Friday, August 31, 2007

Yevamos 121a - Mayim She'ein Lahem Sof

R' Moshe (E.H. 1:41) was asked about a Talmid Chacham who was missing in the Holocaust, and three years have already passed that they haven't heard from him. Can his wife remarry? He begins the discussion by pointing out what i posted yesterday that there seems to be 2 possible justifications for the chumra of mayim she'ein lahem sof: 1. to be concerned for a mi'ut that is common. 2. a stringency bec. of the chumrah of eishes ish. He explains that both are really true. The fact that most people would have been killed in that situation is a "rov", but there is a mi'ut hamatzuy of people who survive. However, once there is substantial time that passes and we still have not heard anything from him, there is not even a mi'ut hamatzuy to be concerned about, so the only rationale to maintain the issur even after time has passed is because a chumrah of eishes ish. Based on this he explains the rationale for the amoraim for holding that a more famous person (such as a Talmid Chacham) was not included in the gezeira of mayim sh'ein lahem sof. Originially they only made an issur in a case of mi'ut hamatzuy, but didn't want to change the pesak by a regular person based on how long he was missing, so by a regular person the issur was applicable and not removed even if it turned into a mi'ut she'eino matzuy. But, a famous person who we have not heard from, and if he is alive we would have heard right away, they originally considered a miuty sh'eino matzuy and therefore did not make an issur just because of the chumrah of eishes ish. However, the gemara concludes that even by a famous person we begin at the first moment with a mi'ut hamatzuy since is being out of touch could be attributed to many valid explanations, and therefore they imposed an issur even in this case. His point is to develop a yesod that chazal only use the chumra of eishes ish to extend a situation that begins with mi'ut hamatzuy, but if the situation begins as a mi'ut she'eino matzuy, the chumrah of eishes ish is not a compelling enough reason to be concerned for the mi'ut sheino matzuy.

Thursday, August 30, 2007

Yevamos 120b - 121a - Following ROV to Permit Her to Remarry

The mishnah 120a says that you can't testify (even with 2 witnesses) that someone died by simply seeing them in a situation where they are likely to die. It is clear from the mishnah that the testimony of him being in a state where he will likely die, will not be matir his wife. Although there is certainly a ROV that most people in this state will certainly die, we can't be matir her. Tosafos writes this explicitly on 121a that we don't follow ROV to be matir his wife - that is the reason that both by a goses and by mayim sh'ein lahem sof, we can't allow him to remarry. Tosafos on 36a d.h. hu lo shaha, seems to offer 2 possibilities why we are machmir not to follow the rov. 1. the mi'ut is a mi'ut hamatzuy and we are choshesh for it. 2. it is a chumrah of ervah and eishes ish. It would seem that both approaches would only be m'drabonon, but m'doraysa you certainly can be matir based on rov. Based on the assumption that not following the ROV is only a takana d'rabonon, the Nodeh B'yehuda (brought in Pischei Teshuva 17:130) that if we find someone who is cut up so that he will likely die, he then disappears and we find a dead body that is cut up in the same area, but we have no simanim at all on the body - since m'doraysa she can remarry just by the fact that her husband was likely to die, so m'drabonon we can rely on the assumption that the body that was found is her husband. Similarly, we find Teshuvos brought in Pischei Teshuva (133) from R' Chaim Volozhin (and others) that if there is a double ROV you can also be matir her.

Wednesday, August 29, 2007

Yevamos 119a - Issur La'av or Kareis

בגמ' קי"ט. פרש"י מה לי איסור לאו, וז"ל הא מידי דספיקא לאו הרחקה דרבנן היא בדבר המותר דנימא לכרת עביד הרחקה, ללאו לא עביד הרחקה בדבר המותר, דהכא שמא איסורא דאורייתא ממש קעביד עכ"ל. ולפום ריהטא משמע מפרש"י דספק דאורייתא לא הוי הרחקה דרבנן אלא ספק דאורייתא הוא לחומרא מדאורייתא, ומש"ה אין מקום לחלק בין לאו וכרת. אכן, כד נדייק בלשונו מבואר להיפך, דעיקר חילוק הוא בין היכא דאמרו חכמים להחמיר כדי להרחיקו מעבירה ולעשות גדר וסייג דכל כה"ג אפשר לומר דהחמירו באיסור חמור ולא באיסור קל, משא"כ בספק דאורייתא אע"פ שהוא רק לחומרא מדרבנן מ"מ עיקר תקנתם הוא לחוש לספק דאורייתא דשמא איסורא דאורייתא ממש קעביד, מש"ה אין מקום לחלק בין ספק באיסור לאו וספק באיסור כרת. ויש לעיין במקום דלא הוי ספק דאורייתא ממש משום דהוי רק חששא רחוקה ומיעוטא, אלא שהחמירו חכמים לחוש לחשש איסור דאורייתא כמו שעשו בגבינת עכו"ם שמא העמידה בקיבת נבילה, אם גם בכה"ג אמרינן שראוי להחמיר בספק כיון דאינו אלא הרחקה וסייג אלא שחששו רבנן לחשש דאורייתא אע"פ שאינו ספק בעצם, או אם כוונתו של רש"י בזה הוא רק באופן דהוי ספק השקול וחשש גמור של איסור דאורייתא

