Sunday, September 30, 2007

Kesubos 30b - Achila Al Yidai Hadechak

The gemara is searching for a situation where one can be chayev misah bidei shamayim, and for stealing Teruma (since a non-kohen is not allowed to eat teruma). The case that the gemara comes up with is where reuven shoves Terumah into Shimon's mouth, and down his throat. But, if it was shoved into a place where Shimon can spit it up, Shimon is considered to be stealing as he begins to swallow it to a place where he can no longer spit it up, yet he is not chayev misah for eating Teruma until it is fully swallowed, so it is still not simultaneous. And if reuven shoved it into a place where Shimon cannot spit it up, Shimon should be exempt from both paying for the stealing and exempt from misah bidei shamayim since he was forced to eat it (Rashi and Tosafos). Therefore, the only case the gemara is able to come up with is where Reuven shoved it into a place where Shimon can spit it up "with difficulty". It is not very clear what this accomplishes regarding the gemara's goal of finding a case where the stealing and chiyuv misah are simultaneous. Rashi explains that the fact that he can only spit it up "with difficulty" is not really relevant, but since he can only spit it up with difficulty, it would have become disgusting as a result of reuven, therefore Shimon's requirement to pay is not for stealing the food, but rather just for the small amount of benefit he received by eating the food, which is simultaneous with the "eating" that would make him liable for misah bidei shamayim. Rashi writes that Shimon's liability is for "hana'as grono and meiav" - the benefit of his throat and stomach. Rashi seems to be referring to the gemara in Chulin 103b, where we have a machlokes whether for ma'achalos ha'asuros one is chayev for his "throat benefiting" or his "stomach benefiting". Therefore, according to the opinion that it is dependent on the throat, that benefit is what makes him liable both for stealing and eating, whereas according to the opinion that it is dependent on the stomach, that benefit makes him chayev for both stealing and eating. My question is that even the opinion of "hana'as meiav" seemingly agrees to the metzius that there is benefit in the "garon", just that it is not significant enough to make one liable for eating issur. However, regarding the stealing, he should be liable to pay for his "hana'as garon" at least a small amount of money, and that liability does not come at the same time as the liability for the misah bidei shamayim for eating Teruma (since hana'as meiav comes only after hana'as garon), so it is still not completely simultaneous?
The Ritzvah (in Tosafos) explains differently, that since Reuven placed it so deep into Shimon's throat that he can only spit it up with difficulty, the swallowing of shimon that makes him liable for stealing is so close to being at the same time with the eating that makes him chayev misah bidei shamayim, that they are considered simultaneous.

Wednesday, September 26, 2007

Kesubos 25b - Who is a Kohen?

It is clear from the mishna 23b that one is not beleived to establish himself as a kohen. One would require eidim to verify that he is a kohen to receive any privellages that are associated with being a kohen. Since the privileges of Teruma, Nisus Kapayim, and Yuchsin are given specifically to one who proves that he is in fact a kohen, the gemara discusses the possibility of being machzik from one to the other i.e. whether a kohen for one thing is a kohen for everything. The gemara says that even reading from the Torah first as a kohen, would be proof that he is a kohen for other things also which clearly indicates that we don't allow someone to be called to the torah as a kohen unless he can prove it. The Rambam and Shulchan Aruch E.H 3:1 say exactly that - if one claims that he is a kohen but cannot prove it, he is not entitled to any benefits of a kohen, but he automatically makes himself forbidden to a divorced woman and from entering a cemetery based on the concept of "shavya anafshay chaticha d'issura". However, the Rama follows the opinion of the Ran that since nowadays there is no concern of leading to eating Teruma (since there is no Teruma d'oraysa), we are lenient to allow one to read from the torah as a kohen by simply claiming to be a kohen. The Rama extends this to giving the Birchas Kohanim (duchening) as well. The Beis Shmuel challenges the addition of the Rama, although we trust him to allow him to read from the torah, that is because there is no issur involved, but we cannot allow him to duchen since it is assur for a non-kohen to duchan? The Beis Shmuel answers that the reason one is not believed to say he is a kohen is because he gets real benefit from being a kohen i.e. free teruma, but nowadays where there is no benefit with being a kohen, he is believed m'ikar hadin. Therefore even if it affects issur such as duchening, he is believed.
It comes out a nafka minah between the rama and shulchan aruch, why one who claims to be a kohen is assur to marry a divorced woman. According to S.A. it is because of "shvya anafshei", but acc. to rama he has ne'emanus. One way or the other, one who has a good amasla such as new information that he has regarding his yichus should be believed to annul his kohen status even after he has read as a kohen and duchened for many years (since we see in the gemara 22a that amasla works even to override shavya anafshei).

