Friday, November 30, 2007

Kesubos 91b - Mitzvah to pay chov

We already discusses this rashi on Tosafos 86a, but there is one point that i want to mention. Tosafos seems to have understood rashi as saying that we don't force the yorshim to pay their father's debt since it is only a d'rabonon mitzvah, and we only force for d'oraysa mitzvos but not for d'rabonon. I already mentioned the possibility that beis din would force for ner chanuka even according to rashi who holds that they don't force for d'rabonons because of the parsumei nissah. To support this sevara we can add that based on the chasam sofer that parsumei nissah is actually a d'oraysa obligation just that the rabonon describe the appropriate form to use, but it is really a kiyum d'oraysa, one can argue that for a chiyuv d'rabonon that is a kiyum d'oraysa even according to rashi you can force.
However, the language of rashi seems slightly more involved than that. Rashi says that there is a mitzvah of kibud av for yorshim to pay their father's debts (from the money they inherited). Rashi is bothered, why do we not force the yorhsim as we force by other positive mitzvos, since kibud av is a mitzvas aseh? Rashi answers that we only force for a positive mitzvah that is "mefurash" in the torah, to the exclusion of this mitzvah which as far as the Torah is concerned is not a chiyuv, rather it is a chiyuv mitzvah d'rabonon which is a kiyum of a d'oraysa. Based on rashi it is clear that the point of not forcing for a mitzvah d'rabonon, even applies to a mitzvah where the rabonon turned into a chiyuv but on a d'oraysa level is still a kiyum.

Wednesday, November 28, 2007

Kesubos 89a - Pruzbul

Rashi on the mishna explains that pruzbul works based on hefker beis din. In gittin 36a the gemara asks how kesuba works to undermine the d'oraysa hashmata of shemitah, abaye says it is because shemita nowadays is only derabonon, and rava says it is based on hefker beis din. Actually there is a machlokes rashi and tosafos in gittin. Rashi understands rava to be giving an alternative rationale as to how pruzbul works, whereas Tosafos understands that rava is dealing with a side point that the gemara raises over there but we will ultimately have to say that pruzbul is based on shemita being d'rabonon like abaye. Rashi here goes lishitaso by explaining that it is based on hefker beis din like rava. Also, Tosafos explains in gittin that according to rashi that pruzbul is based on hefker beis din, the concept of actual moser shtarosav l'beis din is also based on hefker beis din. This would explain rashi in makos 3b who seems to equate pruzbul with moser shtarosav, since according to rashi they are both based on the same concept of hefker beis din, but according to tosafos the concept of moser shtarosav is based on a pasuk and is not directly related to pruzbul (even though pruzbul borrows the concept).

Tuesday, November 27, 2007

Kesubos 87a - Combining testimony of two witnesses

The gemara says that when the husband has a single witness, reuven, testifying that he paid the kesuba and his wife is denying receiving the payment, he should pay her the kesuba a second time in the presence of shimon and then use reuven and shimon together to testify that she received her kesuba, she will likely admit to the second payment as receiving her kesuba, so then the husband can use reuven independently to testify about the first payment that she owes the original money as a "loan" on which she will need a shevuah d'oraysa to get out of. The gemara asks on this, "How can we combine the first witness with the second?". Rashi explains the question that they didn't witness the same act, so she can technically deny each witness individually with a shavua and collect a third time. Tosafos asks, that there is an opinion that even when two people witness different loans, they can combine together to testify about it, so here too they should be able to combine to testify that she received the kesuba. The Maharsha comments that even according to this opinion that reuven and shimon can testify that she received her kesuba and prevent her from collecting a third time, the gemara may still be asking, how can we use the testimony of reuven to testify about receiving the kesuba and also as a single witness on a loan. Meaning, even if we combine reuven and shimon as a testimony that she received the kesuba, there is no eid echad testifying to create a shavua d'oraysa. The rashash seems to understand the question of the gemara similar to the maharsha. The gemara is asking that the same eid who only saw one transaction cannot be used for 2 jobs, to both combine as eidus that she received her kesubah and then as an eid echad to be mechayev a shavua (he supports this understanding from the biur hagra c.m. 30:16, who basically says that based on the maharsha's understanding tosafos has no question on the gemara).