Yevamos 118b - Mezakeh a Gett to a Woman

The gemara remains with a question regarding being mezakeh a get to prevent yibum would be considered beneficial and is effective, or detrimental and therefore ineffective. It is clear from the rashi that we are speaking of a situation where the purpose of this divorce is only to exempt her from yibum i.e. he is dying or he makes the get chal a moment before he dies, but in a normal situation we always assume that it is detrimental for her to receive a get since she prefers to stay married. Even when there are fights between them (to a point where she claims she is already divorced, as the gemara explained the term "ketata" on 116a), we still assume that she prefers to stay married. The Nimukei Yosef points out that even if we ask her afterward if she was happy to receive the get and she confirms that she was, we cannot consider it a z'chus since we must make the determination of whether it is a chov or z'chus at the time it is received, and not figure it out in retrospect. Similarly, if she made it clear that she wants to receive a get, we still cannot be mezakeh a get to her, since we are concerned she changed her mind.
Nevertheless, when a women is a mumeres and literally moves in with someone else, the Rama (140:5 and also the end of siman 1) writes that it is certainly a z'chus for her to receive the get to prevent her from doing a continuous aveirah and therefore is considered a z'chus. It seems that even if she claims that she doesn't want it, we only use "will" as a method of determining z'chus or chov, when something is a physical benefit since the "will" to receive it or not to receive it is the factor that determines whether it is a benefit for this person. But, when it comes to an aveirah, "will" alone does not determine z'chus or chov since her yetzer horah blocks her from realizing the severity of the issur, therefore we ignore her "will and instead look at whether it is inherently beneficial.

Tuesday, August 28, 2007

Yevamos 118a - "Tamus Nafshi Im Plishtim"

The gemara says that 2 women that are tzaros, one says the husband is dead and the other says the husband is alive, we do not allow the one who claims her husband is alive, I would have thought that we assume the husband is actually dead, and the reason that one is claiming he is alive is simply to try to prevent her tzara from getting remarried. Although by making such a claim she will prevent herself from getting remarried as well, we are concerned that "tamus nafshi im plishtim", meaning that she is willing to sacrifice her own ability to remarry just to mess up her tzara.
From the gemara we see that a woman is willing to be me'agen herself and refrain from remarriage to mess up her tzarah, but we don't necessarily see that she is willing to be mekalkel herself (by getting remarried even though she have no knowledge of her husband being dead) in order to ruin her tzarah. However, Rashi 118a d.h. tza'arah, says that the reason that one tzara cannot testify for the other even if she gets married, is that we are afraid she is willing to be mekalkel herself and risk all the penalties of the mishna in 10th perek in order to ruin her tzarah.
What if one tzara would testify that her husband died and remarry so that she cannot go back to her first husband (even if he would return), so that she wil no longer be a tzara to the other woman. Can she now return to court after getting remarried and testify once again that this man is dead to allow the tzara to remarry since at this point they are not longer tzaros? See Tosafos 117b d.h. la'av, who may hold that even if the daughter in law would return to court after remarrying (and is no longer going to be a daughter in law), cannot return to court to testify about her ex-mother in law that her ex-father in law died.

