Baba Kama 4a - Adam HaMazik: Damaging in your sleep

Tosafos quotes from the yerushalmi that even though a person is chayev for damages that he does while sleeping, that is only if he goes to sleep near keilim so he was somewhat negligent by going to sleep there. But if someone only brought the keilim after he fell asleep and he damaged them, he is patur. The Maharatz Chiyus points out a machlokes between Tosafos and Nemukei Yosef, exactly why is he patur? Tosafos writes "they caused it". Meaning, we don't hold the sleeping damager responsible since someone else caused the damage by putting the keilim there. The primary liability and responsibility for the damage is the person who put it there (but he is probably exempt because of grama), which removes responsibility from the sleeping mazik. Based on Tosafos the rationale to be patur is not "o'nes", rather it is that we don't consider the person who damaged to be the cause of the damage. However, the Nimukei Yosef says that he is patur becaue he is o'nes. Based on this, the maharatz chiyus asks, why does the rambam write that if one's life is threatened unless he takes money from his friend, he is responsible for taking the money. Why don't we exempt based on the claim of o'nes? The Shach makes a distinction between a case where one damages unintentionally to one who damages due to o'nes of his life being threatened. Whenever the action is done with intent, even though he was under duress, he is liable. But when he is sleeping, the action is not done with any intent so he is patur.

This sevara is similar to the concept of mis'asek. When one does a mitzvah and has no intent for the action that he is doing, it doesn't count. For example, if he would be trying to clean out a shofar by blowing through it and it made a sound, even if mitzvos don't need kavana, he isn't yotzei. But if he had intent for the action that he is doing, just that he is forced to do it, the gemara in rosh hashana 28a (kaf'uhu parsi'yim) is clear that according to the opinion that mitzvos don't need kavana he would be yotzei.

Baba Kama 3a - Shein and Regel are Patur in Public Domain

The Rif says that shein and regel are exempt for damages in a public domain because "it is normal" - meaning that the type of damage is not out of the ordinary. The Rosh is bothered with why the Rif feels compelled to offer a rationale for the exemption in public domain, it is just a gezeiras hakasuv that the gemara learns on 21b that shein and regel are only chayev in reshus hayachid. The Rosh explains that the Rif is coming to explain the Torah's exemption, since it is normal for them to go in the public domain and damage by just normal activities, it is impossible for the owner to watch them and prevent these types of damage. Therefore, if there is a beam half in the public domain and half in the private domain, and the animal steps on the beam in the public domain which causes damage to vessels in the private domain, the owner is exempt. Had it just been for a pasuk the owner would be liable since the damage occured in a private domain, but since the rationale for exempting in reshus harabim is because the animal has a right to walk there freely, the owner is even exempt for damages that are caused in a private domain from the animal that is in the public domain.

The Yam Shel Shlomo offers a simpler understanding of the Rif. The Rif is not coming to be mechadesh halachos, rather just trying to help us categorize the different forms of damage. Anything which is normal qualifies as shein and regel which are exempt in reshus harabim. This idea is supported by the Nemukei Yosef 15b. The gemara says that if a dog eats large sheep that are not normal for a dog that size to eat, it qualifies as keren, but if they are small sheep then it qualifies as shein since it is normal. The Nimukei Yosef explains that anything which is abnormal is considered keren even if the animal is doing it for the pleasure of eating, and therefore the damage qualifies as a "penalty" which we don't have the power to collect outside of Israel. The Rif is also explaining that the primary characteristic of shein and regel is that they are normal, to the exclusion of anything which is abnormal automatically qualifies as keren rather than shein or regel.

Kiddushin 82a - One Last Post on Hilchos YICHUD

ג' טבת תשס"ט

הערות בענין יחוד

א. בקדושין פא ע"א קאמר רבה בעלה בעיר אין חוששין משום ייחוד. רש"י מפרש שהוא רק לענין מלקות מפני דמסתפי מבעלה דהשתא אתי. אבל התוס' השיגו עליו וקושייתם ממעשה דרב ביבי דאיקלע לבי רב יוסף וקאמר רב יוסף "שקולי דרגא מתותי ביבי" דהיינו להעביר הסולם שלא ירד מן העליה להבית מקום שאשתו של רב יוסף נמצאת, וקפריך בגמ' מהא דרבא דבעלה בעיר אין חוששין משום ייחוד, ומשני דשאני רב ביבי דשושבינתיה הויא וגייסא ביה. כלומר, דכיון דגייסא ביה מסתמא גייסא גם בה ובזה לא שייך כל ההיתר של בעלה בעיר. והקשו התוס' על פרש"י דאי כדבריו מאי קפריך מבעלה בעיר, הא אף בעלה בעיר מועיל רק לענין מלקות ולא לענין איסור. לפיכך כתבו התוס' דאין חוששין כלל משום ייחוד ואפילו איסורא ליכא היכא דבעלה בעיר. וראיתי בבינת אדם (שער בית הנשים ס' י"ז) שכתב ליישב פרש"י וז"ל נ"ל דרש"י ס"ל דהכי מקשה הש"ס, דבשלמא דאם שהיא מתיחדת אסור מדאורייתא שייך לגזור שלא יבא לידי יחוד, אבל כיון שאם בעלה בעיר אין בו יחוד דאורייתא להלקות אפילו אם הוא עמה ביחוד בחדר נעול, אלא מדרבנן לכתחלה אסור, א"כ לא שייך למיגזר לשקול דרגא שמא ילך ויתיחד עמה, וא"כ לא קשה מידי קושיית התוס' עכ"ל. ובזה מיישב נמי עוד קושיא על רש"י דכבר אמר בגמ' דאין מלקין על היחוד באשת איש שלא תהא מוציא לעז על בניה, וא"כ אף כשאין בעלה בעיר נמי אין מלקין על היחוד. אלא כוונת רש"י דנהי דאין מלקין הוא רק מדרבנן שלא להוציא לעז, אבל מדאורייתא ראויה להלקות, אבל כשבעלה בעיר אין בזה ייחוד דאורייתא רק מדרבנן ומש"ה מדאורייתא אין מלקין [וא"צ לדחוק כמש"כ הב"ח דלולי בעלה בעיר הוי מלקין ומכריז כדעביד מר זוטרא].

נמצינו למדים מדברי החכ"א בביאור דעת רש"י, דבמצב ששייך ייחוד דאורייתא איכא למיגזר שמא יבא לידי ייחוד, אבל במצב שאף אם יתייחד הוא רק מדרבנן, אין לאסור משום שמא יבא לידי ייחוד. וזה מדוייק בפרש"י שכתב בעובדא דרב ביבי וז"ל שקולו דרגא, שאכלו בעליה וירדו רב יוסף ואשתו, והוא נשאר בעליה, שקולו דרגא מתותי ביבי שלא ירד ויתיחד עכ"ל. הרי משמע מרש"י דאם אם לא שקלו הדרגא לעליה, אילו היה נשאר רב ביבי בעליה לא מקרי ייחוד, אלא שאסרו מדרבנן שמא יבא לידי ייחוד. לפיכך לא גזרו אלא במקום ששייך לבא לידי איסור ייחוד דאורייתא ולא כששייך לבא רק לידי איסור ייחוד דרבנן כגון היכא דבעלה בעיר.

אמנם יש לעיין בפרש"י אהא דקאמר אביי בין כשאנשים מבפנים ונשים מבחוץ בין איפכא, חוששין משום ייחוד. הרמב"ם מפרש דלא שייך איסור ייחוד אלא במצב שפירש אחד מהם, אבל רש"י מפרש וז"ל שמא יצא אחדמהם ויתייחד עם הנשים עכ"ל. הרי אף בזה סובר רש"י דחיישינן שמא יבא לידי ייחוד. איברא, שאינו ברור כ"כ מה החשש בזה בפרט לפרש"י, שהרי לדעת רש"י אשה מתייחדת עם ב' אנשים עכ"פ בעיר וביום [ודלא כהרמב"ם ושו"ע דסתם אנשי אינם כשרים אלא פרוצים, כיון שאף האמוראים חששו על עצמן שאינם כשרים]. אלא שכבר הרגיש רש"י בזה וכתב בעצמו דאם תכנס היא לפנים לא איכפת לן דאשה מתייחדת עם שני אנשים, אלא החשש הוא שמא יכנס או יצא אחד מן האנשים להיות בין הנשים. אלא שגם זה קשה לפרש"י פב ע"א על המשנה דתנן כל שעסקיו עם הנשים לא יתיחד עם הנשים, שפירש רש"י דהא דאסרינן לעיל איש אחד בב' נשים, דוקא הוא וכדפרש"י פ ע"ב דשתיהן נוחות להתפתות, אבל בג' או ד' נשים מותר להתייחד משום שכיון שאי אפשר לפתותם, ע"כ כל אחת מתביישת לעבור לפני חברתה. וכבר עמדו התוס' פב ע"א בזה, וחלקו על רש"י דדעתם שאין חילוק בין אשה אחת לשנים או שלש, שהכל אסור [והא דמחמירין בעסקו עם הנשים היינו אף כשאשתו עמו]. ולפי"ז הא דחיישינן שמא יכנס או יצא איש אחד בין הנשים, ע"כ קמיירי בב' נשים ולא יותר, או כשעסקו עם הנשים דאל"כ ליכא איסור ייחוד כלל. עכ"פ בב' נשים ודאי חיישינן שמא יכנס או יצא איש אחד ביניהם ויבא לידי ייחוד, ולכן אסרו לגמרי נשים ואנשים כשיש דרך זה על זה ליכנס או לצאת כדי שלא יבא לידי ייחוד. ולפי חידושו של החכ"א הנ"ל דלא אסרינן מפני החשש שיבא לידי ייחוד רק באופן שאם יתייחד איכא איסור דאורייתא, אבל במצב שאפילו אם יתייחד ליכא אלא איסור דרבנן כמו בבעלה בעיר, אף דאסרינן להתייחד, לא חיישינן שמא יבא לידי ייחוד. וא"כ יש להוכיח מכאן דהא דאסרינן ייחוד מדאורייתא אין זה רק באיש אחד ואשה אחת, אלא אף איש אחד בב' נשים נמי הוי איסור ייחוד דאורייתא. דנהי דבגמ' פ ע"ב דיליף איסור ייחוד מקרא ד"כי יסיתך" קמיירי בבן עם אמו, לאפוקי איש אחד ואשה אחת, מ"מ אהני לן סברת הש"ס דנשים דעתן קלות וכדפרש"י ששתיהן נוחות להתפתות, לאסור מדאורייתא באיש אחד וב' נשים.

ותמהני על החכ"א בעצמו שכתב בבינת אדם (שם ס' ט"ז) דאינו אסור מדאורייתא רק איש אחד עם הערוה, אבל איש אחד עם ב' נשים אינו אלא מדרבנן. שהרי לפי דרכו שאין זה אלא מדרבנן, אמאי חיישינן בנשים מבפנים ואנשים מבחוץ וכן איפכא שמא יתייחד איש בין הנשים, הא לשון נשים ודאי משמע דקמיירי בב' או יותר, וא"כ אין בזה איסור דאורייתא, והרי החכ"א בעצמו סובר דכל היכא שאם יתייחד ליכא איסור דאורייתא לא חיישינן שמא יבא להתייחד.

