commits blasphemy or practices idolatry, and immediately, within the period of utterance, retracts, his retraction is unavailing, and he will still incur the death penalty. If a man betroths a woman or divorces her, and immediately thereafter changes his mind, such withdrawal is invalid.]

The Ra”n (in Nedarim) comments that he doesn’t know why these cases are different and from where did the Rabbis derive this. It would seem, he says, that in regards to other things that are not as serious, when a person does them, he doesn’t do them with absolute intent. Rather, his intention is that he will be able to retract them within the time it takes for an utterance. But these, since they are so serious, a person will not proceed unless he has made up his mind completely, and for this reason, retraction, even within the period of time it takes for an utterance, is not effective.

The Ramban quotes Rabbeinu Tam who says that the halacha that within the time it takes for an utterance is regarded as a single utterance is a decree that the Rabbis made because of a student who is purchasing something and his teacher comes, so that he will be able to greet him. They issued this ruling for all things except for these.

The Ra”n asks: How could they make a decree in respect to nedarim which will permanently uproot something from the Torah in a manner that involves actively doing something?

The Imrei Binah answers according to the Rad”vaz, who says that we are more lenient with respect to nedarim because they can be annulled by a sage. Therefore, the Torah gave the power to the Chachamim to permit a Biblical prohibition, even when it involves actively uprooting it.

Reb Shimon Shkop asks on the Ra”n: If the logic that enables one to retract within the period of an utterance is because he lacks absolute intent, how can this apply to the halacha of rending one’s garments over a death? There is no intention required!

They explain as follows: The principle of “within the time required for an utterance” accomplishes that any act performed can be viewed as continuing for a further amount of time (“the period of an utterance”). Therefore, when he rends his garments and then, within the time required for an utterance, discovers who died, it may be regarded as if he tore his clothes at that time.

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Rebbe – “I Say”

Rebbe had said: I say that a ganav is like a gazlan.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

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Admitting the Truth

Rava initially said that if two wives of a man gave birth to sons in the same dark house, and it was unclear which was born first, the two sons can give each other power of representation and together claim one extra portion for whomever is the true first born.

Rav Pappa told Rava that Rabbi Yannai said (due to the braisa cited above) that if the firstborn was never identified, neither gets an extra portion. Only if the firstborn was first identified, but subsequently mixed up, may they use the power of representation to claim the extra portion.

Rava accepted Rav Pappa’s statement, and publicly announced his mistake, and its correction.

HaGaon Rav Chayim Kanievski relates that he was once a student at the Lomzha yeshiva in Petach Tikvah, where HaGaon Rav E.M. Shach zt”l was then a rosh yeshivah. After delivering a shiur Rav Shach would sometimes recheck a chidush and retract his words. He would then quickly pass among his students and call their attention to his error.

Rabbi Y.Z. Winograd zt”l, rosh yeshivah at Etz Chayim in Yerushalayim, told a similar story about his sojourn in Brisk to collect funds for charity. Attending a lesson by HaGaon Rav Chayim of Brisk, it seemed to him that the gaon‟s statements contradicted a passage in tractate Chulin that he had learnt that morning and he whispered, “It seems that in Chulin…” “Yes? What did you want to say?” asked Rav Chayim. “It seems”, replied Rav Winograd, “that the Gemora in Chulin says otherwise.” “Not only “seems”! cried Rav Chayim, “It certainly says just the opposite!” Rav Winograd related that Rav Chayim ended the lesson then and there. At any rate, he became famous throughout Brisk and his charitable mission was crowned with success. Before leaving town, he asked Rav Chayim what he should know to succeed as a rosh yeshivah. “A rosh yeshivah must know”, the gaon advised, “that even if he toils a whole night to prepare a shi’ur and it seems to be excellent and then the weakest student asks a good question that undermines its whole foundation, he should admit his error, even if he is sharp enough to reconcile it because he truly knows that the student is right” (Peninei HaGeriz, p. 173).

Compensation for a Cornea Stolen from the Deceased

by: Meoros HaDaf HaYomi

A doctor performing an autopsy stole a cornea for a transplant and the heirs wanted to sue him for the cost of the eye, assuming that it could be likened to any stolen article. Our next paragraphs do not address autopsies, which constitute a topic on their own, but merely relate to the financial aspect of paying for the theft.

Apparently, the doctor cannot evade compensation to the heirs for the purloined cornea. The organ was worth something and if he stole it, he should pay for it. On closer examination, though, we shall discover that the matter is far from simple.

In our sugya the Amoraim try to find a situation where a person can acquire property without the ability to transfer its ownership to others and the Gemora concludes that such a situation characterizes a person in his final moments (goses) who has lost the power of speech. His inability to speak robs him of the possibility to grant ownership but he can still acquire assets such as by inheritance. It is evident that after his demise he can no longer acquire property or inherit.

The inheritance of posthumous rights

Returning to the cornea, we should first review the halachic treatment of theft. A thief must repay the value of any stolen item to the heirs of the person from whom he stole (Tur, Shulchan Aruch, C.M. 367:4) as heirs take their father’s place and payment to a son, or another heir, is regarded as payment to the father (Beis Yosef, ibid). However, who exactly owns the cornea? If the heirs claim compensation with the assertion that they are the injured party, we must first determine if they inherited the cadaver. As, however, it is obvious that no one inherits his father’s body, that possibility becomes invalid. What, though, about inheriting the right to collect compensation from the thief as in any instance of theft? Still, only the living can gain the right to collect compensation and when the cornea was removed, the deceased, of course, could no longer acquire any rights. No ordinary halachah of inheritance, then, enables the heirs to collect from the doctor (see the topic discussed in HaGaon Rav Y.Y. Fisher’s Responsa Even Yisrael, VII,

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Rebbe – “I Say”

Rebbe had said: I say that a ganav is like a gazlan.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

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Yosef’s Double Portion

It is written [Breishis 48: 4 – 5]: “And He said to me, ‘Behold, I will make you fruitful and cause you to multiply… and I will give this land to your descendants after you for an everlasting inheritance.’ And now, as for your two sons, who were born to you in the land of Egypt… Efraim and Menasheh shall be mine like Reuven and Shimon.”

From the juxtaposition of the two verses, it would seem that Yaakov was telling Yosef that Efraim and Menasheh are entitled to receive a portion in Eretz Yisroel like Reuven and Shimon on account of Hashem’s promise to Yaakov. What is the connection between the two?

The Gemora above stated that Yaakov took the birthright away from Reuven, on account of his sin, and gave the two portions to Yosef’s children. The commentators ask: How could he have done such a thing? The halachah is that one is not allowed to take away the firstborn’s portion even if he does not act properly!?

The Imrei Shefer explains that this is what Yaakov was telling Yosef. Hashem did not give the Land to him yet; it was a guarantee that it will be given to his offspring. If so, it is only regarded as “prospective property,” and a firstborn is not entitled to receive a double portion in that. It would have been fitting for Reuven, the firstborn, to receive a double portion in Eretz Yisroel, but it was not his entitlement.

This, then, is what Yaakov was saying: Since it was merely a promise that in the future Eretz Yisroel will be given to my descendants, there is no prohibition for me to transfer the firstborn right away from Reuven and give it to Yosef.

Inheriting property from one’s Father through his Grandmother

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OPINIONS: The Gemora discusses a case in which a man gave his possessions to his grandmother, stipulating that after her death the possessions should be inherited by his heirs and not by his grandmother’s heirs. The man’s sole heir was his daughter, but she died during his grandmother’s lifetime. The daughter’s husband claimed that he was entitled to the estate.

The “Benei Ma’arava” asserted that if the daughter had been survived by a son, then he would have inherited the estate (in place of his mother). Her husband is not entitled to inherit the estate through his wife, because a husband does not inherit from his wife property that is “Ra’uy” -- property which was not in the possession of his wife at the time of her death but which will come later to his wife, after her death.

Rabbah supports this view by reasoning that had the grandmother sold the possessions, the sale certainly would have been valid (even though she is not permitted to sell the property l’Chatchilah, as the Gemora teaches on 137a), and after the grandmother’s death the property would not have reverted back to the heirs.

How does Rabbah’s proof support the ruling of “Benei Ma’arava”?

The RASHBAM explains that Rabbah means that it is not possible that the father intended to give his daughter the estate itself (Guf ha’Karka), reserving only the Peiros (i.e. the rights to the produce of the property) for the grandmother. His proof for this is that had the grandmother sold not only the Peiros but even the estate, the sale would have been valid. It is evident that the grandmother owns the field until her death, and the man’s daughter would have inherited the property from her had the grandmother died first. A husband, though, does not inherit from his wife property that his wife would have inherited (“Ra’uy”). In contrast, the child of the deceased does inherit property that is “Ra’uy,” and thus had the daughter been survived by a son he would have inherited that property.

TOSFOS (DH l’Ta’amaihu) suggests that according to Rabbah, the man actually intended to give the estate to his daughter, but he reserved the Peiros for his grandmother. It is only because the grandmother can sell the estate that the daughter’s ownership is considered insufficient as far as the husband is concerned, and that is why the daughter’s husband does not inherit the estate from her.

The KOVETZ SHI’URIM (#392) points out that according to the Rashbam, since the daughter never owned the estate, her son would have inherited directly from his grandfather (his mother’s father), and it would have been as if his grandfather had stipulated that the estate should go to his heir’s heir. According to Tosfos, though, since the daughter did own the actual property (except for the rights to the Peiros during the grandmother’s lifetime), her son could have inherited the property from her.