Monday, September 24, 2007

Kesubos 24b - Klei Umnaso B'yado

The gemara says that according to R' yehuda we don't beleive reuven to testify that shimon is a kohen because we are worried about "gomlin", that they made a deal to testify for each other, but that is only by a d'oraysa concern, however when 2 merchants enter a city R' Yehuda says one is beleived to testify for the other since d'mai is only d'rabonon (really the concept of d'mai hikilu is more than just a safek d'rabonon). However, the gemara asks a contradiction in the Rabonon as well, who hold that by the merchants they are not beleived, but to testify for each other that the other is a kohen, they are beleived. The gemara answer "b'sheklei umnaso b'yado". Rashi and Tosafos argue: Rashi holds that generally the Rabbonon are not concerned for gomlim, just that the case of the merchants is a special circumstance where there is an indication that even the one who is claiming his food is not mesukan, seems like he is planning on selling, so we are concerned for gomlin. However, Tosafos seems to understand that the Rabbonon are concerned for gomlin unless there is an indication that reuven's testimony about shimon is truthful such as a circumstance where reuven is taking precautions to avoid tumah. It comes out that in a standard case with no indication one way or the other, there is a machlokes rashi and tosafos whether the rabbonon are concerned for gomlin.

Sunday, September 23, 2007

Kesubos 22b - A Few Point about Amasla

1. The Nodeh B'yehuda (mentioned in pischei teshuva 47:2) is not sure whether amasla can only be used if a new circumstance arises, such as when originally she was being approached by people who were not "proper" when she claimed she was married and now she is approached by someone proper, or when originally she was ill when she claimed she was tamei and not she feels better. But, if her situation didn't change, rather she says she originally was not willing to accept kiddushin from someone who is not "proper" and now she lowered her standard, or originally she said she was tamei bec. she was ill and now still claims to be ill but is willing to declare herself tahor anyway, she may not be believed with such an amasla.
2. The Hafla'ah (mentioned in pischei teshuva) is mechadesh that amasla does not work for testimony that was accepted in beis din to override the problem of "kivan shehigid shuv eino chozer umagid". Based on this R' Akiva Eiger makes a distinction between a father's claim that he was mekadesh his daughter and a woman's claim that she is mikudeshes, even if both claims were made in beis din. The woman is believed with an amasla since the power of her statement is only due to "shvaya anafsha chaticah d'issura", but the father who is believed based on a gezeiras hakasuv, has the status of eidus and he may not be able to take his words back based on an amasla.
3. Taz (y.d. 185) is mechadesh that a statement made in public cannot be taken back using an amasla, but Toras Hashlamim argues.

Thursday, September 20, 2007

Kesubos 20a - Oral Testimony, Not Written

Rashi understands that witnesses are allowed to writes notes for themselves and use it to remind themselves of the events, so long as they will actually recall the events after reading their notes. But they cannot just testify word for word from the note, without any recollection of the event, since that is a violation of "m'pi kesavam". Tosafos qualifies this by saying that if the witnesses are testifying as if they recall the events but are actually only telling what they saw in a document, there is a problem of "m'pi kesavam" (seemingly the concern is that beis din will not be able to cross examine them, if they don't realize they are simply testifying about what they saw in a document). But, if they would testify explicitly that they saw a signed contract, that is literally equivalent to testifying that they were present in a courtroom and heard a p'sak din, which they are certainly able to say. However, Tosafos questions whether a witness can come to court and testify explicitly that his source is from a personal note - since it does not have halachic status of a contract, it would be a violation of "m'pi kesavam" even if they are honest about their source. The R"I disagrees and maintains that it has full status of a contract, and so long as he explicitly mentions that his testimony is coming directly from a personal note, it would be valid.
There is an entirely different argument between Rashi (in chumash) and Tosafos if a witness is able to send his personal note to beis din to be used as eidus. Rashi considers this a problem of "m'pi kesavam", Tosafos says that this is acceptable eidus (but if a contract without 2 witnesses would not have status of a contract, it would only be admissible if the witness who wrote it recalls the eidus so the presentation of the contract in beis din would be tantamount to actually testifying in the beis din).

Wednesday, September 19, 2007

Yom Kippur Shiur

Although I try to keep the blog limited to the daf, I thought some might be interested in a portion of an excellent shiur from r' asher weiss. I also pasted a letter of my own comments on some of the points. Click on the words "Yom Kippur Shiur".
Gmar Chasima Tova.

For an interesting point regarding shehechiyanu on shofar, click here:

Kesubos 19b - Receipt for partial payment

If a borrower repays part of the loan, is the lender required to write him a receipt or return the contract? The gemara says that there is a machlokes whether a lender holding on to a contract that has already been payed is a violation of maintaining in your home an "avlah". Tosafos explains that really all agree that until the borrower finished paying off the debt and even finished paying off the expenses of writing the contract, the lender has the right to hold on to the contract without even writing a receipt. The machlokes is only if after every penny of expenses has been payed, it would qualify as an avlah (see tosafos d.h. zimnin, carefully). The Maharam Shif points out from here that the lender can continue to hold on to the contract until every penny has been payed, and is not responsible to write a receipt for the partial payment that was already received. The Shach (C.M. 57:6) agrees. However, Korban Nesanel (4) argues based on a gemara in Baba Metziah 68a where there is a concern that a partially payed contract may fall in the hands of inheritors and they will not realized that it was already partially payed, and will collect the entire sum. Therefore, the korban nesanel says that the lender can only continue to hold on to the contract after receiving partial payment if he writes a receipt for the borrower for the amount that has been payed.