והנה, באגרו"מ (אהע"ז ח"ד ס' ס"ד אות ג') כתב לאסור ליסע יחד עם אשה במכונית אפילו ביום שמא יניחו המכונית על הדרך ויתרחקו למקום סתר ויבעלנה. אלא שהתיר בשעת הדחק משום שמשמע לו דאין חושששין מדינא לשמא יטה מן הדרך בכשרין ורק חיישינן שמא יתקוף היצר ויעברו במקום שנמצאים. ותלה זה בפלוגתא בין הרי"ו ומהרש"ל הובא בב"ש (ס' כ"ב ס"ק ט') והעלה להקל בשעת הדחק. אכן, לפי מה שביארנו דבמצב שאין שם ייחוד ממש, אלא דבקל יכול לבא לידי ייחוד, ודאי חיישינן לזה באופן שהאיסור ייחוד תהוי מדאורייתא, וא"כ ה"נ שבקל יכול להטות מן הדרך למקום סתר יש מקום לחוש שיבא לידי ייחוד באופן שהייחוד אסור מדאורייתא כגון באחד מן העריות כשאין בעלה בעיר.

ב. באור שמח דייק מלשון הרמב"ם דלא מהני בעלה בעיר אלא להתיר האשה עצמה אבל כשיש שם עוד נשים, אסור לאדם להתייחד עמהן, ולא אמרינן שאשה זו שבעלה בעיר משמרתן. וראייתו מהא דכתב הרמב"ם בהל' ח' לא תתייחד אשה אחת אפילו עם אנשים הרבה עד שתהיה אשתו של אחד מהם שם, דמשמע דבעינן בעלה ואשתו עמו ואז מותר לאשה אחרת להתייחד עם האנשים הנמצאים [זה הרמב"ם לשיטתו דאסרינן אשה אחת עם ב' אנשים או יותר]. וקשה למה בעינן שתהא הבעל וגם אשתו שם, הא אף כשאין הבעל שם אלא אשה שבעלה בעיר ועוד אשה אחרת עם הנשים הרבה נמי מותר כיון שהאשה שבעלה בעיר משמרת חברתה. א"ו מדבעינן הבעל וגם אשתו, מצינו דבעלה בעיר אינו מועיל אלא לעצמה ולא לאחרים עד שתהא בעלה שם עמה [ובסוף דבריו כתב שיש לדחות דאולי איירי הרמב"ם כשהוא גס עמהן, לכן בעי שיהא בעלה עמה ממש, ולא מהני בעלה בעיר]. עיין באגרו"מ (אהע"ז ח"ד ס' ס"ד אות ו') שנתקשה הרבה בלשון הב"ש דמשמע כדברי האור שמח, דאשה אחת עם הנשים הרבה בעינן שתהא אחד מהאנשים הבעל של האשה, ותמה דאף כשליכא שם בעלה רק שנמצא בעלה בעיר מותרת להתייחד עם אנשים, וממילא ליכא איסור ייחוד אף על נשים אחרות דכיון שהיא לא תזנה יכולה לשמור את חברתה. ובאמת כתב האגרו"מ (שם אות ח') סברא לומר דאשה שבעלה בעיר יכולה לשמור חברתה טפי מקרובו, שהרי שגם להאשה שבעלה בעיר איכא תאוה לזנות וכיון שהיא מונעת גם הן ימנהו, אבל מה שנמנעות הקרובות הוא משום שאין להן תאוה אבל יתכן שאשה שאינה קרובה ויש לה תאוה תזנה. ואף שלדינא דחה סברא זו דאף אשה שהיא קרוב לו יכולה לשמור אחרות, מ"מ מסתברא לו דאשה שבעלה בעיר הוי שומרת לגבי אחרות יותר מקרוב.

ג. החכ"א (כלל קכ"ו ס"ו) כתב דלא מהני סברא דבעלה בעיר אלא בביתה דחוששת שמא יבא בעלה, אבל כשתלך לבית אחר אין אימת בעלה עליה כיון שאין בעלה יודע היכן היא. עוד החמיר באשה שהלכה ברשות בעלה וכ"ש כשבעלה נתן לה רשות לדבר עם איש אחד דבר סתר ולסגור הדלת, דלא מהני בעלה בעיר בכה"ג. באגרו"מ (אהע"ז ס' ס"ד אות כ"א) השיג על החכ"א מפני שהבין בסברתו של החכ"א דכל שבעלה נתן לה רשות דבר עם אחד בסתר, אין אימת בעלה עליה, והקשה דמה בכך שנתן לה רשות, הא אכתי איכא למיחש שמא יבא ואימתו עליה עדיין שאומרת השתא אתי. וכן כשנתן לה רשות לילך לאיזה מקום הא יודע לילך לשם ואין להחשיב ייחוד לשם כסתירה ששייך שיבא ואימתו עליה. גם ביאר דהא דהקפיד החכ"א דדוקא בביתו ליכא איסור אבל כשתלך לבית אחר איכא איסור ייחוד, הוא דוקא כשהלה למקום שאין רגילה ללכת אבל כשרגילה ללכת לשם ובעלה יודע המקום שהלכה, הוי כביתה לענין זה וליכא איסור ייחוד. לדינא, כתב שבדין שלישי אף החכ"א מודה, אבל בדין ראשון ושני לא מסתבר כלל כדברי החכ"א מ"מ יש להחמיר שלא בשעת הדחק. ונעלנ"ד דלא עיין בדברי החכ"א בבינת אדם שביאר שיטתו בזה, שהרי אין כוונת החכ"א לומר דכשנתן לה רשות אין אימתו עליה. אלא כתב בבינת אדם (ס' י"ז) דהא דמהני בעלה בעיר מפני שאימת בעלה עליה, אין הכוונה שמתיירא שמא יבא הבעל בשעת ביאה ממש, דא"כ אמאי לא מהני גם כשלבו גס בו. אלא הסברא הוא שמתיירא כשביא הבעל וימצא שהיא מתיחדת עם איש שאינו גס בה יחשוד אותה דמסתמא זנתה עמו דלא"כ מאי בעי גביה, וכיון שיודעת שאם יבא בעלה יחשוד אותה וידרוש ויחקור אם באמת זנתה עמו, שומרת את עצמה שלא לזנות עמו מפני אימת הדרישה וחקירה. אבל בגס בו לא יחוש הבעל אם ימצא שהיא מתיחדת עמו ולכן תזנה ג"כ. לפיכך סובר החכ"א דכל שנתן לה בעלה רשות הוי כגס בו ממש שהיא יודעת שאין הבעל דורש וחוקר על הייחוד, וסוברת בדעתה דמסתמא לא יבא בשעת ביאה ממש, ותזנה עמו. איברא, שדברי החכ"א מחודשים הם, דלפי הפשטות הא דמהני בעלה בעיר מפני שמפחדת שיבא בשעת ביאה, מ"מ לפי דרכו שפיר השוה הא דנתן לה רשות להתייחד עם איש אחד לייחוד עם מי שגס בו דלא מהני בעלה בעיר כדמפורש בגמ'.

Kiddushin 81b - Yichud with Relatives

MAZAL TOV ON SEDER NASHIM!

R' Moshe (E.H. 4:64:1) was asked whether a family who converts have an issur yichud since halachically they are no longer related - גר שנתגייר כקטן שנולד דמי. His basic approach is that the heter for yichud is not based on the halacha of being related, rather on the metzius of whether or not there is desire for these relatives. Being that both jews and goyim don't have a yetzer hara for blood relatives, he paskens that there isn't any issur of yichud.

In the course of the discussion, R' Moshe raises a tremendous question. Rashi explains that the reason that there is no yetzer hara for a mother and daughter is because the anshei k'neses ha'gedola davened to remove the yezter horah for blood relatives. However, the gemara on 80b learns out from a pasuk that yichud with a mother. Clearly, even prior to the anshei k'neses ha'gedola there was a heter of yichud with one's mother, so the heter can't be based on their tefillah to remove the yetzer hora? Based on this question R' Moshe explains that between a parent and child the nature from the time of creation is that there is no yetzer horah. That explains why Lot's daughters had to give him to drink wine in order to sleep with them, since he had no desire for them. Rashi is citing the gemara in sanhedrin where they davened to remove the yetzer horah for arayos, to explain why there is no issur yichud by a sister. This is not part of the nature of the human being, and was only a result of their tefillah. Included in the tefillah of anshei k'neses hagedola is also the sister of one's parent, where prior to their tefillah, there was a desire for them. Nevertheless, R' Moshe assumes that even the removal of the yezter horah for sisters and aunts, applies to goyim just as it applies to jews.

Kiddishin 81a - Yichud

The Chochmas Adam (126:7) says that when there are 2 rooms, one outer and one inner room - if a man is in one and a woman is in the other, it would be a machlokes rashi and rambam whether this is a yichud problem. In the Binas Adam (18) he elaborates. Rashi says that the case of men on the inside and women on the outside, or the opposite, is assur because it will lead to yichud. Rashi implies that the issur is not for the man to go in to the place of the women, but even to set up a situation which will lead to yichud if the man will go into the women is assur. However, the Rambam understands that the issur is only when the man actually goes into the area where the women are present, but the set up of a situation which will lead to yichud, is not yichud.

It seems that this machlokes would also apply to a house when a man and woman each go into separate room in the same house. Under the present state there isn't any yichud, but since it can easily lead to yichud by the man or woman leaving their room, rashi would hold it is assur to set up such a situation. The Binas Adam suggests that even the Rambam is only lenient because there are many men and women in the gemara's case, but in the case where a man and woman are alone in a house, being in separate rooms would be an issur yichud even according to the rambam. But, he then rejects it, and assumes that the rambam would be meikil so long as each stays in their private room. He considers this a safeik hashakul, and is therefore lenient by yichud with a p'nuya which is only d'rabonon but is machmir with yichud of a nidah which is d'oraysa.

Kiddushin 78b - Claiming your son is a Mamzer

In the mishna there is a machlokes whether one is believed to claim that his son is a mamzer. The Shulchan Aruch (Even Haezer 4:29) says that although we pasken like R' Yehuda that a father is believed that his son is a mamzer, a mother is not believed. R' Moshe has many teshuvos where the mother claimed her son is a mamzer because she was married prior to this marriage, and never received a gett. R' Moshe (E.H. 4:23:2) ignored all these claims, and held that the mother is not even believed to create a safeik, because the din of "yakir" is only on the father. In regard to believing the father, R' Moshe writes (4:23:1) that it only applies when we know that he is father such as a case where he is married to the mother. But if the fact that he is the father is purely based on his claim, then he is not believed. He proves this from the Rambam (Issurei Biah 15:16):

אבל האב שהוחזק שזה בנו ואמר בני זה ממזר הוא נאמן

Clearly, the Rambam implies that only if it is "huchzak" that this is his son, is he believed about him to make him a mamzer. But, if the we have not chazaka that this is the father because he is not married to the mother and the son didn't live with him, he is not believed to create the status of even a safeik mamzer. R' Moshe then launches into a big discussion based on the Rambam that a man is believed to claim about someone in the street "this is my son and he is a bechor". Since both the right to claim he is a bechor and the right to claim he is a mamzer come from the same source - "yakir", why by the bechor is he believed even on someone who is not muchzak as his son?

Kiddushin 77a - Kedushas Kehuna

Recently, we had a situation where a kohein who is married to a goy was called up for an aliya. The policy in the shul is to give aliyos to ovrei aveiros (which will hopefully change one day), but the question is whether a kohein is worse. The Shulchan Aruch (128:40) writes that a kohein married to a gerusha is not called for the first aliya and looses all privileges of being a kohein, but implies that he is allowed to get an aliya. I assume that the same would hold true with a kohein married to a goy, even though it is obviously a much more sever issur.