Collecting a Debt Owed to One’s Deceased Wife

OPINIONS: The Gemora says that when a woman dies, her husband does not inherit her property that is “Ra’uy,” property which was not in the possession of his wife at the time of her death but which will come later to his wife, after her death.

When a married woman lends money and dies before she collects the debt, does her husband collect the loan from the debtor?

TOSFOS (DH Amar Rav Papa) maintains that he is not entitled to collect money owed to his wife after her death, even when she lent money of her “Nichsei Melug” (of which the husband has the rights to consume the Peiros).

The ROSH (9:11) rules that in the case of the death of the wife, a husband generally may not collect loans owed to his wife, except when the money that she lent was from her “Nichsei Melug,” property owned by the wife from which the husband is entitled to eat the Peiros. Since the produce belongs to the husband, the money is considered to be in his possession, and she had no right to lend it out. Therefore, the husband collects the money even after her death.

The MAGID MISHNEH (Hilchos Nachalos 1:11) cites the view of the RI MI’GASH who rules that a husband does collect loans owed to his wife after his wife dies. He asserts that the Rambam also seems to be of this opinion.

HALACHAH: The SHULCHAN ARUCH (EH 90:1) rules that a husband may not collect loans owed to his deceased wife.

The BEIS SHMUEL there (#6) adds that since this is the opinion of the majority of Rishonim, even if the husband seizes the money from the debtor and claims that he is certain that the ruling of the Ri mi’Gash is correct, his claim is not accepted and he must return the money.

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Rebbe – “I Say”

Rebbe said: I say that a firstborn son does receive a double portion in the natural appreciation of an estate which accrued after the father’s death, but not in the appreciation which the orphans brought to the estate after the father’s death.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

The Letters of “Bechor”

Meoros HaDaf HaYomi cites the Maharal of Prague who states that the root letters of bechor (“firstborn”) are all multiples of 2, indicating his right to a double portion of his father’s estate: beis = 2; kaf = 20; reish = 200.

The Vilna Gaon adds that beis, kaf and reish are the only letters having a value double that of those before them in alphabetical order: alef = 1; beis = 2; yud = 10; kaf = 20; kuf = 100; reish = 200; and to indicate this sign, the Torah always spells bechor without a vav (cholam) as vav is not twice the value of hei, the letter before it.

Other sources cite the Ariz”l that the letters beis, kaf and reish even indicate the halachah that a firstborn does not take a double portion of assets to accrue but only of those existing at his father’s demise: Several letters have a value double that of others. Ches, for example, = 8 and dalet = 4. Beis, kaf and reish, though, are the only ones with a value double that of the letters next to them in alphabetical order, indicating that a firstborn only takes a double portion of the assets immediately available (Telalei Oros on Ki Teitzei).

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Leah’s Tears

Rav said: Her eyes were actually tender, but that was not disparaging to her, but rather, it was praise to her. Leah, at the crossroads, would hear people saying, “Rivkah has two sons and Lavan has two daughters; the older daughter (Leah) should be married to the older son (Esav), and the younger daughter (Rochel) should be married to the younger son (Yaakov).” And Leah sat at the crossroads and inquired about the conduct of the older one. They told her, “He is a wicked man, who robs people.” And when she asked regarding the conduct of the younger one, they replied to her, “He is a decent man, dwelling in tents.” She wept (and prayed that she would not marry Esav) until her eyelashes fell out (so this attests to her righteousness).

Why did she begin to cry only after she heard that Yaakov was righteous? It was her understanding all along that she would be married to the older one, so as soon as she heard that the older one was evil, she should have cried then!?Why did she even enquire about the younger one’s behavior? And, on the contrary! After she was told that the younger one was decent and righteous, she should have been happy for her sister; why cry then?

Ben Yehoyada answers that a righteous woman has in her power to convince an evil man to repent. Leah, upon hearing that the older one was evil, did not cry, for she was confident that she would be able to convince Esav to mend his ways and become righteous. However, after she enquired about the younger one, and found out that he too was extremely righteous, and although the two brothers grew up in the same house, Yaakov could not have a positive influence on his brother Esav, Leah knew then that she would not be able to change someone so steeped in evil. That is why she cried.

RACHEL’S MODESTY

The Gemora proceeds to record the incident of Rachel’s modesty. It is written [Breishis 29:12]: And Yaakov told Rachel that he was her father’s brother. Was he her father’s brother? Wasn’t he in fact the son of her father’s sister? This is the explanation: Yaakov said to Rachel, “Will you marry me?” She replied, “Yes, but my father is a trickster, and he will outwit you.” He replied, “I am his brother in trickery.” Rachel asked him, “Is it permitted for the righteous to indulge in trickery?” He replied, “Yes,” and the Gemora cites a verse in Shmuel proving that one is permitted to act crookedly with a crook. Yaakov asked her, “What is his trickery?” She replied, “I have a sister who is older than me and he will not let me get married before her.” Yaakov gave to Rachel certain identifying signs in order that Lavan would not be able to exchange Leah, the older sister, with Rachel. When the wedding night came, Rachel said to herself (upon realizing that her father intended to give Leah to Yaakov instead of her), “My sister will be embarrassed.” She handed over the secret signs to her.

Dr. Mark Berkowitz cited the Ben Yehoyadah who explains this Gemora. He states that the secret message and signs that Rachel and Yaakov exchanged on the first day that they spoke at the well were kept secret by both of them for the seven years that Yaakov labored for Rachel’s hand in marriage. He states that the only way that this secret could have worked and Leah could have possibly replaced Rachel was if Yaakov and Rachel did not meet or talk during those seven years. He points out that this is the great modesty that she displayed over these seven years.

Rabbi Aryeh Leib Scheinbaum in Peninim on the Torah Parshas Korach provides a similar explanation. [This article is provided as part of Shema Yisrael Torah Network.]

The Medrash teaches us that On ben Peles was saved as a result of listening to his wife. She asked him, “What do you gain by being involved in this dispute? Regardless who triumphs, you still emerge as the loser. If Aharon is selected as Kohen Gadol - you are his student. If Korach becomes the Kohen Gadol - you are still nothing more than a student. Why involve yourself in a ‘no win’ situation?” On’s wife spoke with seichal, common sense. Is this a reason to praise her? Basically, she only did what any level-headed person would do.

Horav Nosson Vachtfogel, zt”l, offers a penetrating insight into the matter. He cites the Gemora in Megillah 13b where Rabbi Elozar claims that as reward for Rachel Imeinu’s tznius, modesty, she merited that Shaul Hamelech be descended from her. When did she demonstrate such exemplary tznius? Chazal explain that when she gave her sister, Leah, the simanim, special signs, that Yaakov Avinu had given her, she acted with exemplary modesty. Rashi explains that her tznius lay in the fact that she never publicized her selfless act of devotion to her sister. She never divulged to Yaakov what she had done. She was prepared to give up that for which she had strived for so much - the opportunity to be the progenitor of the Shivtei Kah, tribes of Klal Yisrael. She did not once call attention to her exemplary act of kindness. This is tznius at its zenith.

Rav Nosson posits that included in the middah of tznius is the ability to maintain a shev v’al taaseh, status quo, attitude in regard to a situation in which one is unsure of what to do. He does not take a chance and plunge forward regardless of the consequences. No - tznius demands that one sit back and not act, rather than act rashly. Likewise, one who is a tzanua will not divulge a secret. If one is asked for information about someone and he does not know the person, it takes tznius to say, “I do not know.” Regrettably, there are those who are quick to conjecture and state their own opinions about someone, even though they are baseless.

Rav Nosson remembers that, prior to being asked by Horav Aharon Kotler, zl, to become the first Mashgiach of the Beth Medrash Govohah, he was asked by a talmid, close student, of Rav Aharon regarding a controversial sefer that was on the table in one of the Yeshivah’s classrooms. The Mashgiach responded, “I do not know.” This response prompted the talmid to approach Rav Aharon and suggest that Rav Nosson be appointed as Mashgiach of the Yeshivah. It takes someone who possesses the strength of character to assert “I do not know” to be the Mashgiach of the Lakewood Yeshivah. This was the power of On ben Peles’ wife. She had the ability to see and stress the shev v’al taaseh attitude: “If either way you will not be the victor, why bother involving yourself in the fray of the controversy? Stay at home and stay out of trouble.” It takes tznius to act in such a manner. On was fortunate that his wife had the necessary character trait - and he had the wisdom to listen to her.


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A Portion for Levi

The Rashbam and Tosfos write that in the Messianic era, the division of Eretz Yisroel will be different in two respects.
1. The Tribe of Levi will receive a portion along with the other tribes.
2. Menasheh and Efraim will receive a portion as one tribe – the sons of Yosef; and not as two different tribes.

The Ra”n, Maharsha and others all challenge this from the verses in Yechezkel which clearly indicate that Yosef will receive two portions. It is also evident from there that Levi will not receive a portion at all!?

The verse that mentions Levi and also mentions Yosef as one is referring to the twelve gates that will be in Yerushalayim corresponding to the twelve tribes.

The Minchas Chinuch asks: How can it be that in the future, the prohibition against giving the Tribe of Levi a portion in Eretz Yisroel will be violated? A prophet does not have the right to institute any new commandments, so how could Yechezkel negate this prohibition explicitly written in the Torah?

Reb Dovid Pavarsky answers that the prohibition was not that Levi should not receive a portion; rather, it was that Levi should not take a portion that was not his. In the future, they will not be taking a portion that does not belong to them! It will be rightfully theirs!

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CALCULATIONS OF DEATHS

Rabban Shimon ben Gamliel said: There were no holidays for Israel like the 15th of Av and Yom Kippur. The Gemora offers several reasons for the celebration on the fifteenth of Av. Rabbah bar bar Chanah states in the name of Rabbi Yochanan that this was the day that the last of those who were destined to die in the desert died and that was when Hashem returned to speak to Moshe.