Kesubos 19a - Being Mochel a Contract that has been sold

Tosafos compares the din that a seller retains the ability to be mochel a contract and exempt the borrower, even after the rights of collection with this contract have already been sold to someone else, with the din of our gemara that when reuven owes to shimon and shimon to levi, shimon may not be able to be mochel and exempt reuven from paying back since it will have an inevitable negative impact on levi (who through shi'buda d'rabi nosson can collect directly from reuven). Tosafos suggests that acquisition made on a contract purchased from a lender would only be Rabbinic, but on a Torah level the original lender retains full rights to this contract and therefore retains rights to be mochek. Whereas in the case of Reuven owing Shimon and Shimon owing Levi, the right of collection that Levi has from Reuven is d'oraysa, therefore Shimon looses the ability to be mochel and exempt Reuven.
However, based on Rabbeinu Tam (brought in Ran 44b b'dapei harif), the question doesn't even begin. Rabbeinu Tam writes that every loan creates 2 independent leans: 1. on the borrower himself. 2. on the property of the borrower. When one sells a contract they do not have any ability to sell the lean on the borrower himself (he is not a slave, so this kind of right is non-transferable), and can only sell the lean on the borrowers assets. The lean on the assets of the borrower exists merely as a result of the lean on the borrower himself (meaning lean 2 is absolutely dependent on lean 1). Therefore, the original lender will always retain rights to be mochel the contracts since he is in "possession" of the lean on the borrower himself, and his mechila will result in an automatic nullification of the lean that the buyer has on the borrower's assets. But, when Reuven owes shimon who owes levi, Levi really has a lean on Reuven himself, not just the assets of Reuven, therefore shimon cannot be mochel the loan that will negatively impact Levi (since levi's rights are not limited to a lean on the assets which are dependent on shimon's lean on reuven himself, rather levi has a direct lean on reuven himself).

Tuesday, September 18, 2007

Kesubos 18a - Ein Adam Mei'iz

Tosafos explains that when Reuven claims $100, if Shimon denies it all he is believed simply because Reuven who is coming to take from Shimon bears the burden of proof. Rabba is bothered why does the torah say that if shimon agrees to $60, he must swear that he does not owe the $40, shimon should not have to swear since he has a migu that he could of denied the entire $100. To that the gemara explains that since denying everything is a tremendous chutzpah, there is no migu that he could have denied everything because even though he could have, he wouldn't have (The gemara then continues by saying we should still have a migu since it is also a chutzpah to deny partially so he would have just as easily denied the whole thing, and to that responds that to deny partially is not a chutzpah since he is not intending to deny, rather to delay and pay later).
Tosafos quotes Rashi from Baba Kamma but seems to quote it somewhat differently than rashi actually says. Rashi in B"k 107a says that the rationale for one not to deny the entire loan is that since the lender did him a favor, he would not be kofer tov and deny the loan. But, by a pikadon where the shomer (watchman) is actually doing a favor for the mafkid it is not a chutzpah to deny and therefore the shomer mut swear even if he denies the entire thing. Rashi is clearly understanding that the believability of kofer hakol is not simply based on hamotzi m'chaveiro.... but rather requires the chazaka of "ein adam mei'iz", since by pikadon that chazaka doesn't apply, the watchman is not believed. Based on this, it is very difficult to understand what Tosafos is asking on Rashi, that a modeh b'miktzas by pikadon should not be believed since he has a migu to be kofer hakol, since rashi himself says that even a kofer hakol is not believed. But, the difficulty with rashi is that if ein adam mei'iz is needed for kofer hakol to be believed, why when the son claims that he owed the father money do the rabbonon say that by the son where we don't have such a chazaka, you are believed even to be modeh b'mitkzas migu that you could deny everything; the opposite should be true, since there is no chazaka you should not even be believed to deny everything?