R' Moshe (O.C. 2:33) has an interesting teshuva to the Sridei Eish, regarding a kohen who is married to a gerusha. R' Moshe says he agrees with the sridei eish that the kohen is not allowed to get the first aliya but is allowed to get an aliya. He also comes to answer the question of the pri megadim: Since a Talmid Chacham comes before a Kohein, because kedushas hatorah takes precedence, certainly a Yisroel who keeps mitzvos should come before a kohein who does aveiros. Why is the halacha that only aveiros of kehuna make the kohein loose his rights to get the first aliya, but for other aveiros he will not loose his rights?

R' Moshe elaborates in explaining that a talmid chacham doesn't have more kedusha then a kohein, he merely has rights of kedima because others have a higher responsibility to honor him. Kedusha comes only from being chayev in more mitzvos. Therefore, a talmid chacham comes before a kohein due to the responsibility to be mechabeid him, but his kedusha is still less. Therefore, a kohein who is a rasha would come before a yisroel who is shomer mitzvos, since there isn't any chiyuv to honor a yisroel who is shomer mitzvos and the kohein is obligated in more mitzvos still has more kedusha.

Kiddushin 76b - Appointing a Ger to a Position of Authority

The gemara darshens that one is not allowed to appoint a ger to a position of authority, unless the mother is a jew. The Rambam (Melachim 1:4) writes that this applies not only to a first generation ger, but for all future generations as well (just at the heter for a ger to marry a mamzeres applies to future generations, not only to the first generation, as the gemara says 74b). Kesef Mishneh writes that a Jewish father will also work to allow him to assume a position of leadership. The gemara means that even a Jewish mother would give him enough yichus to assume such a position, but certainly a father would also work. Based on this he explains that Rechav'am the son of Shlomo was able to be king even though his mother was Na'amah Ha'Amonis. However, the Hagahos Maimon says that having his mother from a yisroel (or father) only works for other positions of leadership, but to be king he must be completely from yisroel because we require "muvchar she'biachicha". That is why Agrifos (Sotah 41b) was unfit to be king even though his mother was a jew. Based on this there would be a question how Rechav'am was able to be king.

R' Moshe (Igros Y.D. 4:26) was asked whether a ger can be a rosh yeshiva. He rejects the proof from Shemaya V'avtalyon who were descendents from sancheirev and were leaders, because it could be that they have yichus from a jewish parent, or that since they were so much greater than anyone else, it was a hora'as sha'ah.

R' Moshe then says a wild chiddush. Part of the mitzvah of "v'ahavtem es ha'ger" would demand that we be lenient in these areas whenever possible. Based on this, he develops a sevara to be meikil. Being a Rosh Yeshiva doesn't qualify as a position of authority, because the purpose of the yeshiva is to teach students who choose to enroll on their own. The Rosh Yeshiva has no authority over people against their will. His authority is only similar to that of a business owner over his employees, who chose to work for him in the first place. Although in an earlier teshuva he discusses the notion of a woman being a mashgiach and considers it a position of authority, that is only because the mashgiach has power to go against the ba'al habayis to maintain the kashrus standard, and therefore qualifies as a position of authority.

R' Moshe also suggests that the issur is only on the people to accept him as a leader, but there is no prohibition on the ger to assume a leadership position on his own. Perhaps this is how Shemaya Avtalyon and Devorah became leaders - they just assumed a position due to their greatness without being formally appointed.

Kiddushin 73a - Tefisas Kiddushin for a Safeik Mamzer

Yevamos 16: R' Yehuda in the name of R'  Asi says a Goy who is mekadesh a Jewish woman nowadays we are choshesh for kiddushin because maybe he is from the 10 lost tribes. Rashi explains we are concerned that his father is from the aseres hashvatim and married a non-jewish woman, and R' Asi holds that a Jewish father and non-jewish mother will create a mamzer. So we are choshesh that this guy who was mekadesh this woman is a mamzer, not a goy. Tosafos challenges Rashi, since it is clear from the mishna and gemara at the end of the third perek of kiddushin that we follow matrilinial descent to determine his status as a Jew. Tosafos explains that all the mishnayos that imply that the child of a non-jewish woman is a goy hold that a child born from a jew and goy is not a mamzer. But, R' Asi holds like R' Akiva that an issur lav creates a mamzer so the child born from a jew and goy will be a mamzer.

Avnei Miluim (4:12) asks that if R' Asi holds like R' Akiva so that this "goy" may really be a Jewish mamzer, why should we be concerned about the kiddushin, since a mamzer is a chayvei l'av so that according to R' Akiva there is no tefisas kiddushin?

Avnei Miluim explains based on our gemara that a safeik mamzer is permitted to marry k'hal. R' Akiva holds that by chayvei l'avin including a mamzer there is no tefisas kiddushin. BUT, for a safeik mamzer there would be tefisas kiddushin since the Torah permits him to marry into k'hal. Therefore, R' Asi says that when a "goy" is mekadesh a woman, he is a safeik mamzer (because a jew and goy as parents would make a mamzer), so there is a concern for kiddushin. We cannot say "m'ma nafshach", if he is a mamzer then there is not tefisas kiddushin because of being chayvei lavin, and if he is not a mamzer then he is a goy. Because, the idea of tefisas kiddushin for a safeik mamzer is not based on safeik, rather it is a gezeiras hakasuv (even if it is tarti t'sasri), so that even on the tzad that he is a mamzer, there is tefisas kiddushin since he is only a safeik to us.

Kiddushin 71a - Revealing Mamzeirim

There is a famous Ran on this gemara who proves that it is assur for one to reveal a family that has a mamzer in the family. In the future, even when it will be possible to identify the p'sul, the family and even the individuals will remain mutar. The Ran does suggest that tzenuim who know about a p'sul in the family should let their friends in on the secret privately because the family doesn't qualify as a mishpacha miyucheses, but they should not tell others. At first the Ran questions whether the heter of being metaher families with pesulim mixed in applies now or only l'asid l'avo, in the end the Ran concludes:

וכיון שאין אליהו עתיד לגלותן, אף היודעים בהם עכשיו אין מגלין אותם שאין בין העוה"ז לימות המשיח לענין זה כלום

Meaning, that nothing can change between now and then, therefore if they are mutar then they are mutar now.

R' Moshe (Even HaEzer 4:9:3-4) offers 2 possibilities in understanding the Ran. Why is the issur of marrying a mamzer different than other issurim in the Torah? Just as one is obligated to prevent their friend from violating another issur in the Torah, they should be obligated to prevent their friend from marrying a mamzer, and not cover up the p'sul!

A. The issur of marrying mamzeirim and other p'sulei yichus is dependent on the knowledge. Although by most issurim we consider the lack of knowledge to merely be an o'nes, but not an actual exemption. In this context, we truly follow "what you don't know won't hurt you". The issur is only realized through ye'diya, and without it there is no issur. Based on this, one should technically not reveal even a private individual who they know to be a mamzer and is not mixed up into a larger family. However, Chazal were concerned that it will cause a takala in that even people who know will marry them, so they require one to tell about an individual who is a mamzer, but not to tell if the mamzer is mixed in with kasherim.

B. It is not the knowledge that is matir, rather it is the ta'aroves that is matir. If one can identify an individual who is a mamzer, they are obligated to identify him, but when that individual is mixed in a family, the ta'aroves of the kesheirim with the pesulim will be matir the entire family. Once the ta'aroves occurs, and is not able to be identified following rules of Rov and Chazaka, he is permitted even if he can be identified by Eliyahu through Nevuah. Therefore, if witnesses know about an individual who is a mamzer, they are obligated to reveal, but if they know about a family who has a mamzer mixed in, their revelation won't have any affect since the mamzer remains mixed in with kasherim and can't be identified.

Kiddushin 70b - Arvus for Geirim

Tosafos proves that geirim were not included in arvus. Based on this it should come out that the halacha that allows one to make kiddush and blow shofar for another even after being yotzei himself should not apply to a ger. I am troubled that the exclusion of a ger from arvus isn't mentioned by the halachos where we use arvus to be motzi others such as kiddush. Is anyone familiar with a source? 

(I found an article from my brother R' Aryeh, where he quotes R' Shternbach who says a drush to distinguish between arvus for communal responsibility for them, and arvus on the personal level to be motzi them. However, I find this very hard to swallow).

Kiddushin 69a - Mamzer marrying a Shifcha

The gemara says that R' Simlai would have counseled a mamzer to marry a shifcha to make his children mutar l'kahal based on R' Tarfon. The gemara questions whether the right to marry a shifcha is even l'chatchila or only b'dieved (since there is an issur to be a kadeish that should apply to a mamzer as well). Even on the tzad that one cannot marry a shifcha l'chatchila, the gemara says that R' Simlai would have advised stealing so that the can be sold as an eved ivri and then be permitted to a shifcha. The Tosafos Rid explains that it would be permitted to steal with the intent of eventually paying back, since it is being done for the purpose of being m'etaher his children. But, the Maharsha asks that it should still be problematic, because the children that the eved ivri has with the shifcha will be owned by the master and he will not be allowed to free them since it is a violation of לעולם בהם תעבודו?

R' Elyashiv points out in his sefer that the maharsha only asks the question on the gemara, but not on the mishna. Why doesn't he ask on the mishna itself that the entire approach of R' Tarfon requires the master freeing the children which would be a violation of freeing an eved. R' Elyashiv explains that based on the Ran in Gittin that this issur of selling an eved follows the rules of "lo sei'chanem" - it cannot be done for the benefit of the eved, but can be done for the benefit of the master, there is no question. R' Tarfon would advise that the Mamzer purchase a shifcha to be owned by him so that the children he has with her will be avadim that are owned by him. When he allows them to go free, it is for his benefit of being metaher his own children. The question can only be asked on the gemara where the method of having children with a shifcha will involve being sold as an eved ivri, in which case the children will be owned by someone else and not by him.

Kiddushin 66a - Believing an Individual Witness

In the machlokes between Abaye and Rava where an individual witness testifies that an eishes ish committed adultery, Tosafos explains that there are certain premesis that they both agree to in order to understand the exact point of argument. All agree that there is a concept of אין דבר שבערוה פחות משנים, but Abaye holds that the concept is limited to an act where the witnesses are necessary to make it happen such as gittin and kiddushin. But, when the witnesses are only there to serve the purpose of testifying what transpired, even by davar sh'berva and eid echad is believed. Tosafos also explains that all agree to the concept of שויא אנפשיה חתיכה דאיסורא so  that if the "shtika" is considered admitting guilt, she would be forbidden to her husband [If not for Tosafos, I would have said that שויא אנפשיה cannot be acheived through שתיקה כהודאה since shtika k'hoda'ah is a concept of ne'emanus - trust, but will not form a neder which is the foundation of shavya anafshei]. But, Tosafos explains that Rava rejects the notion of "shtika k'hoda'ah" since there are other things that the silence can be attributed to (such as the gemara pointed out in the "tzricha" before). Rava holds that the issue at hand is not whether she is considered to admit, rather it is purely focused on whether we trust the testimony of the individual witness. Therefore, Rava disagrees with Abaye on 2 points. 1. Abaye holds that being quiet is tantamount to admitting, and Rava holds that it isn't. 2. Abaye holds that  אין דבר שבערוה פחות משנים applies only to gittin and kiddushin, but Rava holds that it applies even to making a woman forbidden to her husband.