Monday, August 27, 2007

Yevamos - Believability of A Single Witness That Her Husband Died

There is a major machlokes Rishonim based on the gemara on 88a which implies that the right to belive an eid echad that a woman's husband died, is only d'rabonon. The Pischei Teshuva 17:13 cites the Nimukei Yosef who maintains that the eid echad is believed m'doraysa, since the eid echad is complimented by the fact that she will be dayak u'minsiba, meaning she will be cautious not to remarry until she properly researches that her husband is dead. This assumption creates a chazaka that if she remarries the husband is dead even from a d'oraysa perspective. But, Tosafos and other Rishonim maintain that it was a special leniency instituted by the Rabonon, and Tosafos pushes to explain why it would not qualify as uprooting a Torah law, since that is really what is happening for the sake of trying to be lenient to be matir an Agunah.
One way or the other, the beleivability of a woman is based on the assumption that she will be cautious before remarrying to properly research and make sure that he is dead.
R' Akiva Eiger discusses in a Teshuva (123) a situation where a woman got remarried without any testimony, she had children from the second marriage, and only after she died did an eid echad show up to testify that her first husband died prior to her remarriage so that these children from the second marriage are not mamzeirim. R' Akiva Eiger is not sure whether the eid echad is sufficient since the chazaka of dayaka uminsiba, that she will be cautious to research, only applies if she is working of the testimony of an eid, but in this case we may have to assume that she remarried without any research so the eid echad is not believed and her children are mamzeirim (In the end he seems to rule leniently).
Another question that he raises is in a case where a woman's husband disappeared and she committed adultery, then a single witness came and said that after she committed adultery (and became forbidden to her husband) her husband died. Do we rely on the eid echad in conjunction with the fact that she will be dayaka, because normally she is dayaka to prevent becoming assur to her first husband, but here she will anyway be assur to her first husband because of adultery, but maybe she will be dayka to prevent her from being assur to her second husband or to prevent her children from becoming mamzeirim?

Sunday, August 26, 2007

who is believed?

the mishna says we believe the woman to say that her husband died but not for the brothers to get the yerusha. according to those rishonim that 1 witness is believed m'doraysa then why don't we believe for yerusha?

another question i had, since we see even m'doraysa you can be believed with out 2 witnesses, simply put - there is another way to be believed, thru regular din witnesses or thru anan sahadei or other types of reliability, if so, why when moshe and aharon come to testify don't we believe them? even if there is a pasuk that says they aren't kosher witnesses, but they should create an anan sahadei type of reliability?

the answer can be found to both issues by seeing how the ritva explains the concept of 1 wittiness being believed m'doraysa. i don't want to spoil it - so please look there in 88a and more importantly see how the chazon ish explains the ritva (brought by rav yahfen), it's wild! the general idea is that even after the sevaros of reliability it works thru din of eidus and this is limited to the way chachamim want it - you must see there.

one more related point, what is the concept of a woman being believed to say she was divorced against her husband denial and the chazaka of eishes ish, how does chazaka that she will not be brazen and lie enough to get her out of a marriage, don't you need witnesses? someone suggested to me that her chazaka that she doesn't lie is really a "rov" or the psychology of man (rov that come from a chazaka), if so we don't really believe her per say but rely on the rov against the chazaka of eishes ish.

Friday, August 24, 2007

Yevamos 114a - Chinuch

The gemara assumes that "ein beis din metzuvin l'hafrisho" from an issur d'rabonon, and questions whether they are chayev l'hafrisho from a d'oraysa. However, the gemara assumes (as pointed out by Tosafos Chad m'kamai, that one may not tell a child to do an issur, even if it is only d'rabonon. Similarly, if the father shows that he is happy with the child doing it, it is tantamount to telling the child to do it and is assur even by a d'rabonon. The gemara also implies that there is an issur d'oraysa to feed a child issur b'yadyim (as paskened in shulchan aruch o.c. 343).
Now, why does the gemara not address the inyan of chinuch since we are talking about the child going back to his taty from zeidy the am ha'aretz, yet there is not discussion about being mafrish him bec. of chinuch? Either we are speaking about a child who is too young for chinuch, and still if there would be a chiyuv to be mafrish a child from issur, it would apply even to a very young child. Or, chinuch is only by a positive mitzvah, not by a lo ta'aseh (see rashbah).
Also, assuming feeding a child issur is d'oraysa bec. we learn from dam, sheretz, and tum'ah to other places, is it also an issur d'oraysa to tell a child to eat it (or if he does it al da'as aviv - meaning his father indicates that he is happy that the child did it)?
My brother R' Aryeh wrote a long article on these issues - maybe we can solicit him to post a link in the comments.

Thursday, August 23, 2007

Yevamos 113a - What is a Fool?