Monday, September 17, 2007

Kesubos 17a - Degrading Torah for a Mitzvah

The Biur Halacha (251) explains that one is allowed to degrade themselves and degrade kavod hatorah for the purpose of fulfilling a mitzvah. Therefore, the amoraim would degrade themselves in making various preparations for shabbos that were beneath their dignity since "that is their kavod" to degrade themselves for a mitzvah, similar to what was done by dovid hamelech. This also explains why the gemara says in kiddushin 70a that R' Nachman built a fence on his roof by himself, even though it is somewhat of a degrading job. But when it comes to a situation that it is not completely clear that it is being done for the purpose of a mitzvah, a talmid chacham is not supposed to degrade himself. This explains why one is not supposed to degrade themselves to return a lost object that is embarrassing to carry through the street, since it is not clear to all that he is doing a mitzvah of returning a lost object.
Our gemara seems to contradict this premise. It was very clear that when R' shmuel bar yitzchok degraded himself by dancing in front of a kallah, he was doing it for the purpose of a mitzvah. Nevertheless, R' Zeira comments (according to rashi, which is different than the peshat i mentioned above), that he is degrading the honor of Torah by acting in this silly way. Shouldn't R' Zeira agree that one was supposed to degrade himself to fulfill a mitzvah so long as it is recognizable that it is for the purpose of the mitzvah? Perhaps this was R' Zeira's original approach but he later changed his approach after seeing the pillar of fire, and agreed that one is allowed and encouraged to degrade himself to fulfill a mitzvah of bringing simcha to the kallah.

Kesubos 17a - Dancing with a Haddas

The gemara says that R' Yehuda Bar Ilai would take a haddas in his hand and dance with it in front of a kallah and say "kallah na'ah v'chasuda". The meforshim don't explain what exactly was the symbolism of the haddas. It seems to me, that since we follow Beis Hillel and we take the liberty to say "kalla na'ah v'chasuda" regardless of whether she is in fact "na'ah" and "chasuda", we go out of our way to explain what we mean to avoid sheker (to deal with the concern of Beis Shamai). Rashi explains that "chasuda" means that a strand of kindness was drawn over her. Rashi is clearly trying to hint at the gemara in megillah which says that Esther was called Haddasah since she was actually not so attractive, rather green like a haddas, yet achashveirosh was interested in her because a "chut shel chesed" was drawn over her. Perhaps R' Yehuda Bar Ilai made a point of dancing with the haddas to indicate that when we claim the kallah is "chasuda" it is not a lie, rather we mean to indicate that just as esther was called haddasah because she was green like a haddas, but a chut shel chessed was drawn over her, so too this kallah a chut shel chessed was drawn over her.
Based on this, the concern of R' Zeirah, that the "sabba" is embarrassing us meant to say that we usually follow Beis Hillel without concern for the exaggeration, yet he is embarrassing us by being machmir to fulfill Beis Shamai as well and indicate that "chasuda" is not to be taken literally. We can now also understand why the Rosh records this custom of dancing with a haddas, which would seemingly not be important - but he is coming to show that some amoraim tried to be machmir for the concern of Beis Shamai, not to say something which is sheker.

Sunday, September 16, 2007

Kesubos 16a - 16b - Migu - Eidim against Chazaka

1. Rashi and Tosafos argue, according to r' yehoshua who does not consider a migu to strengthen her claim when she says she was raped after marriage, migu that she could of said she was a mukas eitz, would still consider a claim that i bought it from your father migu that i could of said it was always mine, to be a good migu. The gemara says somewhat vaguely that the distinction is whether the ox is dead in front of us or not. Rashi understands that r' yehoshua would not consider a migu to strengthen the claim, unless it is a migu that i could of remained quiet - meaning, there is no one claiming against him so he did not have to say anything. Tosafos argues since the case here is where reuven is claiming the field belongs to him because he inherited it from his father, and shimon is claiming back that he bought if from reuven's father and wand to be believed with a migu that reuven's father never even owned it. The reason why R' Yehoshua will agree that migu works here, is because the claim that could have been made is not just a better excuse for the bad predicament (i.e. i am not a besula, but it could have been explained in a better way such as mukas eitz), but rather migu that the entire predicament never even started since this field was always mine. Why does R' Yehoshua consider this to be a better type of migu? Perhaps, in a situation where there is a bad predicament such as not being a besula, she has to justify in some way, and she may just pick one of many claims, even if it is not the best. But, when there is a claim that would completely absolve shimon from ever being involved with reuven, shimon would of definitely thought to make that better claim - from the fact the he didn't shows that what he is saying is true.
2. The gemara says that if all besulas that got married had a "kol", the absence of a "kol" would be the equivalent of knowing without any doubt that she was not a besula, and even witnesses would not be believed. Although rashi uses the term "chazaka", it must be stronger than just a chazaka, and is in fact even stronger than witnesses testifying she was a beula, in that we would consider her to be a beula without any doubt to the point where we would pay no attention to her witnesses that she was a besula. WHY? It seems that the halacha regards the factual knowledge to her being a beula, that would be evident from the lack of "kol", would be stronger than even 100 witnesses, because witnesses is a gezeiras hakasuv to follow their testimony in a situation of doubt, but they don't have the ability to deny what is clear and obvious.