The difficulty that I have with Tosafos is that once Tosafos establishes that Rava rejects the notion of "shtika k'hoda'ah", and we know that Abaye holds shtika k'hoda'ah, that should be sufficient to answer why Abaye isn't bothered by the davar sh'berva aspect. Meaning, even though  אין דבר שבערוה פחות משנים, Abaye holds that when she admits she should be assur due to shavya anafshei. Why does Tosafos have to say that Abaye holds that  אין דבר שבערוה פחות משנים only applies to gitting and kiddushin, even if it applies to z'nus she should still be assur based on shtika k'hoda'ah?

Perhaps Tosafos holds that if an eid echad is not regarded in matters of erva at all, it would not even qualify as shtika k'hoda'ah. For example, we certainly wouldn't say that if someone hears a parrot say that he owes his friend money, that if he remains quiet it is shtika k'hoda'ah. Shtika k'hoda'ah only applies when it is stemming from a credible source. Therefore, Tosfaos must first reject the notion of  אין דבר שבערוה פחות משנים in this context to determine that an eid echad is a credible source and only at that point would she be assur based on shtika k'hoda'ah.

Practically speaking we pasken like Rava, that we don't say shtika k'hoda'ah. BUT as Tosafos points out and Shulchan Aruch (179:9) paskens, if the husband considers the individual witness so credible that he trusts him like 2 witnesses, then she will be assur to him. Based on this we see that even Rava has limitations for when we apply  אין דבר שבערוה פחות משנים. It only applies absolutely to the chalos of gittin and kiddushin, but in the realm of believing the witness, it depends on how much the husband trusts him.

Kiddushin 65a - Eidei Kiyum and Eidei Birur

The gemara asks about a case where kiddushin is done in the presence of only one witness, but both he and she admit to the kiddushin. Rashi seems to understand that the question is whether we require eidei kiyum to create the chalos kiddushin or do they only serve as eidei birur just to clarify that it was done. However, further on in Rashi (d.h. v'i leka) he implies that the gemara knew that at least one witness is necessary to create the kiddushin. By simply having him and her admit to being married the gemara understood all along that there would not be any chalos kiddushin. The only question is that maybe a single witness is sufficient to create the status of kiddushin (just as he can be mechayev a shavua) and the admission of the husband and wife is sufficient to confirm that they were married in the presence of a witness.

The gemara concludes that without the presence of 2 witnesses there is no chalos of kiddushin at all. Yet, by monetary issues the gemara 65b concludes that witnesses only serve the purpose of preventing the parties from denying. The Ketzos Hachoshen 241:1 raises a major question: How can monetary issues serve as the source to require 2 eidim for the chalos of kiddushin? How can we learn from monetary issues where eidim are only l'vrurei, that by gittin and kiddushin we need eidim l'kiyumei?

The Ketzos explains that really by monetary issues we also require eidim to make the chalos of the kinyan. Just that in dinei mamonos we have a concept of hoda'as ba'al din, so that the people involved in the kinyan will always serve as "100 witnesses" to make the kinyan go into effect. Since gittin and kiddushin are consisered a chov for others, so that we cannot use the concept of hoda'as ba'al din, we require actual witnesses to make the kinyan go into effect. 

Relying on Chazakos and Eid Echad for Capital Punishment

The Rambam (Sanhedrin 16:6) explains that when we require 2 witnesses for malkus, it is only for the act of the aveirah that we require it. But, the issur itself such as the status of the meat being assur can be established even through an eid echad. Based on this the Chasam Sofer (cited in pischei teshuva Even Haezer 169:13) rules that even if witnesses verify the age of someone to be 13 based on the father being machzik the child as a 13 year old (for example, he was wearing tefillin for a few months), it is sufficient for dinei Torah to assume that he is old enough to do chalitzah. The Chasam sofer argues that if we reject the Rambam's assumption that we can uses chazakos that were established prior to the situation at hand, we would never be able to be mechayev someone for having relations with a nida, because the witnesses would certainly not know that she is a nida (they would presumably only witness the act of bi'ah).

The Pischei Teshuva asks, that this seems to contradict the Shulchan Aruch (Even Haezer 169:11) in the context of chalitzah who says that the age of the child has to be established based on neighbors who know his status completely independent of the father. Why would we require that their knowledge be independent of the father?

It seems from rashi in our sugya that he also assumes not like the Rambam. Rashi writes that if she is machzik herself as a married woman by saying that she received kiddushin herself, and then she committed adultery in the presence of witnesses, she is not stoned. Rashi writes:

ואף על פי שהחזיקה עצמה קודם הזנות בחזקת ארוסה

Even though it may be true that we have a gezeiras hakasuv giving ne'emanus to the father, and we have no pasuk giving ne'emanus to her. Why should he being machzik herself as a married woman be any worse than another chazaka that is established prior to the violation, where we rely on the chazaka and don't require witnesses?

Kiddushin 62b - Kabalas Hamitzvos in front of Three

The gemara says that a ger needs a beis din of 3, but isn't clear about what part of the conversion requires 3. Rashi seems to hold that both the tevila and to inform him of mitzvos requires 3. However, Tosafos proves from the gemara in yevamos that tevila can work even when done for other purposes such as to become tahor from keri, which is obviously not in the presence of 3. Based on this Tosafos holds that only kabalas hamitzvos absolutely requires a beis din of 3. The two answers of Tosafos seem to dispute whether the tevila would at least require 3 l'chatchila or not at all. The Shulchan Aruch (268:3) paskens like Tosafos (first answer) that tevila and mila require 3 l'chatchila, but b'dieved would work even if done in the presence of one. However, kabalas hamitzvos must be in the presence of 3. The Gr"a (15) points out that our gemara is a proof that without 3 the kabalas hamitzvos is absolutely invalid, because if it were only a l'chatchila requirement, it should be considered b'yado to convert. From the fact that we don't consider it b'yado implies that we always need 3 for some aspect of the geirus.

The rationale for kabalas hamitzvos requiring 3 more than the tevila, the shach and Taz quote from the Rosh, that kabalas hamitzvos is like techilas din which requires 3, but mila and tevila are like the g'mar din which can be done even at night and therefore would be more lenient. Based on this approach the dagul m'rvava explains that for a ger kattan where there isn't any kabalas hamitzvos, we would require a beis din of 3 for the tevila which is the primary act of conversion.

The Shulchan Aruch quotes that the opinion of Ri"f and Rambam is that even mila and tevila require 3 and are invalid if done not in the presence of 3.

Kiddushin 58b - Payment for mitzvos

The mishna implies that one is allowed to receive payment for para aduma ashes (from the fact that it has value when you are mekadesh an isha with it -עיין ביש"ש שמפרש דפליגי רש"י והר"ן וכן הרמב"ם והראב"ד אם מקדש בגוף הדבר או בשכר שיכולה לקבל על הבאת האפר), but the mishna in bechoros says that one cannot receive payment? The gemara makes a distinction between the transporting from place to place that one can receive payment for, but for the actual sprinkling one cannot receive payment for. What is the point of distinction?

The distinction seems obvious. One cannot receive payment for the actual performance of a mitzvah, but can receive payment for enabling a mitzvah so long as they are not doing the actual mitzvah. Transporting the material is not the mitzvah, it merely makes the mitzvah possible. This peshat is mentioned in the Tosafos R"I HaZaken, but is not the peshat of Rashi.

Rashi implies that even if it is not the ikar mitzvah, there is still a prohibition to take payment. The only heter to take payment is for something that has a significant tircha, you can take payment for the difficulty of doing it. But when there isn't any major tircha, it is assur to take payment.

Based on Rashi it should be permitted even for a witness to take payment (so long as it is from both sides, so that it does not create a bias in his testimony), when it is a bother for him to come to court. In fact the Taz in Choshen Mishpat (on the rama in 34:18) says exactly that based on our gemara. The Rama allows one to receive payment to go watch something so that they can testify on it, but once they have watched the event, they cannot receive payment for going to court since after witnessing the even they are obligated to testify (and it is a mitzvah incumbent on them). The Taz adds that if there is a difficulty for the witness to go to court he can receive payment for that just as he can receive payment for the transporting of the ashes.

Upon further analysis of Rashi, it seems that the Rama is correct (and it seems that the Taz does not have a good comparison from rashi's peshat). Rashi writes:

 בשכר הבאה האפר ממקום למקום ושכר מילוי המים דמילתא דטירחא היא ורחמנא לא רמיא עליה ושרי למשקל אגרא

Why does Rashi add the words "the torah does not obligate him"? Rashi seems to hold that the entire distinction between the transportation where there is tircha, and the sprinkling where there is no tircha, only applies to a type of mitzvah that is not an obligation on this individual. Meaning, there is no individual who is personally responsible to do the mitzvah of eifer parah, therefore we allow the one doing it to receive payment for his tircha. However, a mitzvah that is incumbent upon an individual in particular such as testifying in court about what they saw, cannot take payment even if there is a tircha involved in going to court. Based on this, one cannot use a heter of "tircha" to permit payment for Talmud Torah because the mitzvah to teach torah is incumbent on every individual. כנלענ"ד

Kiddushin 57a - Darshening "es" in the Torah

The Maharsha explains that the rationale for darshening every "es" in the torah is to show kavod hatorah by proving that there is no extra word or letter (as rashi explains at the end of sotah, when r' akiva died batla kavod hatora). But, when shimon ha'amsuni couldn't darshen "את ה' אלקיך תירא", he retracted from all of them and commented that just as he received reward for showing kavod hatorah by darshening every word, he also received reward for showing kavod hatorah that nothing can be equated with yir'as hashem. However, R' Akiva held that including talmidei chachamim also showed kavod hatorah.

The Chasam Sofer (pesachim 22b) also has a beautiful approach to this gemara. Shimon Ha'amsuni realized that the pasuk can be darshened to include talmidei chachamim. However, he was concerned that this would force the explanation of את ה' אלקיך תירא to mean Yira'as Haromimus - awe for the greatness of Hashem, rather than fear of punishment, since fear of punishment is not applicable by talmidei chachamim. He was afraid that by publicizing this drasha it would scare people off and intimidate them, since most people can't achieve this high level of awe. He abstained from this drasha and declared that since he is abstaining l'sheim shamayim, he will receive reward as if he publicized it. However, R' Akiva who came from nothing, and accomplished everything, personified the ability to have achieve incredible heights in yir'as hashem. He was able to publicize the derasha because when people will see what he accomplished they will be more encouraged rather than discouraged by the difficulty to achieve yira'as haromimus.

kiddushin 56b - Mekadesh with Issur Hana'ah

בתוס' ד"ה המקדש, הקשו אמאי אינה מקודשת כשמקדש אשה באיסור הנאה, הא יכולה ליהנות שלא כדרך הנאתו. ותרצו דקמיירי כשאין בשלא כדרך הנאתו שו"פ, או שאשה סבורה שיכולה ליהנות ולא סמכה דעתא על הנאה שלא כדרך הנאתו. היוצא מדבריהם שאם שוה פרוטה שלא כדרך הנאתו ואמר לה בהדיא שתתקדש בזה, שהיא מקודשת. עיין בתוס' ע"ז סב ע"א בד"ה בדמיהן, שכתבו דאסור לו לקדש אשה בדבר האסור בהנאה משום דהוי כמו מכירה חשובה, אבל אין דבריהם שם מספיק אלא לגבי האיסור לכתחלה אבל אינו מספיק לפרש אמאי אינה מקודשת

עיין במשנה למלך (פ"ה מהל' יסודי התורה הל' ח' בד"ה וראיתי) שתמה על תוס' שהרי אפילו למ"ד דשלא כדרך הנאתו שרי מדאורייתא, איסורא דרבנן מיהא איכא, וכו"ע מודים שהמקדש אשה בדבר שהוא אסור בהנאה מדרבנן שאינה מקודשת אף מדאורייתא כיון דסוף סוף אינו שו"פ. א"ו ס"ל להתוס' דשלא כדרך הנאתו אפילו איסור דרבנן ליכא. אמנם עיין בקובץ שיעורים בקונטרס דברי סופרים שמתחיל בחקירה זו שהמקדש באיסור הנאה דרבנן אי מקודשת מדאורייתא. ויש סברא לומר שמדאורייתא מיהא מקודשת, שהטעם שהמקדש באיסור הנאה שאינה מקודשת אינו משום שיש איסור השתמשות אלא שמדאורייתא לא מקרי ממונא, אבל איסור הנאה דרבנן מקרי ממונא מדאורייתא ודו"ק

Kiddushin 56a - Ma'aser money and Lifnei Iver

Rashi explains that when someone has ma'aser sheini money and intends to purchase an animal (which would become ma'aser sheini) to eat outside of yerushalayim, it would be a violation of lifnei iver for the seller to sell it to him. Tosafos (d.h. aval) asks that this should not be a violation of lifnei iver because lifnei iver only applies by "two sides of a river". In other words, lifnei iver would only apply if the buyer could not find someone else to sell him the animal, but since he can find someone else to sell him the animal, it is not lifnei iver for this seller to sell it to him.