Rashbam cites the words of Chazal which are found in the Yerushalmi and the Medrashim in Eichah. Rabbi Levi said: Each year on the eve of Tishah b’Av, an announcement would be sent throughout the camp, saying: “Go out and dig graves, go out and dig graves.” The people would go out and dig graves and sleep in them. In the morning it would be announced to separate the dead from the living. They would arise and find their number diminished. In the last of the forty years, they did this but found themselves undiminished. They said, “We must have made a mistake in counting. Could it be that the Elders had miscalculated the beginning of the month through a mistaken sighting of the new moon?” They did the same thing on the tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth, but still no one died. When the moon was full, they said, “It seems that the Holy One has annulled the decree from all of us,” so they made the fifteenth a holiday. They rejoiced at the realization that their entry to Eretz Yisroel was imminent. It was at that time that prophecy returned to Moshe.

Tosfos asks that according to this, they ceased to die on the ninth of Av preceding the last year. Why wasn’t the prophecy returned to Moshe from that year? He answers that since they were still under the impression that the following year, there once again will be thousands of deaths; they were still in a state of sadness and the Shechinah does not rest on one who is not happy. It wasn't until the fifteenth of Av when they came to the realization that there will be no more deaths; that brought about joy and the Shechinah came down to Moshe.

Tosfos states that every year there would be a little more than twenty-one thousand deaths. The deaths over twenty-one thousand totaled fifteen thousand over the duration of the forty years.

The Maharsha and other commentators ask on Tosfos that there were 603,000 people who came out of Egypt, and according to Tosfos, if you make the calculation, it would emerge that over the course of forty years, there will be over eight-hundred thousand deaths.

The Chavos Yair (250) cites from Harav Dovid Oppenheim who explains that any year that Tisha b’Av occurred on Shabbos; there would be no deaths. According to the calendar, it would emerge that there were nine times that this occurred in the Wilderness. It emerges that there were only twenty-eight years that the Bnei Yisroel would die. Multiply twenty-one thousand times twenty-eight and that will total five-hundred and eighty eight thousand. The numbers more than twenty-one thousand, over the course of the forty years equaled fifteen thousand and that is how the 603,000 people died.

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Miracle of Yocheved

The Gemora states that Yocheved bore Moshe when she was 130 years old, as Hashem performed a miracle and restored her to a youthful state.

The Ibn Ezra (Braishis 46:23) questions why the Torah does not even mention this miracle, when it goes to such length to describe and expand upon the miracle Hashem did to allow Sarah to conceive at the age of 90.

The Magid Midubno says that at the time of Sarah, it was rare for a woman to miraculously conceive a child under such conditions, and thus the miracle was a rarity and deserving of elaborate mention. However, at the time of Moshe’s birth, Chazal tell us that the women gave birth to six children at a time. At a time when miraculous childbirth was so common, the miracle of Yocheved conceiving at the age of 130 was not as outstanding, and therefore is not mentioned explicitly.

Age vs. Wisdom

The Gemora discusses the precedence of age vs. Torah wisdom in various settings. The summary of the halachah, as ruled in Shulchan Aruch (Y”D 244:18) is:
Older person Wiser person Torah setting General celebration
Advanced age Extraordinarily wise Wiser Older
Advanced age Wiser Older
Older Extraordinarily wise Wiser
Older Wiser Older

The older person only takes precedence if he is somewhat wise in Torah as well.

Husband vs. Sage in Oaths

The Gemora compares and contrasts hatarah and hafarah. The mechanism of the two and their parameters are different, and are not interchangeable. A Sage who invalidates an oath does hatarah, and by discovering a reason why the person regrets the oath, or would have never made the oath, makes the oath as if it were in error, and never in effect. However, a husband who breaks his wife’s oath, since it brings her discomfort, or impacts on their relationship, is empowered by the Torah to do hafarah, which removes the oath’s prohibition on his wife from this point on.

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DESCENDANTS OF YOSEF

The Gemora in Sotah (36b) explains: Even though Levi was below, the people standing by Mount Gerizim were more numerous because the descendants of Yosef (who were very populous) were with them; as it says: And the descendants of Yosef spoke to Yehoshua, saying, “Why have you given me but one lot and one portion for an inheritance, seeing that I am a huge nation?”

Rashi in Yehoshua notes that the descendants of Yosef were from the Tribe of Menasheh. The Radak explains that the descendants of Efraim did not have any legitimate complaint, for they had more people in their tribe when they left Egypt than now, when they entered Eretz Yisroel. Menasheh, on the other hand, had a valid complaint, for they had twenty thousand and five hundred more people now than when they left Egypt. The portions of land were allocated according to the amount of people each tribe had when they left Egypt, and since they were more numerous when they entered Eretz Yisroel than when they left Egypt, each one of them would be receiving a lesser portion.

Minchas Yaakov adds that this explanation can inferred from the verse which states that the descendants of Yosef spoke to Yehoshua. Reb Yaakov Kaminetzky in Emes l’Yaakov asks: Why by the spies, does the Torah state, to the Tribe of Yosef, to the tribe of Menasheh, but by Efraim, the Torah only writes, to the Tribe of Efraim? Why isn’t Yosef’s name mentioned? He answers that it is written [Breishis 48: 5 – 6]: And now, as for your two sons, who were born to you in the land of Egypt, until I came to you, to the land of Egypt they are mine. Efraim and Menasheh shall be mine like Reuven and Shimon. But your children, if you beget any after them, shall be yours; by their brothers’ names, they shall be called in their inheritance. The children born to Yosef afterwards did not merit being included in the Tribe of Yosef. Yosef had the choice of delivering them to any tribe that he wished. Since Menasheh was the firstborn, he combined all of his other children with them. It emerges that the descendants of Yosef, who were not offspring of Menasheh and Efraim, were included in the Tribe of Menasheh. It is for this reason that the Torah writes, to the Tribe of Yosef, to the tribe of Menasheh.

Our verse, which states that “the descendants of Yosef spoke to Yehoshua” is referring to the Tribe of Menasheh, which consisted of Menasheh’s offspring, plus the offspring of Yosef.

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The Masculine Gender Used for an Heiress

By: Meorod Hadaf HaYomi

According to Rabbeinu Tam in Tosfos (s.v. Melamed), Anah mentioned in the verse “and these are the children of Tzivon: Ayah and Anah” was a daughter, though later referred to in the masculine gender: “…he is Anah”. The reason, he asserts, is that her brother Ayah died before Tzivon’s demise and she therefore inherited Tzivon’s estate.

Rebbe Heshel of Krakow zt”l supported the view that heiresses are referred to in the masculine from the story of Tzelofchod’s daughters: Hashem tells Moshe to give them (lachem, in the masculine) a portion of their father’s estate (Bemidbar 27:7) as they inherited it like any sons (Chanukas HaTorah, Pinchas).

The commentator Pardes Yosef adds that Yaakov said to Rachel and Leah: “Hashem saved your father’s (avichem, in the masculine) livestock and gave it to me” (Bereishis 31:9). Lavan had no sons till Yaakov came to Charan (see Rashi on Bereishis 30:27) and his estate would have fallen to Rachel and Leah. Hashem saved the property destined for Rachel and Leah from Lavan’s sons and gave it to Yaakov.

The Torah’s Viewpoint on the
Rights of Inheritance

The Torah says in Bemidbar 27:8 that “if a man dies without a son, pass his estate to his daughter.” Now, had we been asked to formulate the verse, we would probably write “if a man dies, pass his estate to his son and if he has no son, to his daughter.”

In his Torah Temimah (ibid), Rabbi Baruch Epstein explains that the Torah thus hints that a son is his father’s natural heir and that there is no need to state this detail. The Torah starts to dictate the order of inheritance from the point where a father has no son.

The Torah Temimah is just one of the commentators who elucidate that the Torah’s order of inheritance may be understood by ordinary intelligence. For many reasons, a son is his father’s natural heir. Even his name, ben, is related to the word boneh – “builder” – as a son builds and perpetuates his father’s family. Nachalah – “inheritance” – comes from nachal, a “stream,” in the sense that it forms a continuity, and, in contrast, the Torah calls passing an estate to a daughter ha’avarah – “transfer” (HaGaon Rav Binyamin Tsvi Rabinovitz-Teomim zt”l in Be’inyan Yerushas HaBas).

In his Dinei Mamonos, HaGaon Rav Yechezkel Abramsky zt”l asserts that a son’s inheritance is not a statute beyond our understanding – a chok – as our sugya in 119b quotes Tzlofchod’s daughters as saying “had he a son, we would not have spoken”; i.e., they themselves understood that a son would have been the natural heir (see Tosfos, s.v. Ilu).

A Person Wants his Relatives to Inherit his Estate

In his aforesaid work, Rav Abramsky explains that the inner logic of the Torah’s property-related statutes conforms to human understanding since the Torah sees deeply into human nature. The first rule of inheritance, for example, determines that the closest relative takes precedence in inheriting the estate if there are no children. We understand this rule quite well as any person who has toiled his whole life to amass an estate wants the person closest to him, of all his family, to inherit it. The Torah also explains the firstborn’s double portion of the estate as his due because of his being the first of his father’s “strength” (Devarim 21:17). A firstborn is beloved to his father like an only child before he has more children, with a love unshared with others. Moreover, a firstborn usually helps his father in his business to increase his wealth and therefore earns a double portion.