Tuesday, September 11, 2007

Kesubos 11a - Ger Kattan

3 points:
1. Rashi writes that if we convert a ger kattan, the geirus is assumed to go into affect immediately and the wine that the child touches will be kosher. Why is it mutar to drink the wine, shouldn't we be concerned that maybe he will object when he gets older? There are 3 possible explanations: 1. Even if he objects, it is not retroactive, rather we consider him a goy only from the time of objection and on (so even if the wine is still around, we can drink it after he objects). 2. Although if he objects he will be a goy retroactively, we assume he will maintain his status as a jew and not object. 3. Although m'doraysa he is a goy retroactively, m'drabonon we consider him a jew until he objects to be meikel for issurei d'rabonon such as stam yeinam. The 3rd approach is clearly the most difficult. The Chasam Sofer rejects the first approach from Tosafos, that the power of z'chiya which is founded on shlichus can work even though he is a goy since through this he will turn into a jew - therefore, when he objects and does not turn into a jew, the entire power of the z'chiya is ruined retroactively. Therefore, the Chasam sofer is matir the wine so long as he as not yet objected based on the 2nd approach.
2. The Tosafos Yeshanim struggles with the gemara that says the ger can object when he is a gadol, yet says that once he is a gadol he cannot object. What exactly is the moment that he should object? Tosafos Yeshanim says that since we can't pinpoint the moment of gadlus, the child must do acts of objection i.e. aveiros, from the day before he is a gadol until a day or 2 after. However, the Tosafos Rid says a tremendous chiddush. The age of "gadol" to object is even before 13, so long as he has da'as to make a decision (let's assume 10 yrs old). But, the cut off point from when he can no longer object is when he is 13. Therefore, from 10 until 13 if he keeps mitzvos it will not ruin his ability to object, but after 13 once he keeps mitzvos he looses the ability to object. R' Moshe (y.d. 1:162) is mechadesh that so long as the child doesn't realize he has the option to object, he can still object even if he is already well into his teens. He proves this from a hagahos ashri who indicates that there is a ger kattan who can do kiddushin (so he must be over 13), yet would still have the ability to object to the geirus (bec. he isn't told he is a ger kattan).
3. Tosafos asks how can there be a girl who is already 12 and entitled to received k'nas for o'nes, yet she would still have the ability to be mocheh. Tosafos says that even if she is a gedola, she still maintains the ability to object until she "acts as a jewish girl". It seems that by a boy who is constantly obligated in mitzvos aseh, would immediately loose his ability to object as soon as he puts on tefillin or does another mitzvah as a gadol. But by a girl it takes more time to see whether she is "acting as a jewish girl" since there are not particular mitvos aseh for her to do, therefore, until we see her "acting as a jewish girl" for some amount of time that would be clear she wants to maintain being jewish, she could be over 12 and fit for k'nas, yet still have the ability to object. But, based on R' Moshe that i mentioned in #2, we can easily have a case where she is 12 yet still is able to object, such as a situation where she was not yet told she is a ger ketana.

Monday, September 10, 2007

Kesubos 9a - 10a - A Few More Points

1. I assumed that "shavya anafshei chaticha d'issura" requires one to actually testify and make a claim in beis din that his wife committed adultery. However, Tosafos explains the question of the gemara about Dovid Hamelech, "since the husband claiming pesach pasuach can make his wife assur on him, so too Dovid's knowledge that Bat Sheva committed adultery should make her assur on him". Although Dovid didn't make any formal claim of adultery, the knowledge itself that bat sheva committed adultery should make her assur on him. Clearly, shavya anafshei can apply even if no formal claim is made.
2. Rashi holds that the fact that it was common knowledge that bat sheva was taken to the palace is tantamount to having witnesses on her committing adultery with Dovid. Tosafos asks that the common knowledge of her being taken to the palace would not be equivalent to witnesses that she was mezaneh with Dovid. However, we find that the gemara says by Esther, that her z'nus with achashveirosh was classifies as 'public' - "Esther farhesia havi", and the shach in Y.D. 157 explains that since everyone knew she was taken to the palace of Achashveirosh, it is literally as if everyone witnessed her act of z'nus with Achashvirosh. It would seem that the gemara by Esther is a strong support for Rashi's opinion. But, Tosafos apparently holds that only in the context of Esther was it clear what she was being taken for, but by bat sheva it wasn't necessarily clear to everyone that she was taken and what she was taken for.

Kesubos 9a - 2 Hearos on Sfek Sfeika

1. In the previous post I mentioned Tosafos question that the safeik of mukas eitz should count to turn the safeik by eishes kohen and less than 3yrs, into a sfek sfeika. R' Shlomo Eiger in his comments on sfek sfeika (y.d. 110) proves from Tosafos that even a sfek sfeika that is not "mis'hafech" - cannot be switched around, would still qualify as a sfek sfeika. The safeik of mukas eitz or through relations with a man, can only be posed prior to the safeik of o'nes or ratzon, but if we begin with the safeik of o'nes or ratzon, we can't entertain anymore the possibility of mukas eitz - yet Tosafos asks that it is a sfek sfeika, clearly implying that it does not have to be "mishafech" to be a sfek sfeika.
2. Tosafos 9b asks that we should have a sfek sfeika to allow her to collect her kesuba, safek if he is correct regarding pesach pasuach (because at this stage we are thinking that he would not be believed to assur her, indicating that we are not convinced that he knows what he is talking about), and safeik o'nes safek ratzon. Tosafos answers that it does not qualify as sfek sfeika because the safeik of o'nes would only be an argument to give her a kesuba if the o'nes occurred after the marriage, but if the o'nes occured prior to the marriage, she would still not be entitled to a kesuba. Some achronim explain that what Tosafos actually means to say is that we can create a sfek sfeika working against her, safeik maybe she was mezaneh b'ratzon, and even if it was o'nes she was mezaneh prior to marriage. Since we have contradictory sfek sfeikos, we can't use the logic of sfek sfeika to allow her to collect her kesubah.

