Wednesday, October 31, 2007

Kesubos 61b - Sacrificing one's life to save another

In the story of R' Ashi and Mar Zutra, R' Ashi sacrificed his life to save Mar Zutra by feeding him from some of the kings food. The Rabbonon asked R' Ashi why he sacrificed his life and relied on a miracle to be saved, he should not have put himself into a severe sakana to save Mar Zutra from a minor sakana (maharsha). The gemara answers that "he saw tzara'as on him" - one could interpret that he wasn't relying on a miracle since he saw that there were signs of tzara'as on the meat. However, Rashi implies that R' Ashi's answer was that he saw signs of tzara'as on Mar Zutra, therefore the sakana of Mar Zutra was actually more severe, therefore he was willing to give up his own life to save the life of Mar Zutra.
The Chasam Sofer proves from this dialogue that one is obligated to risk their life to save another. Although this gemara doesn't prove any obligation, and (even if we learn like rashi and maharsha) would only prove that one is allowed to risk their life to save another; the Chasam Sofer seems to hold that when it comes to life, there can't be a choice, it is either a chiyuv to sacrifice his own life or an issur to sacrifice his own.
The Chasam Sofer challenges this premise from a Teshuva in Radvaz who seems to indicate that it would be "chasidus shel sh'tus" to sacrifice his own limb to save the life of another. However, the Chasam Sofer elaborates and says that if there is a situation of objective o'nes one is obligated to sacrifice their life and certainly a limb, to save the life of another. However, in the case of the Radvaz a goy was threatening Reuven that he should sacrifice a limb, otherwise the goy would kill Shimon. One is not obligated to sacrifice his limb to prevent the goy from carrying out his death threat to Shimon, even though Reuven's limbs is less valuable than Shimon's life. Just as we find that one is obligated to sacrifice a limb to prevent chilul shabbos, so shabbos is more valuable than a limb; if one is threatened by a jew "if you don't cut off your arm (on friday), i will be mechalel shabbos", one is not requred to sacrifice his limb to prevent the threat from being carried out.

Tuesday, October 30, 2007

Kesubos 60a - Da'm Adam - Bloody Apples

This is something i wrote quite a few years back to explain some tzdadim to be lenient if one's gums start bleeding when they are eating an apple, not to have to wipe of the blood, which seems to contradict the gemara. It's a bit long.

Kesubos 60a - Hearos about Nursing

1. Child who "recognizes" mother - Rashi seems to understand that a divorced woman must nurse her child if he is not willing to nurse by anyone else. Tosafos Ri"d asks, why would we test for "makirah" by seeing if the child recognizes the mother, as the story in the gemara, we should simply see if the child is willing to nurse from someone else. Based on this, Tosafos Ri"d argues with rashi and says that even if the child will nurse from someone else, there is concern for emotional trauma of separation if there is still strong attachment to the mother, and that is dangerous to the child. Rashi holds that it is a physical concern of not receiving proper nourishment. Perhaps rashi would answer the Tosafos Ri"d's question by saying that although the child may nurse a little from someone else if he is starving, he will still not nurse as much as he needs and be malnourished, therefore we can't test by simply seeing if the child will nurse from someone else.
2. Shabbos - The gemara says that regarding an animal, it would be an issur deoraysa of mefarek to milk into a vessel, but to nurse directly from an animal would only be d'rabonon. It is not clear from the gemara what would be by a person. It would seem to be the opposite, that it is normal to nurse directly and that would be d'oraysa, but it is not normal to express milk into a vessel and that would be d'rabonon. However, the Shulchan Aruch 328:34) says that this is not allowed. The Biur Halacha 328:34, and sha'ar hatziyun 81 explain that by a person it is normal to both nurse directly and express milk, therefore either way would be assur m'doraysa (and cites a proof from tosafos in shabbos, against the sefer tosefes shabbos). Based on this, there would be no heter for a woman to express milk in a usable fashion (to the exclusion of holeich l'ibud) and store it for later, unless it is literally a situation of sakana. Actually, the sha'ar hatziyun explains the shulchan aruch 35 who is matir for the mother to actually squeeze some milk into the childs mouth to get him to start nursing, is based on a heter of sakana.
3. Nursing from a goat - The Shulchan Aruch 328:33 seems to allow this even if one is very hungry (or thirsty) since it is only an issur d'rabonon. The M.B. 108 wonders where this comes from, since the distinction made in Tosafos between different types of "pain", and the allowance even for hunger only applies on Yom Tov, not Shabbos. I think that based on Tosafos (end of d.h. gonei'ach) that there is a machlokes between the sugya in kesubos and yevamos, it could be that paskening like our sugya would be matir even on shabbos precisely what Tosafos originally thought that the gemara in Yevamos was being matir on Yom Tov, namely even for hunger pain. v'dok.

Monday, October 29, 2007

Kesubos 59b - Uprooting Shi'bud

Rashi explains that a konam can uproot shi'bud just like kedushas haguf, but kedushas damim cannot uproot shi'bud. At first it seems counter intuitive since konam is weaker than hekdesh in that it is not strong enough to have its kedusha transfered on the money of pidyon, therefore it becomes more chamur than hekdesh and is treated as kedushas haguf. It seems that the peshat is that technically all hekdesh has the power to uproot the shi'bud, just that if there is another way out so that it won't have to uproot the shi'bud, such as through pidyon, so we say that you have to use pidyon. Therefore, konam which is more kal than kedushas damim so that pidyon is not a possibility, automatically has the chomer of kedushas haguf since there is no other option, and it can uproot shi'bud.

