Sanhedrin 26b - Excuse to Prevent Becoming Passul for Eidus

The gemara says that gravediggers who worked on yom tov were at first invalidated as witnesses by Rav Papa, but Rav Huna Brei D'rav Yehoshua was machshir them because "they think that they are doing a mitzvah". This din is paskened in Shulchan Aruch 34:4, that anyone who violates even an issur torah but justifies it by thinking that they are doing a mitzvah, wouldn't become passul l'eidus. The gemara then asks and answers: והא קא משמתינא להו? סברי כפרה קא עבדי לן רבנן. According to Rashi the question is: We put them in cheirem and they violate the same prohibition a second time so they can't justify that they are doing a mitzvah? To this the gemara answers: Even though we put them in cheirem they still convince themselves that they are doing a mitzvah, just that they think that the cheirem is necessary for atonement of being mechalel yom tov. Rashi seems to explain the justification of the gravediggers to be similar to one who fasts a ta'anis for a dream no shabbos who is doing the right thing, yet needs to fast again for atonement for fasting on shabbos. Here too, they think that they are doing the right thing by burying the dead on yom tov, just that they require the cheirem to serve as a kappara for their actions.

The Ran seems to have a different approach in this question and answer. The Ran seems to understand that if they were to repeat the aveira again after being put in cheirem, they would certainly become passul because they should understand from the cheirem that they did an aveira. The question of the gemara is that since we put them in cheirem and they don't bother coming to beis din to justify their actions, we should assume that they are intentional violators and passul for eidus? To this the gemara answers that the reason that they don't come to justify is because as soon as they are put in cheirem they realize that they did an aveira and want the punishment of cheirem to serve as an atonement.

We are left with a machlokes between Rashi and the Ran if they would bury someone a second time after being put in cheirem, whether they would be passul. But, all agree that the justification of מצוה קא עבידנא, is not just a rationale to make them kasher m'doraysa, but would even make them kasher m'drabonon. Why is this different than all those who are listed in the mishna 24b who become passul m'drabonon even though they can justify their actions such as a gambler where tosafos writes that even according to the opinion that they violate theft m'doraysa, they are only passul m'drabonon because they don't realize the severity of their actions? Also one who lends with interest and violates an issur d'oraysa, Tosafos writes would only be passul m'drobonon since he justifies taking the money with the consent of the borrower? The answer seems to be that when they justify their actions by saying that they are doing a mitzvah then they aren't even passul m'drabonon, but if they merely justify by not realizing the severity of the issur then they would still be passul m'drabonon. However, this wouldn't explain סוחרי שביעית where Tosafos says that even if they violate an issur d'oraysa they would only be passul m'drabonon since they consider themselves to be providing livelihood to the poor in the shemittah year. Clearly, they justify by saying that they are doing a mitzvah, yet they are passul m'drabonon, so why are the gravediggers not even passul m'drabonon? I would suggest that there is a distinction between the gravediggers who think that the act of burying is a mitzvah, and those who do business with fruits of shevi'is, who know that making money with the fruits of shevi'is isn't a mitzvah, but think that the benefit of the mitzvah of providing parnasah to the poor would offset the aveira. When they think that their action is a mitzvah, they aren't even passul m'drabonon, but when they just think that their aveira is offset by a mitzvah, they are still passul m'drabonon.

Sanhedrin 25b - Lo Tachmod: With or Without Paying

The braisa lists a "chamsan" on to the list of the mishna of people who are passul for eidus m'drabonon. The gemara explains that it wasn't on the original list of the mishna because originally they thought that since money was being given, it is only אקראי בעלמא הוא, but then they saw that people were grabbing the items so they added it to the list. Tosafos is troubled why a chamsan isn't passul for eidus m'doraysa, since he is in violation of לא תחמוד. Tosafos offers two approaches:

1. Although the gemara in Baba Metzia 5b implies that people understand לא תחמוד to apply without paying, which implies that it actually applies even when money is paid, the truth is as they think that it only applies when money is not paid. Therefore, a chamsan who pays isn't in violation of לא תחמוד.

2. The implication of the gemara in Baba Metzia that לא תחמוד applies even when no money is paid, is in fact accurate. However, since people think that it only applies when no money is paid, the violator wouldn't be passul for eidus, since they don't realize that they are doing an issur.

The interpretation of our gemara is subject to these two approaches of Tosafos. According to the first approach that לא תחמוד doesn't apply when money is paid, the gemara is saying that originally since they were paying, they didn't become passul, but when they started grabbing without paying then they became passul for violating לא תחמוד. But according to the second approach that they were actually in violation of לא תחמוד even when they were paying, the gemara has to be saying that originally they were convincing the seller to sell albeit reluctantly, so there wasn't any violation of לא תחמוד, but later they were forcefully taking it without convincing the seller to sell so they were in violation of לא תחמוד even though they were paying for it.

Rashi seems to explain the gemara similar to the second approach of Tosafos, that originally they were not grabbing from the owner, rather convincing him to sell although he was never fully convinced to do so, but later they started grabbing and throwing the money in front of him.

Regardless of the approach, Tosafos holds that even if there is a d'oraysa violation of לא תחמוד, he wouldn't become passul on a d'oraysa level because people don't realize that this is a violation of לא תחמוד. This is clear from Tosafos 24b where he writes that as long as they don't realize that they are doing an issur, they wouldn't become passul m'doraysa.

Sanhedrin 24b - Are Gamblers Invalid for Witnesses and Judges?

The Mishna lists gamblers among those who are unfit to judge, and as rashi points out, unfit to testify since they are regarded as re'shaim. There is a discussion in the gemara as to why a gambler is unfit to testify/judge. Rami Bar Chama holds that it is an issue of אסמכת, which means that the money he wins is regarded as stolen. Rav Sheishes disagrees and attributes the p'sul to not being involved in ישובו של עולם. The gemara points out that the difference between the two opinions would be a situation where he has another job aside from gambling. The issue of אסמכת would apply regardless of whether he has another means of support, whereas the issue of ישובו של עולם would only apply if he has no other means of support.

Tosafos points out that both opinions in the gemara agree that the p'sul is only Rabbinic, because even the opinon who considers it theft due to אסמכת, since he doesn't realize the severity of the prohibition, he is not invalidated as a witness on a d'oraysa level. Regardless, we pasken like R. Sheishes that the p'sul is attributed to him not being involved in ישובו של עולם which would surely be d'rabonon.