Kesubos 9a - Pesach Pasuach Matzasi

2 short points that were pointed out by two of the members of our daf yomi in palo alto:
1. According to Rabbeinu Tam in Tosafos 3b that relations with a non-jew does not assur a woman on her husband, even by a bas kohein and a girl who did kiddushin less than 3 yrs old, there should be a sfek sfeika, since we should have a safek maybe the bi'ah was with a goy? Tosafos asks a similar question why we don't use an additional safeik of mukas eitz, and answers that since it is not degrading for her, she should make such a claim if that were the case, from the fact that she doesn't we assume that it is not a mukas eitz. But, this answer will obviously not work for the safeik of bi'ah with a goy?
2. The gemara says that those who would go out to war in the time of dovid would write a gett to their wives, and tosafos explains rashi that the get would be on the condition that they do not return at the end of the war. Would this assume "ein o'nes b'gittin", since the condition is being fulfilled by them not returning due to an o'nes of being captured? It would seem that since this is the entire purpose of this gett, even if we hold "yeish o'nes b'gittin", the condition would be fulfilled.

Thursday, September 06, 2007

Kesubos 6a - Squeezing on Shabbos (baby wipes)

Tosafos explains that there are 2 forms of squeezing: 1. Melabein (cleaning) for the purpose of the cloth. 2. Mefareik [tolda of dash] (separating) for the purpose of the liquid i.e. squeezing grapes. R' Moshe (o.c. 2:70) discusses using a wet paper towel (some sort of paper towel but it seems to be less absorbent than bounty) to wipe down a dirty or sticky table. He explains that on paper which is a throw away, melabein would certainly not apply. But, the second form of squeezing which is assur bec. of mefareik would presumabely apply. Although some Rishonim indicate that the second form of squeezing isn't applicable to water, the Shulchan Aruch doesn't seem to make a distinction and would maintain that even by water it applies. Nevertheless, R' Moshe is lenient based on a few tzirufim to be meikel (and most of the reasons should apply to baby wipes as well): 1. One is not interested in the water coming out onto the table and going to waste (this would apply to baby wipes as well because one does not want the water on the babies skin any more than they want the water on the table), so according to the Aruch who allows Psik Reisha d'lo Nicha Lei, it is permitted (but according to the R"I it is assur m'drabonon). 2. The liquid is not absorbed in the paper (i don't think this would at all apply to our paper towels or to baby wipes), but this rationale alone would not remove the issur d'rabonon similar to hair which does not absorb yet is assur. 3. Your intent is not to squeeze and it is not normal to squeeze water out of paper (I am not sure what halachic premise this heter is based on, i assume that r' moshe means to say that it is some sort of shinuy). 4. It may not be a p'sik reisha to make the water come out, unless you hold it very tightly.
I am interested in hearing sevaras for or against, (but not so interested in collecting names of rabbis who rule this or that).

Kesubos 6b - Patur From Krias Shema

The gemara basically assumes that the p'tur for krias shema can only be the "tirda" of worrying about the obligation to do the b'ilas mitzvah, and therefore on friday night, one would only be exempt if they are allowed to have bi'ah. However, Abbaye says that even one cannot have b'ilas mitzvah on friday night, one opinion would still exempt him from shema. Why? Rashi says "he is in pain (depressed) that he did not have bi'ah". The Rashash deals with the proper girsa in rashi whether it should say "ba'il" with a yud, or "ba'al"; the distinction will be whether the tirda is caused by chazal not allowing him to have bi'ah on friday night itself, or is it caused by him being unsuccessful in having bi'ah on Thursday night. One way or the other, it is an entirely new category of p'tur that we don't find in other places. Normally, we assume the p'tur of a choson from shema is a standard osek b'mitzvah patur... rule, just that we extend it to include even a case where he is not physically involved but is emotionally involved (see rashi succah 26a). But, in the case here, the exemption has nothing to do with osek b'mitzva, rather it has to do with a depression for not being able to do the mitzvah on the previous night (or on that night, as is mashma from tosafos). Nevertheless, it seems to me that depression over not being able to do a mitzvah that has passed, is not an exemption at all. The reason why we consider the exemption of depression to be legitimate is only because the mitzvah is still incumbent upon him to do on motzai shabbos and has not entirely past. Therefore, it is not just depression for the past that exempts him, rather since he is still obligated to do the mitzvah, he can't be told to just overcome his depression (as we say by the boat sinking and by avel); the mitzvah that he is still obligated to do legitimizes his depression for not doing it before and that is why he is patur.