“And it will be to you…a statute of judgment”

What about twin boys born within minutes of each other or other instances where the above characteristics of a firstborn do not actually apply? Rav Abramsky therefore explains the following important point: The laws of inheritance express the deceased’s intention and conform to human understanding. Once the Torah rules them, however, their observance does not depend on our understanding, as the final verse in the chapter on inheritance concludes: “…and it will be to you…a statute of judgment” (Bemidbar 27:11). A general rule of the Torah is that many halachos are based on logical estimation, such as that a wife only makes a vow that her husband would approve, etc., but once the Torah determines them, they cannot be changed.

Should Daughters Sign that they Relinquish any Inheritance Rights?

A daughter inherits no part of her father’s estate if she has brothers but over the generations various people have tried to uproot the halachah and match it to gentile custom. The first were the Tzedokim (Sadducees), as mentioned by our Gemora, who were strongly repressed by our sages.

Rabbi Shlomo ben Aderes, known as the Rashba, reacted vociferously to those claiming that “the law of the government is the law” and that daughters should be given inheritance rights equal to those of sons (Responsa Rashba, VI, 254, cited in Beis Yosef, C.M. 26): “There will never be such a custom in Israel lest the Torah be girded in sackcloth because of them” (regarding “the law of the government”, see Vol. 5 of the bound series Meoros HaDaf HaYomi, p. 124).

A Signature has a Price

Still, the laws of various countries caused a disagreement among halachic authorities. In some places the law ruled that no estate should be divided till all the heirs sign that they consent to the planned division and daughters sometimes refused to sign till their brothers paid them a considerable fee or, say, compensation. Is such a demand legitimate? In his Responsa Penei Moshe (II, 15), HaGaon Moshe Benbeneshti remarks that some believe that a daughter does not have to sign any document without receiving a fair price – some say 10% of the worth of the estate and some say even more (see Responsa Shoel Umeshiv, 2nd edition, I, 1 and III, 110; Chukos HaChayim by HaGaon Rav Chayim Falaji, 184; etc.) while others say that the fee should be ruled by a beis din according to the exigencies of each circumstance (Responsa Rav Pe‟alim, II, 15).

A Sister’s Signature is like Returning a Lost Article

Nonetheless, Maharit and other halachic authorities hold that a sister must sign such a declaration out of her simple obligation to return a lost article – the estate – to her brothers as without her signature, they would be losing it. The Chasam Sofer even describes any attempt to extract a fee for such as outright robbery (Responsa, C.M. 142). In his Responsa Tzitz Eli‟ezer (XVI, 52), HaGaon Rav E.Y. Waldenberg cites Responsa Divrei Chayim (C.M., II, 3) that the poskim tend to be lenient toward the sisters and grant them a fee for their declaration and signature.

Though, strictly speaking, daughters do not inherit their father’s estate if they have brothers, our sages instituted regulations for the welfare of those daughters who are still minors, as explained in Kesubos 52b: The brothers must support their minor, unmarried sisters and give them funds to enable their marriage. We shall even learn further in Chapter 9 of our tractate that when funds from the estate are limited, daughters are given precedence over the sons for their basic needs. A custom began about 700 years ago for a father to give his daughters a document for “half of a male’s inheritance” (shtar chatzi zachar) at their marriage. Moreover, some families have a custom for the sons to voluntarily grant a considerable portion of their inheritance to their sisters though the latter are not allowed to demand such.

We conclude with Rav B. Rabinovitz-Teomim’s clarification that the above regulations are not meant to rectify the Torah, as some Reformers charged, but to rectify our lives (Kuntres Be’inyan Yerushas HaBas). The regulations serve to apply the light of the Torah to all situations and for all times, providing support and building protective fences in all facets of life.

The Tradition that no Tribe ever becomes Extinct

What Is a Tribe?

The above quote from our Gemora condenses the entire subject of the twelve tribes of Israel. We understand that our nation is eternal, with no possibility of ever disappearing, but there is also a vital need for the perpetuation of the twelve tribes. Our division into twelve tribes stems from our very essence as a people and cannot be canceled and there will always be at least one person surviving from each tribe to enable their perpetuation. As a source for this principle, the Rishonim cite the verse in Malachi (3:6) that “I, Hashem, have not changed and you, the sons of Yaakov, have not become extinct” (Rashbam, s.v. Amar Abayei in the name of Rabeinu Chananel; Yad Ramah on Sanhedrin 69b).

Israel’s division into twelve tribes is hinted in Hashem’s promise to Yaakov in Bereishis (35:11): “A nation and a community of nations will come from you”, a double expression that needs clarification.

HaGaon Rav Y.Z. Soloveichik of Brisk zt”l points out Onkelos’translation: “a nation and a collection of tribes” (Chidushei HaGriz al HaTorah, Vayechi). In other words, aside from the promise that the Jewish nation will arise from Yaakov’s offspring, Hashem promised that that nation will be comprised of tribes.

With the understanding that the twelve tribes are like the vital members of one body, Rav Soloveichik explains the verses in Bereishis 48 concerning the selection of Menasheh and Efrayim as distinct tribes. Yaakov informs Yosef that Hashem told him: “I shall make you fruitful and plentiful and shall allow you to be a community of nations” (again translated by Onkelos as “a collection of tribes”) and then adds that Efrayim and Menasheh “will be to me like Reuven and Shimon”, blessing them with “the redeeming angel will bless the boys and my name will be called in their midst.” Ramban and Rashbam comment on this passage that Yaakov’s name being called in their midst refers to the perpetuation of their offspring. Yaakov made Efrayim and Menasheh into tribes making them inseparable from the whole nation, essential members of the same body and, consequently, eternal (see more illuminating expansions on the topic, ibid).

Now, remarks Rav Soloveichik, we can better understand the meaning of Rabeinu Gershom Meor HaGolah in his Selichos prayer “Remember the covenant of Avraham and the binding of Yitzchak,” said on the eve of Rosh HaShanah and, with expansions, on the Fast of Gedaliah (Mateh Efrayim, 603). We ask Hashem to remember “the covenant of the fathers, the mothers and the tribes.” We know about the covenant with the fathers and mothers but what covenant was made with the tribes? Indeed, says Rav Soloveichik, this refers to the tradition recorded in our sugya that no tribe ever becomes extinct and we therefore plead: “The covenant of the fathers, the mothers and the tribes, Your mercy and kindnesses with the passage of time, Hashem, remember the stricken and afflicted who are slaughtered for you all the day long.”

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Retracting a Kinyan

Rabbah and Rav Yosef argue about when a kinyan may be retracted. Rabbah rules that a kinyan may be retracted as long as the parties are still sitting. Rav Yosef rules that a kinyan may be retracted as long as the parties are still discussing the transaction.

What type of kinyan are Rabbah and Rav Yosef discussing? The CHIDUSHEI HA’RAN quotes an opinion that explains that the Gemora refers only to a matnas shechiv mei’ra (the gift of a deathly ill person), because a sick person is likely to retract his words as long as they are talking about the topic of his estate. In contrast, in the case of a matnas bari (the gift of a healthy person), the person may retract his words only “toch ke’dei dibbur” – (within the time of an utterance).

The RASHBAM (D”H Hachi Garsinan) explains that the Gemora clearly refers to the type of kinyan which the Gemora discussed previously, a matnas bari or a matnas shechiv mei’ra. The Ran quotes this opinion in the name of most of the Rishonim, including the RAMBAM and RAMBAN. The Rashbam explains that one certainly may retract the kinyan as long as the parties are still discussing the conditions of the transaction (the gift). The Chachamim understood that a person does not finalize the gift until he is satisfied with all of the conditions which he stipulates.

Does this reasoning apply to other forms of kinyanim? The ROSH (#5) writes that the Chachamim gave time for the parties to consider the conditions of the transaction only in the case of a kinyan chalifin (which is often used to finalize a matanah). However, “in other kinyanim, such as where the person picks up, pulls, or gives over an object... a person cannot retract the kinyan after ke’dei dibbur.” The Rosh clearly says that although there is no extended time period in which one may retract in the case of other kinyanim, one may retract any kinyan within the time of “toch ke’dei dibbur.”

RABEINU YONAH initially agrees with the Rosh, but then he says that one can argue that when one takes possession of an object (movable objects) through meshichah or one takes possession of land through chazakah, the kinyan is finalized with the action of the kinyan, and it cannot be retracted even within “toch ke’dei dibbur.”

Why, though, should meshichah and chazakah differ from all other forms of kinyan? RAV GERSHON EIDELSTEIN shlit’a writes that Rabeinu Yonah clearly understands that the degree of finality of an act of kinyan in the mind of the person depends on the specific type of kinyan. For example, when the Gemora in Nedarim (87a) states that acts of kidushin and gerushin cannot be retracted even within “toch ke’dei dibbur,” it is because the acts of kidushin and gerushin are so serious that a person deems them final at the moment he performs the act. Similarly, when one performs an act of meshichah or chazakah, such an act may be considered more final and conclusive than other forms of kinyanim.
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What’s in a Sign?

The Gemora, before citing the various reasons offered for the second verse referring to a husband, includes the word “siman” - sign. This word usually introduces a mnemonic device for the information which will be presented. However, our text of the Gemora simply has the word siman, with no obvious mnemonic device. Some write that the device was lost. Others offer novel interpretations of what the word siman is meant to convey in our Gemora. Some say that the word is actually the name of a sage, either Siman or Seemon. Others explain that the word siman or a variation are reflective of the answers given (ish, yidbeku, matos, ben), while some say that the missing word of the mnemonic device is Amar, for the names of those offering the answers (Rav Ashi, Rav Nachman, Rava).