There is a machlokes Rambam and Rashi as to the nature of the p'sul of not being involved in ישובו של עולם. The Rambam associates this with a gezel problem. Since the looser isn't willingly forfeiting his money to the winner, it is considered avak gezel. The S"MA (c.m. 34:40) explains the position of the Rambam - since it is not technically theft, the Rabbonon only considered it to be a problem if his main livelihood was coming from his gambling earnings. When the gemara stipulates that he is only passul if he doesn't have another אומנות, the gemara really means to say that he doesn't have another source of income. If he has another source of income, or is wealthy so that he doesn't need the gambling earnings for support, he would be kasher as a witness. However, if he had another income but required the earnings from gambling to support himself, he would be passul. The Gr"a (c.m. 203:44) disagrees with the approach of the sm"a and explains that the Rambam actually paskens like rami bar chama that אסמכת isn't ko'neh, and therefore considers it to be a gezel issue. But, the gr"a holds that even though it is a gezel problem, the rabbonon only invalidated him when he has no other livelihood.

Rashi considers the issue of not being involved in ישובו של עולם to have nothing to do with theft. Rashi writes - דהואיל ואין עסוקין בישובו של עולם, אינן בקיאין בטיב דינין ומשא ומתן ואינן יראי חטא. Rashi considers the issue to be an indication of a very low level of yir'as shamayim. The SM"A explains that this only applies to someone who doesn't work and doesn't realize the difficulties involved in earning money and would be prone to testify falsely (because he associates money as easy come easy go, and doesn't take it seriously). But someone who works, even if he can't support himself without the added income from gambling, wouldn't be passul for eidus since he realizes the challenges of earning a living.

The Shulchan Aruch who follows the Rambam and considers the problem of gambling to be associated with theft, goes lishitaso (c.m. 370:3) where he writes that one who gambles with gentiles would not be in violation of gezel (since only actual and direct theft is forbidden from a gentile, but not when he looses in gambling and agrees to give the money). Rashi would certainly not make this distinction and would hold that even one who gambles with gentiles would be passul to testify. Even according to the Rambam, the Shulchan Aruch frowns upon gambling and writes:

אבל יש בו איסור עוסק בדברים בטלים שאין ראוי לאדם שיעסוק כל ימיו אלא בדברי חכמה ויישובו של עולם

Sanhedrin 20b - Asking For A King

The gemara quotes a braisa which has a machlokes regarding the legitimacy of appointing a king. R. Yehuda says that it is one of the 3 mitzvos that the Jews had when they entered E.Y. However, R. Nehorai says: לא נאמרה פרשה זו אלא כנגד תרעומתן. Rashi explains that R. Nehorai argues on R. Yehuda and holds that the "mitzvah" of appointing a king was never said as a mitzvah, and was never meant to be an ideal. The only reason that Hashem permitted the appointing of a king is to preempt the complaints of the Jews who would ask for a king. Finally, the third opinion is that of R. Eliezer who holds that the zekainim asked properly since they were looking for an authority to enforce the law, but the amei ha'aretz asked improperly since they were looking for someone to help them conquer land from their enemies.

Based on Rashi's understanding that R. Yehuda holds it is a mitzva, and R. Nehorai disagrees; if we were to pasken like R. Yehuda, we couldn't hold like R. Nehorai. However, the Rambam seems to have a different approach. The Rambam (Hil. Melachim 1:1-2) writes that there are 3 mitzvos when the Jews enter E.Y., to set up a king, destroy amalek, and build the beis hamikdash. The Rambam holds like R. Yehuda that there is a mitzvah to set up a king. Yet, the Rambam writes at the end of Halacha 2:

מאחר שהקמת המלך מצוה למה לא רצה הקב"ה כששאלו מלך משמואל? לפי ששאלו בתרעומת ולא שאלו לקיים המצוה אלא מפני שקצו בשמואל הנביא שנאמר כי לא אותך מאסו כי אותי מאסו

As the Radvaz points out, the Rambam seems to be paskening like R. Nehorai that the king was a result of תרעומת - complaints. How does the Rambam fit R. Yehuda together with R. Nehorai? He holds that even according to R. Nehorai there is a mitzvah to have a king but the intentions were bad. They should have been asking for a king with the intent of doing the mitzvah, but instead they wanted a king as a complaint about their present situation.

The Ran in his Drashos has a beautiful approach to the issue. He explains that there is a separation of powers between the judicial branch who were assigned with judging din torah, and the executive (king) branch that were assigned with maintaining law and order. They wanted a king who would fill the role of the "shofeit". They were looking to replace din torah (judged by the shofeit) which brings about השראת השכינה, with secular law that only serves the purpose of maintaining law and order. Their sin was in requesting: תנה לנו מלך לשפטנו. The king was meant to compliment the shofeit and fill in the gaps where the Torah acquits and he must be גודר גדר and convict to maintain law and order. The king was never meant to substitute din torah.

Sanhedrin 19a - Distinction Between Kings from Yehuda and Yisroel

The Mishna says that a king cannot judge nor can he be judged. The gemara explains that since he cannot be judged due to a lack of respect for him, he cannot judge. But, the gemara makes a distinction between Kings of Yisroel and Kings of beis David. The Mishna that doesn't allow for a king to be judged is speaking about a king of Yisroel who cannot be judged because of the catastrophic story that occurred with Yanai and Shimon Ben Shetach, but a king from beis david can be judged therefore he can judge.

Tosafos limits the allowance for kings of beis david to judge. They can only judge monetary cases, but capital cases where there is an issue of לא תענה על ריב - לא תענה על רב, which forbids the other judges from disagreeing with the king, even kings of yehuda cannot judge.

The lechem mishna understands that the Rambam (Sanhedrin 2:4-5) disagrees with Tosafos. The Rambam holds that the drasha of לא תעשה על רב forbids a king from sitting on the sanhedrin, but doesn't disqualify him from judging privately. Therefore, a king of beis david can sit as a judge privately. To me it seems that the Rambam and Tosafos are both taking the same approach. Being that a king cannot be on the sanhedrin (even a sanhedrin of 23), he can never judge a capital case and will only be able to judge a monetary case.

There is a difficulty in the language of the Rambam. The Rambam in Hil. Sanhedrin (2:5) explains why a king of yisroel cannot judge:

לפי שאין נכנעים לדברי תורה שמא תבא מהן תקלה

The Rambam in Hil. Melachim (3:7) echoes this point:

מפני שלבן גס בהן ויבא מן הדבר תקלה והפסד על הדת

The Rambam provides a rational justification for a king being unfit to judge, and attributes it to their arrogance that will lead to a catastrophe similar to the story of Yanai. The Rambam is compelled to indicate that there is a difference between kings of beis david and kings of yisroel in their character, to explain why the concern of Yanai would be limited to kings of Yisroel.