Wednesday, September 05, 2007

Kesubos 5b - Kilkul and Tikkun

I decided to go light today:
The gemara has 2 possible prohibitions when doing bi'ah rishonah on shabbos, 1. Making an opening which is a violation of building, 2. Causing a wound which is N'tilas Neshama. But, the gemara says that both of these issues could be considered kilkul rather than tikkun. R' Shlomo Eiger raises a question (from avodas hagershuni) that we find in Shabbos 105b regarding tearing one's shirt out of anger on shabbos, that even though it is kilkul to the shirt, it is still a torah violation of shabbos since it accomplishes "nachas ruach l'yitzro". Meaning, that the tikun of calming down one's anger overrides the kilkul of the shirt, similarly satisfying his yetzer by having bi'ah on shabbos should be a tikkun that overrides the kilkul?
I am not sure what the avodas hagershuni answers since i don't have a copy. I am also not sure what the ba'alei mussar have to say about letting out anger by tearing and breaking things. But, on a very practical level it seems to me that whether or not we encourage people to tear and break items out of anger, it certainly is an effective way to accomplish the goal of alleviating his anger and therefore qualifies as an overall tikkun. But, when it comes to satisfying the yetzer for physical desires, the gemara tells us that "eiver kattan yeish b'adam, mas'bio ra'eiv...", meaning the more you fulfill the desires, the stronger they get. Therefore, we can't consider satisfying one's yetzer by having tashmish to be a tikkun since ultimately it will have the reverse effect in that it will make him have stronger desires (although the gemara understands on 4a that after having bi'ah once, his yetzer horah will not be as strong, at least for that woman).

Tuesday, September 04, 2007

Kesubos 4a - Father of Choson and Mother of the Kallah

The gemara says that if there is a sudden death of the primary figures responsible for the wedding party and it will cause a serious loss, the procedure will be: 1. B'ilas mitzvah. 2. Kevurah. 3. Sheva Brachos. 4. Shiva.
The Taz (Y.D. 342) question what the din would be if there was a sudden death immediately following the chuppah, prior to the b'ilas mitzvah? The approach of the Taz is: A. The heter for b'ilas mitzvah to be done in aninus is the loss of the seudah, and since that has already been done there is no rationale to allow b'ilas mitzvah until after shiva. B. Although the chupah is the mechayev in sheva brachos and therefore sheva brachos should go first and then shiva, but he is mechadesh that since sheva brachos was instituted for the benefit of the choson and kallah, they have a right to do shiva first and then sheva brachos, since if they would do the reverse the bi'as mitzvah would be pushed of for 14 days (rather than 7 days).
However, the Nekudos Hakesef quotes from Rabbeinu Yerucham a machlokes between the R"i Geius and the Rosh. The R"i geius maintains that really the chupah is the cause for sheva brachos (so long as the chupah was done b'simcha prior to the death, but in the case of the gemara where the death occured prior to the chupah, the bi'as mitzvah is necessary as cause for sheva brachos). Therefore, if a relative died after the chupah, the sheva brachos must go first. But the Rosh argues and says that the bi'as mitzvah is the cause for the sheva brachos, and since it cannot be done, the shiva would be first, followed by bi'as mitzvah and sheva brachos.
It seems that both the Taz and Nekudas Hakesef ultimately agree that bi'as mitzvah can't be done, and shiva comes before sheva brachos, but for different reasons. The rationale of the Taz is that even though the chupah causes sheva brachos, one has a right to forgo on the sheva brachos and do it later. Whereas the Nekudos Hakesef assumes that the bi'as mitzvah is the real cause for the sheva brachos.

Monday, September 03, 2007

Kesubos 3b - Tell the Tznuos that O'nes is Mutar

2 points:
1. In the ha'va aminah of the gemara that sakana means a gezeirah to kill anyone who gets married on wednesday, and therefore asks that chazal should uproot the entire takanas chachamim of limiting marriage to a particular day (see rashi and tosafos who seem to disagree if they should institute another day, or leave it open to a few options). However, when the gemara switches to the sakana being a gezeira to have relations with the hegmon, the gemara assumes that there is not reason at all to uproot the takana since the relations will be b'oneis (the gemara only follows up with the question of uprooting the takana since it will lead to sakana for tzenuos). This seems to compiment the rashi on 3a that understood from the pasuk of "u'lna'arah lo ta'aseh davar", that o'nes is not simply a p'tur from punishment, but it is as if the act was never done; here too it is as if the act of z'nus was never committed so there is no need to uproot the takanah.
2. Major machlokes between rabbeinu Tam and the R"i what exactly is the heter to commit adultery b'ones, since it is a yei'hareg v'al ya'avor. R"i understands that the heter is karkah olam, meaning, that since she is passive, she is not doing an issur. It is not so clear if the o'nes is required to compliment the aspect of karka olam to be matir. Although in this particular case there is o'nes and karkah olam, by both yael and esther (ka'asher avaditi) they did it willingly, yet Tosafos claims that they had a heter of karka olam. Perhaps their heter was a combination of karka olam and the hatzala of klal yisroel - needs iyun! One way or the other, it is certainly not a heter to be matir the woman to her husband, as we clearly find by esther that she became assur to mordechai when she "decided" to visit achashveirosh, even though it was mutar for her to do so.