Transfer to a Son;
Transfer to a Husband

The Gemora cites two braisos that explain the meaning of the two verses that prohibit the transfer of a woman’s inheritance to another tribe.

The Rashbam says that the text of the Gemora states that we have one braisa that focuses on the transfer to a son, and one that focuses on the transfer to a husband. The first braisa cited is the one which cites the first verse, and states that it refers to a transfer to a son, since the second verse already refers to a transfer to a husband. The Gemora introduces this braisa as the one which focuses on the transfer to a son, since it begins with that transfer. The second braisa cites the second verse, and states that it refers to transfer to a husband, since the first verse already refers to the transfer to a son. The Gemora introduces this braisa as the one which focuses on the transfer to a husband, since it begins with that transfer. The Gemora then proceeds to discuss why both braisos agree that the second verse refers to a transfer to a husband.

Rabbeinu Tam (112b Hachi Garis) disagrees with the Rashbam, and offers a different text of the Gemora. The first braisa cites the first verse about transfer, and states that it refers to transfer to a husband, proving this from the fact that the second similar verse is referring to such a transfer, indicating that both verses, in context, are only referring to a transfer to a husband. This first braisa is introduced as the braisa which focuses on the transfer to a husband, since it accepts only such a transfer as forbidden. The second braisa cites the second verse, and states that it refers to a transfer to a husband, since the first one already refers to a transfer to a son. The Gemora then discusses why both braisos – although they differ on the meaning of the first verse – agree that the second verse refers to a transfer to a husband.

Rabbeinu Tam challenges the Rashbam’s reading. According to the Rashbam, both braisos agree in the meaning of both verses, so there is no reason for the Gemora to identify them as focusing on different transfers. Furthermore, the Gemora could have stated that both braisos agree on the first verse referring to the transfer to a son, and not just to their agreement on the second verse.

Below is the flow of the Gemora, according to Rashbam and Rabbeinu Tam:

Rashbam Rabbeinu Tam
There is a braisa that focuses on transfer to a son, and one that focuses on transfer to a husband
The one which focuses on a son is: The one which only forbids transfer to a husband is:
Braisa 1:
First verse refers to a son, by process of elimination, since second verse refers to a husband First verse refers to a husband, from the context of the second verse, which refers to a husband
The one which focuses on a husband is: The one which also forbids transfer to a son is:
Braisa 2:
Second verse refers to a husband, by process of elimination, since the first verse refers to a son
Both braisos agree that the second verse refers to a husband
[They differ only in emphasis] [They differ on the first verse only]

The Kovetz Shiurim discusses what practical difference there between being concerned about a transfer to a husband or if we are also concerned about a transfer to a son. He lists three possible differences:
1. The prohibition of transfer to a husband takes effect as soon as they are fully married, and he inherits her (nisuin), while the prohibition of transfer to a son will take effect only upon conception or birth.
2. If a woman is sterile, there will be no prohibition due to transfer to a son, but only due to transfer to her husband.
3. If the husband relinquished his right to inherit his wife, there is no transfer, and the marriage is permitted. However, the prohibition of transfer to the son will still be in effect.

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“His Plot”

Rav Pappa asked Abaye: How can it be proven from there that a husband inherits his wife? Is it not possible to maintain that a husband, in fact, does not inherit his wife, and as to those Scriptural verses (the first three), they may speak of a transfer through the son (when a daughter inherited property, married a man from a different tribe; when she dies, her son will be her heir, and her inheritance will have transferred from one tribe to another)? And the verses discussing Yair and Pinchas might not be referring to an inheritance at all, for perhaps Yair bought those cities, and Pinchas bought that hill (and the purpose of the verses is merely to demonstrate their wealth)!?

Abaye responded: It cannot be said that Pinchas had bought the land, for, if so, it would follow that the field must be returned by Yovel, and it would emerge that the righteous man (Elozar ben Aharon) would be buried in a grave which was not his own.

The Nimukei Yosef writes that our Gemora teaches us that it is a lack of dignity for the deceased to be buried in a grave site owned by another.

The Chasam Sofer (Responsa Yoreh Deah 330) citing our Gemora as its source says that the prevalent custom is that everyone pays for his own grave. Even a poor person, who lacks the means to pay full price, nevertheless should pay something, even at a considerably reduced price - for his own burial plot.

He writes that there was an incident where the Chevra Kadisha was charging an enormous amount of money for a burial plot, so much so, that it made the price which Avraham paid Ephron Hachiti seem miniscule. He proves from there and from our Gemora that it is of extreme importance that the burial plots should belong to the deceased in order that it satisfies being “his plot.”

“Al haDaf” quotes the Dover Meisharim (Responsa, Vol. 1:4) who asks that even if we say that Pinchas inherited the property from his wife, how would we refer to this as “his plot” in reference to Elozar?

He answers that Pinchas had an available solution, for he could have given land as a present to his father (he cites Responsa Rashba that there is a possibility of acquisition for a dead person) and this is according to Rabbi Meir (Bechoros 52b) who rules that a gift does not return by Yovel.

He also offers another novel interpretation that “his plot” really means the son’s plot - a plot that the son bought or inherited, and there is actually no need to gift it to the father who has died.

They add that the example that the Chasam Sofer cites, regarding Sarah, would prove either hypothesis. Either Avraham gifted the plot to Sarah after her death, or the requirement of “his plot” here would refer to Avraham, and since he was her husband that would suffice.

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Hashem’s Kal Vachomer

Why did Hashem respond to Moshe through a kal vachomer (and not any other way)?

The Baal Shem Tov answers that Moshe Rabbeinu davened to Hashem to heal Miriam by saying: “Keil na, refa na lah” – Please Hashem, heal her now. It is known that the thirteen principles of biblical hermeneutics correspond to the Thirteen Attributes of Mercy. The first of the biblical hermeneutics is a kal vachomer. It corresponds to “Keil” of the Thirteen Attributes of Mercy. Since Moshe opened his tefillah with “Keil,” Hashem responded with a kal vachomer.

When Rabeinu Gershom Sat a Double Shiv’ah for his Son

By: Meoros Hadaf Hayomi

The Rishonim relate the sad story that the son of Rabeinu Gershom Meor Hagolah together with his mother, Rabeinu Gershom’s second wife, left the Jewish faith. Subsequent halachic authorities record that Rabeinu Gershom sat shiv’ah for his son for a period of 14 days.

Maharam of Rottenberg remarks in his Responsa (§544) that there is no obligation to sit shiv’ah for those who convert to another religion (Shulchan Aruch, Y.D. 340:5) but that Rabeinu Gershom did so out of his extraordinary sorrow.

Radvaz confirms the fact that Rabeinu Gershom sat shiv’ah for his son, not mourning his death but rather that his son had not repented while alive (Responsa Radvaz, III, 558).

Other sources, though, report that he mourned for his son while he was still alive and as for the 14-day period, the Or Zarua (II, 428) offers an explanation in the name of his mentor, Rabbi Shimshon zt”l: Rabeinu Gershom learnt his behavior from our sugya concerning Miriam. Hashem’s honor is double that of even a parent and if a person mourns seven days for a human who has left this world, one should surely mourn 14 days for the loss of a soul to Hashem by apostasy.

The Gerer Rebbe zt”l, author of Imrei Emes, wondered about this reasoning: According to our sugya, Hashem Himself ruled that even though by ordinary logic, His honor is double that of a parent and Miriam should have been punished for 14 days – still, “da’yo…” - that which is learnt from another instance should not be more severe” and she was therefore punished for only seven days. Why, then, did Rabeinu Gershom mourn for 14 days? The Imrei Emes explains in the name of his brother-in-law, the Rabbi of Bendin zt”l, that only Hashem could apply “da’yo” to forgo His honor whereas we cannot ignore Hashem’s honor and the logic of extending the mourning to 14 days still holds for us [Michtevei Torah, 55-56].

The firstborn Takes a Double Portion

2, 20, 200

According to the Maharal of Prague, the root letters of bechor (“firstborn”) – i.e., beis, kaf and reish – hint at his right to a double portion of his father’s estate as all their numerical values are multiples of 2: beis = 2, kaf = 20 and reish = 200! Others point out that beis, kaf and reish can be rearranged to spell berech, “a knee”: Just as our knees support our whole body, a firstborn supports his father.

And if her Father Spat in her Face

HaGaon Rav M.M. Krengel zt”l expressed a wonderful idea about the story of Miriam described in our sugya: The Midrash (quoted by Rashi on Shemos 2:1) relates that when Pharaoh decreed for every newborn son to be thrown into the Nile, Miriam’s father Amram left his wife Yocheved and all the Israelites followed suit. Miriam, though, protested to Amram that his decree was worse than Pharaoh’s: “Pharaoh issued a decree against the sons but you issued a decree against both sons and daughters!” Miriam thought she was justified in admonishing her father as, in her opinion, he had transgressed the Torah: after all, according to Beis Shamai, a person has fulfilled the mitzvah to be fruitful and multiply only if he begets two sons and, at that time, Moshe had not yet been born. Still, when many years later Miriam complained about Moshe because he isolated himself from his wife, she was also punished for upbraiding her father as Moshe already had two sons, Gershom and Eliezer.

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Root of Yehonasan’s Sin

By: Reb Avi Lebowitz

The Gemora states that a person’s children will inherit the attributes of the family he marries into. Moshe married the daughter of Yisro who spent his life steeped in idolatry and therefore had Yehonasan as a grandson who served as a priest for the idol of Micah. But, Aharon, who married the daughter of Aminadav (sister of Nachshon), had Pinchas who was a great tzadik.