Monday, November 26, 2007

Kesubos 82a - Forcing on a positive mitzvah

A few points:
1. Why pick lulav and succah? Rashi says that they are mitzvos that are not very expensive (chulin 132b). Does Rashi mean that only inexpensive mitzvos we force, but we don't force for expensive mitzvos, or does rashi mean that even inexpensive mitzvos which are "mitzva kalla"- light mitzvos as the gemara says in avoda zara 3b, we force, certainly for more important mitzvos? The Rashash in chulin wonders where in the world rashi gets this from. The chasam sofer makes a reference to a shach that one is not obligated to spend more than a fifth on a mitzvas aseh and that is what rashi hints to.
2. Does forcing on a mitzva mean that we whip him until he does it (as it seems from succah and lulva) but ultimately he has to do it on his own, or do we force him to do it (such as milah, we would tie him down and give him a bris whether he likes it or not)?
3. Mitzvah aseh that is matan sechara b'tzida where we do not force (and according to tosafos it seems that we are not allowed to force, not like ramban - see sm"a c.m 107:1), although we cannot force it to be done by tying him down, can we at least whip him until he agrees to do it? This seems to be a machlokes nesivos and r' shlomo kluger - see comment in previous post.
4. Are we forcing the individual to fulfill his obligation or do we force whoever we have to so that the mitzvah gets done? In hilchos mila it says that we force a mohel to do a bris for free if the father doesn't have money - it seems that although it is not the mohel's obligation we would still force the mohel to make sure the mitzvah gets done.
5. Do we force for a mitzvah d'rabonon? See comments on previous post where rashi seems to say we don't whereas tosafos says we do. I found that the Pri Megadim (pesicha koleles 25 - pg 6 second column in old printing) that Rashi says for a mitzvah d'rabonon such as chanuka and megilla which are being violated b'shev v'al ta'aseh we do not force. However, it seems plausible that parsumei mitzvah type mitzvos such as chanuka and megilla where we even require to sell his shirt, even rashi may admit that we force.

Sunday, November 25, 2007

Kesubos 86a - Mitzvah to Repay Debts

The gemara speaks about the mitzvah to repay a loan, as if there is no shi'bud on the property, rather deals with it entirely from the perspective of mitzvah. There are various mehalchim to work out this gemara with the concept of shi'bud being a deoraysa right of collection in din, totally exclusive from the aspecto of mitzvah. Tosafos lays down the rules: 1. Orphans who inherit and are ketanim do not have to repay the father's debts even if they inherited property. 2. Orphans who are gedolim, it depends: if they inherited property they have a mitzvah to pay and can even be forced to pay (this is the case the gemara speaks about), but if they did not inherit property then they have a mitzvah to pay but cannot be forced to pay (this is assuming that they inherited at least metaltalin, but if they did not inherit anything they do not have a mitzvah to pay since kibud av is only at the father's expense, not at their expents - hagahos ashri).
If the mitzvah to pay is for kibud av and therefore we cannot force (since it is matan seachara b'tzida), how can we force when they inherit property? It can't be that the forcing when they inherit property is not "mitzvah" related, rather a legal shi'bud, because orphans that are children should then be obligated to pay as well, yet they are not! Furthermore, Rashi speaks about a mitzvah of keeping your word, whereas Tosafos speaks about a mitzvah of kibud av, why?
It seems to me that there is a mitzvah on the father to keep his word and pay back a debt. When the orphans inherit property from the father they assume the mitzvah obligation to keep the father's word and pay back the debt - not as a mitzvah of kibud av, rather they inherit the "mitzvah" that comes with the land. Therefore, adult orphans who have to do the mitzvah, are obligated and even forced to pay back (that is the case the gemara is speaking about when it says that we force for a mitzvas aseh), but children orphans who do not have an obligation to do a mitzvah are not required to pay back the debt. However, if the father died and did not leave over property, but did leave over metaltalin, then they do not inherit the mitzvah of repaying their father's debt, but there still is a kibud av obligation to pay. When the mitzvah is only kibud av, there is a mitzvah but we don't force since it is a mitzvah that has matan sechara b'tzidah.
It still need a hesber to explain why when they inherit property to they automatically inherit the mitzvah of keeping their father's word, even without the mitzvah of kibud av, but when they inherit metaltalin their entire obligation is based on kibud av?