Although Tosafos in Shabbos 3a understands that there would still be an issur d'rabonon of supporting and aiding in the doing of an aveira, even if the seller would not be in violation of a real lifnei iver, he should still be in violation of an issur d'rabonon. Perhaps Tosafos is assuming that the buyer we are speaking has a status of a mumar, and based on Tosafos in Avoda Zara [explained by the shach (y.d. 151:6) ], the issur of supporting in doing an aveira wouldn't apply. Furthermore, based on dagul m'rvava there, the issur of helping do an aveira wouldn't apply to anyone who is intentionally doing an aveira, which is certainly the case here. Also, it is possible that Tosafos held that for an issur d'rabonon we would not impose such a penalty on the seller.

It seems to me that Tosafos question on Rashi can be answered based on the Mishna l'melech (malveh v'loveh 4:2) cited by pischei teshuva (y.d. 160:1) who explains that one who borrows with interest violates lifnei iver by causing the lender to do an aveira, even if their are other borrowers who are willing to borrow from this lender with interest. His rationale is that the fact that if reuven and shimon are the two potential borrowers, they can't each be moreh heter saying that it is not "two sides of a river" since the other can borrow b'issur. Just as when reuven sees shimon about to pass wine to a nazir and quickly jumps to pass it himself, is still in violation of lifnei iver, so too when reuven sees shimon about to borrow with interest and jumps to borrow himself, would be in violation. Here too, the fact that the buyer can purchase from another seller who would sell it to him b'issur would not help to remove the lifnei iver from this seller.

Kiddushin 54a - Wearing Bigdei Kehuna after the Avoda is finished

The gemara discusses the concept of whether bigdei kehuna can be worn even after the avoda is over. In Meseches Yoma 69a the gemara also discusses this issue, in conjunction with the issur of kelayim which existed in the avneit (even if bigdei kehuna is permitted after the avoda, the avneit which is kelayim could be worse).

Rashi holds that the concept of לא ניתנה תורה למלאכי השרת is matir a kohein to wear bigdei kehuna even after the avoda is completed, so long as it remains a shogeg - meaning, that he removes it as soon as humanly possible. Based on this, Rashi explains that the mishnah holds that if one is mekadesh a woman with bigdei kehuna b'shogeg, she would not be mikudeshes, because there is no violation of me'ila with bigdei kehuna since included in the permitted use of bigdei kehuna is the shogeg. Meaning, the sevara is not only matir the specific use to wear the bidei kehuna after avoda, but is matir all accidental use of bigdei kehuna.

However, Rashi 66a by the story of yanai hamelech, implies that it is permitted even l'chatchila to wear bigdei kehuna, even if it is not a shogeg. Rashi seems to assume that Yanai Hamelech, although not a great tzaddik, would not have worn the tzitz unless it was permitted (or at least understands from the fact that we don't seem to hold it against him, that it is not part of the things he did wrong). Tosafos rejects Rashi because our gemara implies that we are only matir b'shogeg, meaning that we insist that he remove the bigdei kehuna as soon as humanly possible (Tosafos explains that wearing the tzitz was an exception to the rule based on the pasuk of "tamid"). Tosafos is asking a very strong question on rashi, how can he be matir even l'chatchila, meaning even b'meizid, since our gemara is matir only b'shogeg?

Perhaps Rashi understands that the sevara of לא ניתנה תורה למלאכי השרת is matir all use when the intent is not to remove the item from hekdesh status. Therefore, putting it on even l'chatchila when not doing the avoda is permitted since the intent is not to remove it from hekdesh status. Similarly to use it for kiddushin by accident would also be permitted since he is not intending to remove it from hekdesh status. But, to use it for kiddushin realizing that it is hekdesh, would by definition be trying to remove it from hekdesh status and is assur. This is meduyak in rashi - 

שלכך הוקדשו מתחלה ליהנות בהן שוגגין רק שלא יתכוין לחללן - meaning, the only thing we don't allow is intentional use to remove it from hekdesh status.

Kiddushin 50a - Eidim on her acceptance of kiddushin

The Avnei Miluim (27:6) says a tremendous chiddush based on our gemara. The gemara tries to prove that devarim sh'bleiv einam devarim from our mishna where she claims to have accepted in her heart at the time of the kiddushin that even if he is not a kohen, she wants to marry him. From the fact that she is not mikudeshes must be because devarim sh'bleiv einam devarim. The gemara pushes this off that maybe she can't use devarim sh'bleiv to uproot a t'nai that was verbally articulated, but normally we will allow devarim sh'bleiv. Why doesn't the gemara say that even if devarim sh'bleiv is significant, the witnesses aren't able to know what she is thinking and it is like kiddushin that is not in the present of witnesses, so she is not mikudeshes? From the fact that the gemara is not concerned about the witnesses seeing her consent implies that the witnesses only have to know that he intends to do kiddushin and see the ma'aseh kiddushin. But they do not have to know that she consents to the kiddushin. The rationale for this is based on the Ran in nedarim 30a that a woman's role in kiddushin is passive, and is simply to allow him to take her. Therefore, her consent is not part of the "davar sh'berva" aspect of kiddushin, and does not need witnesses. Based on this, if she would make a legitimate claim that would not violate the concern of devarim sh'bleiv, even without the knowledge of the eidim, she would be mikudeshes.

R' Moshe (Even H'aezer 1:82) explains that the eidei kiddushin have to be sure that they witnessed an act of kiddushin. His discussion is a case where 2 teenagers were fooling around about kiddushin, and the eidim witnessed a full ma'aseh kiddushin but were convinced that it wasn't intended to be a real kiddushin, so he is matir. However, in his case both of them were just clowning around. 

Based on R' Moshe and the Avnei Miluim - If the case would have been that the man intended for kiddushin and she was just clowning around, and the eidim say that they are sure he intended for kiddushin but have no idea what her intent was (meaning, they admit to the real possibility of not knowing that she consented to the kiddushin) - the avenei miluim would say that since we only need eidim on him and not her, this qualifies as eidim on the kiddushin even if she claims to have been just clowning around.

Tzadik Gamur / City People

1. Tzadik Gamur - The gemara says that a known rasha who is mekadesh a woman on condition that he is a tzadik gamur, we are choshesh for his kiddushin (Ran) because maybe he had a thought of teshuva. Similarly, if he is a known tzadik and is mekadesh on condition that he is a rasha, we are choshesh that he had thoughts of avoda zara (which the gemara said on 40a that Hashem considers like a ma'aseh). The minchas chinuch (164) struggles with this gemara, based on the premise that teshuva is a process that requires many steps including viduy, so a thought of teshuva should not be sufficient to render someone a tzaddik. To answer this he says a tremendous chiddush, that the steps of teshuva are necessary to achieve atonement, but to change one's status from rasha to tzadik, all that is needed is a thought of teshuva to not do any more aveiros from now on. Based on this, it should follow that the thought to do aveiros starting from now should render a person a rasha even though he has many zechuyos for past mitzvos. But by aveiros Hashem doesn't consider thoughts to be action, and that is why the gemara says he would only be turned into a rasha by a thought of avoda zara. The gemara didn't want to say that he can be turned into a rasha by having charata on past mitzvos (as it says on 40b), because that may take aways his zechuyos for the past but won't render him a rasha.

2. City people

The mishna says that if he stipulates that he is a small city person or large city (krach) person, and he is the opposite, then the kiddushin is void. Rashi explains that even if he is actually a small city person, and he stipulated that he is a large city person which is a change for the better, the kiddushin is void. The maharsha asks on rashi that in the gemara earlier when we were trying to prove that R' Shimon's silence in the later mishnayos implies that only a change for the better in monetary issues would be a valid kiddushin (not a change in guf), from the fact that R' Shimon doesn't argue in our mishna about the kohen, levi, mamzer. The gemara then asks that he also doesn't argue in the mishna later about having a maid which seems to be a monetary issue. Why doesn't the gemara ask from this earlier case where R' shimon doesn't argue even though it is a monetary issue. Based on this the Maharsha disagrees with Rashi and says that a small city is not objectively better than a large one, nor is the opposite true, but different strokes for different folks (a large city has more amenities but also more noise). That is why R' shimon agrees, because there is no objective better and worse. Perhaps we can be meyashev Rashi based on the Rashash, who points out that this issue is listed together with "guf" things, such as kohen, levi mamzer. This implies that the issue is not whether he presently lives in a large or small city, rather where he was raised because it would have a definite impact on his personality. Now, even if Rashi is correct that an small city is better than a 'krach', R' Shimon would not argue since these are changes in his guf, not a monetary change.

Kiddushin 48a - Kiddushin d'rabonon working m'doraysa

The gemara says that R' Meir and Chachamim argue about milva b'shtar, when he is mekadesh her with money he is owed by someone else whether she would be mekudeshes, and offers a few suggestions as to what the point of argument is. One of the suggestions is that they argue about whether one who sells a shtar chov has rights to be mochel it. According to R' Meir she is mekudeshes because he doesn't retain the ability to be mochel after being makneh it to her as kesef kiddushin, and Chachamim says he retains the ability to be mochel so she isn't convinced that she will be able to keep the money (no semichas da'as) so she isn't mekudeshes. Tosfaos explains that the ability to be mochel a shtar chov even after selling it off is based on the assumption that the sale is only binding m'drabonon but not m'doraysa (See Ritvah here and Ran in kesubos who offer a different interpretation that he retains a shi'bud haguf and is only selling the shi'bud ma'mon).

The gemara also suggests that they argue by a milva al peh that he was makneh to her through ma'amad shelashtan. R' Meir holds that ma'amad shelashtan works so that she is mikudeshes and the chachamim say that ma'amad shelashtan doesn't work on a loan.

The question is whether according to R' meir where the selling of a shtar chov is only d'rabonon and the kinyan of ma'mad shelashtan is only d'rabonon, would she be mikudeshes only d'rabonon or even m'doraysa?

The Avnei Miluim (28:33) discusses at length the issue of kinyan d'rabonon working m'doraysa based on hefker beis din. He quotes Rabbeinu Yerucham who says that ma'amad shelashtan will only create a kidushin d'rabonon, but the beis yosef argues and says she would be mikudeshes m'doraysa. According to the Beis Yosef that by ma'mad shelashtan the kiddushin would be d'oraysa, would it also be d'oraysa by being makneh to her a shtar chov (according to tosafos that the kinyan is only d'rbonon)?