Sunday, September 02, 2007

מילי דאגדתא

אמרתי לחבר את סיום על יבמות עם ימי התשובה
יסודם של ימי אלול ועשי"ת טעונים במ' יום שעשה משה בהר כדי לקבל את לוחות אחרונים, דהיינו שהיה על כלל ישראל גזירת כליה מחטא העגל, וכדי להנצל מהכליה היו צריכים לקבל שוב את הלוחות ולקבל התורה מחדש דבלי תורה אין לכלל ישראל חיים, והחידוש הגדול של לוחות אחרונים הוא בזה שאין הם מעשה אלוקים כעין לוחות ראשונים אלא הם באים ממה שמשה פסל לו מעצמו, דהיינו שלוחות ראשונים בהם נאמר שהם משה אלוקים ולכן היו צריכים לחיות לעולם כי הלוחות הם הלב היהודי עצמו ועם התורה ניתנת על לב של מעשה אלוקים א"כ שייך לומר עליהם אני אמרתי אלוקים אתם כמבואר בגמרא ע"ז, רק אחר שנשברו הלוחות שבו למצב של אדה"ר שלאחר החטא ושוב במצב ירוד, והחידוש הגדול שגם במצב זה יש קבלה של לוחות
וזה יסודה של התשובה ששייך תקון במצב ירוד שלאחר החטא, דהיינו שרק אחר החידוש שתורה יכולה לחול על "פסל לך" שיים מושג של תשובה
ומכאן ליבמות, המושג של יבום שמקים שם לאחיו המת אומר שנשמתו של המת באה במובן מסויים לתוך הילוד, ולכן בתמר שהיה שם יבום לשתי האחים א"כ הולידה תאומים, נמצא שהנשמה שבאה לעולם הינה באה מכוחם של התחתונים, רצוני לומר שבד"כ אין קשר כ"כ ישיר מההורים אל הנשמה שיורדת להם בתור ילד, אלא זה מתנה מה' ורק הוא יודע מחשבותיו, דהיינו מלעילא, אך ביבום מעשיהם של תחתונים מחליטים איזו נשמה תרד, דהרי כל המצוה היא להקים שם לאחיו, א"כ יוצא שבין יבום ובין מושג של תשובה הוי בסוד מלתתא לעומת מלעילא. והבן

MAZAL TOV ON YEVAMOS - Kesubos 2b - O'nes B'gittin

In all the cases of the gemara, it discusses a situation where the condition was that "if i don't come, then it should (or shouldn't) be a gett". In any condition of "if i don't come, then...", if a conscious decision was made to "not come", the condition was fulfilled. But, the gemara discusses a situation where there wasn't a conscious decision, rather an o'nes occurred that prevented him from coming. In actuality he fulfilled the condition of "not coming", so the gemara questions whether "not coming" because of some o'nes qualifies as "not coming", or maybe it does not qualify as "not coming" (but would certainly not qualify as "coming").
Therefore, if one would make a condition "if i do come, then...", but he does not come because of o'nes - If we would hold yeish o'nes b'gittin - meaning we pay attention to the reason why he did not come, would we be able to say that since his not coming was a result of o'nes it is as if he actually came! It would seem logical that o'nes can only take a circumstance where the condition was fulfilled and view it as if it was not fulfilled since the act of "not coming" would not constitute "not coming", but it cannot make a condition that was not fulfilled as if it were fulfilled.
It seems to me that this would be dependent on what seems to be a contradiction in rashi, in why o'nes would make a difference by gett. Rashi on the bottom of 2b indicates that when a person makes a stipulation his true intent is to say 'if i decide not to come', and therefore if his not coming is based on an o'nes, he does not intend to ruin the gett, rather he wants the gett to go through. Based on this, even if his condition was "if i do come, then...", he only intends to ruin the gett if he makes a decision not to come, but if an o'nes happens to prevent him from coming it would be a gett (not because it is as if he came, but rather because he never meant to ruin the gett when his not coming is due to o'nes). But, Rashi on 3a explains that the Torah recognizes the concept of o'nes by the pasuk of "ul'na'arah lo ta'aseh davar". Based on this approach, we do not focus on his particular mindset at the time of stipulation, rather we assume that when an act is done out of o'nes, it does not qualify as doing that act. Therefore, if the act of "not coming" is out of o'nes, it will not qualify as "not coming". But, it will also not qualify as "coming", therefore when his condition is "if i come, then..", whether yeish o'nes or ein o'nes, the condition was not fulfilled.