85 קים ליה בגויה

האחרונים מדייקים בלשון הרמב"ם דמהני אומדנא דדייני אף להוציא, והדיוק מזה שכתב הרמב"ם (וכך לשון הטור) א"כ למה הצריכה תורה שני עדים וכו' (ציטוט לשון בערך) ואם צריך עדים להוציא ממון היה לו לרמב"ם לומר דלכן הצריכה תורה עדים, ולא תירץ כך אלא כתב שעדים מהני אף אם לא ברור לדיינם שהם כשרים וכו' (עיין בהערות על הטור מאחיעזר והרא"א דסלר). וצ"ע איך הרמב"ם לומד הגמרא שלנו שא"א לקרוע השטר אלא לרעותו - לא עיינתי

Friday, November 23, 2007

83b question

תנו רבנן אלו הן פירות ואלו הן פירי פירות הכניסה לו קרקע ועשתה פירות הרי הן פירות מכר פירות ולקח מהן קרקע ועשתה פירות הרי הן פירי פירות
when a husband sells fruits and buys land, who owns the land? it would seem that the husband does, so why does the ברייתא say that he gets the fruits? surely he gets the fruits if he owns the land?

Thursday, November 22, 2007

82- פומבדיתא רמאה

בהא מעשה דרב יוסף ואביי לעיל הקשה הר"ן איך שייך הו"א שהיבם יכול למכור לפני מעשה היבום? ונ"ל שרש"י ותוספות סוברים דאה"נ שלא עשה קנין אלא אחר היבום, ולפני היבום היתה רק הבטחה וקנין חליפין שיקנה אחר היבום, ולתוספות אה"נ בסוף חזר בו היבם ולא רצה להקנות אחר היבום, והכא בדף זה השאלה היא אם שייך מעשה קנין מעתה ולאחר היבום, ויוצא שלרב יוסף ולהלכה לא פוסקים שניתנה כתובה לגבות מחיי יבם דאל"כ בדיעבד היה צריך לחול המכירה בדיעבד עכ"פ במעשה דרב יוסף
מקורות: עיין רש"י פא: ד"ה אע"ג "וקנו מידו" ועיין פב. תד"ה פומבדיתא ורש"י ד"ה הכא לאו בידו ודו"ק

Wednesday, November 21, 2007

Kesubos 82a - Kinyanim: Meshicha, Kesef and Shtar

The gemara concludes that if one makes a kinyan now so that the act of the kinyan will be done now to be effective in 30 days, and the chalos of the kinyan goes into effect retroactively from now, it is effective. However, if the chalos of the kinyan was only designed to go into effect at the end of the 30 days, Tosafos explains that it would depend on the type of kinyan. Meshicah which is an act of kinyan and has not lingering effect, the chalos and ma'aseh kinyan must be at the same moment. The Ran disagrees with this conclusion (see ketzos 127:3) by maintaining that the gemara is merely developing the opinion of R' Yochanan who limits the statement of th R' Dimi to where one said "mei'achsav", but other amoraim argue and hold that one need not say "mei'achshav".
Nevertheless, even Tosafos agrees that when it comes to kinyan kesef, it can be done today and only go into effect in 30 days without stating and retroactive chalos. The distinction between kesef and meshicha is that the kinyan of meshicha is accomplished by the act of meshicha, and once that is over there is no lingering effect. However, the very nature of a kinyan kesef is not the act of receiving the money, but rather a willingness to give up an item in exchange for the benefit received from that money. Therefore, so long as the money will have to be returned if the kinyan is not achieved, it is as if the money was actually given at the end of the 30 days (the question still remains how this works by kiddushin where we hold that mekadesh b'milva eina mikudeshes; would this be like mekadesh b'hana'as mechilas milva?).
Tosafos also indicates that a contract would be similar to money, that if it is still around at the end of the 30 days the kinyan is effective even without a clause of mei'achshav. This indicates that a kinyan shtar is not achieved by the act of handing over the contract from seller to buyer (as by meshicah), but is rather achieved by the buyer being in possession of a contract that states the land belongs to him. Therefore, so long as the buyer possesses such a contract at the end of the 30 days, the kinyan will go into effect at that time.