Generally the hagdara of a "shoteh" in the entire torah who is patur from mitzvos is classified by the gemara in chagiga 3b as someone who may have a high IQ but does crazy things. R' Moshe (Even Haezer 1:120) has an elaborate and controversial teshuva explaining that if he does one of the crazy acts mentioned, we assume he is a shoteh until proven otherwise, but if we can prove otherwise, then he is no longer considered a shoteh (but he points out that the Rambam implies that we consider him a shoteh even if he is crazy in only one thing and nothing else, he is still patur from mitzvos- but R' Moshe is then mechadesh that regarding giving a get, so long as he understands the inyan, it is valid).
A man who has shoteh status cannot divorce his wife since he needs to be a bar da'as, but a woman can be divorced against her will and therefore the gemara says she can receive a get m'dorasya. However, the Torah requires that in order to receive a 'get', she must: 1. Be able to watch her get, which means to distinguish between the get and something else (Gittin 64b). 2. She must have enough understanding about the concept of divorce that she does not return to the husbands house. The gemara concludes that even one who is a shoteh for everything else, can have enough da'as to distinguish between a get and something else, and realize that she must not return. But, since she will most likely be mafkir herself to z'nus, chazal do not allow you to divorce her.
Tosafos and Rashi argue about a girl who is unable to distinguish between her get and something else, and will also continue to return after the divorce, whether the father can receive the get for her. Tosafos seems to understand that the father preventing her from returning qualifies, implying that it is a practical consideration that she must be someone who will not return, rather than being an issue of da'as. Rashi seems to understand that the father preventing her from returning isn't sufficient since it is a da'as requirement and she is still missing the da'as. It is interesting to note that according to Tosafos, a woman who is sometimes a shoteh and sometimes healthy, can receive a get at a time where she has enough intellect not to return, even though she is likely to once again become a shoteh and return to her husbands house (v'dok).
R' Moshe (Y.D. 4:29 and Even Haezer 1:164 makes a very important distinction between a shoteh and someone with a very low IQ, implying that many mentally retarded people do not halachically qualify as a shoteh. I think his approach is very meduyak in the gemara and rashi on the bottom of 113a that a low level intellect which thinks clearly and straight (rather than 'krum' qualifies as sufficient da'as).

Wednesday, August 22, 2007

Yevamos 112a - Temeiah Ani Lecha

The gemara quotes the mishna in nedarim 90b that originally a women was beleived to say that she was raped, but then they instituted not to beleive her out of concern that she wants out of this marriage to go marry someone else. The Ran in Nedarim offers 2 peshatim to explain how they can change whether she is beleived or not - Is she beleived m'doraysa or not? One mehalech is that she is beleived m'doraysa but the mishnah achrona holds that they uprooted the kiddushin (kol d'mekadesh) so that the z'nus was not done as an aishes ish and she is still mutar to him. The 2nd approach is that m'doraysa she is not beleived, but the mishnah rishonah was a takana to beleive her since there is some raglayim l'davar that she is telling the truth since otherwise she would not degrade herself, and in the mishna achrona they were simply mevatel the original takana.
Tosafos there asks, even if we assume that we have the right not to believe her in the mishna achrona, how can we allow her to stay with him since she was "shavyeh anafsheh chaticha d'issura"? The famous answer is the chiddush that the issur zonah to a kohen is only an issur on him, not on her, so even acc. to what she is saying she is not assur to him, just he is assur to her. This is argued on by all rishonim based on an earlier gemara in yevamos that assumes whenever he is assur, she is also assur. Tosafos then answers that the chachamim have the power to be mevatel her "shavya anafshe" - which may shed some light as to the mechanics of "shavya anafshe" and how it works, which is a big machlokes achronim.

Tuesday, August 21, 2007

Yevamos 110a - Uprooting the Marriage

The gemara says that since the second man acted improperly by trying to be mekadesh this woman when she was under the chupah, we treat his as he was treated and uproot the kiddushin. Rashi assumes that whenever the chachamim uproot the condition, it is because one who is mekadesh does so "al da'as chachamim", as he says at the time of kiddushin "k'das moshe v'yisroel" (to the exclusion of Tosafos here and in Baba Basra who understand that when one acts improperly, and is not mekadesh al da'as chachamim, they use their power of uprooting a d'oraysa to uproot the marriage). Based on this approach, when one is mekadesh a woman, it is the equivalent of making a condition or stipulation, that the kiddushin should be based on the da'as of chachamim (it is not necessary to follow dinei tenaim such as tnai kaful.... because it is understood that one wishes to make such a condition). Why then does Rashi have to explain the statement of the gemara "Teinach d'kadesh b'kaspa" to mean that the power the chachamim use to uproot the kiddushin is hefker beis din, even without that power they should be able to uproot the kiddushin since it is as if he stipulated that the kiddushin should only be binding if the chachamim agree to it? Had Rashi explained that we need hefker beis din to explain why she can keep the money and not have to return it, then it would make sense. But, Rashi seems to explains that we need hefker beis din to prevent the kiddushin from being binding - WHY?