58b הערה - מותר או העדפה

לרב ושמואל למסקנא איירי שהבעל לא נותן לה מזונות ולא מעש"י, כך ביאר תוס' ד"ה במעלה, ולפ"ז המותר שחל לאחר מיתה הכוונה מה שיורש הבעל, ולכאורה לפ"ז ההקדש צריך לחול על כל מה שיורשה בין מעש"י ובין העדפה, משא"כ לרב אדא ההקדש חל מחיים ורק על ההעדפה. ובאמת לרב ושמואל ניחא לשון "מותר" דלכאורה תמוה מדוע נקטה המשנה לשון "מותר" ולא לשון "העדפה", ולדידהו ניחא דאה"נ לא רק חל על ההעדפה אלא כל מה שיורשה, אלא שבדרך כלל מעש"י אוכלת למזונות ורק ההעדפה נשאר, הייתי שמח למצוא את ההערה הזאת ולא עיינתי בספרים

Sunday, October 28, 2007

58b davar shlo ba laolam

  • the mishna says that if the husband is makdish his wifes maaseh yadayim it doen't become kadosh. the gemara 1st says that reason must be that although he is prepared to feed her but she doesn't want the mezonons and this is why it doesn't become kadosh - hence, a proof to rav hunas opinion. the gemara then says that its no proof since we can be talking in the mishna the husband doesn't have what to feed her with and then the gemara struggles to find a chidush.
  • according to the gemara later, we could've answered that if we disagree with rav huna, then even if he is feeding her, still the hekdesh will only work if we hold that a person can be makdish something that is not in this world yet, (because in rish lakish he says that the reason he can be makdish and its considered in the world is because the husband can force her to work).
  • similarly in the 1st tosfos, when he says (as does rashi) that according to rav huna our mishna is not talking when he is actually feeding her because if he is then he can be makdish her work, tosfos could've said that according to rav huna since he cannot force her to work so even if she is feeding her still he can't be makdish her work if you hold that you cannot be makdish davar shlo ba laolam. comes out that both from the gemara and from tosfos we see that the gemara is assuming that a person can be makdish davar shlo ba laolam. ****any thoughts???

Saturday, October 27, 2007

Kesubos 57a - Yesod in P'sak

I think that it is worthwhile pointing out an extremely important yesod in p'sak from Rashi. People often ask how R' Moshe would pasken differently in similar situations where the tzad kula and tzad chumrah were applicable to both. There are a few teshuvos in Igros Moshe that "contradict" one another. Many people are comfortable with assuming that he changed his mind which is a very shallow approach to answer very deep points. Furthermore, i have heard from many who were close to r' moshe that he seldom, if ever, changed his mind.
The answer lies in Rashi.
Rashi explains that the concept of "eilu v'eilu divrei eloki chaim" does not apply when 2 people argue about the opinion of a third. Clearly, one of them must be wrong, since that third person either held this way or that but not both. However, when there is a machlokes on a halacha whether something is mutar or assur, tahor or tamei..... we can apply "eilu v'eilu" since both perspectives and sevaros may be correct, just that sometimes based on the specific details of the situations it is more appropriate to apply the sevara l'hakel and sometimes more appropriate to apply the sevara l'hachmir "becaue the reason [that should be applied] can be reversed based on a slight change in circumstance". Anyone with even some experience in learning realizes the absolute truth of Rashi's statement and that is why the artscroll-type halacha books are very limited in ruling halacha l'maseh.
Specifically, this would explain why some talmidim of r' moshe claim that he would often be matir "kohanim" to marry divorced women claiming that they are not really kohanim, when others claim this is not a blanket heter (the first opinion is that of many of the younger talmidim who claim to have witnessed many cases where he was matir, whereas the second is the opinion of r' dovid feinstein and r' nota greenblatt who claim that there may be specific cases where he applied certain tzdadim to be meikel, but it was never used as a blanket heter).

57- a marriage needs a ksuba

i am going to throw out a raw thought.
when learning the mishna i wondered, why did R' Yehuda say that one can write a shovar for half the amount of the Ksuba and not the whole? it would sounds that he agrees that one cannot forgive the whole Ksuba. This much I found in the Meleches Shlomo (on the mishnayos) that made that diyuk. If so, one can suggest that R' Yehuda agrees that one cannot live without a Ksuba, he just minimizes the amount of the Ksuba. The understanding can be that as we see in the Gemara, R' Meir holds that even if the lady HAS a Ksuba but she THINKS she doesn't, still its forbidden to stay married. Meaning that he holds that she has to have reassurance in the marriage. R' Yehuda that argues disagrees on this point, but he agrees that a marriage needs a Ksuba. The lomdos is that he agrees that Ksuba is part and parcel of a Marriage, and not having a Ksuba is being "half married" which is not possible. R" Yossi that holds you can be mochel the Ksuba orally can still agree to R' Yehuda on this point.

Friday, October 26, 2007

Kesubos 56a - Stipulation against the Torah

The gemara quotes a machlokes r' meir and r' yehuda whether one can make a stipulation against the torah such as "you should be married to me on the condition that i should not owe you clothes, food, and onah". R' meir says it is not binding and r' yehuda says it is binding since it is only regarding monetary issues (Rashi and Ritva argue whether onah qualifies as a monetary matter, since it is similar to the clothes and food which are instituted for her benefit. Tosafos 56b d.h. v'shaminan agrees with rashi that one cannot stipulate to uproot onah).
Tosafos explains that the default position is that if one stipulates against the torah, the act is binding since the stipulation does not have the power to uproot it. The source that a stipulation can uproot the act is learned from being similar to t'nai bnei gad u'bnei reuven, therefore a condition that goes against the Torah since it is not similar to t'nai b'nei gad, it cannot uproot the act so the kiddushin would be binding even though the condition had not been fulfilled.
Tosafos focuses on the opinion of R' Meir, Is it true that one cannot be mochel monetary obligations? Tosafos is clear that actual mechila without using the language of t'nai, one can certainly be mochel anything. Tosafos only questions, how one can be mochel using the language of a t'nai such as "if you do this and this, i will be mochel the damages that you owe me". Tosafos seems to have 3 approaches:
1. R"i - one cannot be mochel using language of a t'nai (with the exception of a loan since the obligation to be was not introduced by the torah, it is not considered uprooting a din torah). However, Tosafos leaves with question from the gemara "if one says rip my coat on the condition that you are exempt, he is patur", how can he uproot the din torah to compensate for damages using the language of t'nai? Perhaps the answer for the R"i is that when the stipulation is made before the damage, since the damagee is allowing it to be done, it does not qualify as a damage at all. The R"i will only say that if the stipulation is made after the damage has been done and the compensation is owed, that the damagee cannot say to the damager "if you do this and this, i will be mochel on the money you owe me for damages".
2. R' Elchanan - One can use a stipulation in the language of "mechila" just not a stipulation in the language of uprooting the din of the torah.
3. Alternatively Tosafos says that the problem of stipulating against the torah by monetary issues only applies when the torah demands that there are certain monetary obligations to a "chalos" and you try to create the chalos without those ingredients i.e. kiddushin includes sh'er k'sus v'ona.