The Avnei Milum offers a sevara that by selling shtaros where the seller retains the ability to be mochel because the kinyan is only d'rabonon, the kinyan d'rabonon cannot transform into a kinyan d'oraysa because that will prevent mechilla, so we have to assume that chazal never strengthened the kinyan d'rabonon to be d'oraysa using hefker beis din. But, regarding ma'mad shelashtan it is possible that the rabbonon completely transformed the kinyan d'rabonon into a d'oraysa and would therefore create a kiddushin d'oraysa. 

This would be very consistent with Tosafos who say that by the shtar chov, mechila would work because the kinyan is only d'rabonon, but by ma'mad shelashtan Tosafos says that mechila would not work. Since the mechila would not work for the ma'mad shelashtan, it is very possible that chazal transformed the kiddushin d'rabonon into a kiddushin d'oraysa.

Kiddushin 47b - Mekadesh B'milveh

The gemara says that one cannot be mekadesh a woman with a loan that he previously lent her, but can be mekadesh her with a loan that someone owes him, by transferring the loan to her (so that she is now owed the money). The Rishonim have different approaches to explain the difference between being mekadesh her with a loan to her and a loan to someone else:

1. Tosafos (d.h. l'olam) - The reason one cannot be mekadesh a woman with a loan that he previously lent her, is because he is not giving her anything write now. Since at the time he lent her the money it was meant to be spent, and is no longer in existence at the time of kiddushin (even if it is, it is as if it isn't), he is not giving her anything now because that money is already hers (just that she owes the same amount back). But, when he is mekadesh her with a  debt that someone else owes him, he is giving her something now i.e. the contract, and therefore she is mikudeshes with the money that was owed to him.

2. Ran - Basically the Ran agrees with Tosafos as to why he can't be mekadesh her with money that he previously lent her. However, when he uses a loan that is owed by someone else, he is not being mekadesh her with kesef, since the money is not here. Rather, he is being mekadesh her with the benefit she receives by now having the ablilty to collect a debt from someone else, which is a definitive benefit that he is providing her with. This approach is based on the assumption that although one cannot be mekadesh a woman with the actual money of the loan that she owes him, he can be mekadesh her with the benefit that she receives from him being mochel the loan. Therefore, he can be mekadesh her with a debt that someone else owes him, since that is no worse that being mekadesh her with some benefit.

3. Aveni Miluim (28:31) - The reason that one cannot be mekadesh a woman with money she owes him is not because it is already hers. Rather the reason is because it is a davar sh'elo ba'ah l'olam. Meaning, he doesn't have control over the money to be able to be makneh it to someone else. Although he is able to be mochel it to her, since he has no ability to be makneh it to someone else, it is not considered to be money coming from him. Therefore, when he is makneh to her a loan that someone else owes him and does it with kesivah u'mesirah to make a real kinyan, it is a davar sheb'ah l'olam that is why it works. Based on this the avenei miluim says that if she owes him money and he takes the shtar chov that says she owes him and is makneh it to her with kesuva u'mesira, as he would do with a shtar chov of someone else, she would be mikudeshes.

Kiddushin 44b - Shlichus for a Kattan

The gemara says that when a ketana makes a shliach to receive her gett, it is not binding until the gett reaches her hand. Rashi explains that this is because there is no shlichus for a kattan, so the shliach she appointed to receive the gett becomes a shliach l'holacha and the gett is only binding after she receives it.

Why can a kattan not make a shliach?

Rashi 42a said because we learn shlichus from gett, and since by gett it says "ish", only a man can appoint a shliach not a child. Rashi in Baba Metzia 71a takes a similar approach, that another source for shlichus is teruma and by teruma we need someone who is capable of separating teruma, to the exclusion of a child who's hekdesh isn't binding. The Ketzos Hachoshen (188:3) asks: if we learn from teruma then a child who is 12 (mufla samuch l'ish) and his nedarim are binding, should be able to make a shliach. If we learn from gett, then a boy should not be able to appoint a shliach because it says "ish" by gett, but a girl should be able to appoint a shliach since she is capable of receiving her gett?

The Rambam (Gerushin 6:9) gives a technical reason for a girl not being able to make a shliach:

וקטנה אינה עושה שליח לקבלה אע"פ שחצרה קונה לה גיטה כגדולה, מפני ששליח קבלה צריך עדים ואין מעידין על הקטן שאינו בן דעת גמורה

The reason a ketana cannot make a shliach is that shliach l'kabala needs eidim to verify that they were appointed and it is impossible to have eidus testifying that a ketana had enough da'as necessary to appoint a shliach l'kabala. Meaning, although she has enough da'as to appoint a shliach l'kabala, she does not have enough da'as to convince the eidim that she has enough da'as to appoint a shliach l'kabala - the ketzos understands that this technicality can be used as a source as to why a girl can never appoint a shliach.

Kiddushin 43a - More on Shliach l'dvar aveira

1. Yesterday I mentioned the teshuva of the Nodeh B'yehuda who held that when one appoints a shliach to divorce his wife against her will, in violation of the cherem d'rabbeinu gershom, is a case of eish shliach l'dvar aveira, and based on tosafos in baba metzia the shlichus is batul so that the divorce is invalid.

I found that the ketzos hachoshen (182:2) cites this nodeh b'yehuda, and explains that it depends. If the husband appointed the shliach to divorce her against her will, then he is a shliach for a d'var aveira and the consequence is as the nodeh b'yehuda says. But if the husband appointed the shliach without any mention of divorcing her against her will, and the shliach decided on his own to divorce her against her will, the aveira that is being done is incidental to the shlichus so that the gett is still binding. It is the equivalent of one appointing a shliach to do an act b'heter, and the shliach on his own decides to do it b'issur, the shlichus is binding.

It seems clear that the ketzos would agree that if a kohen made someone a shliach to marry a woman for him without specifying who, and the shliach on his own chose a gerusha, that would qualify as "ein shliach l'dvar aveira" just as if the kohen would have explicitly told him to be mekadesh a gerusha. We would not say in this case that the aveira of the shliach was done on his own and is incidental to the shlichus. The distinction is pashut - since there is no heter way for the kohen to be married to this gerusha, the issur is inherent to the shlichus and therefore we say ein shliach l'dvar aveira. But in the case of violating the cherem, there is a heter way for the husband to be divorced from this woman without violating the cherem, therefore even if the shliach violates it, so long as that wasn't part of what he was appointed to do, the act would be binding.

2. The ketzos (105:1) explains that ein shliach l'dvar aveira only applies when there is an issur on the sender, but if it is permitted for the sender and only an issur on the shliach, the he can be a shliach. Based on this he disagrees with the Pnei Yehoshua in Kesubos who says that one who tries to be zocheh for a ba'al chov, when it is a detriment to others, doesn't work because it is a shliach l'dvar aveira. The Ketzos argues that since there is no issur on the person the shliach is being zocheh for i.e. mishalei'ach, he would not be considered a shliach for an aveira.

Kiddushin 42b - Ein Shliach l'dvar Aveira

The gemara concludes that in general there is no shlichus for an aveira, meaning that the agent is responsible for his own actions and they cannot be blamed on the sender. Tosafos holds that this only applies so long as the shliach is doing it intentionally and realizes that it is an act of aveira, but if the shliach doesn't realize that it is an aveira (he does it b'shogeg) then shlichus does apply and the sender is responsible. The Ketzos Hachoshen (348:4) discusses this and proves from rashi 50a who says that by me'ila if the sender is intentional and the agent is shogeg, then since the sender can't be in violation of me'ila (since me'ila is only b'shogeg), the regular rule of "ein shliach l'dvar aveira" kicks in to make the agent liable. From the fact that Rashi applies "ein shliach l'dvar aveira" to even a case where the shliach is shogeg, implies that he argues on Tosafos. The ketzos continues that Tosafos who holds that the shliach should not be liable when he is shogeg, would have to explain the gemara that the shliach violates me'ila based on rashi in chagiga 10  who says that since the ba'al habayis remembers that the money is hekdesh, he is mevatel the shlichus so that the agent is no longer his shliach and therefore liable for his own actions.

The Pischei Teshuva (Even Ha'ezer 119:6) quotes the Nodeh B'yehuda (kama 75) who is mechadesh based on tosafos in baba metziah, that ein shliach l'dvar aveira doesn't merely make the agent responsible for the aveira, but it also invalidates the act that was done. Therefore,  if one sends an agent to divorce his wife against her will (thereby violating the cherem), the divorce is not binding. The Pischei Teshuva says that many achronim took issue with this ruling, but the Nodeh B'yehuda justified his position in subsequent teshuvos. It is slightly meduyak in rashi 42b who says that eish shliach l'dvar aveira is only in respect to being mechayev the sender, implying that for all other purposes the shlichus is binding. I think i once mentioned on this blog previously that his mechutan referred to a mishna l'melech who conforms to this ruling that the action is invalidated. The Nodeh B'yehuda responded by saying that the reference to the mishne l'melech was just trying to undermine his own chiddush, because there is no mishne l'melech regarding this, it is "my own chiddush". The Pischei Teshuva continues to show how this opinon is actually apparent from the mishneh l'melech in hilchos geneiva (3).

Based on the opinon of Tosafos who says that if the shliach is shogeg then yesh shliach l'dvar aveira, it will come out that in the case of the nodeh b'yehuda, if the agent was unaware of the cherem that forbids divorcing a wife against her will, we would say "yeish shliach l'dvar aveira" so that the divorce would be binding even according to the noda b'yehuda, and that the aveira would be attributed to the husband.

Kiddushin 41a - Shlucho Shel Adam K'moso (Mitzvos)

The K'tzos Ha'choshen (182) quotes the Tosafos Ri"d who asks why do we not allow the concept of שלוחו של אדם כמותו by mitzvos such as tefillin and sitting in a succah? The Tosafos Ri"d seems to say very simply that a mitzvah must always be done by the individual himself, with the exception of marriage and divorce since the actual חלות of the kiddushin/gerushin is for the sender. The Ketzos asks, that if this is true, why would we need a special source to say אין שליח לדבר עבירה, which implies that without a special limud, we would assume that reuven can be responsible for an act of aveira done by shimon. Even without a special source, we should never be able to trace the aveira of shimon back to reuven, just as we can't trace the mitzvah act of shimon back to reuven? The Ketzos has an entirely different approach to this question (i mentioned it in my sefer nasiach b'chukecha pg. 113).

The Ohr Sameiach (shlichus 1:1) comes to explain the Tosafos Ri"d. There are certain mitzvos where the intent of the Torah is that everyone should do a particular act. For example the Torah wants every individual to wear tefillin, eat matzah and sit in a succah, so it is impossible to say that when my shliach does these acts, it is as if i did it myself, since that would undermine the entire intent of the Torah. If one were able to appoint an agent for these activities, one person could eat matzah for the rest of the world, which surely undermines the intent of the Torah. However, when the intent of the Torah is that the action should be attributed to me, such as korban pesach where the Torah isn't interested in my shechita, rather my association with the korban pesach, a shliach can do it for me. Similarly by kiddushin, the torah wants everyone having a wife, but there is not concerned that everyone should do the act of kiddushin himself, and it can therefore be done by a shliach.