Sunday, August 19, 2007

Yevamos 109b - Kiddushin as a Ketana Turns into D'oraysa

The gemara has a tzad to explain r' gamliel, that the original kiddushin as a ketana develops somehow into a kiddushin d'oraysa. Rashi seems to indicate that when she turns into a gedola and does not do mi'un we retroactively turn the kiddushin as a ketana into being kiddushin d'oraysa (similar to a ger kattan who is not mocheh as a gadol, so that retroactively we consider it to be a zechus and was therefore a geirus d'oraysa). However, Tosafos seems to indicate that the the kiddushin accepted as a ketana is not going to be retroactive, rather will be automatic, without a new act of kiddushin being required as a gedola.
Rashi's approach explains better the reason why it will uproot the zikah, since the kiddushin was retroactively chal before the zika. But, it is very difficult to understand how the kiddushin could possibly work retroactively since at the time she received it she did not have a yad to receive the kiddushin, nor was she a bas da'as to consent to it.
Tosafsos approach explains better how the kiddushin could work, as tosafos ha'rosh explains that if the kiddushin is not going to be chal, the money she received should have to be returned, therefore, that money that she received and is not returning turns into kiddushin d'oraysa as soon as she is a gedola. However, it is difficult to understand how it can uproot the zikah since the zika will still be chal before the chalos of the kiddushin.


in one answer. acc to bais shamai the young lady has to reconfirm her miun when she gets older becuase we are worried she might have changed her mind. i wonder, and if she did - so what? would she be remarried? would she need another act of kidushin? i would think she isn't married just because she changed her mind, so what's the issue?

Friday, August 17, 2007

Yevamos 107b - Marriage with Her Consent

The Mishna says that the only type of marriage that she need to do mi'un for is: Her mother or brother married her off (nesuah), willingly. What does l'da'atah - willingly, mean? Nemukei Yosef seems to be bothered by this, since we normally assume that a child does not have da'as and therefore therefore their "will" is never able to be determined. The nemukei yosef quotes the yerushalmi that willingly would be to get her dressed for the wedding and tell her that she will be moving in with a man, but not willingly would be to trick her by dressing her for a wedding and not telling her it is for her own wedding. Alternatively, he says that willingly means she must be at least 11 years old, where she presumably has some da'as since it is o'nas nedarim.
Another diyuk in the mishnah, found in the Ramban, is that if her mother and brother simply accepted money for kiddushin from someone, that would not require mi'un. Only if they give her over to nissuin, would there be a need for a formal mi'un.

video of chalitza

Thursday, August 16, 2007


תמה אני, דתוספות אומר שקושית הגמרא והא קא מתהניא מעבירה לא היתה שצריכה למסור נפשה כיון שהיתה קרקע עולם, וצ"ע דלעיל בריש פרק הבא על יבמתו מתבאר בתוספות שחיוב מיתה בעריות הוא על ההנאה (וכן מבואר בגמרא ב"ק לב א' וז"ל "התם תרוייהו כהדדי נינהו הכא איהו קעביד מעשה והיא לא והכתיב ונכרתו הנפשות העושות מקרב עמם הנאה לתרוייהו אית להו איהו מעשה הוא דקעביד" ושם בתוספות "...דרחמנא אחשביה להנאה מעשה") וא"כ בהו"א שהיה לה הנאה וודאי שייך שתתחייב מיתה אפילו אם היא קרקע עולם? תמוה

Wednesday, August 15, 2007

Yevamos 105a - Chalitzah with Left Hand and Teeth

Tosafos explains that just as the gemara allows chalitzah to be done with her teeth, it would also be allowed with her left hand, so the yerushalmi (quoted in Tosafos 102a bottom) that chalitzah should be with the right hand, is only lechatchila. However, Tosafos in Chulin 20a d.h. lo, entertains the possibility that although chalitzah cannot be done with the left hand, it still can be done with the teeth. What would be the logic to say that the left hand is worse than using teeth? It would seem that the heter of using teeth is only for one who does not have hands (as is mefurash in the gemara). For such an individual the teeth would be the way they move things around and do everything and would therefore become their "hands", but someone who has a right hand, only his right would qualify as his normal way of moving things and therefore we would require him to use his right hand. Based on this, if his right hand would be cut off, his left hand becomes like his right hand and he must then use his left hand and not his teeth.
However, this doesn't seem to fit into Tosafos in Chulin since Tosafos wants to prove from here that melika (shechting a bird) with his left hand may be worse than teeth. Tosafos seems to understand that even though we are not refering to someone missing hands (bec. that would render the kohein a ba'al mum) still there is some rationale that teeth would be better than the left hand! What is the rationale?