an illegal "condition"

whenever a Tnai is made which doesn't work due to a "technicality" such as Tnai Kaful, Tnai Kodem L'maaseh, etc. The question arises that although the technicality of the condition was illegal, but how can we say the action takes effect if he had no intention for this thing to happen if his conditions aren't met, in other words at the least ant condition tells about his intentions and they aren't met then the act was missing his consent.
i remember seeing once in the a T'shuva from the Rosh that we must say that it isn't clear to us from his actions that he wouldn't go ahead with this action if his conditions aren't met. So if it isn't clear to us from his actions then even if he wouldn't want the action to take effect its too bad, because the rule is that we only need him to have Daas to do the action and this he had. if however it is clear to us that his intentions were limited, then we apply the gemara with the person selling his property because he is making aliya, where if his trip is canceled so does his sale.
writers note: i know this is a discussion in the rishonim, i hope i am not mixing up a few opinions, please do your own research, i found the sources originally in the encyclopedia talmudis but i don't have it at home, lastly, yes i know tosfos discusses this. ut shabbos

Thursday, October 25, 2007

56a Chupah

בעי רב אשי נכנסה לחופה ופירסה נדה מהו וכו, ופשטות בעית הגמרא אי לר"א דכתובה נקנית דווקא בחופה, אי פירסה נדה האם קונה הכתובה. והנה קשה לומר שפירסה נדה אחר החופה, כיון שכעת ס"ל שהכתובה נקנית ע"י כניסה לחופה וכבר נכנסה לחופה ומאי איכפת לן שכעת פירסה נדה, ולכן בפשטות צ"ל שקאי על פירסה נדה לפני החופה. אך המעיין ברש"י נראה שלא כך למד, דכתב רש"י ופירסה נדה ופירש ממנה ומת, דהיינו שלא כתב רש"י שנכנסה לחופה ומת, ומשמע שלמד שפירסה נדה אחר החופה ותמוה שהרי כבר קנתה הכתובה ואיך כעת יחזור מחיובו. אלא שצריך לומר שדעתו להקנות הכתובה בחופה רק עם שייך שמיד אחר החופה יוכל לבא אליה, אך עם מצידה יש מניעה שלא יכול לבא אליה א"כ לא היה בדעתו להקנות הכתובה
ודעת הרמב"ם ידועה שלומד שחופת נדה אינה קונה ומקורו מגמ' שלנו ועיין עוד ב"הערות" של הגריש"א

55a going on a trip vs. deathly ill

הגמרא מביאה ראיה לדין אומדנא מר"ש שזורי שבמסוכן אפילו לא אמר תנו הגט נותנים. ולכאורה תימה מאי שנא מסוכן מיוצא בשיירא והוי לגמרא להביא ראיה אף מת"ק, שמודה ת"ק ביוצא לשיירא שנותנין הגט אע"פ שלא אמר תנו, והטעם בפשטות שסמכינן אאמודנא

ומצאתי לגריש"א שתירץ דביוצא לשיירא הרי הוא חושש שאשתו תהיה עגונא ולכן פשוט לנו שאפילו בלי חידוש אומדנא יתנו הגט, דהיינו שאין כאן אפילו מקום לספק, אך במסוכן הרי הוא לפנינו ואין חשש שאשתו תתעגן אלא שרוצה להצילה מיבום וחליצה, וע"ז צריך אומדנא כיוון שלטובת תיקון נשמתו עדיף לו שתייבם או תחלוץ - דאפילו חליצה הוי תיקון- ולכן הוי רק אומדנא

Tuesday, October 23, 2007

Kesubos 53a - Yishmael Should Not Inherit

There is a beautiful Chasam Sofer on this daf when the gemara says that one should not give their inheritance to a "good son" and take away from a "bad son" because there may be a grandson from the "bad son" who deserves it.
In this weeks parhsa, the pesukim describe that Avraham was very reluctant to throw out Yishmael and leave him out of yerusha until Hashem told him to listen to Sarah since she spoke with prophecy. Why does the fact that it was nevuah make a difference? But more basic, why did Avraham want Yishmael to inherit since he was committing aveiros?
The Chasam sofer explains that Avraham was concerned that Yishmael may have a child who deserves the inheritance and didn't want to disown him as we find in the gemara. Sarah told Avraham b'nevuah that no one good will come out from Yishmael, so then Avraham listened to her since the concern of the gemara no longer applies.
My question on the Chasam Sofer is, Why did Avraham have to wait until a direct instruction from Hashem to listen to Sarah, the prophecy of Sarah that no one good will come from Yishmael should have convinced Avraham without a specific tzivuy from Hashem?
Perhaps Avraham was still concerned because we find that Yishmael's existence was only because "b'asher hu sham", and this is why Yishmael did not die from his illness. Just as we find from the concept of "ba'asher hu sham" that Yishmael cannot be judged based on the prophecy of what his future actions will be, so too here Avraham did not want to judge the children of Yishmael based on Sarah's prophecy that they will turn out to be bad (rather look at the present, which allows for the possibility to have a good grandchild even from a bad son, as we see the gemara considers this very viable). Only after Hashem explicitly tells Avraham to listen to Sarah is he convinced to disown him.