The connection between marrying the sister of Nachshon and having a child like Pinchas seems clear. Nachshon was known for his dedication to sanctifying Hashem’s Name, being the first to jump into the Yam Suf. Pinchas was also moser nefesh by being mekadesh shem shamayim by killing the Nasi of Shimon, despite the ridicule he had to suffer (as the Gemora says that all the Tribes mocked him that he descended from Yisro who worshiped idols).

It would seem that the connection between Yisro and Yehonasan is also clear. They were both involved in idolatry. But, the Gemora on 109a explains that Yehonasan was misled by a tradition that he heard: A person shall rather hire himself out to service idols rather than be in need of the charity from others. Yehonasan understood this literally, that for sustenance, one may work as a priest for idolsh.

The Rashbam seems troubled by how he could made such a mistake and writes that Yehonasan thought that as long as he is not intending to worship the idols, he is not doing anything wrong. This seems to be an honest mistake based on the misunderstanding of the tradition, so why does the Gemora indicate that he was evil? He never actually worshiped idolatry!?

The Rashbam quotes a Yerushalmi that elaborates on the behavior of Yehonasan. Yehonasan was entirely motivated by money. People would bring sacrifices to t Michah’s idol, to which Yehonasan would say that they are wasting their time. He would then tell them that they should give him precious gifts and he will bring it to the idol. When they left he would indulge in the gifts. When confronted, he admitted that the idol has no power and he is only working there for sustenance. The sin of Yehonasan is that his desire for wealth blinded him from realizing what he is doing. He may have honestly been confused and thought that the tradition allowed him to do what he was doing, but the only reason he made such a grave error is because he was blinded by his desire for wealth.

\Where did this great desire for wealth and physical possessions come from? Perhaps this came from Yisro. In Parshas Yisro we find that Yisro comes to Moshe (according to Ramban, it was prior to the Giving of the Torah), and after giving Moshe advice, he returns to his family, but the Ramban explains that he came back again while the Jews were still camped as Sinai. Then in Parshas B’ha’aloscha (10:29), he tries to leave again. Why? Rashi explains that he wanted to go back to his wealth rather than join the Jews into Eretz Yisroel. Moshe then begs him not to leave because, as Rashi explains, people will say he only converted to get a portion in Eretz Yisroel, so when he realized that converts aren’t entitled to a portion, he left. Moshe then has to guarantee Yisro some financial incentive to get him to stay. Rashi explains that the “good” that is being referred to is that when Eretz Yisroel was divided, Yisro received the fertile land of Yericho, which he would have until the time when the Beis Hamikdash would be constructed. The Ramban (Yisro) understands from this Rashi that Moshe successfully convinced Yisro to stay by offering financial incentive. Targum Yonasan also says that the good that Moshe promised to Yisro was a portion in Eretz Yisroel.

Based on this, we can suggest that the poison that Yisro brought into the genetic pool of Moshe’s descendants was not service of idol because Yehonasan his grandson never actually worshiped idols. The poison that Yisro brought, which the Gemora refers to, is the great desire for material wealth that caused Yehonasan to make such a fatal error.

Should you check out your future wife’s brothers nowadays?

By: Meoros Hadaf Hayomi

Rava asserts the well-known rule that he who plans to marry should check her brothers since, as Rashbam comments, “most of a woman’s children resemble her brothers” (s.v. Sheyivdok). The purpose of the examination is not to determine the woman’s own nature as that can be perceived by observing her, but aims to foresee her children’s character as they are assumed to resemble her brothers (Chida in Pesach Einayim on our sugya).

Rabeinu Tam explains that the link between a woman, her brothers and her children stems from their all having the same mazal (Tosfos, Yevamos 62b, s.v. Vehanosei). If so, why examine her brothers? If she and her brothers have the same mazal, would it not suffice to examine her alone? The answer is that males and females have different natures even if being under the same mazal; hence one must check her brothers to see how her sons will be (Maharal, Chidushei Agados).

The Gemora in Yevamos (63a) remarks that he who weds his sister’s daughter will enjoy marital bliss and the Meiri (ibid) attributes this promise to the fact that they have the same nature.

Rabbi Vidal HaTsarfati, who lived over four centuries ago, offered an alternative explanation in his Imrei Yosher on Midrash Rabah (Shemos 6:23): A woman’s children are accustomed to be in their uncles’ homes and, in a sense, are also brought up by them and learn from their behavior. (See also the commentaries on tractate Soferim, end of Ch. 15; Maharsha on our Gemora; Gur Aryeh on Shemos ibid; etc.)

The rule to check out one’s prospective brothers-in-law is not mentioned by Rambam, Shulchan Aruch or other halachic works. Rabbi Yehudah HeChasid, though, stresses the severity of the matter (Sefer Chasidim, 374-78) and the Shelah HaKadosh even adds that anyone not obeying the rule “deviates from our Sages’ instructions and is considered as abandoning life” (Shnei Luchos HaBeris on Shemos 6:23).

We can further understand the application of the issue from the advice offered by the Steipler Gaon Rav Yaakov Kanievski zt”l, to a young man who had difficulty finding a shiduch. The boy eventually was engaged to a young woman whose brother had completely left the path of Torah and mitzvos and he asked the Steipler if he was acting wisely or perhaps should renege on the shiduch.

Rav Kanievski then offered six reasons to adhere to the shiduch:
(1) There should be no worry if she also has observant brothers as her children might well resemble them in their behavior.
(2) Most people fail to heed this Talmudic warning and the Gemora itself says of similar cases “Hashem guards the naïve” (Tehilim 116:6; Yevamos 12b; etc.).
(3) Was her brother exposed to a negative environment as a young child and, as a result, tempted from the right path? If so, he is judged as a child led into captivity and not responsible for his actions.
(4) The stinging insult to the fiancée if the shiduch is canceled should be considered.
(5) If the boy cancels the shiduch, he won’t easily find another and might remain single for a long time.
(6) The ruling is not cited by halachic authorities and is apparently intended as merely an extra measure of piety (midas chasidus).

Finally, Rav Kanievski concluded that the young man should decide the matter for himself (Orchos Rabeinu, IV, p. 255, and quoted almost in full in Karyana D’igarta, II, 18).

What should you check for?

Rav Kanievski’s pupil, HaGaon Rav A. Horvitz, reports that his mentor offered another reason to forgo examining her brother (ibid, p. 234): In former times, families lived in a totally observant environment and a brother who deviated from the right path apparently indicated that something was amiss in his family. Now, though, the very streets are awash in heresy, the media tempt the youth in all directions and parents cannot protect their children from exposure to deleterious influences. A brother who stops being observant nowadays has no bearing on his family and we should have no worry as long as the potential bride is worthy and virtuous.

HaGaon Rav E.M. Shach zt”l further remarked that the examination concerns character and attributes, not actions which depend on a person’s choice (Michtavim Umaamarim, VI, p. 128).

A Woman of Valor, Who Can Find?

Concerning Rava’s warning to examine a prospective bride’s brothers, the Chida found the topic hinted in the initials of “A woman of valor, who can find?” – eishes chayil mi yimtza, spelling achim – brothers; alternatively, mi ach? – “Who is the brother?” (Pesach „Einayim, on our sugya; Kisei Rachamim on tractate Soferim, end of Ch. 15; Bris Olam on Sefer Chasidim, p. 374).

HALACHOS OF THE DAF

Not Accepting Charity

One should distance himself from accepting charity, and should live a life of poverty, rather than to avail himself unto others. Chazal say that a person should make his Shabbos a weekday (i.e. he shouldn’t spend so much), rather than to collect charity. Even if he is a well respected Talmid Chacham that became poor, he should work, even in a menial labor, just so that he shouldn’t have to accept charity.

Having said that, if a person can’t survive without accepting charity, and he can’t work due to sickness or old age, or even if his salary can’t make ends meet, and such a person doesn’t accept charity due to pride or misguided piety, then it’s as if he committed murder. Furthermore, all the pain and suffering that he has because of his poverty, will not be considered merits; on the contrary, it will be considered sins.

However, a person who can survive, and he chooses to live a life of abject poverty just so that he won’t have to avail himself unto others, Hashem guarantees him that he will eventually become wealthy and he will support others.

If a charlatan collects charity when he has no need for it, he will eventually become poor and really need charity.

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We do not Start with a Punishment

By: Meoros HaDaf Hayomi

A Lesson in Composition

The Gemora had asked that the Mishna should first state that sons inherit their father, as we do not start off with punishments (sons dying in the lifetime of the father)!

It is noteworthy that the Rambam begins his Laws of Divorce with the statement: “A wife is never divorced except with a written document called a get”. Radvaz comments that Rambam chose that mode of expression, as opposed to saying “A wife is divorced with a written document…” since our sugya explains that we should never open a topic with punitive connotation. We should not want a wife to get divorced and Rambam therefore wrote that she “never” gets divorced except in certain conditions” (Responsa Radbaz [manuscript], 1).

A Niece Is a Granddaughter?

The Rashbam frequently refers to a niece as a granddaughter (neched - s.v. Velo manchilin), as also evidenced later (114b, s.v. HaIshah). HaGaon Rav Shemuel Shtrashun and other commentators tried to find a solution with no success while Mahari Ya’avetz attempts to correct the text. A certain rabbinical scholar told us that we have no need for any correction: The Rishonim in France sometimes called nephews grandchildren, such as in the Rosh’s responsa addressed to “my grandson” but signed “your uncle” (see, for instance, Kelal 12:3, 98:1, etc.). Apparently, the same word was used for nephew and grandson or niece and granddaughter in the Romance languages of that era.

How do Heirs Assume Ownership of their Inheritance?