The Kesef Mishneh seems to hold that the geziera was limited to kings of Yisroel because the Rabbonon were reluctant to make a decree forbidding kings of beis david from being judges, after the pasuk explicitly allows for it. But for kings of Yisroel where there is not explicit pasuk allowing for it, they were able to impose their gezeira (this is reminiscent of the taz y.d. 116 who says that the rabbonon don't make a gezeira that is against an explicit pasuk). But, the Rambam seems to make a very rationale distinction based on the different character traits of kings of beis david vs. kings of yisroel. In the commentary on the Mishna, the rambam is very clear about this character distinction:

זה במלכי ישראל בלבד, לפי שהיו עבריינין במלכותם לא היו משבחין השפלות, ולא היו נכנעין לדברי תורה. אבל מכלי בית דוד דנין ודנין אותם לפי שהם יודעים התורה ולא היה רע בעיניהם השפלות וההכנעה לדברי תורה לפי שמלכותם על פי התורה לא יגרע ממנו ענותנותם

The Rambam adds a line beyond the distinction in character. He explains why the tendency of kings of beis david is to be more humble. The malchus beis david is well deserved based on the Torah, therefore they don't need to enforce it with their arrogance. The Rambam gives a tremendous insight into human nature. When a person is confident about his status he doesn't need to enforce his kavod and is willing to be submissive to dinei torah. But, malchei yisroel who don't really deserve the status feel a need to enforce it, and therefore aren't willing to subjugate themselves to din torah.

Sanhedrin 18a - Kohen Gadol Following the Deceased

The Mishna quotes a machlokes regarding a kohen gadol walking behind the coffin in the funeral procession. R. Meir (as explained by Rashi) holds that he can't be within the same courtyard because he may come to touch the coffin and make himself ta'mei, thereby violating a l'av. The Gemara 19a says that according to R. Meir the pasuk of ומן המקדש לא יצא, means that he should not leave his status of kedusha. The gemara implies that the necessary distance is that they shouldn't be in the same alleyway, because the distance will serve as an indicator to prevent him from touching the coffin. The simple reading of the gemara implies that the Torah violation is only when he touches the coffin and makes himself ta'mei, just that the Rabbonon insist on a greater distance. However, Rashi in the mishna and the gemara clearly writes that the Torah violation of not leaving his kedusha demands that he create a safeguard to prevent the possibility of becoming ta'mei. This seems to be a situation where we have a mitzva d'oraysa that serves as a safeguard for another mitzva d'oraysa. The Torah requires that he take precaution to prevent tu'mah.

R. Yehuda argues and holds that the pasuk ומן המקדש לא יצא, means at it sounds literally that he shouldn't leave the mikdash at all to follow the deceased. Rashi on the Mishna writes that R. Yehuda reads the pasuk literally and rejects R. Meir's understanding of מקדושתו לא יצא. However, the gemara 19a seems to understand that R. Yehuda reads the pasuk exactly as R. Meir does, just that he considers it necessary to make a greater safeguard that completely prevents him from following after the deceased because in his depression over the loss he won't be so aware of how close he is to the dead. The Rashash also raises this question. It seems that Rashi in the mishna understands that R. Yehuda in the gemara is just responding to the opinion of R. Meir. Even if R. Meir is correct in how he understands the pasuk, there would still be an issur even to follow after the meis from a distance.

The Ramban in Chumash (21:12) disagrees with Rashi and understands that according to both opinions the entire prohibition of following after the coffin is only d'rabonon, as the language of the gemara implies. Therefore, the issur only applies to his own relative where he is likely to be drawn close to and come into physical contact with, but doesn't apply to others. The actual pasuk is coming to say that when the kohen gadol is doing the avoda, he cannot stop what he is doing and leave for a meis because it is degrading to the avoda. The Ramban writes explicitly that a kal v'chomer can be made to a kohen gadol leaving in the middle of the avoda for some other purpose.

Sanhedrin 14a - Restoring Semicha

The gemara quotes a story with R. Yehuda Ben Baba who was concerned that the mesorah for semicha would be lost. He risked his life to ordain 5 or 6 of the greatest Talmidei Chachamim of the generation. His motivation was that without the mesorah for semicha - בטלו דיני קנסות מישראל . In the absence of the tradition of semicha there wouldn't be any ability to judge on penalty cases. The gemara implies that if the tradition would have have been lost, it cannot be restored. This gemara doesn't fit well with the Rambam (Sanhedrin 4:11) and in his commentary to the Mishna, who provides an innovative approach to restoring semicha even after it has been lost. The Rambam writes:

נראין לי הדברים שאם הסכימו כל החכמים שבא"י למנות דיינים ולסמוך אותם הרי אלו סמוכים ויש להם לדון דיני קנסות וכו' א"כ למה היו החכמים מצטערין על הסמיכה כדי שלא יבטלו דיני קנסות מישראל? לפי שישראל מפוזרין ואי אפשר שיסכימו כולן

The Rambam himself struggles with the fact that the gemara implies that semicha, if lost, cannot be restored. The Rambam is forced to explain that since the Jews were so scattered, it would be very difficult to use his innovative system of restoring semicha, and that is why R. Yehuda Ben Bava risked his life for it to be maintained.

In his commentary on Mishna, the rambam proves that there has to be an ability to restore semicha, because the navi testifies ואשיבה שופטיך כבראשונה, ויועציך כבתחלה and this must take place prior to the arrival of mashiach. Therefore, the consent of chachmei E.Y. would surely be enough to restore the semicha.

The rationale for the Rambam is explained very nicely in the Aruch HaShulchan (3:15). The primary reason to require a tradition for semicha is to ensure that the receiver is worthy. Therefore, when the chachamim of E.Y. agree on a candidate for semicha, he would certainly be worthy and now have the power to ordain others.

This Radvaz mentions the great debate that took place in his generation with the Mahari Bei Rav, and mahara"l ibn chaviv. The chachamim of tzefat wanted to restore semicha and ordain the mahari bei rav, based on the Rambam. Their intention was to fulfill the din of giving malkus to those who are chayav kareis and coming to do teshuva, to remove their punishment of kareis. The Radvaz comments that the chachmei tzefat failed in their attempt (and that they even consulted him while he was living in Egypt, but he didn't support this), which seems very different that the kiryas sefer's statement - והיום כמו עשרה שנים בשנת הרח"ץ הסכימו רוב חכמי ישראל שבא"י לסמוך לגדול בדורו מוה"ר יעקב בירב ז"ל והוא סמך קצת מתלמידיו המובהקים יבורכו מפי עליון להחזיר העטרה ליושנה אמן. Nonetheless, history shows that no one took the semicha seriously enough for it to continue to future generations.