Kesubos 52b - Going against Hashkafas Hatorah

I found the gemara's question of "Since the torah says that a son inherits, not a daughter, how can chazal be mesaken inheritance for the daughter" (since giving a significant share of his nechasim to his daughter as a dowry would reduce the inheritance to his son), to be very insightful. The institution of kesubas b'nin nikvin would not contradict yerusha head on, rather it would circumvent the issue of yerusha, nevertheless chazal feel that it is inappropriate for the Beis Din to set up a system that will legally circumvent the ratzon hatorah. This gemara would seem to be a very strong support of opposing both heter mechirah (even if it is legally binding, which is a major issue in and of itself), and even heter iskah. I am not bothered about mechiras chometz because it is clear that the ratzon hatorah in that case is to have an outcome where a jew does not own chometz (the achronim just discuss maybe there is also a kiyum of burning some chometz), but it is clear that the ratzon hatorah is not to eradicate chometz from the world. Therefore, the only issue by selling chometz is whether it is ha'arama, but it does not circumvent the ratzon hatorah. I am also not bothered by writing a will that accomplishes leaving inheritance to daughter for 2 reasons: 1. it is not a takanas beis din, rather a personal decision. 2. the gemara itself finds a source in divrei kabbala for leaving over something for the girls. But, both heter iskah and heter mechira are systems that are encouraged by the beis din to circumvent the ratzon hatorah which is clearly to lend without ribbis and to not work the land during the shemittah year.
Any thoughts?

Kesubos 52a - Paying Ransom from Inheritance

The gemara concludes that even if the wife is kidnapped in the lifetime of her husband, and he then passes away, the yorshim are not responsible to pay the ransom from the inheritance since the t'nai kesuba is "v'osvinach l'intu" - to take her back as a wife and he is no longer able to do that. Someone in my shiur pointed out that if this is the rationale, then by an eishes kohen the halacha should be that the yorshim must redeem her. To me it seems that this would depend on the machlokes abbaye and rava. Acc. to abbaye the tnai kesuba of a kohen can place greater demands on the husband following the strict interpretation of the language, but according to rava (as explained by rashi) we only use the language by a kohen to make him equal in his responsibilities to a yisroel but not to make him have more responsibility than a yisroel (see rashi d.h. rava amar), therefore here also the yorshim of a kohein would not be required to pay the ransom. Even according to abbaye that they would be required, it would seem that in this respect the second braisa would not disagree with the first, and also maintain that the obligation only exists if the husband knew about the kidnapping before he died, because otherwise the inheritance is not mishubad at all.

Monday, October 22, 2007

Ksuba for Kuhanim???

another quick point, after learning today i wondered: being a kohen, i don't remember asking for a special "kohen ksuba" that details the captive clause in its own language. I wonder is my ksuba kosher? later i found out that we leave all these out from our Ksuba and rely on Tnai Bais Din. Now I wonder : why do we do that?

Takana Of the G"eonim

Tosfos mentions that today we collect Kesuba even from cash, because of Takana's HaG'eonim.
Just a point, what power did the G'eonim have - how does that fit with the sealing of the Talmud?
Rav Elchanan famously (and controversially) held that if all of klal yisroel get together they have power to make new things, is this a proof to him? (i am writing this from memory, so don't hole me to the details of RavElchanan opinion)

Kesubos 52a - Redeeming Captives

In general the community is not allowed to redeem captives for more than their value since it will put a strain on the community and also lead to increased kidnapping (gittin 45b). Based on the second reason, even a husband should not spend more than the market value of his wife, but Tosafos explains that it is allowed just as he can redeem himself for all his money because "ishto k'gufo". Since he is allowed to do so, according to the first opinion in the braisa he is required to spend everything he has to redeem her because that is his obligation of the tnai kesuba.
Tosafos in gittin (45a and 58a) discuss the situation where R' Yishmael Ben Elisha was redeemed from captivity for an enormous amount of money, How was that allowed to be done? Tosafos gives 3 answers. 1. He was exceptionally bright so that was an exception. 2. It was Pikuach Nefesh, since he would have been killed. 3. During the time of the churban there was no issue of causing more kidnappings (presumably because they were doing as many as they could anyway).
What is the peshat in the answer of "he was exceptionally bright"? Does it mean that since he will be able to contribute to klal yisroel we break the rules and redeem him for high values, or does it mean that his value becomes much higher since he will eventually contribute enormously to klal yisroel?

Kesubos 52b - LIARS (I mean LAWYERS)

Rashi seems to explain that "orchei hdayanim" is only a problem for the attorney to come to court and argue in front of the judge on his clients behalf. However, it seems clear from the gemara that even if he would not show up in court, rather just advise the client to do something that would give him a significant edge, would also be a violation (as we see from R' Yochanan). The Tosafos Yom Tov (Avos 1:8) points out that although the Ra'av seems to say that the violation is only if the attorney argues in front of the judge, from the end of his commentary we see that the issur included even legal advice. I don't know why he doesn't quote our gemara as a source for that.
Furthermore, the Tosafos Yom Tov suggests that an adam chashuv must be machmir (as explained by the Tosafos Rid that it leads to la'azus sefasayim), but one who is not an adam chashuv is allowed to serve as an attorney even for a stranger, just that he is not required to do so, but for a relative he is even required to do so. Based on this, the Tosafos Yom Tov says even as a midas chasidus one does not have to avoid serving as an attorney (so long as they are not an adam chasuv). This would be a rationale to legitimize the "to'ein" that is customarily used in batei dinim as not being a violation (so long as the to'ein is not an adam chashuv). However, he points out from Rashi 86a who seems to imply that the issur of adam chashuv is that "people will learn from him to do so even for strangers". This clearly implies that there is an issur b'etzem to be an attorney, the only heter would be for a relative, but an adam chashuv should avoid doing so even for a relative since people will learn from him and do it even for a stranger. Based on this approach, a to'ein can only work for a relative!