Based on this approach, when it comes to stealing, killing, adultery.... the torah demands that no one do these acts, to prevent the result. Since the intent of the Torah is not merely to refrain from the act, but to prevent the result, these aveiros are similar to kiddushin and gittin where the main purpose is the result, not the act. Just as the Torah says that Reuven can appoint shimon to do kiddushin since  primary issue is the result which can be attributed back to the sender. Similarly the Torah forbids stealing and killing because of the result, so when Reuven causes someone to be killed or stolen from by appointing Shimon to do it, the act can be attributed back to the one who causes the result, Reuven. Therefore, without a special pasuk teaching that you can't have a shliach for aveira, one would think that Reuven can be held accountable when Shimon does these acts for him.

Kiddushin 36a and 37b - 2 Aggadata points

1. The gemara quotes a machlokes whether the pasuk of בנים אתם לה' אלקיכם applies only when they are doing רצונו של מקום or even when they are not doing the ratzon of Hashem. The gemara in Baba Basra 10a explains similar to R' Yehuda that they are only called children when they are doing the ratzon of Hashem, but when they are not doing the razton of Hashem they are called עבדים. The K'sav Sofer (Achrei Mos) explains that רצונו של מקום doesn't just mean to do mitzvos, it means to do mitzvos because it is the ratzon of Hashem. Based on this approach, the definition of אין אתם עושין רצונו של מקום means, when you are doing mitzvos but not li'shma, meaning not because it is ratzon Hashem. When they are doing the mitzvos because it is the will of Hashem they are called children, because will to for their parents out of love, for the sake of the parent. But an eved will only serve his master because he is rewarded for serving him, therefore when they are not doing ratzon Hashem, meaning they are not doing it out of love for Hashem, they are like avadim.

2. Tosafos 37b qutoes Rashi that the Jews only brought one korban pesach over the 40 years in the midbar. Tosafos has 2 approaches why; either because there was no requirement of korban pesach until they came into eretz yisroel, or that even though they were required while they were in the desert, they were mostly missing bris mila (which for health reasons they couldn't do while travelling). One way or the other, it was considered degrading for them not to have gone in since the sin of the meraglim caused them to remain in the midbar for 40 years and loose out on the opportunity to bring the korban pesach. The Maharal (Gur Aryeh) writes that it isn't necessary to say that גנותן של ישראל was the indirect cause of the meraglim. The very fact that they missed out on the mitzvah, even if it was a result of o'nes, it is still a g'nai. The Maharal continues that although mitzvos that were not yet commanded until they went into eretz yisroel were not a g'nai for not doing, the mitzvah of korban pesach was a g'nai since they were metzuva just that the אונס prevented them from doing it.

Kiddushin 36b - Chodosh nowadays

Tosafos discusses the issur of chodosh in light of the mishna where R' Elazar considers it to be something applicable in chutz la'aretz. Tosafos writes that most of the grains planted were planted prior to 16 Nissan so there would not be a problem of chodosh. It is only if someone knows specifically that this grain was planted after, that it is assur. The problem is that nowadays there isn't necessarily a rov that the grain is yoshon, so the poskim try to justify why we are not makpid about chodosh:

1. Rama - Even if there is no rov that the grain is yoshon, there is at least a s'fek s'feika, maybe the tevuah is from last year, and even if it is from this year, maybe it was planted after 16 Nissan. When there isn't a s'fek s'feika such as when it is known that the planting is done after pesach, the Rama says that one should be machmir (but not tell others since mu'tav she'yihyu shogigin). The difficulty with this approach is twofold - A. Chodosh is a davar sheyesh lo matirin where some are machmir even for a s'fek s'feika (shach). B. R' Akiva Eiger (and teshuvos mutzal me'eish) ask that based on the concept of שם אונס חד הוא, a sfeik sfeika has to have 2 independent rationales to be permitted, not just 2 way that it can be last years grain. 

2. Bach - Argues on Tosafos and proves from the Yerushalmi that chodosh doesn't apply to grain that was from the field of a gentile. The taz and shach strongly disagree. The Gr"a also says that the achronim already "hit him over the head".

3. Taz - Considers the fact that there is a machlokes ta'naim whether it applies outside of Israel, and says that in a pressing situation we can pasken like the tana kama of our mishna that it only applies in Eretz Yisroel. Magen Avrohom also takes this approach. The Shach in nekudas hakesef strongly rejects the Taz.

The Gr"a concludes that the only legitimate heter is the Rama that it is a s'fek s'feika. Regarding the question of "shem o'nes chad hu", it must be that since there are 2 distinct ways that it can be last years produce, one that it actually is last years produce, and another that even if it is this years maybe it took root before pesach, it qualifies as a s'fek s'feika.

Regarding the second question on the Rama that it is a davar she'yesh lo matirin, R' Moshe (Igros Moshe Y.D. 4:46:4) explains that the shach answers this in two ways: 1. The only time we don't allow sfeik sfeika to be matir a davar sheyesh lo matirin, is when it is a mixture that definitely contains the issur. But here where the grain in that each individual is deciding on eating may not contain chodosh at all, we can use sfek sfeika to be matir. 2. In a situation where it is a tzorech we can rely on the opinions who allow sfek sfeika even by davar sheyesh lo matirin. R' Moshe holds that nowadays the tzorech is much less than it was, so the second approach is no longer valid, but the first approach is still valid.

Kiddushin 35a - More on Time-bound Positive Mitzvos

In my sefer, Naiach B'chukecha (see pic on left!), I quoted the Ohr Sameach (Tum'as Tzara'as 11:6) in the context of doing mitzvos in chavilos, where he is mechadesh that this issur doesn't apply to mitzvos that one can do through an agent. At the very end of that section, the Ohr Sameiach writes:

ודע, דכיוצא בזה ביארתי במקום אחר לפי הטעם שכתבו דמשום הכי אשה לא מפקדא על מצות עשה שהז"ג משום דמשועבדת היא לאב או לבעל (דעת האבודרהם), יתכן דדוקא מצות עשה שאין לקיימה ע"י שליח, ולכן חשיב מזוזה ומעקה שבבית שהיא דרה מוכרח להיות מזוזה ומעקה, לכן רק משום שאין הזמן גרמא, אבל מילה ובכורים ושריפת נותר דאפשר ע"י שליח, לא פטרינן לה משום שהזמן גרמא, רק במילה צריך קרא לפוטרה ואכמ"ל

R' Meir Simcha suggests that based on the Abudraham (although he doesn't quote it by name) that the rationale to exempt women from time bound positive mitzvos is that they are tied to serving the father or husband, it would be logical to obligate them in any mitzvah that they can do through a shliach. The rationale of the exemption only applies to mitzvos that they must to themselves, therefore mitzvos that an agent can perform for her, she should be obligated in even when it is time bound.

The rationale of the Abudraham seems strange. If the rationale to exempt women from time bound mitzvos is that she is too busy fulfilling requests from her father and husband, then we should exempt them when the conflict arises. Why would there be a blanket exemption even when there is no present conflict?

It seems to me that there is already a precedent to this idea in the gemara that when a woman needs to be available for other obligations, we have to exempt her across the board and not just in a specific situation of conflict. The gemara 30b, 35a says that regarding fearing one's parent - אשה אין סיפק בידה לעשות שרשות אחרים עליה. Seemingly, this is only an exemption for a woman from kibud av, in a specific situation where there is a conflict with her husbands requests. However, the Shulchan Aruch writes:

אחד האיש ואחד האשה שוין בכבוד ובמורה של אב ואם אלא שהאשה אין בידה לעשות שהיא משועבדת לבעלה, לפיכך היא פטורה מכבוד אב בעודה נשואה

The Shulchan Aruch implies that she is actually exempt from the mitzvah for the duration of her marriage even when there is not conflict so that she will be available to her husband (just that the shach writes that when there is no conflict she is chayeves). This is also meduyak in Rashi. The gemara 35a had a hava amina that since she is bound to her husband, she should completely exempt from kibud av, but concludes that she is chayev. Rashi explains that the hava amina is that even a single girl should be patur, to which the gemara concludes that even a single girl is chayev. Why does Rashi have to explain "לא תתחייב כלל" refers to a single girl? It can just as easily refer to a married woman, but the hava amina is to exempt her even when there is no conflict, and the conclusion is that she is only exempt when there is a conflict. From the fact that Rashi jumps to speak about a single girl implies that a married woman is exempt from kibud av even in when there is no specific conflict like the implication of the Shulchan Aruch.

Kiddushin 34a - Mitzvah Aseh She'hazman Grama (Time Bound Positive Mitzvos)

2 Hearos about z'man grama:

1. The gemara gives a list of mitzvos that are time bound so that women are exempt, and a list of mitzvos that aren't time bound so that women are obligated. Tosafos asks that in the list of mitzvos that are not time bound and woman are obligated, there are mitzvos that have a supporting lo ta'aseh, which would obligate them with or without the aseh. So, why is it important to list these as not being time bound so that women are obligated, since women are anyway obligated due to the lo ta'aseh? Tosafos answers that there are situations where the aseh applies without the lo ta'aseh, so it is important to say that women are obligated in the aseh even under those circumstances.

Tosafos offers another answer that if a woman would be obligated only in the lo ta'aseh then another mitzvas aseh could sometimes push off the lo ta'aseh, but since she is obligated in the aseh also, another mitzvah could not push it off (since aseh can't push off aseh and lo ta'aseh). Tosafos rejects this approach because even if the aseh is time bound, once they are obligated in a lo ta'aseh that has an aseh supporting it, the lo ta'aseh is strengthened so that another aseh cannot push it off.

The Ran assumes that whenever there is a lo ta'aseh together with an aseh, even if the aseh is time bound, women are obligated in the aseh and lo ta'aseh. But this is only if the aseh and lo ta'aseh are inseparable, so that whenever the aseh is present the lo ta'aseh is also present. But if the aseh is sometimes separated from the lo ta'aseh then being obligated in the lo ta'aseh would not obligate them in the aseh.

R' Akiva Eiger points out that Tosafos and the Ran argue when you have a lo ta'seh and aseh that is time bound, Tosafos holds that women are only obligated in the lo ta'aseh, but the Ran holds that they are also obligated in the aseh.

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2. Tosafos assumes that women are not obligated in the aseh of yom tov since it is time bound. R' Akiva Eiger says that when we exempt women from time bound mitzvos, the mitzvos must be similar to tefillin which are fulfilled b'kum v'aseh (actively), but mitzvos that are fulfilled passively, even if they are time bound women are obligated in. R' Akiva Eiger says that if a woman misses ya'aleh v'yavo on yom tov, according to Tosafos she doesn't have to repeat. Why? Because she is patur from the mitzvah of simchas yom tov, therefore is allowed to fast, and therefore doesn't repeat birchas hamazon (since the gemara says that repeating doesn't apply to cases where אי בעי אכיל אי בעי לא אכיל). But according to R' Akiva Eiger's suggestion that a passive mitzvah women are obligated in even if it is time bound, she would have to repeat birchas hamazon.

The Minchas Chinuch (112) clearly disagrees with R' Akiva Eiger. The Minchas Chinuch is troubled with why the poskim seem to assume that a woman is obligated in the mitzvah of shevisas ha'aretz during shemittah - it is a time bound positive mitzvah? The Minchas Chinuch explains that the rule of time bound positive mitzvos is only an exemption for mitzvos on one's body but is not an exemption for mitzvos outside of one's body (with this he answers Tosafos question 29a that time bound positive mitzvah would not be sufficient to exempt a mother from milah on her son since it is a mitzvah not on her body). Being that the mitzvah to rest the land during the shemittah year is not a mitzvah on her body, the exemption of z'man grama doesn't apply so she is chayev. Based on R' Akiva Eiger, it is much easier to explain why she is chayev, it is a passive mitzvah - from the fact that the minchas chinuch needs to jump through hoops to explain why a woman is chayev in shemittah (at least plowing during shemittah which is only an aseh), he clearly rejects the sevara of R' akiva eiger.