The Radvaz points out that the flaw of the chachmei tzefat was: 1. The Rambam concludes - והדבר צריך הכרע so how can that be ignored. 2. The Rambam says that because the jews were so scattered, it would be difficult to restore semicha. This implies that they must all be brought together as one group to decide on the issue, and it cannot be done with written letters from around E.Y. 3. The person receiving semicha must be fit to pasken in ALL areas of Torah and he claims - ורחוק בעיני שיש בדור הזה מי שראוי להורות בכל התורה כולה.

Regarding the Rambam's proof in pirush hamishna that dayanim must be restored before mashiach arrives, the radvaz rejects because perhaps they will be give semicha by Eliyahu HaNavi.

The Maharal Ibn Chaviv devotes and entire kunteros to this subject, which he presented to the chachamim of Tzefat as a rejection of their initiative. He claims that when the Rambam writes that "all" chachamim of E.Y. must agree, he doesn't mean to say that a democratic majority is also sufficient. Furthermore, since the entire objective is to free those who want to do teshuva from kareis by giving them lashes, their goal won't be acheived. Malkus cannot be given in the absence of witnesses, and even if it were given, it wouldn't qualify as malkus to exempt from kareis unless there are witnesses. He also writes that the Ramban who says that kiddush hachodesh will not be restored until moshiach comes, clearly disagrees with the Rambam's ability to restore semicha.

The Ya'avetz suggests that the reason that the semicha that R. Akiva gave to R. Meir wasn't accepted, had nothing to do with his age. Rather, the peshat may be that since the beis hamikdash was already destroyed, the power of an individual to issue semicha without consulting all rabbanei E.Y. was lost. This would support the position of the maharal ibn chaviv, because if R. Akiva who had semicha couldn't pass it on without all chachmei E.Y., it certainly can't be recreated without all chachmei E.Y. and even a single Rav can prevent it from going through. The difficulty with the peshat of the ya'avetz is that it isn't clear why the semicha of R. Yehuda Ben bava was more accepted, unless we assume that the 5 zekainim that he gave semicha to were all the chachamim of E.Y.

Sanhedrin 12b - Being Me'aber the Year for Tu'mah

The gemara discusses whether the beis din is allowed to add an extra month to avoid the issue of korban pesach having to be brought in tu'mah. The gemara concludes that according to R. Yehuda who says that tu'mah is הותרה בצבור, even if they attempted to make a leap year, it wouldn't be binding. The rationale is explained by Rashi, that since it is completely hu'trah, and is therefore unnecessary, it is tantamount to being me'aber the year for no reason at all. It is clear from the gemara that the opinons who hold that it would be binding, would have to hold that tu'mah is דחויה בצבור, which means as rashi explains - בקושי הותרה וכו' וכל כמה דאפשר להדורי לעשותו בטהרה מהדרין. The difficulty is with the conclusion of the gemara that R. Shimon and the Tana Kamma seem to both hold that the addition of an extra month is binding, but argue whether it is li'chatchila, or just bi'dieved. R. Shimon's opinion is very understandable. He holds that since tu'mah is only di'chuya, not hu'tra, we try to avoid it and create a leap year to avoid it. But what is the peshat in the opinion of the Tana Kama? Since he also agrees that tu'mah is di'chuya, rather than hu'tra, which is evident from the fact that he holds it is binding (because if it were hu'tra, it would be considered completely unnecessary, therefore not binding), why would he hold that they can't do it li'chatchila?

Sanhedrin 11b - Deciding on Leap Years in Chutz La'aretz

The Braisa says that עיבור שנה can only be done in Yehuda, and if it were done in Galil it is a machlokes whether it would even be binding. The gemara learns it out of a pasuk לשכנו תדרשו ובאת שמה - כל דרישה שאתה דורש לא יהיו אלא בשכנו של מקום. Rashi seems to understand that the requirement is to do it specifically in Yerushalayim, and adds that it must be the beis din that is established in yerushalayim, referring to the Sanhedrin. However, Tosafos seems to contrast the gemara with being me'aber the year in chutz la'aretz, implying that all we require is that it take place in Eretz Yisroel, but not necessarily Yerushalyim. The Rambam (Kiddush HaChodesh 1:8) also writes that being me'aber the year and kiddush HaChodesh must take place in Eretz Yisroel, but doesn't mention Yerushalayim.

Regarding the particular aspect that must take place in E.Y. or Yerushalayim, Tosafos seems to understand that it is the actual sanctification and declaration, but the calculation may be done even in Chutz la'aretz. However, the Minchas Chinuch (4) understands from the Rambam that even the calculation must take place in E.Y., and cannot be done in chutz la'aretz.

Tosafos quotes from the gemara in Brachos that if the gadol hador is in chutz la'aretz, the requirement of the kiddush to be done by the gadol hador trumps the requirement of it being done in E.Y. However, the Minchas Chinuch raises a question, what if the gadol hador is in E.Y. but it is not feasible to do the ibur in E.Y., can it be done in chutz la'aretz? He quotes from our Tosafos who cite the Yerushalmi that if the ibur cannot be done in E.Y. it can be done in chutz la'aretz, just as we find that Yirmiyahu and Yechezkel and Baruch ben Naria were me'aber in chutz la'aretz. But, the Minchas Chinuch challenges the proof of Tosafos. Although we find that the nevi'im were me'aber in chutz la'aretz, that is because the mitzvah of ibur in E.Y. is only during a time period when E.Y. retains its kedusha, but during the galus when the kedusha rishona was lost, they can be me'aber even in chutz la'aretz. Therefore, the fact that the nevi'im were me'aber in chutz la'aretz doesn't prove that any o'nes in E.Y. entitles the ibur to take place in chutz la'aretz, because that is only during the time of the galus when E.Y. lost its kedusha. The minchas chinuch proves his point from the gemara in megilla 14a which says that we only say hallel on a miracle that took place in E.Y., which only applies when E.Y. is chosen, to the exclusion of the exodus from Mitzrayim which was prior to E.Y. being chosen. Based on this, the minchas chinuch concludes that nowadays when we say that the קדושה שניה קדשה לשעתה וקדשה לעתיד לבא, even if there is an o'nes that prevents kiddush in E.Y., it cannot take place in chutz la'aretz.