Sunday, October 21, 2007

Kesubos 51b - Eishes Yisroel Muteres L'ba'alah

The gemara has a machlokes between avuah d'shmuel and rava seemingly whether if something start b'ones and ends b'ratzon has the status of o'nes or ratzon. However, in a normal situation where the end would actually be a true ratzon, then it would have status of ratzon. It is only here where we have some level of o'nes even at the end since "yetzer albisha", do we consider the o'nes to extend even to the end and that is why she is mutar according to Rava. However, it seems from the gemara that even Rava agrees with Avuha D'shmuel that we are choshesh that it was "sofa b'ratzon", they are only arguing about the din of "sofa b'ratzon" (whether yetzer albisha is enough to consider it o'nes and be matir). This concern of "sofa b'ratzon" seems to be a machlokes between Tosafos and Tosafos Rid. Tosafos says it is a chashash d'oraysa (from the fact that the gemara asks from a standard case of o'nes), but the Tosafos Rid says that we are only concerned m'drabonon. I saw that one of the commentaries in the back implies that they would be arguing whether safek d'oraysa is l'chumra d'oraysa (tosafos), or only l'chumra m'drabonon (tosafos rid).
Another point from the Rashash - The gemara seems to say that malchus achashveirosh was a situation where no one was interested in the bi'ah since it was very unlikely that they would be chosen and not sofa b'ratzon, therefore qualified as o'nes. If so, what is Tosafos question of how Esther can be mutar (until she approached achashveirosh B'ratzon - ka'asher avadti..), since by achashveirosh even the non-jewish women were b'geder o'nes (we should not need to answer that Esther was a special Tzadekes)? It seems that answer is pashut. All the other women who achashveirosh tried out if they were fit to be queen were only o'nes, however once he chose a woman to be queen a normal woman would be ratzon, it is only Esther who was a great Tzadekes and therefore still o'nes (until she is forced to go to him b'razton to save klal yisroel).

51b starting in Ones and ending B'ratzon

Most Achronim learn the Gemara as follows: the argument in our Gemara is that if an act was done ENTIRELY B'ones, but in the middle of the act she starts to want to do it willingly (but she still is forced and cannot back out), the question is then ONLY whether she is permitted to her husband. Meaning, that for all other purposes she is still considered forced since sha cannot back-out and her willingness doesn't change that, but to be permitted to her husband is different based on the Maharik that explains a Rambam that M'aala M'aal is said even if technically she is an O'nes as long as in her mind she is willing. The main source for this is Rashi in 3b that seems to say that if she is forced but wants in her mind - then is not permitted to her husband.

The Bais Yaakov, however, learns that the issue in the gemara is EVEN if the ACT itself was switched from being forced to B'ratzon, still according to Rava she is permitted to her husband since in the beginning of the act she was forced. (see rav elyashiv and Bircas Avrohom). My only add-on to this is that it would seem that Tosfos in Bava Kama 41a that R' Akiva Eiger brings seem to hold like the Bais Yaakov, as he says that in that case there with the Ox the reason there is no P'tur of T'chila B'ones (see case there) is that the O'nes was BEFORE the beginning of the B'iah, it Mashma that if, however, the beginning of the B'iah was B'ones, then it would not change the consequence EVEN if that changed in the middle. see there.

Saturday, October 20, 2007

question 49b

the gemara here treats the husband as a "buyer", my question is that if so he should be considered a buyer that bought the property after the onslaught of the chiuv mezonos, so what is the chidush that he has to pay mezonons? in other words, the whole proof is from the fact that this husband is different then a regular buyer (see rashi) see i wonder can the children sell property after the fathers death to absolve themselves from paying sustenance?

Friday, October 19, 2007

שיטת הרמב"ם בכתובה וקנס בבתולה מן הנישואין

עיין אבי עזרי הלכ' אישות י"א א-ב וקיצרתי דבריו see comments

Kesubos 49- Obligation of Feeding your kids

The Gemara comes out that if a person isn't rich, feeding his kids is not an obligation but only a דין דרבנן that isn't enforceable. Tosfos points out from the Gemara later that kids less then six years old are a real obligating that is enforceable.

It would seem that even less then six is only מדרבנן, however, the חתם סופר seems to say that it is a Torah obligation. The source is the din of עבד עברי as the Ramban explains that the obligation of the Master to feed the kids of his slave is because until now the father was feeding them and now he isn't available to make his own money. We see from this that the Torah expects and demands that the father support his young children.

Further, says the חת"ס that the פסוקים are very מדוייק as the verses describing a slave being freed after 6 years do not mention his kids (when he is freed) while a slave that goes out because of יובל there the verses do mention his kids. The reason is that when he goes out @ six years, the master already got "rid" of their support when the turned six, unlike by a slave that goes out @ Yovel only then does that master get "rid" of their support.

Editor's Note: On this topic of a father's obligation to support his kids, R' Zalman Nechemia Goldberg wrote me a Haskama for a sefer that I am publishing soon and in his haskama he deals with this issue in a very mechudash way. See here for his chiddush and my heara on his chiddush (good reading material over shabbos):

Thursday, October 18, 2007

Kesubos 48a - Intimacy with Clothing - Chumros at the expense of others

The gemara says that "hu b'vigdo and hi b'vigdah" is minhag persians and does not fulfill the mitzvah of onah. The Ritva comments "Even though he is wearing his clothes for tznius purposes, and even if she would do the same, this would have the status of rejecting relations since it is not an intimate way" and is therefore grounds for divorce. The Ritvah does not seem to reject the notion that it would be more tzanuah in this way, rather it seems from the Ritvah that really one can make a legitimate claim that they want to maintain this "chumrah" for the sake of tznius, nevertheless she is not bound to keep his chumros, and he therefore cannot impose this chumra on her without her consent.
I posted earlier regarding the gemara on 22b where shmuel kept a chumra not to believe her amasla that she is really tahor and abstained from relations from her. The Rama records not trusting her amasla as a legitimate chumra and midas chasiddus. R' Moshe asks, How can he do this, he is bound to her to fulfill the mitzvas onah. Even according to the Chasam Sofer who says that when it is a chumra for both him and her, he can impose the chumra, since ma'alos in avodas hashem are advantageous to her as well; but here where she knows that she is actually tahor it is not at all a chumra for her, so how can he impose this on her. R' Moshe seems to understand and agree that whenever the chumra would be for both him and her, he can impose it on her as well, against the implication of the Ritvah.
However, I looked at the Teshuva of the Chasam Sofer (y.d. 149) who discusses a case where she found a ma'reh and was told by the Rav that it was tahor, but the husband who is a talmid chacham wants to be machmir. The chasam sofer elaborates to explain that the nature of being married to a talmid chacham is to accept his chumros....
ומעתה נבוא לנידון דידן נמי, כיון שכן דרכן של פרושים שבישראל להזהר מדבר שהורה בו חכם, נהי דבעת הנישואין לא היה מתנהג עדיין בפרישות רק כשאר ת"ח, לא מצי למטען לא קבלית עלאי שתהיה חסיד ופרוש, אלא אמרינן כיון שנישאת לבחור, רגיל הוא זה שעתיד להיות פרוש וחסיד, וזקני ת"ח כל זמן שמזקינין וכו' וכשם שאמרו אשרי לנשותיהן של אלדד ומידד שזכו לנבואה,
ה"ה כל מדרגה מעלה עבודת השם שמחה היא לאשתו, וכשצווחת אמרינן השתא הוא דאתרעי ומעולם לא נשתעבד לה, זה הנלענ"ד
Clearly the context of the chasam sofer is not that he can impose any chumra he chooses on her. The chasma sofer is speaking of a situation where it should have been expected that he would start keeping these types of chumros, but in cases where at the time of the marriage there was not expectation for him to be a chumra kind of guy, he cannot impose chumros on her which would conform with the implication of the Ritvah.