Kiddushin 33b - Standing up more that twice a day

R' Yanai says that a talmid should not stand for his rebbi more than twice a day so that the kavod for the rebbi doesn't exceed kavod for hashem (krias shema which is kabalas malchus shamayim and only twice a day). The Ri"f holds that R' Elazar who says that if you don't stand for your rebbi you are called a rasha, argues on R' Yanai and we pasken like R' elazar (gr"a y.d. 242:53). But the Rambam paskens like R' Yanai.

Tosafos asks, why do we find that the rava was makpid that his talmidim didn't stand for him, maybe they already stood up twice that day without him realizing? Tosafos answers that when one is in a situation where the people don't realize that you already stood up, you are required to stand up more than twice. It is only if the people around all know that you already stood up twice that you don't have to stand up.

The Tosafos Yeshanim asks the same question as Tosafos and answers that אין תלמיד רשאי לעמוד מפני רבו אלא שחרית וערבית doesn't mean that he is not allowed to, rather it means he does not have to. Since he is allowed to, the Rebbi can be makpid if the talmid chooses not to stand. Based on the answer of the Tosafos Yeshanim (using the definition of "r'shai" from tosafos 33a), there is nothing that compels the chiddush of Tosafos that when you are in the presence of people who don't know that you stood up, you have to stand more than twice.

In other words, if "אין ת"ח רשאי" means "he is not allowed", then we are compelled to say that when in the presence of people who don't know he already stood twice, he has to stand again. But if it means "he is not required" then he is never required more than twice a day even when in the presence of new people who don't know that he already stood up. Based on this, there is a question on the Rama (y.d. 242:16) who translates "not required" implying that he is allowed to stand multiple times like the tosafos yeshanim, yet he writes that when in the presence of new people who don't know that he already stood twice, he must stand again, like Tosafos! Why does the Rama feel compelled to make the distinction of Tosafos if he is learning the words אין ת"ח רשאי like the tosafos yeshanim?

Kiddushin 33a - Mochel on Kavod

The gemara 32b concludes that everyone can be mochel on their kavod except for a king. Yet, the gemara on 33a says that R' Nachman would not stand up for gentile elders because "if not for torah, there would be many nachmans in the market". Rashi explains that the reason he did not stand up is - אין חשיבותי בשביל עצמי אלא בשביל תורה. This sounds like what the gemara thought originally that Torah does not belong to the Talmid chacham and he has no right to be mochel, but the gemara concludes that תורה דיליה היא. Based on this conclusion, R' Nachman could have been mochel on his kavod, so why didn't he? Perhaps the peshat is that the gemara says that although a chacham can be mochel, hidur still needs to be done. Meaning, some small symbolic respect must be shown. It seems clear that if the mechila would not help completely even for the hidur, certainly it will not help for things which are clearly degrading. For R' Nachman to stand for a gentile elder would be degrading for the kavod hatorah, this he could not be mochel on.

However, in regard to kibud av the gemara says 31b that R' Yakov allowed his mother to serve him. Seemingly this was also not just mechila but even degrading. Furthermore, Tosafos 31b quotes a story where R' Yishmoel was told to allow his mother to wash his feet, which was certainly degrading - how does mechila help for this? The answer is that Tosafos is meduyak that the rationale is not mechila, rather it is that her will is her kavod - רצונה זהו כבודה (תוס' ר"י הזקן). Mechila would not allow for bizayon, but if her desire and will is to do it, that is considered her kavod.

There would still be a question on this approach from the gemara 32a where the gemara says that for Raba to get angry at his father R' Huna for tearing the silk would not have been a violation of kibud av, since he was mochel on his kavod. Seemingly, getting angry would be degrading, not merely abstaining from kavod, yet mechila seems to have helped for that. Perhaps there is a difference between a talmid chacham and a father - for a talmid chacham mechila doesn't help for bizayon, but for a father it does. Any thoughts?

Kiddushin 32a - Prioritizing mitzvos (kibud av)

The gemara says that we pasken like isi ben yehuda, that if one is faced with a mitzvah that cannot be done by others and the mitzvah of kibud av, he should choose the other mitzva. But if the mitzvah can be done by others then he should choose kibud av. Rashi adds that the type of mitzvah we are talking about is a mitzvah overes, that if not done now would be lost forever. This implies that a mitzvah that can be done later, even if it cannot be done by others would be pushed off until after the kibud av is done. This is all assuming that one has not yet begun to do the other mitzvah, but if he already began the other mitzvah, he would never stop for kibud av since we rely on the rule of osek b'mitzvah patur min hamitzvah as the Ran writes and is recorded in Rama [In my sefer, at the end of the chapter of osek b'mitzvah he'ara 18, i tried to suggest that the osek b'mitzvah rule would not apply to the mitzvah of kibud av. Meaning that if one was osek in kibud av and a mitzvah that could not be done by others and was overes came his way, he would have to stop doing kibud av and do the other mitzvah - see there].

The concept of a "mitzvah overes" by definition is a mitzvah that cannot be done by others and cannot be done later. If it can either be done by others such as pidyon shevuyim, or can be done later by me such as tefillin, then it would not qualify as overes.

The gemara is clear on daf 29b that a mitzvah overes will always come before a mitzvah that is not overes. It is for this reason that aliya l'regel comes before pidyon ha'ben. Even the Rabbonon who disagree is based on a pasuk that gives importance to pidyon haben, but by other mitzvos would agree to the concept. This is mefurash in Tosafos Ri Hazaken - 

והלכה כרבנן וכו' אבל בשאר מצות מודו ליה לרבי יהודה דטעמא קאמר, ושמעינן מיהא דבשאר מילי עביד מצוה עוברת ברישה לדברי הכל

Obviously, this rule would only help prioritize when one is faced with 2 mitzvos, one being overes and the other not overes, but when one is faced with 2 mitzvos each being overes, other criteria will have to be used to determine priority.

Based on this rule, the mitzvah of kibud av v'eim should rightfully be pushed off for any mitzvah overes. There is nothing special aboug kibud av in this case, because all other mitzvos would also be pushed off for a mitzvah overes. The chiddush in the gemara is not in the words of isi ben yehuda, rather in the word of elazar ben masya who implies that you would always forgo kibud av for the sake of another mitzvah since the father is also obligated in other mitzvos (at least m'din arvus) he has not ability to use his power to prevent the fulfillment of that mitzvah. Meaning, in the presence of another mitzvah, kibud av doesn't exist. But Isi ben yehuda says that kibud av follows the same rule as any other mitzvah - since it is not considered a mitzvah overes, one must forgo kibud av for a mitzvah overes, but not for a mitzvah that can be done by others or can be done later.

By Talmud Torah we find a similar distinction that for a mitzvah that cannot be done by others one must stop learning. But the chiddush by Talmud Torah that the gemara says in mo'ed kattan is that even though talmud torah is also a mitzvah overes, since every minute is an independent mitzvah, you would still push off talmud torah for another mitzvah. This is unique to Talmud Torah for 2 reasons: 1. Talmud Torah itself is a mitzvah overes. 2. the rule of osek b'mitzvah allows one to continue even at the expense of a mitzvah overes, yet by talmud torah we insist that he must stop learning.

For more discussion of prioritizing mitzvos and criteria that should be used, see R' Akiva Eiger Teshuvos (siman 9) and also printed in shulchan aruch beginning of hilchos mezuza.

Kiddushin 29b - Birchas Hatorah for women

The Shulchan Aruch (47:14) paskens that women make birchas hatorah. The obvious question is why, since they are exempt from the mitzvah of studying torah as we see from our gemara? The Magen Avrohom quotes the Agur who says that they are chayev in parshas karbonos and in the mitzvos that apply to them. Simply speaking the Agur means to say that although they have no mitzvah to study torah at all, they do have a requirement to know the mitzvos that are applicable to them. You can't know without learning and since they are forced to learn, they can make a bracha on that learning. The difficulty with this approach is that it doesn't justify how they can make "אשר קדשנו במצותיו וצוונו לעסוק בדברי תורה" if the bottom line is that they are not commanded to learn? The Beis Halevi (Teshuvos 1:6) raises this question (his approach doesn't seem correct - עיקר חסר מן הספר).

Another possibility is that the Agur is not simply saying that women have to know, which requires a them to learn so that they know. Perhaps he is suggesting that they actually have a mitzvah to learn the areas of halacha that pertain to them. According to the first approach if a woman is always around someone who can instruct her what to do there would be no purpose in her learning, but according to the second approach she has a mitzvah not only to know what to do when the situation arises but she has a mitzvah to learn all areas of halacha that pertain to her so that she will be proficient in them. Even according to the second approach, the value is not in the learning, rather in the knowledge to perform, but the nature of the mitzvah is to be proficient so that she will be able to perform the mitzvos better. Being that the nature of the mitzvah is to learn so that she will be proficient, it is understandable why she would be able to make birchas hatorah.

The Gr"a (and beis halevi) say that the only justification for a women to make birchas hatorah is to rely on Rabbeinu Tam (Tosafos R"h 34a) that women are entitled to make a bracha on mitzvos that they are not commanded in such as lulav, succah and tzitzis. Similarly, they can make bracha on Torah. This approach only justifies the bracha of אשר קדשנו במצותיו וצוונו לעסוק בדברי תורה. The Gr"a clearly holds that the bracha of אשר בחר בנו מכל העמים ונתן לנו את תורתו was never a question - that is a bracha of praise that can surely be made by women. The only point of discussion is how they can make the first bracha, and for that they need to rely on Rabbeinu Tam. This is clearly the approach of the Minchas Chinuch (end of mitzvah 430), that the bracha of אשר בחר בנו is an independent mitzvas aseh to make a bracha prior to learning, and the bracha of אשר קדשנו במצותיו וצוונו לעסוק relies on Rabbeinu Tam.The difficulty with the approach of the Gr"a and Minchas Chinuch is that the Shulchan Aruch does not hold like Rabbeinu Tam, he paskens like the Rambam that women can only make a bracha on mitzvos that they are obligated in.

The Brisker Rav (hilchos brachos) has an approach where he explains that birchas hatorah is not a birchas hamitzvah, rather it is a din that תורה בעי ברכה, meaning that one most show importance to torah by making a bracha on it prior to learning. This would certainly explain how woman can make a bracha, but it would logically only apply to the bracha of אשר בחר בנו, which is the Gr"a seems to hold was never a question to begin with. It is true that the brisker rav himself holds that his answer will explain both brachos, it doesn't seem to work for the bracha of אשר קדשנו במצותיו וצוונו which is the nusach of a standard birchas hamitzvah.

I would like to suggest based on the shulchan aruch (47:6) that the bracha of והערב נא should be said with a vav because it is not independent, rather a conclusion of the first bracha. It is clear from the gemara in sotah that although a woman is obligated to learn torah, she is obligated to provide emotional support to her husband and sons so that they excel in torah. The bracha of:

אשר קדשנו במצותיו וצוונו לעסוק בדברי תורה והערב נא ה' אלקנו את דברי תורתך בפינו וכו' ונהיה אנחנו וצאצאינו וצאצאי עמך וכו

Perhaps the וצוונו is not going just on the לעסוק בדברי תורה but rather on the entire bracha so that the bracha is not speaking of a command to learn torah personally but rather you commanded klal yisroel to study Torah, and commanded them to raise children that study Torah - this a woman is certainly commanded in.