The Minchas Chinuch concludes that this is all assuming that the kedusha relevant to being mekadesh and me'aber in E.Y. is kedusha for Teruma and Ma'aser, but since we learn this din from the pasuk of לשכנו תדרשו and כי מציון תצא תורה as Tosafos points out, it is really dependent on kedusha of Yerushalayim and the Beis Hamikdash where the kedusha was associated with the shechina rather than kedusha of the land, and the kedusha of the shechina was not lost in the galus bavel (Rambam Beis HaBechira 6:14-15). Since we see that even in the time where Yerushalayim had its kedusha, the nevi'im were mekadesh in chutz la'aretz, it is clear that whenever there is an o'nes that prevents kiddush or ibur in E.Y., it can be done in chutz la'aretz.

Sanhedrin 9b - Believing a Witness Partially

The Rosh in Makos (1:13) quotes the Ra'avad who asks, why does the gemara say that a witness who is a relative of the areiv cannot testify on a loan. We should use the concept of פלגינן דיבורא and believe the witness for the borrower, but not for the areiv? The Ra'avad explains that any witness who is a relative is subject to the rule of עדות שבטלה מקצתה בטלה כולה and we don't apply the concept of פלגינן דיבורא. It is only when a person testifies about himself where we say that since he is relative to himself and doesn't qualify as a witness at all, we believe him only about the other person. Without qualifying as a witness, we can't apply the rule of עדות שבטלה מקצתה בטלה כולה. With this the Ra'avad explains the hava amina that we shouldn't say palginan dibura when testifying about his wife committing adultery, and concludes that we do believe the husband to testify about the adulterer. The gemara thought that the relationship between a husband and wife isn't strong enough to give her the status of "himself", therefore he would qualify as an invalid witness as he would when he testifies about all other relative, invalidating the entire testimony. The gemara concludes that since we view אשתו כגופו, it is literally as if he were testifying about himself and not a witness at all, so we are entitled to apply the concept of palginan dibura. This approach is very different than Rashi's peshat in the gemara 10a who explains the hava amina that rather than invalidating his testimony on the adulterer, we validate his testimony even regarding the wife. Rashi understands that we knew all along that we accept his testimony on the adulterer and the whole discussion is whether we kill the wife also. Tosafos also explains like rashi.

Sanhedrin 5b - Paskening an Outrageous P'sak

The gemara says that R. Chiya refused to give Rav semicha to paskin on Bechoros because Rav was to much of an expert and would likely permit things that would lead people to compare other blemishes to it, and permit what should be forbidden. The Shulchan Aruch Y.D. 242:10 writes that it is forbidden for a Posek to paskan a p'sak that is תמוה, strange, to the public in a way where it would seem to everyone that he was matir an issur. Gr"a cites our gemara as the source of this ruling, as does the shach (17) from hagahos maymonies. The Shiyurei Bracha printed on the margin discusses whether the nature of this prohibition is that the people will suspect the chacham of making a mistake, or mislead them to make a mistake. He proves from the source being our gemara that the concern is not just a chashad, but that it will lead the public to make a mistake.

In R. Moshe's teshuvos on the topic of artificial insemination (printed in the dibros moshe on kesubos), he was strongly challenged by dayan breish (chelkas yakov) [who he is buried right next to on har menuchos], about this p'sak. One of the challenges was that even if true, it is a p'sak that is strange to the public and shouldn't have been given. R. Moshe responds that the issue of paskening something strange is only when it can potentially lead the rabim to make a mistake and be matir something that should be assur, as in the case of rav regarding being matir bechoros. But, in this case where there is no possibility of leading the public to make a mistake, the din doesn't apply. R. Moshe then goes on to say one of the most classic logical arguments:

וגם לבד זה, הא לא שייך כלל דבר תמוה בזה, דכי עד עתה היה מנהג אצל מורי הוראה לאסור, שהרי רק עתה מעת שנתחדש ענין זה התחילו לדון ע"ז שודאי רשאי מי שסובר שהוא מותר להתיר, ואין להחשיב מה שישנם מורי הוראה אחרים הוסברים לאיסור לדבר תמוה להתיר, שהרי גם אלו הסוברין לאסור יודעין ומבינים גם צד ההיתר ואין להיות להם תימה כשישמעו שיש סוברין להיתר, ואם אין מבינים כלל צד ההיתר אינם מורי הוראה בדבר הזה ואין לחוש להם כלל כי יש להם לעיין בדבר ויראו צד ההיתר ששוב לא יהיה דבר תמוה

Basically, he argues that it is not considered "strange" since even those who hold it is assur certainly see the tzad to be matir, because if they don't see the tzad heter at all, they wouldn't qualify as morei hora'ah and we don't have to be concerned with their opinions at all.

Sanhedrin 5a - Permission From Authorities

The gemara says that either 3 regular people or a mumcheh l'rabim can judge and impose their ruling on the litigants. Both R. Nachman and R. Chiya considered themselves worthy of judging alone. However, the gemara questions the criteria for judging alone. Is it sufficient to just be "gamir v'savir", or must one also get permission from the reish galusa. The gemara concludes that one can serve as an individual judge without permission from the reish galusa, but the permission helps to exempt the judge if he messes up in his ruling.

It is not clear from the gemara what the status is when one has permission from the reish galusa, but no other qualifications. The Rambam (recorded by Nimukei Yosef) writes in Hilchos Sanhedrin (perek 4) that one who is not fit to judge because he doesn't know, even if he is appointed by the reish galusa or even if he appointed by a beis din, the permission he is given is worthless. The Rambam compares this to one who sanctifies an animal with a mum as a korban, obviously this type of sanctification is completely disregarded. This doesn't seem to fit with the Rosh (2) who writes that the statement of Rav and Shmuel that one who wants to be exempt from mess ups should seek permission from the reish galusa, implies that even an individual who is not a mumche (expert - r. sharira goan in a teshuva quoted by rosh and nimukei yosef seem to understand that it is a language of experience - ועיקר לשון מומחה - מנוסה כדתניא יוצאין בקביע מומחה ומפרש בגמ' היינו דאיתמחי קמיע). The Shulchan Aruch (c.m. 3:4) quotes the Rambam that permission without being gamir v'savir doesn't help. The Rama writes that permission from a secular government nowadays doesn't even help for anyone, unless the k'hal accepts them. But then the Rama quotes those who say that if he is gamir v'savir, the permission of the non-jewish government will help even nowadays because that is included in their mitzvah of dinim to set up courts and judge.