The process of an heir’s acquisition of an estate from the deceased has no parallel in the realm of halachos relevant to the acquisition of property. The Acharonim explain that an inheritance involves no usual property-related kinyan as customary in other transfers of assets. When a father passes away, rather, his son takes his place and therefore assumes ownership of all the deceased’s assets. In other words, property usually moves or is taken into another’s ownership whereas in the instance of inheritance, the former owner departs and another takes his place while the property stays put (see Chidushei HaGaon Rav Naftali Trop, Bava Basra 126b; Nesivos HaMishpat 276, S.K. 4; Responsa Machaneh Chayim, II, C.M. 41). The method of this transfer of ownership has far-reaching implications as to the types of assets included in an inheritance. A person, for example, cannot acquire an item stolen from its owner and not on his, or the original owner’s, premises. A son, though, inherits all his father’s property, even if stolen, as he simply assumes his father’s place: just as his father would still own assets stolen from him, the same applies to the son.

Distributing Funds Earmarked for Charity Included in an Estate

One of the more frequent implications of the above halachah is expressed if the deceased set aside funds for the poor. An heir finds, for instance, that, aside from not having been distributed, the money had never been designated for any particular person or group. While the father was alive, only he, of course, had the right to choose to whom to give the funds (Remo, Y.D. 257:10). Do his heirs, however, inherit that right as well or should the money be distributed in some other fashion? Indeed, the topic is far from simple: After all, even the father could not sell or grant the right, known as tovas hanaah, to another as it “lacks substance” and cannot be transferred. Rav Hai Gaon defines the matter by comparing an article acquired or transferred to the owner’s body: just as our bodies have material substance, we can acquire property or transfer its ownership only if that property has physical dimensions (Sefer HaMikach, Sha’ar 2). The right, then, to choose to whom to distribute charitable funds cannot be transferred or sold. In the light of the above, though, that a son takes his father’s place, does he also inherit this apparently untransferrable right?

The Shach (C.M. 276, S.K. 5) and Nesivos HaMishpat (ibid, S.K. 4) hold that, based on this principal, a son also inherits the right of tovas hanaah. As far Rav Hai Gaon’s rule, they contend that the maxim refers to all property matters except inheritance since, as explained above, inheritance is an automatic change of ownership, not bound by the rules of other methods of acquisition. Still, Ketzos HaChoshen (ibid) maintains that tovas hanaah can’t be inherited as it is not, in itself, a property-related right in the usual sense. In his opinion, then, the son must give the funds to the first poor person he meets or who approaches him, or leave them where the poor can divide them among themselves (see ibid; Taba’as HaChoshen, ibid; and Beiur HaGera, S.K. 23, who holds that tovas hanaah is a weak property-related right that cannot be inherited).


A Wife Inherits from her Husband

Are Bank Accounts always Divided among all the Heirs?

A fascinating question was referred to HaGaon Rav Chayim Ozer Grodzhinski zt”l, the chief rabbi of Vilna. A local Jew passed away, leaving a huge sum in a bank account. According to halachah, his widow is entitled to the amount stipulated in her kesubah while the other heirs divide the rest of the estate. The bank, in conformity with local laws, regarded the widow as the sole heir and bestowed her with the entire sum in the account whereas the other heirs were denied access thereto. Being conscientious in her observance of mitzvos, she turned to Rav Shlomo Heiman, later famous as Rosh Yeshivah of Torah VaDaas in Brooklyn, and asked if the halachah obligated her to transfer the huge sum to the other heirs. This is apparently the halachic decision we would have reached.

Now, most people are accustomed to consider their bank accounts as “deposits.” They, and the bankers, say they “deposit” money in the bank and we are all familiar with “linked deposits,” CDs (certificates of deposit) and the like. Still, these so frequently used terms are basically wrong. A deposit – pikadon – as used in the Talmudic and halachic literature, is anything given to another to be kept or watched or used without exchanging it for an identical item or harming it. The money you give a bank clerk, then, is not a deposit as it, itself, will not be returned, but rather a loan. Funds put in a bank are not watched there but their value is accredited to your account. In our case, then, the deceased lent the bank money and, according to halachah, the latter must repay it to his heirs. The bank, however, accredited the widow with the whole amount. Has she received the deceased’s money? No! It belongs to the bank and was mistakenly accredited to her, such that she has no obligation towards the other heirs. (She is not even considered as having caused them a loss [gerama], as the laws of the country forbade their access to the funds). Rav Heiman sent this wonderfully simple decision to Rav Grodzhinski, who remarked that the issue had long been obvious to him (Chidushei Rabbi Shlomo, Kesavim Uteshuvos, 8).

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Collecting a Debt from the Brothers

It was stated: If brothers split an inheritance, and a creditor took one of their portions, Rav says that their division is nullified (and they divide the remaining estate). Shmuel says: The brother lost his portion. Rav Assi says: The brother whose possessions were seized should take a quarter of his brother’s land or one quarter of money. [The other brother has the right to give one-quarter money or one-quarter land.]

Tosfos asks: What gives the creditor the right to collect his debt from only one of the brothers? Isn’t the responsibility to repay the father’s debt equally shared by both brothers? He should not be able to seize property that belongs to one, and not the other!?

Tosfos answers: We are referring to a case where the father made this particular land into an apotiki. (A person may designate any type of property as security to the creditor without placing it in the possession of the creditor. The creditor has a lien on this property, and if the debt is not otherwise repaid, the creditor can collect his debt from the security. This security is called an apotiki.) It is this land that the creditor wishes to seize. Tosfos continues that it cannot be speaking that the father told the creditor, “You can collect from any other place,” for if so, he would not be able to push off the creditor by paying him with money.

The Rosh (Bava Kamma 1:6) writes that the halachah which requires the creditor to collect equally from all the brothers is only if he is able to collect a complete field; but he is not required, however, to take half a field from one brother and half from another. The reason for this is because it is not a proper payment and lenders would refuse to lend money. Accordingly, the Pilpula Charifta writes that it is not necessary to interpret the Gemora to be referring to an apotiki. Rather, we can say that if the creditor would not collect the property of one brother, he would be compelled to take half a field from each brother. It is for this reason that he has the right to take the field from one of the brothers.

HALACHOS OF THE DAF

Dividing an Inheritance with an Unknown Brother
When a person dies, his inheritance is divided by his sons by means of a lottery. However, there are times when the sons must divide the inheritance a second time. Below are two scenarios.

Two brothers that divided an inheritance, and then along came a third brother whom they never knew existed, the halachah is that the entire dividing is void, and they split the inheritance again; this time - including the third brother.

This is true even if the two brothers had inherited three fields, and had divided it between themselves, and each brother received a whole field and half of the third. Then the third brother made his appearance and his lot fell on the third field that was split. Even if the third brother is happy with this arrangement, any one of the brothers may void the entire dividing of the inheritance, and they must all draw lots again. Furthermore, even if the third brother is satisfied with the third field even without having to draw lots, any one of the brothers may void the splitting of the inheritance. The reason for all of this is, since originally, it was a mistaken division, the entire lottery can be voided.

Another scenario would be, if after dividing the inheritance, one of the fields got taken away by a person who lent their father money and now is collecting his debt. Here too, the division is voided, and they all once again draw lots to divide the inheritance.

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Delineating a Field

By: Reb Yechezkel Khayyat

The Mishna discusses a case of one who delineates the field he is selling. By delineating the field, we allow more leeway in an error in the field’s size.

The Rashbam and Tur (quoting the Rema) say that the same is true if the seller showed the field to the buyer, and told him that he was selling “this field.” However, the Ri Migash says that showing an actual field is equivalent to the earlier case of hen chaser hen yeser (more or less), and does not have the same leeway as our Mishna.

The limit of the error accepted in such a sale is a sixth of the specified size. The Rashbam explains that although this amount is the same as the proportion for ona’ah (over or under charging), the mechanism is different. The limit in the case of a delineated field is simply a measure of how far away from the specified size a buyer will forgive, while the limit in ona’ah is defined by the variation accepted in a marketplace.

Beyond a sixth, the Mishna says that the price must be adjusted. The Rosh and Ran say that the adjustment is for the whole error. The Kesef Mishnah (Mechirah 28:12) holds that the Rambam agrees, while the Magid Mishnah suggests that the Rambam may only obligate a reduction in price to bring it to within a sixth of the specified size.

Exactly a Sixth

The Gemora cites the dispute of Rav Huna and Rav Yehudah in the case of an error of exactly a sixth of the size, with Rav Huna placing it together with less than a sixth, and Rav Yehudah placing it together with more than a sixth.

The Rishonim discuss different versions of the text of the Mishna, and how they are read according to Rav Huna and Rav Yehudah.

The Mishna rules on two cases:
1. pachos mishtos (less than a sixth): valid sale
2. Until shtos price must be adjusted

The versions of the first case are:
1. pachos shtos = a sixth less [than the size] (Tosfos 106a Hachi)
2. pachos mishtos = less than a sixth [away from the size] (Tosfos ibid)
3. piches shtos = [if he] reduced [the size] by a sixth (Bach note 3)
4. piches mishtos = [if he] reduced [the size] by less than a sixth (Bach note 1)

According to the first and third versions, this case seems to read simply like Rav Huna. In fact, this is a weakness with these versions, since Rav Huna proceeds to explain how to read this first case in accordance with his ruling. Rav Yehudah has to read this case, “[up to] a sixth less.” According to the second and fourth versions, the Mishna does not explicitly discuss the case of a sixth, leading to the dispute.

The second case of the Mishna discusses the rule ad - until a shtos. Here, Rav Yehudah and Rav Huna dispute whether this ad - until is inclusive or exclusive.