Tuesday, August 14, 2007

Yevamos 104b - Chalitzah for one who can't hear

The gemara says that if either the yaveim or yevama cannot speak they cannot do chalitzah since one has to at least be fit for kriah. The Rashash discusses one who cannot hear but can speak, so she is technically fit for kriah, but it is impossible for the dayanim to teach her what to say (that is his case), so she won't be saying anything, is the chalitzah valid? He suggests that if the dayanaim cannot teach her what to say, she is not fit for kriah and the chalitzah would not be valid (he then goes on to deal with the shayla from a different perspective). The Ramban says that if the yaveim or Yevama is deaf but they can speak, they cannot do chalitzah since the beis din cannot fulfill the "v'koru lo" (the Ritva says a little differently that the yaveim and yevama have to be able to hear each other). The Ramban approach is different from the Rashash in that the Ramban seems to understand that the obligation of the Beis Din is to actually teach them what to say, not just that they should be fit for kriah. If the Beis Din taught them what to say and then she becomes deaf, R' Ahron Yafen understands that this would be okay according to the Ramban even if she did not actually do kriah (even if she forgot what to say, since the beis din fulfilled the obligation to teach them what to say), but based on the Rashash it would not be okay if at the time when the kriah should be done, she forgot what to say and is not fit for kriah.

Monday, August 13, 2007

Yevamos 102 - 103 - A Couple of Points:

1. Gemara equates Yom Kippur and Chalitzah regarding na'al (anpilya). By chalitzah the gemara defines a shoe that is fully leather (and acc. to tosafos must even be a kosher animal). This is not a special din in chalitzah but rather the definition of a shoe as learned from the pasuk of "v'enalecha tachash". Based on this only a fully leather shoe should be assur on Yom Kippur!
2. Ameimar who says that the yaveim must put his entire foot on the floor, is this l'chatchila or even bidieved? Tosafos says that the braisa which says he can be sitting or lying is only bidieved, but l'chatchila he must stand. The gemara asks on ameimar from this braisa. Based on Tosafos we should be able to answer that the braisa allows lying down only bidieved, but l'chatchila one must put their entire foot on the floor. What then is the gemara's question?! It must be that ameimar is even bidieved, that his foot must be fully on the ground to qualify as chalitzah, then the gemara has a fair question from the case of lying down. To exclusion of Ra'avad who says that ameimar is only l'chachila.
3. "Shok" in the gemara refers to the calf, not the thigh. Chason Ish (O.C. 16:8) discusses "shok b'ish ervah" - the leg of a women is an ervah, whether this refers to the calf or the thigh. He suggests it refers to the calf (as our gemara would indicate) and therefore would requires skirts to the ankles meikar hadin. He then concludes that it could mean the thigh, in which case it would be permitted to have skirts down to the knees.

yevamos 103 סנדל שאין לו עקב

לכאורה היה נראה שסנדל שאין לו עקב לא הוי נעל בכלל ולא הוי חסרון מסויים בדין חליצה, אלא שמהריטב"א סוף קב ע"ב מוכח לא כן אלא שהוי פסול מסויים בחליצה ע"ש. ובאמת כך נראה מוכח מהגמרא שממעטת את סנדל שאין לו עכב ביחד אם המיעוט של סנדל גדול או קטן, דבהנך תרי מיעוטי וודאי שיש לזה שם נעל אלא שבשבילו זה לא נעל כיו שגדול או קטן מידי. ומעצם הגמרא מוכח דצריך מיעוט מסויים של נעלו ואי היינו אומרים נעל נעל ריבה הו"א שגם סנדל שאין לו עקב כשר, והלא תימה דהרי אין לו כלל שם נעל אלא שמוכח שהוי מיעוט מסויים בחליצה

ואח"כ מצאתי שהבאר היטב מפרש מדוע סנדל שאין לו עקב פסול וז"ל "שצריך שלא יוציא הרגל חוץ למנעל" פירוש: שזה פסול מסויים במעשה החליצה ולא פסול מדין השם נעל. וכל הנ"ל אפשר לומר לפירוש התוספות במהו עקב אך לפרש"י שעקב הוי שול"א לכאורה קשה כל הנ"ל דהרי אין לזה בכלל שם נעל. וצ"ע ואולי נכלל בקושיות התוספות

Friday, August 10, 2007

yevamos 100-101

Rashi assumes in the end of the mishna 100b that if we have a safek to which mishmar the kohen belongs to, he can force his way into serving together with either mishmar. following this premise, tosfos asks in 101a how does the gemara know that we may force the kohen to come and serve because of "p'gam mish'pacha", maybe the mishna means that he can force the mishmar to let him work. point is both rashi and tosfos assume that in our case the kohen may force the mishmar to let him serve just he cannot force him to get the meat and skins etc.