Sanhedrin 5a - Minimum Amount of Judges

The gemara quotes a braisa that says that monetary issues must be judged with 3, but a mumcha l'rabim (expert) can judge alone. Both R. Nachman and R. Chiya considered themselves worthy of judging alone. Rashi holds that this braisa is proof to R. Acha Brei d'rav ika on 3a who learns from the pasuk בצדק תשפוט עמיתך that m'doraysa one judge is sufficient. The gemara holds that the statement of Shmuel quoted on 3a who says that 2 judges can judge, just that they are considered chatzuf is based on R. Acha. Tosafos points out that the braisa would then be a contradiction to the opinion of R. Avahu 2b who says that 2 judges are worthless because m'doraysa we require 3 judges. Tosafos explains that even R. Avahu can agree with the braisa that one judge works because even if m'doraysa we require 3 experts (which is the opinion of R. Avahu), the Rabbonon allow for a mumcheh l'rabim to judge alone.

Regarding the forcing of the litigants to appear before the court, Tosafos 5a d.h. dan, explains that the 3 hedyotos, or yachid mumcheh l'rabim can force the litigants to appear before them, because in a case where the litigants accept him, he wouldn't need to be a mumcheh l'rabim. However, Tosafos explains that if the litigant is willing to go to court just that he wants a say about who the judge will be, we allow each one to pick a judge and agree on a third. But, if he is not willing to go to any beis din in the city, any beis din can force him to appear before them. This is paskened in Shulchan Aruch (c.m. 3:1) that the defendant has the right to pick a judge and agree on a third, but if he refuses all courts in the city of the claimant, he can be forced to appear before them. The Rama adds that the right of the defendant to pick a judge only applies when there is no established beis din in the city, but if there is an established beis din, they can force the defendant to appear before them. Ketzos HaChoshen (3:1) explains based on tosafos 2b that even if an individual who is not a mumche can judge alone, he cannot force them to appear before him unless he is a mumcheh.

R. Akiva Eiger (on shulchan aruch 3:1) quotes 2 interesting points: 1. If the minhag in a certain place is to follow a system of law designed by the merchants, one can use that system to make a claim against the other and the defendant cannot insist on being judged according to din torah. In these type of situations we apply the rule of minhag overriding the halacha. 2. If the defendant was acquitted in one court, the claimant cannot summon him to court again, and it is forbidden for the beis din to even hear the claim. Furthermore, the defendant is believed to say that he has already been acquitted by another court, unless the claimant can provide witnesses that he is lying.

Sanhedrin 3b - Following Rov by Monetary Issues

The gemara says that although the pesukim that require us to follow the majority of judges and ignore the minority are speaking by dinei nifashos (capital cases), monetary cases can be learned from a kal v'chomer that we follow the majority of judges and don't require a unanimous decision. Tosafos questions how this fits with Shmuel who holds that by monetary issues we don't follow the majority. Tosafos suggests that even Shmuel must agree that a more powerful rov is acceptable to follow even by monetary issues, and following the majority of judges would be considered a more powerful rov.

R. Elchonon Wasserman (kunteros divrei sofrim, chapter 5) quotes this question from Tosafos in Baba Kama. If Shmuel holds that we don't follow rov by monetary cases, why would he agree that we do follow the majority of judges and ignore the minority? Tosafos explains that we consider the minority opinion of the judges to be non-existent, therefore following the majority is not considered following a rov. This seems to be against Tosafos in Sanhedrin who holds that this would be indicative of following rov, although it may have limitations.

What does Tosafos in Baba Kama mean that the minority of judges are considered non-existent? R. Elchonon cites the gemara in baba metzia about the bas kol that went out siding with R. Elazar, but the Chachamim ignored it based on the principle of following the majority and they were the majority. R. Elchonon understands from this that the concept of following the majority applies even when it is clear through ruach hakodesh that they are wrong. However, when we follow the rov in the context of 9 kosher stores and one treif one, and we don't know which store the meat is from - we would obviously not rely on the rov if we were privy to a navi telling us that the meat that we have is actually from the treif store. Clearly, we see that when following the majority of opinions such as judges or rabim vs. yachid, we are entitled to follow them even though it is against what we know to be true. The din of "halacha k'rabim" is very different from the din "rov". The din of "halacha k'rabim" is not a clarification of the truth, rather a gezeiras hakasuv to follow the majority opinion regardless of the truth, but the din "rov" is just an assumption and only works when we don't know for a fact that the piece of meat is assur. Therefore, even Shmuel who doesn't follow rov in monetary cases, allows us to follow the majority of judges.

Baba Basra 175b - Shi'buda D'oraysa

The gemara has a discussion whether shi'bud is d'oraysa or only d'rabonon. The Rashbam quotes pesukim in the context of mashkon, implying that the discussion of shi'bud being d'oraysa or d'rabonon is even in regard to collecting from the borrower himself. Tosafos rejects this approach because even the opinion who holds that shi'bud is not d'oraysa, would hold that the shi'bud that gives the lender the right to collect from the borrower would certainly be d'oraysa. The entire discussion in the gemara is whether the right to collect from those who purchased property from the borrower is d'orasya, but all would agree that the borrower himself is obligated to pay whether he has money or not.

It is clear from Tosafos that the borrower himself is forced to pay with whatever he has, even against his will. It is not clear from Tosafos where this right comes from. If shi'bud is not d'oraysa, what halachic concept enables the lender to collect from the borrower even against his will?

The Ketzos (39:1, towards the end) quotes from the Ramban in our sugya that since the borrower has a mitzvah to repay a loan, we can force him to repay based on the din of כופין על מצות עשה. The Ramban understands that if we can physically force him to do a mitzvah, we can certainly confiscate property which is a lower level method of force - דכיון שכופין אותו לקיים למה יכופו אותו ע"י הכאה, טפי עדיף הכפיה בהורדת נכסים. Therefore, the right to collect from the borrower even against his will is not dependent on shi'bud being d'oraysa. With this the ketzos explains the Rambam (matnos aniyim 7) who says that if a person is not giving enough tzedaka we are confiscate property from him. The Ran cites the Rashba who disagrees. The Ran compromises and says that if he is here and refuses to give, we confiscate property, but if he is overseas we don't confiscate property. The Ketzos asks, what is the rationale behind this distinction? If we have a right to confiscate property we should do so even not in his presence? Based on the Ramban, it is understandable. The right to confiscate property is based on the din of "kofin" - forcing to fulfill a mitzvah. We can only force him to do a mitzvah in his presence, but if he isn't here we can't force him to do a mitzvah.