Tosfos explains that Rav Yehudah can explain that the Mishna did not explicitly discuss a sixth in the second case, lest we think that more than a sixth would invalidate the sale. According to Rav Huna, the Mishna did not explicitly discuss a sixth in the first case, to indicate that a sixth is a valid sale, just as much as less than a sixth is.

A Silver Goblet Raffled a few Times on Purim

By: Meoros Hadaf Hayomi

Our sugya explains that the heirs to a commonly inherited estate may divide it by lots and, according to Rav Ashi, the halachic validity of the lottery is based on the heirs’ consensus to divide the estate by that means. We bring you a story about a Purim raffle held somewhere in Germany about 325 years ago, next-door to HaGaon Rav Yair Bachrach, author of Responsa Chavos Yair.

A dozen exuberant friends and relatives were having their Purim banquet at the same table. Somewhat inebriated, they decided to raffle an expensive silver goblet with each paying a participation fee. Each of their names was written on a separate slip and put in a box while another box held 12 more slips – 11 blank and one announcing mazal tov! The word was given and a child was picked to take out a slip with a name from the first box and another slip from the second. On the first try, the slip from the second box was blank but already on the second try, the slip from the second box said mazal tov and the happy winner was handed his prize. Some people, though, wondered how anyone could win so soon and decided to examine all the slips. They then found another mazal tov slip in the second box and an argument soon erupted. The winner claimed that his luck caused him to win and had there been merely one such slip, he would also have won while the other participants insisted that the whole raffle was invalid as the original conditions of 11 blank slips and one mazal tov had not been met. All the participants went to Rav Bachrach’s home and the Gaon instructed them to conduct the raffle anew.

This time, someone else won but the situation was just as confusing. One of the participants examined all the slips in the box of names and discovered one missing. They all wanted to invalidate the raffle but the winner asserted that as there had been just 11 names in the box, each of the 11 had had a greater chance to win so what are they complaining about? “The only one I should confront,” he retorted, “is the twelfth, whose name was missing, and I’m willing to compromise and give him a third of the goblet’s worth.” The group again came to Rav Bachrach who ruled that even if the twelfth person would agree to the compromise, the others could invalidate the raffle (Responsa, 61).

He found a source for his decision in our sugya: Two brothers divided three fields of equal size by drawing lots. Reuven got field A and Shimon field B and they then divided field C equally between them. They then discovered another brother, Levi, whom they had never known and the three drew lots anew for the entire estate while Levi won field C! In Tosfos’ opinion (s.v. Ushmuel), Rav and Shmuel disagreed if a new lottery should be conducted or if Reuven and Shimon could keep their originally won fields and just give field C to Levi without drawing lots. The halachah was ruled according to Rav invalidating the first lottery entirely and we thus deduce that a lottery or raffle somehow excluding a participant who should have been included is invalid.

Basic Conditions for the Results of a Raffle to be Binding

According to the Chavos Yair, the reason for the above halachah is that the results of a lottery must be determined strictly by Hashem without human machinations or errors. Divine providence works its effect only when a lottery or raffle is conducted properly. If, then, even 13 slips had been put in the name box, with someone’s name appearing twice, and even had that person not won despite his greater chances, the other participants could invalidate the raffle as a raffle not conducted according to the rules has no validity.

This novel opinion, that even someone whose name was recorded twice could invalidate a raffle, was supported in a wonderfully simple explanation by HaGaon Maharil (Reb Yehoshua Leib) Diskin zt”l in his commentary on the Torah (Miketz). The twice-inscribed person could claim that he paid to participate in the raffle, assuming he had a chance to win. Had he won, though, the other participants could invalidate the proceedings, being that his name was recorded twice and thus giving him a greater chance to win. This very possibility, then, invalidates his participation retroactively since he had no chance of winning. Moreover, he could further claim that Divine providence wants him to win but his name did not appear for even had he won, the others would invalidate his winning anyway; he is therefore allowed to invalidate the whole procedure.

The Winner of the Lottery Gets the Aliyah

In a certain congregation in Eretz Yisroel, the members decided that, for the sake of good order, the Shabbos when a bar mitzvah boy would be called to maftir should be determined a year in advance. One day, a congregant came to the gabai and informed him that his son would be bar mitzvah and receive maftir the coming Shabbos. He already sent invitations, he asserted, and the desired aliyah laTorah was even mentioned therein. The gabai protested that that Shabbos was reserved for another bar mitzvah boy whose father obeyed the regulations and had advised the congregation a year ago. The question was referred to HaGaon Y.S. Elyashiv, who ruled that the son had no reason to suffer because of his father’s negligence and that the boys should draw lots for their aliyah (Tuvecha Yabi’u, II, p. 68).

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WHEN THE SELLER GETS BACK LAND

By: Rabbi Yaakov Montrose

The Mishna (103b) teaches that when the size of a field is estimated at a beis kor (thirty se'ah) at the time it is sold, both the buyer and the seller must agree to accept a loss or a gain of one quarter of a kav per se’ah. This means that if there is up to one quarter of a kav of extra land per se’ah, the buyer may keep that land. If the extra land is more than one quarter of a kav per se’ah, “the seller has the upper hand in a case where he gave nine extra kav in a field.” Rav Huna and Rav Nachman disagree about the intent of the Mishna. Rav Huna explains that the Mishna means that if the land contains nine extra kav including the one extra quarter of a kav per se’ah that a buyer normally is allowed to keep, all of the extra land goes back to the seller. Rav Huna understands that the seller would never intentionally add so much land, which itself is considered a proper field. Therefore, in a case in which an area of two kor (60 se’ah) of land was sold and one quarter kav was left per se’ah, all of the extra land returns to the seller.

Rav Nachman disagrees and explains that every kor may contain up to seven and a half extra kavin. If there is more than nine kav, the land returns to the seller.

What does Rav Nachman mean to say?

The RASHBAM (DH v'Iy) explains that Rav Nachman means that if there is even a small bit more than a quarter of a kav per se’ah, and altogether there is more than nine extra kav, all of the extra land goes back to the seller. Accordingly, whether the extra land returns to the seller depends on the size of the land being sold. If two kor are sold and there is one quarter of a kav extra per se’ah, all of the extra land goes to the buyer unless the extra land is slightly more than one quarter of a kav per se’ah. If one kor is sold and there is one quarter of a kav extra per se’ah, the buyer keeps the land. If, however, in this second case there is one kav and a half more of extra land, all of the land goes back to the seller. If there is more than seven and a half kav but less than nine kav extra, the buyer must compensate the seller for all of the extra amount (including the seven and a half kav; see Rashbam to 103b, DH Yeser Mikan). This is also the opinion of the RA'AVAD.

The Rashbam cites another opinion which explains that when Rav Nachman says, “If there is more than nine kav it goes back,” he means more than nine kav over the normal amount of one quarter kav per se’ah, regardless of how many kor are being sold.
The Rashbam cites a third opinion which explains that if there is more than nine kav per kor, all of the land goes back to the seller.

INSIGHTS INTO THE DAILY DAF
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HALACHOS OF THE DAF

Selling a Specific Beis Kor


If the seller said, “I’m selling to you this beis kor”, then it’s as if he said “I’m selling to you a beis kor even if it’s more or less than an exact beis kor.” Therefore, if there is found to be missing up to a 24th of a se’ah (a se’ah is 6 kav and a kav is split into quarters) which is a quarter-kav, or there was found to be extra, up to a quarter-kav, then the sale stands, and neither the buyer or the seller needs to give additional money.

If there is found to be missing or extra land, more than a quarter-kav, then all quarter-kavs that were missing, the seller pays back to the buyer, and all the quarter-kavs that were extra, the buyer returns to the seller.

It is interesting to note, that if only one quarter-kav was extra (or missing), then the sale stands, but if for example there were two extra, then both get returned. The reason explains the S”ma, is that once they start returning, everything that is not exactly a beis kor gets returned as well. Since the seller certainly does not intend to let the buyer receive that much extra land, he therefore takes back all of the extra land. The S”ma cites other examples where the halachah follows this logic.

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Bequeathing to One Son

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Rava said: Rabbi Yochanan ben Berokah’s reason is based upon the following verse: It shall be on the day that he bequeaths to his sons. This indicates that the Torah gave authority to a father to bequeath to whom he desires to inherit his estate.

It is brought in the Sifri that the father has such a right even on prospective property, i.e. those that he does not currently own, but they will become his. He can say that he wants property that is not actually in existence yet to be inherited by whomever he desires. Reb Akiva Eiger, however, cites the R”if, who holds that the father cannot give away property that is not yet in existence.

There is another dispute regarding this halachah: The Nesivos quotes a Rit”va, who holds that the father may retract from this stipulation up to the moment he dies. The Ketzos Hachoshen disagrees.

The Mikdash David explains these two arguments with the following chakirah: When the father bequeaths his property to one of the sons, is he establishing that this particular son is his sole inheritor, or are all the children inheritors; the father is merely designating this property that it should belong to this particular son?

If the father is establishing that this particular son is his sole inheritor, this stipulation will be effective even on property that is not yet in existence, for once this son has been established as the inheritor, he will inherit whatever potentially should have belonged to the father. If, however, he is merely designating this property to belong to one of his sons, he can only do that on property which currently belongs to him.The same can be said regarding retraction: If the father is establishing that this particular son is his sole inheritor, he cannot retract from that (he may, however, in the future, add other inheritors, for he is not taking away the inheritor status from this son). If, however, he is merely designating this property to belong to one of his sons, he may retract up until the moment that they actually take possession of the property.

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