The tosfos y"t wonders why they assume this, maybe he shouldn't be able to force them to let him serve?? the tosfos y"t wants to argue and say that in fact he cannot force his way into service just as he cannot force them to give him the meat and skins and with this tosfos question in 101a falls away. what is the argument here???

Thursday, August 09, 2007

Yevamos 99b - Safek Making Agent For Korban

Rashi in his first peshat says that the safek kohen safek yisroel can appoint someone to bring his korban for him as a shliach, since a kohen has the right to bring it himself whenever he wants, he can also appoint a shliach, so too this safek kohen who is entitled to bring the korban from a monetary perspective (hamotzi meichaveiro alav ha'raya), he can also appoint a shliach. Rashi asks that since practically he cannot sacrifice the korban himself since he is a safek yisroel, he should not have the ability to appoint a shliach. Tosafos answers that he is like an elderly or ill person who cannot sacrifice himself, yet he can appoint a shliach. Tosafos seems to understand that when we determine whether he can appoint a shliach, we look at whether he is technically fit to do it himself, and on the tzad that he is a kohen he is techincally fit to bring it himself, just that practically he cannot since he may be a yisroel. Therefore, he is considered fit to bring the korban, just that it is practically not possible for him to do it himself (pumei hu d'kaiv lei), so he can appoint a shliach.
The question on Tosafos is: How does Tosafos compare him to an elderly or sick person, since Tosafos says that the rationale to allow an elderly or sick person appoint a shliach is that "he is fit with difficulty to do it himself". But in our case where he is a safek yisroel and practically speaking cannot bring it himself even "al y'dai haechak", he should not be similar to an elderly or sick person? It must be the comparison to elderly or sick is not a proof, rather an explanation, that there are cases where one cannot do it, yet he can appoint a shliach, but the rationale is not the same!

Yevamos 99a - Bitul Mitzvas Yibum

Tosafos deduces from the mishnah that one is able to marry the wife of his nephew (brother's son). However, lichatchila he should not marry his nephews wife (when his brother who is her father in law is alive) because if he dies, the wife will fall in yibum to his brother who will be assur to her since they are father in-law/ daughter in-law, and it is causing a bitul to the mitzvah of yibum. I find this to be a very interesting application of being mevatel a mitzvah. Normally, we only consider it to be a bitul mitzvah when the obligation is already applicable, but here we see that one should not marry a women who is an issur ervah to one of his brothers since he may be causing a bitul mitzvas yibum. Is this specific to yibum, or is one always required to take such extreme precautions to prevent a bitul mitzvah?

Monday, August 06, 2007

yevamos 96 ביאת קטן

נחלקו הראשונים אי ביאת יבם קטן בן ט' קונה מדאורייתא או רק מדרבנן. דבפשטות כיון של"צ דעת אלא רק מעשה ביאה א"כ ביאת קטן יהני מדאורייתא אך למעשה יש מיעוט בגמרא קידושים אשת איש ולא אשת קטן. ולכן י"א של"ש אישות לקטן וי"א שאין עונש באשת קטן אך אישות שייך. עיין לעיל סח ע"א ברש"י ותוספות ועיין במגיד משנה בהלכות יבם (פרק י?) ודוק

ולסוברים שהוי מדאורייתא אשתו לכאורה צ"ע מהמשנה צו ע"ב וזה לשון המשנה: "בן תשע שנים ויום אחד שבא על יבמתו ומשהגדיל נשא אשה אחרת ומת אם לא ידע את הראשונה משהגדיל הראשונה חולצת ולא מתייבמת והשנייה או חולצת או מתייבמת" ולכאורה תמוה איך שייך לייבם את השניה לאחר שחלץ לאשתו הראשונה, והרי מדאורייתא היא אשתו וא"כ אשתו השנה נפטרה והוי אשת אח שלא במקום מצוה, ובאמת אפילו הוי דרבנן קשה. ומצאתי במשנה שלמה שמפרש שכונת המשנה שקודם ייבם השניה ואח"כ יחלוץ לראשונה ופשוט. וק"ל

we eagerly anticipate the arrival of R' Avi aug\8...