What does the ketzos mean? Why does the concept of "kofin" only apply when he is present, even if he is overseas we should be able to confiscate property to force him to fulfill the mitzvah? It seems that the ketzos understands that when we force someone to do a mitzvah, it only makes sense if he will actually be making a decision to do the mitzvah. Even in his presence, one can argue that forcing him physically to make a decision to give tzedaka is understandable, but to confiscate property doesn't make sense because he is not doing anything. How can we force him to give, when he isn't giving at all, we are just taking? The answer is that when he sees us taking his property for tzedaka and realizes that he has no way out, we assume that he will make up his mind to "give", just as when he is physically forced. But, if he is overseas and completely unaware that he is "giving", that doesn't qualify as giving at all, rather we are "taking" and he would not be fulfilling any mitzvah. This is not dependent on the concept of mitzvos requiring kavana, it is far more fundamental. Even if mitzvos don't need kavana, it only qualifies as a mitzvah if the person has some involvement, either doing an action or making a decision. Confiscating property that he is unaware of would not be considered doing a mitzvah, therefore when he is overseas the beis din doesn't confiscate his property.

Baba Basra 174a - More about Areiv and Kablan

In the post yesterday I pointed to a machlokes between the ketzos and nesivos whether the obligation of an areiv is a result of the pleasure he receives by the lender willing to lend based on his acceptance of responsibility, or whether we view the lender to be serving as an agent of the areiv in the lending of the money.

It seems that this is actually the difference between an areiv and a kablan. The gemara 174a points out that language of "give" is indicative of kablan, whereas language of "lend" is indicative of an areiv. The Rashbam explains - תן לו: מסור הממון בידו ואני אפרענו לך, אין כאן לשון הלואה אלא שליחותיה דהאי דקאמר "תן לו" עביד מלוה. The Rashbam seems to understand that the shi'bud of a kablan is a result of shlichus (like the ketzos). Meaning, the the lender is serving as the agent of the kablan by lending the money, so that the lender can surely go to the person who commanded him and sent him, which is the kablan, to collect. Basically, in the set up of a kablan, the relationship seems to be between the kablan and the lender, where the lender serves as the shliach of the kablan in the loan. But, in the set up of an areiv the relationship is between the borrower and the areiv, where the areiv accepts the responsibility to cosign for him. Therefore, the shi'bud of the areiv is a result of the benefit that he gets as the gemara explains, not the lender serving as his shliach.

With this we can understand the gemara 173b that originally brought a proof to the shi'bud of an areiv from the pasuk by Yehuda, and then says that it wasn't a situation of areiv, rather a situation of kablan. The gemara means to say that Yehuda's relationship is with yakov, yehuda is the kablan and yakov is the giver (or lender), therefore it is more similar to kablan than to areiv. The gemara seems to hold that a kablan is not just a stronger areiv, because if that were the case then the ability to prove that kablanus works would imply that areiv certainly works, so what is the dichuy? The gemara seems to understand that the mechanics of how an areiv is obligated is completely different from the mechanics in how a kablan is obligated, that is why a kablan isn't a proof for an areiv. Basically, an areiv is bound as explained by the nesivos, whereas a kablan is bound as explained by the ketzos.

Baba Basra 173b - Status of an Areiv (cosigner)

There is a fundamental argument between the ketzos and nesivos (C.M. 129) to explain what binds an areiv to have to pay the debt, if the borrower defaults on the loan. The Ketzos understands from the Rashbam that the lender is considered an agent of the ערב, as if the areiv were lending money to the borrower but asking the lender to lay it out for him. Rashbam writes - ושליחותא דערב קא עביד מלוה, כאילו הוא (הערב) עצמו הלוה. According to this approach, the ketzos explains that an areiv can only be bound to pay the debt if he commands the lender to lend with a language that can be considered the appointment of a shliach. But, if the areiv would say "I will be an areiv for anyone who lends money to Reuven", it is similar to the language of "whoever gives food to Reuven will not lose", which is not considered a language of shlichus and is permitted even if Reuven is mudar hana'ah. Here too, it is not considered a language of shlichus and therefore the areiv would not be bound to pay the debt. However, the Nesivos argues that this cannot be the concept that binds an areiv to pay the debt. We find some tana'im who hold that even if one accepts to be an areiv after the money was lent, he can be misha'abed himself as an areiv. These opinion surely don't consider the obligation of the areiv to be because of shlichus, because the money wasn't lent by the lender as a shliach of the areiv. Even the opinions who say he cannot be an areiv after the money was lent is because - לא על אמונתו הלהו, but one who accepts to be an areiv at the time that the money is lent would be an areiv even if he doesn't use the language of shlichus. The Nesivos concludes that what binds an areiv is the fact that the lender is willing to lend based on his acceptance of responsibility. This is the simple understanding of the gemara - בההוא הנאה דקא מהימן ליה, גמר ומשתעבד נפשיה.

The gemara says in kiddushin that if a woman says to a man, give money so my friend and I will be mikudeshes to you, the kiddushin is binding based on the din areiv. Just as an areiv doesn't receive money yet he binds himself as a result of the pleasure he receives by the lender willing to lend as a result of his acceptance of responsibility, so too the woman receives pleasure that will make her mikudeshes by the man willing to give money based on her word. If we assume like the ketzos that what binds an areiv is the concept of shlichus, how is the woman mikudeshes? We would consider the man to be serving as her agent to give the money to her friend, but how do we consider it as if she herself received the money? This would seem to be a proof to the nesivos that the ability of an areiv to be mi'shabed himself is the pleasure he receives in exchange by his command being followed, not the concept of shlichus.

This also seems to be clear from the gemara's original source - אנכי אערבנו מידי תבקשנו, which is when Yehuda accepted responsibility for Binyamin if he fails to return him back to Yakov. There is no concept of shlichus in that case, rather it was Yehuda willing to be mi'shabed himself as a result of the hana'ah he received from Yakov trusting him.

Baba Basra 172b - Writing מהיום in a Gett

The Shulchan Aruch (E.H. 127:7) writes that although a gett must contain a z'man, if it would say in the gett "היום", it would fulfill the requirement to write z'man. The Beis Shmuel (13) quotes the Shiltei Giborim that any gett which just has the term hayom without specifying the date, would require eidi mesirah who can verify that the date that the gett is being presented to the beis din is the date on which it was written. The Beis Shmuel asks that our gemara strongly implies that the Shiltei Giborim is wrong. The gemara draws a comparison between the ambiguity of the term "hayom" and the ambiguity of writing "you" instead of specifying the lender. The gemara suggests that if hayom would work to refer to the day that the gett is being presented to the beis din, then "you" should work to identify the holder of the contract to be the lender. The Beis Shmuel asks that if the shiltei giborim is correct and we demand that the eidei mesirah know that the gett was written today, there is no comparison at all between the term hayom in a gett and the term "you" in a shtar halva'ah? Just as a gett would need eidei mesirah to identify the day, the shtar should require eidei mesirah to identify the lender?