48- דבר אחר

i was asked, why does the gemara describe תכשיט or צדקה as דבר אחר? what's the secrecy?
I think the answer is that the Gemara/ברייתא/מר עוקבא is trying to hint that the דבר אחר is not the same by the 2 cases discussed in the sugya - which are נשטתה and יצא למדנה"י, i will explain.

according to Rashi the question of what is דבר אחר is only in in the case of נשתטה, meaning how much do we give her, only tachsit or do we also take צדקה from him, what rashi is bothered by (explains rav elyashiv) is tosfos question that how can one say she is not entitled to תכשיט? its part of the obligation of כתובה? therefor Rashi learns that its going on the case of נשתטה describing what she gets, either תכשיט only or we even take צדקה from him, but in the case of יצא למדנה"י surely we cannot refrain from giving her תכשיט. comes out that although דבר אחר means ,תכשיט in the case of נשתטה it means צדקה in the case of מדנה"י

according to tosfos, the gemara is discussing the case of יצא למדנה"י however the translation of דבר אחר doesn't stay the same by נשתטה, because according to the translation of תכשיט, meaning that we refrain from giving her תכשיט, still in the case of נשטתה not only do we give her תכשיט but we also take צדקה from him. in other words this is the source of the rambam that although he paskens like תכשיט still in the case of נשתטה he lets בי"ד take צדקה as well. to wild???

Wednesday, October 17, 2007

Kesubos 47b - Mekach Taos in Kiddushin

Click here for an explanation of Tosafos d.h. shelo, and an explanation of how we allow mekach taos by kiddushin when a woman marries someone who is found to have a major problem.

Kesubos 47a - Working on Shabbos

The gemara has a hava amina that the father should be zocheh in ma'aseh yadayim from the fact that he can cause her to take off from work to attend the wedding. But, the gemara says not necessarily because he may only have the right to give her over to chupa either when he compensates her, or if she is not working anyway such as at night or shabbos v'yom tov. R' akiva eiger assumes that the gemara assumes that she is not working on shabbos or yom tov because there is an issur, and therefore asks that the issur of working on shabbos is not d'oraysa, but m'doraysa she can work so from the fact that he can be mevatel her from work to get married should still show that he has rights to ma'aseh yadayim? Rashash answers that shabbos and yom tov is like night, meaning that although it may be permitted to work, it is assumed that she would not be working during those times and that is why he can give her to chupah without effecting her ma'aseh yadayim. However, the Rashash points out that Tosafos seems to hold that Shabbos is chosen because of the issur, rather than being similar to night where it is just not so common to work. Tosafos asks that marriage on shabbos should be an issur d'oraysa of ein mearvin, so how can the gemara speak about marrying her off on shabbos (of course, there is also a problem with making a kinyan, but that is not d'oraysa so it is fair for the gemara to assume that m'doraysa he can marry her off)? Tosafos answers that we aren't speaking about marrying her off on shabbos, rather speaking about marrying her off right before shabbos. Tosafos is bothered, why isn't there bitul melacha, and answers that it is z'man tosefes (which tosafos holds is assur b'melacha d'oraysa). Instead of saying simply that 20 minutes before shabbos is not a normal time to work, Tosafos insists on saying that there is an actual issur melacha, which implies that shabbos and yom tov are not similar to night, like r' akiva eiger's assumption.
What compels Tosafos to say that the issue of shabbos and yom tov is an actual issur?

ksubos 47 thaught process

בשלמא בעל תקינו ליה רבנן פירי דא"כ מימנע ולא פריק אלא אב מאי איכא למימר דמימנע ולא פריק בלאו הכי פריק לה ור' יוסי בר' יהודה סבר אב נמי מימנע ולא פריק סבר כיסא נקיטא עילוה תיזיל ותפרוק נפשה
question: what does rebbi yossi add in his last statement - it sounds that the argument is if the father is going to redeem her if she is captive, in other words it sounds as if rebbi yossi is coming to explain himself, so what is he saying.
i think the answer is as follows - all agree that the husband by default would not redeem his wife from captivity unless he has financial incentives, in addition all agree that the father by default would redeem his daughter even without incentives. What rebbi yossi is saying is that if the daughter has money and she doesn't give the father to eat the fruits, then the father feels he is cheated out from what he feels he is entitled too, and therefor will not redeem her and will say instead go get yourself out.

Tuesday, October 16, 2007

ksubos 47

the gemara makes a קל וחומר to teach us that the father gets her מעשה ידים, the question i had is, why do we need a ק"ו we should say more simply that if the father has the ability to sell her as a slave and then he master will get the מעש"י then obviously the father until then owned the מעש"י.

i was harboring this question since daf 40, i found the question today in rav elyashivs sefer, see there for his answer. I asked my Rebbi this question and he answered simply - the father doesn't own her מעש"י and the proof is that he can't force her to work, all he has is the right to sell her as a slave and ממילא she will have to work for her master,

so it come out that the father doesn't really own her מעש"י just that if she works he has a right to get it, I'm not sure how to define this ownership, it seems a little strange because ממ"נ if he owns it he should be able to force her to work and if not then why does he get it?