Saturday, August 04, 2007


rashi says the a 3rd is gmar mel'acha, i think the term is sh'ver as a 3rd represents the maturity of the fruit not the finishing of the processing?

Friday, August 03, 2007

Yevamos 92a - davar shelo ba'ah l'olam

Tosafos discusses the difference between kinyan kesef and other kinyanim. By other kinyanim such as chazaka and chalifin if one would do a ma'aseh kinyan today for the chalos to be later on, it would not work. But by kinyan kesef it would work since the makneh would have to return the money if it does not work, it is like he received the money at the time of the chalos hakinyan. Therefore, when making a ma'aseh kinyan with chazaka or chalifin, one would have to say mei'achshav, to make the chalos happen now. That is why by davar shelo ba'ah l'olam, the gemara insists on saying mei'achshav, since the ma'aseh kinyan is not kesef, that is the only way it can work now.
The question is, bishlama by something which is b'olam, it maked sense to say that after 30 days the kinyan should be chal retroactively from today, so that the ma'aseh kinyan ends up to be together with the chalos hakinyan. But, how does mei'achshav work by a davar shelo ba'ah l'olam, since at the time he is making the ma'aseh kinyan he doesn't own the object? For example, if one was makneh a field that he did not yet purchase, even if he says meiachsav so that the kinyan would be chal today, he does not own the field today (and even when he buys it, he will only own if from that day and on), so how does mei'achshav work?

Thursday, August 02, 2007

yevamos 92 and 87b - mamzer d'robonon

tosfos in the beginning of the perek holds that EVEN if she returns to the 1st husband AFTER she got a divorce from the 2nd husband still he child from the 1st husband will be a mamzer m'drobonon. The rambam argues (גירושין 10:7).
Also tosfos holds that if she stays by the 2nd husband even after she got a divorce from the 1st husband still her child will be a mamzer m'drobonon, this too the rambam and rashi argue on, as rashi says in the mishna that the child from the 2nd husband is mamzer m'doraysa and doesn't mention any mamzer d'robonon from the 2nd husband.
(in the mishna in 92a the case is if she had 2 children from the 2nd husband, 1 before the husband died and the 2nd after, we say the 1st is a mamzer (d'oraysa) and the 2nd child is not a mamzer, and it sounds as if even m'drobonon. this is similar to staying with the 2nd husband after a get from the 1st. but it's not exactly, also we will see later in the gemara that our mishna is talking with 2 witnesses.)

Wednesday, August 01, 2007

יבמות 91 בת כהן בתרומה

במשנתינו בבא בעלה ממדינת הים אם היא בת כהן נפסלה מתרומה ובגמרא מפורש שאפילו בתרומה דרבנן ופירש"י דאילו בתרומה דאורייתא פשיטא דאי קנסוה למעשר כ"ש יקנסוה לתרומה

וכבר הקשינו על רש"י שלכאורה בתרומה דאורייתא היה לרש"י לומר שנפסלה מדאורייתא, ומצאתי שהריטב"א הקשה כך לרש"י . ובאמת צ"ל שרש"י בא לפרש אפילו למ"ד שאין נעשית זונה באונס שהוי מ"ח בגמרא לעיל נו ב' אלא שלרש"י לשיטתו צ"ע דהוא פירש בדף לה א' שהסיבה שא"א שזינתה באונס נפסלה מהתרומה הוא שנבעלה לאיש זר ולא משום זונה וא"כ אפילו אי זונה לא הוי באונס לכאורה נבעלה לאיש זר כן הוי אפילו באונס לכ"ע וא"כ לרש"י לשיטתו מאד תמוה

והנראה לי בהשקפה ראשונה שנצטרך לומר לרש"י דא"א שזינתה בשוגג רק נקראת זר אם יש לה שם זונה. וכונתי בזה שהתוספות בל"ה א' מקשה על רש"י שא"א שזינתה לא הוי זר אצלה מעיקרא ורש"י שם חולק וממעט את א"א שזינתה מכי תהיה לאיש זר, ואולי כוונת רש"י לומר שכל שיש לה שם זונה מתמעטת מזר כעין שתוספות מבאר בעצמו במ"ד ב', וא"כ הכה יהא ניחא דלצד שא"א שזינתה בשוגג אינה זונה א"כ היא ג"כ לא זרה לאכילה בתרומה כיון שהיא לא זרה מעיקרא. וכל זה צ"ע
would love to get feed back