R. Shlomo Kluger (chochmas shlomo) explains that the Shiltei Giborim learned the gemara like Tosafos. In the hava amina, the gemara thought that the ability to write hayom in the gett works even according to R. Meir that a gett must have z'man. The rationale as to why it would work is that the term hayom refers to any day that the gett will be presented, similarly the term "you" refers to anyone who is holding the contract (even if he wasn't the lender). This is based on the assumption that the borrower can be misha'beid himself to someone even without borrowing from them, therefore he is able to be misha'beid himself to anyone holding the contract. Based on the hava amina there would certainly not be a need for eidei mesirah to verify that the gett was written today. But, then the gemara pushes this off by saying that the opinion who permits "hayom" in a gett (abba shaul) rather than a specific z'man, is only R. Elazar who allows for eidei mesirah, but according to R. Meir who requires z'man, hayom wouldn't work. Why? Because the term "hayom" doesn't mean any day that the contract is shown to beis din and therefore isn't the equivalent of a z'man, but rather means a specific day. According to this new definition of "hayom", the term "you" would also not refer to any holder of the contract, rather refer specifically to the lender. Therefore, according to the maskana the shiltei giborim would make sense in requiring the eidei mesirah to verify that the contract was written today. Ultimately, the gemara says that even by a shtar chov, the fact that we aren't concerned for it falling from the lender, allows us to assume that the holder of the contract is the lender and it is equivalent to having eidei mesirah verifying that the contract was written today.

Baba Basra 168a - Bring Along an Am HaAretz

I knew someone in yeshiva who would volunteer as to be the am ha'aretz for those who were busy learning. This leitzanus certainly provoked an obvious question:

How is the talmid chacham allowed to take an am haaretz along with him. If the reason that the talmid chacham isn't looking himself is due to an issur of histaklus, how can he bring along an am ha'aretz to sin for him?

Rambam (Issurei Biah 21:3) writes that it is permitted to look (mistakel) at the face of a single girl to check if she is appropriate for him to marry. The Rambam concludes: ואין בזה צד איסור ולא עוד אלא ראוי לעשות כן (the rambam qualifies this heter that he cannot look derech z'nus).

Ra'avad writes on this Rambam - אמר אברהם, חכמים אמרו לידבר עם הארץ בהדיה, אלמא אין דרך ת"ח בכך

The Magid Mishna explains that the Ra'avad's question is not difficult to reconcile. A Talmid Chacham is allowed and even encouraged to look at his perspective spouse, but since he is not accustomed to looking at women, he may not notice if she is switched on him. Therefore, he should bring an am ha'aretz with him who will be able to assure him that she is the correct one. The Magid Mishna then proves his point by saying that if it were indeed prohibited to look, how can he have the am ha'aretz sin for him. Therefore, it must be that there isn't any issur in looking, just that he won't be certain that it is the same woman unless he brings an am ha'aretz with him.

The fundamental machlokes between the Rambam and the Ra'avad seems to be whether there is a chumra or at least midas chassidus not to look at the perspective kallah. Rambam holds that the gemara is merely addressing a practical concern that he may not notice if she is switched unless he brings along an am ha'aretz, but there is no advantage to have an am ha'aretz look at her rather than looking himself. The Ra'avad seems to hold that the premise of the gemara is that talmidei chachamim shouldn't be looking at women even when it is their perspective spouse, therefore it is recommended to bring along an am ha'aretz. Clearly, the Ra'avad would agree that this is no issur, because if it were an issur, it would be assur to bring along an am ha'aretz to do it. The talmid chacham could look at her himself to avoid the concern of her being switched with another, but since there is a midas chasiddus for the talmid chacham to avoid looking at her, he should bring an am ha'aretz to do what he would otherwise have to do himself.

Rabbeinu Gershom writes - משום דצורבא מרבנן לאו אורחיה למידק ולא להסתכל משום צניעות. This implies like the Ra'avad. According to the Rambam there is no halachic chumra in not looking, just that by the talmid chacham looking himself he won't accomplish his goal. The fact that Rabbeinu Gershom considers this a chumra and midas tznius for a TC not to look, indicates that he holds like the Ra'avad.

Baba Basra 165a - One Witness Signing and One Watching

The gemara has a discussion about the ability of two witnesses to combine and create a viable eidus to validate a contract when one witness is signed in a contract and the other is a live witness. Tosafos is not sure what exactly the live witness is testifying about. Tosafos suggest that the case is where the live witness does not see the loan, but sees the borrower delivering the contract to the lender. Tosafos explains - שהרי יש במסירת שטר זה שני עדי מסירה, שהעדם החתום הוא כעד מסירה דמוכיח שמסרו לו לוה למלוה שהוא לא היה חותם אלא בצווי של לוה, והעד שבעל פה מעיד שמסרו לוה למלוה. Tosafos holds that the witness who is signed in the document can actually work as an eid mesirah. The witness signs at the request of the borrower who is admitting to him that he will be mi'shubad to the lender by delivering this document. Therefore, it is as if we have two witnesses watching the delivery of the document from borrower to lender.

This concept that a witness signed in a document can function as an eid mesira, is the approach of the Ran in gittin (48 of the Rif). There is a big discussion how witnesses that sign in a document can function according to R. Eliezer who holds עדי מסירה כרתי, that the witnesses who watch the delivery make the gett or document go into effect. How can the signed witnesses, without eidei mesirah accomplish this? Ran explains - דר"א ס"ל דעדי מסירה בלחוד כרתי ועדי חתימה לא כרתי וכו' ומיהו מאי דמודה ר"א דעדי חתימה מהני, היינו משום דס"ל שהמסירה כורתת כל שיש בשעתה עדים, בין שהם מעידים על המסירה עצמה או על גוף הדבר וכו' דהוו להו עדי חתימה כעדי מסירה וכו' ובידוע שהבעל מסרה לה ונמצאו כאילו הן עצמן מעידים על המסירה. The Ran explains that we regard a witness signed in the document as if he is literally watching the delivery of the document, because the fact the the document is in the hands of the woman or the lender indicates that it was delivered by the husband or borrower.

It is interesting that Tosafos 3a in gittin has a different approach as to why and how eidei mesirah work according to R. Elazar. Tosafos holds that the eidei chasima imply that it was likely given in the presence of eidim, rather than serve themselves as eidei mesira. It seems that Tosafos in Baba Basra holds like the Ran, not like Tosafos in Gittin.