Kesubos 46 - 2 hearos in Rashi, 1 on the gemara

1. Rashi 46a when explaining the husbands claim (according to the Rabbonon) says that "lo matzasi l'bitcha besulim" means "i did not find witnesses willing to establish her innocence by either turning the witnesses claiming she committed adultery into zomimin, or by contradicting them". But, whe rashi explains the father's claim of "eileh bisulei biti", the father is presenting witnesses to turn the husbands witnesses into zomimin, and leaves out the possibility of contradicting them. The reason is clear, that the husband is saying that his claim to be mechayev her sekila can be refuted even by witnesses who are willing to contradict those who claim she committed adultery, but the father's claim to be mechayev the husband the k'nas of 100 shekel can only be established by turning the witnesses claiming adultery into zomimin (but contradictory witnesses would not be mechayev the husband to pay k'nas).
2. Rashi on the Mishna 46b explains the father's rights to kidushei kesef to be zocheh in the money belonging to him, but explains the father's rights to kidushei shtar and biah to be the ability to marry her off even against her will. Why? It is actually meduyak in the gemara. Originally the gemara wanted to prove from the pasuk of "es biti nasati l'ish hazeh" that the father has the right to marry her off against her will, and learns from sevara that the money would be his. But, the gemara says that this pasuk will not work for na'arah, and therefore concludes that we learn from "v'yatzah chinam ein kesef" that when the father marries off his daughter, the money is his, and from that we automatically understand that he has sole rights to marry her off (as tosafos explains d.h. yetziah). Therefore, the main source of kesef is that he gets the money, and from that we assume he has rights to marry her. But by shtar and biah, the only chiddush is that he has rights to marry her, since there is nothing of value that would be his.
3. The gemara says that when the father marries her off she doesn't leave his jurisdiction completely until chupah and should not be comparable to selling her. The gemara answers that for hafaras nedarim she leaves his reshus completely and is therefore comparable to selling her. The question is that even for hafaras nedarim it should not be comparable since she is still in her father's reshus that both the husband and father together are mafir her neder? When you open up a checking account with 2 signers, it can be done so that either one can sign, or so that they both sign. If either one can sign, each has significant power, but if they must both sign then neither one has power, rather each one can simply hold back the other. Similarly here, the father has not rights to hafaras nedarim (nor does the ba'al), rather he can only hold back the husband from being ma'fir, but that is not called being in his reshus at all.

Monday, October 15, 2007


i was asked,

when one admits that אנסתי ופתתי or that גנבתי etc (mishna מא) how does this fit with the rule of אין אדם משים עצמו רשע

Sunday, October 14, 2007

Kesubos 44a - Buyer Admits his Witnesses are Passul

L'iluy Nishmas: Shifra Bas Horav Moshe
The Mishna L'melech (shechita 1:26) discusses a situation where a single witness testifies that a certain shochet did a pasul shechita. If there were 2 witnesses to this fact, the halacha states that we assume he is an invalid shochet and one cannot eat from any of the previous animals that he shechted. Although the single witness is not believed to ruin all the shechitos of this shochet, the question is whether we use the concept of shavya anafshei chaticha d'issura, to forbid this single witness from eating from not only this shechita (that he is passuling), but from every other shechita that this shochet has done. The Mishna L'melech wants to prove that this witness cannot eat from any shechita of this shochet, from our gemara. The gemara says that according to the opinion that when the buyer presents a later contract, it invalidates the earlier contract because it is the equivalent of saying that the earlier contract and the witnesses signed in it were liars. Rashi explains that he "invalidates the witnesses". Clearly, the buyer is not believed to invalidate the witnesses, so the Ran explains that Rashi simply means that he invalidates the witnesses for himself. Meaning that these witnesses cannot testify any other testimony for this buyer, since he was shavya anafshei to consider them pessulim (Tosafos indicates something similar, except that Tosafos sounds like it would not be a din of shavya anafshei, rather a din of being 'modeh' that for any of the contracts that this buyer has with these witnesses signed, he is admitting them to be passul. I think that would be a significant difference between the Ran and Tosafos whether these witnesses would be able to testify for this buyer in the future - acc. to tosafos yes, and acc. to ran no). Based on the Ran we see that shavya anafshei cannot only effect the issue that he is testifying about, but would have the full impact of 2 witnesses regarding all other past and future events that effect the individual witness.

Thursday, October 11, 2007

Kesubos 41b - Grabbing K'nas

L'iluy Nishmas: Shifra bas Harav Moshe
The gemara says that nowadays where we do not have beis din with smicha, we cannot collect k'nas in beis din, but if the damagee(nizuk) grabs from the damager (mazik) the payment that is prescribed by the Torah, he can keep what he grabbed. Rabbeinu Tam (Tosafos) says that the right of the damagee to grab is limited to the item that actually did the damage. His rationale is that if the damagee had the right to grab anything from the damager, he would grab all his possessions and beis din would not be able to take them away since by calculating the true amount of the chatzi nezek, they are in essence judging on kenasos which they have no authority to do. Therefore, we must limit his ability to grab originally to only the item that did the damage. It would seem from Rabbeinu Tam that even if the damage was minimal i.e. $100 and the damagee grabbed the ox that damaged which was worth $1000, beis din cannot do anything to force the damagee to return the difference.
However, Rashi (d.h. lo mafkinan) implies that the beis din will only allow the damagee to grab up until the chatzi nezek that he deserves but not more. Rashi seems to imply that beis din can allow him to grab anything, but they would in fact make an evaluation to make sure that any value beyond what the damagee deserves is returned. The Rama (C.M. 1:5) says that explicitly in the name of the Rosh. Clearly they understand that it only qualifies as evaluating damages when the beis din is involved with the collection, but not if they are merely involved with returning the excess beyond what is deserved. The s'ma (s.k. 18) says that we follow Rabbeinu Tam when it comes to the chatzi nezek of keren, but when it comes to other k'nas where there is no "damaging ox", we follow the opinion of the Rosh.

Wednesday, October 10, 2007

Kesubos 40a - Must one Marry a Rape Victim who is assur to him M'darbonon?

One of the people in may shiur asked me this morning whether one is required to marry a girl who is assur to him b'issur d'rabonon like a sheniya l'arayos, since on a Torah level she is permited there should be a chiyuv to marry her.
I found that the Rambam (Na'arah 1:5) and Shulchan Aruch both say that if she is assur m'drabonon he does not have to and is not allowed to marry her. The Kesef Mishna (also brought in Beis Shmuel) explains that since the Torah recognizes the ability for the rabbonon to impose issurim, the torah recognizes rabbinic arayos i.e. shniyos to be assur and therefore would not qualify as "a woman who is fit to him". The Mishnah l'melech quotes R' Ahron Sason who disagrees with the explanation of the kesef mishna and says that the peshat in the Rambam is that although m'doraysa there is a mitzvah to marry her (since the issur d'rabonon is not recognized by the Torah), the Rabbonon were gozer not to marry her based on the rationale of "yeish koach b'yad chachamim l'akor davar min hatorah".
The gemara on 36a which entertains the possibility that there is not k'nas for shniyos who are assur m'drabonon, says that since she is fit m'doraysa why shouldn't there be k'nas? Rashi explains the question that since on a Torah level she is permitted, we should apply the pasuk of "lo tihyeh l'isha" since she is technically permitted so there should be k'nas (even according to r' shimon ben m'nasya). Clearly the gemara holds that on a Torah level, we consider shniyos d'rabonon as being "fit for him", and therefore he should have a mitzvah to marry her m'doraysa. So the only rationale for the opinion of the Rambam not to marry her is that the Rabbonon were oker davar min hatorah (not like the kesef mishnah). See the Mishna l'melech who pushes off this proof and says something similar to the kesef mishna that when the torah says "lo tihye l'isha" refers to a "woman permitted to him", it automatically excludes any woman who is not permitted, even if the issur is only m'drabonon.
The Mishna l'melech concludes that even though the kesef mishna implies that according to shimon hateimani who darshens "lo tiyeh l'isha" includes any women to whom there is tefisas kiddushin, he would be required to marry even chayvei lavin; it is clear from the gemara that the drasha is not the real reason, but since the asei is up to her will and is therefore weak (as i posted yesterday), it does not have the power to push off any issur (even acc. to shimon hataimani).

Tuesday, October 09, 2007

Kesubos 40a - If She is Not Interested, There is No Mitzvah

The gemara says that we can't use the concept of aseh docheh lo ta'aseh to allow a me'anes to marry a girl who is assur to him, since "if she is not interested there is no aseh". There seems to be 3 possible explanations to this:
1. Rashi seems to understand that the aseh is strong enough to push off a lo ta'aseh, but since it is possible to fulfill both by teaching her to say she is not interested in marriage, the beis din is responsible to talk her out of wanting to marry him. However, Rashi seems to understand that if she is insistent on marrying him, the aseh would in fact push off a lo ta'aseh.
2. Tosafos (d.h. neisi) seems to understand the gemara simply that an aseh which is subject to her will, is essentially a weaker type of aseh and does not have the power to push off a lo ta'aseh. Similarly we find in baba metziah 30a that we don't allow a monetary aseh to push off an issur related lo ta'aseh, as the Ritvah explains there, since the aseh is subject to mechila it is not strong enough to push off a lo ta'aseh.
3. Tosafos Yeshanim (d.h. iy amra) understands in his second answer that the fact that the aseh is only applicable if she is interested, is in essence an indication that there is no aseh on her, rather the aseh is only on him. The gemara therefore says that since the lo ta'aseh is applicable to both of them, although his aseh can push off his lo ta'aseh, we cannot allow his aseh to push off her lo ta'aseh.
What does the Tosafos Yeshanim mean in his first answer? Does he understand the gemara similar to Rashi?

Monday, October 08, 2007

Kesubos 39a - Contraception

Rashi says that the 3 women are allowed to use a moch, which applies others are not. Rabbeinu Tam asks why should it be any different that having relations with a ketana who cannot get pregnant yet it would be permitted. Rabbeinu Tam answers that the 3 women are required to use a moch, and the moch we are speaking of is one that is applied after relations. R' Betzalel Hakohen m'vilna (ma'areh kohen) points out that Rabbeinu Tam's question is answered simply by saying that these 3 women are required rather than allowed, why does he have to also say that the moch we are speaking is one of after tashmish?
He explains that Rabbeinu Tam must have understood Rashi that he also was only permiting for these 3 women the use of a moch after tashmish, so rashi would hold: 1. a moch during tashmish is assur for all. 2. a moch after tashmish is mutar only for these 3 women. Rabbeinu Tam agrees with rashi's first premise, since being meshamesh b'moch that is in place during tashmish is a problem of "matil shichvas zerah on eitzim v'avanim". The question he asks on Rashi is just as one could have relations with a ketana, so too a moch after relations should be permitted. Therefore Rabbeinu Tam says that by these 3 women wo require a moch after tashmish, but even for others is it permitted.
This is actually meduyak in Rashi 37a who explains that the moch we are speaking of is one that is used after tashmish to absorb the semen. It seems that the sugya on 37a compels rashi to say that the moch is after tashmish since it would be unlikely that it would be in place when the kidnappers would come to rape the shevuya (ya'avetz). Since Rashi interprets the use of a moch to be after tashmish on 37a, he may be assuming that also on 39a as explained above.
However, the R"I in Tosafos seems to understand Rashi that the moch which is being used is during tashmish, and is therefore forbidden for other woman (due to the eitzim v'avanim problem), but permitted for these 3 women since there is a sakana for them to get pregnant. The R"I seems to understand that although we can avoid using a moch by telling them not to have relations, they are not required to abstain, rather they can have relations and because of the pikuach nefesh concern they can use a moch.

Tuesday, October 02, 2007


Here is a link to a shiur on the mitzvah of "lekicha" by lulav and esrog. I scanned in the sources as well (it is slightly connected to the daf kesubos 31a).
It takes about a full minute to download.