Tuesday, November 20, 2007

Kesubos 81b - Takana that yaveim can't sell

The gemara has a discussion regarding a yaveim who is not allowed to sell any of the property that he inherited from his brother since it is all meshubad to the kesubah, unless she gives permission to sell it. The gemara quotes a machlokes whether this takana is that lechatchila he is not allowed to sell, or that even b'dieved the sale will be null and void. Although the gemara rejects the proof cited by R' Yosef, it does not necessarily reject the idea of R' Yosef that the sale would even be void.
Simply speaking the discussion in this gemara is limited to this specific issue as to how strict chazal were when they set up this takana. However, R' Akiva Eiger in a Teshuva (1:129 d.h. v'yesh lomar) quotes from hagahos mordechai that his issue is very much connected to the machlokes abya and rava in Temura whenever the Torah says not to do something, is it binding if he did it anyway. The Hagahos Mordechai proves from our gemara that if one would swear not to sell something and then sells it, the sale is void, just as in our case R' Yosef maintains that the sale is void because he violated the takana d'rabonon. R' Akiva Eiger points out that the concept of "iy avid lo mehani" according to the hagahos mordechai who assumes that this is the issue of our gemara, applies even to an aveira derabonon, such as here where he simply violated the takana. This is in contrast to the Panim Meiros (quoted earlier in the teshuva) who says that our gemara is not a proof that this concept applies to even an issur d'rabonon. The Panim Meiros explains that our gemara is not connected to the bigger question of whether something the torah forbids can be binding bidieved. He maintains that rava's position of "iy avid lo mehani" does not apply to a derabonon, so it cannot be the rationale in our gemara that the sale should be void. Rather, in our gemara the sale is void since the takana was for the zechus of the wife, and since chazal were concerned for her benefit they strengthed the takana that even bidieved the sale should not be binding. Based on this it is merely coincidental that Abayei holds in general that "iy avid mehani" and by us he holds the sale of the land is binding.

Sunday, November 18, 2007

Kesubos 79a - Shtar Mavreches

The gemara says that a shtar mavreches, which is a contract that is not legally binding and it's entire purpose is to make it look like there was a gift or sale, is effective in "hiding" the property from a husband so that he will not be entitled to the produce of the field. Tosafos quotes Rabbeinu Chananel that the mechanics in why it can evade the produce from going to the husband even though it is not legally binding, is because we pasken like r' shimon that the husband has not rights to property he was unaware of at the time of the marriage, so here too at the time of the marriage he was under the impression that this property did not belong to her. Based on this, Tosafos quotes Rabbeinu Tam that this concept can only work when trying to evade the husbands rights to peiros, but it cannot work to evade a ba'al chov since his rights is not pending on his knowledge of whether this field belongs to the lender. Rather, the rights of a ba'al chov are dependent on whether the field actually belongs to the lender, so if the gift is valid then it belongs to the receiver, if it is invalid it goes to the lender. According to Tosafos the gift is binding, but according to the Rosh the ba'al chov collects.
Tosafos Rid argues on Rabbeinu Chananel and says that although we don't pasken like r' shimon, the shtar mavreches is effective to evade the husband from collecting since he has absolute yiush because he knows about the field and thinks it belongs so the receiver. Based on this approach, we should say that the shtar mavreches is also an effective way of preventing a ba'al chov from collecting even though the gift to the receiver is not binding, since the ba'al chov also has an absolute yiush from this field at the time that the lends the money because he assumes it belongs to the receiver.

Kesubos 77b - Marrying One with a Contagious disease

The mishna says that we would not allow a mukah shechin to stay married to his wife since it is physically damaging to him, therefore even if they both wish to stay married we would force divorce. This is paskened in Shulchan Aruch (E ven Haezer 154:1). The Boaz on the Mishnayos explains that there is an issur for one to cause himself physical damage, therefore even if he is willing to suffer the pain and damage, we would not allow him to do so and that is why we force divorce. Similarly, anytime someone has a contagious disease that would cause the spouse to likely become ill (such as an STD), we would force divorce. It is obvious that we would not encourage such a marriage to go ahead even if both sides are willing to accept the consequences. But obviously it would depend on the severity of the disease.
A side point is Rashi's understanding of one using the torah as a protection from catching a contagious disease. Rashi considers one who puts them self at risk by exposing himself to the disease and using the torah as a protection is considered a display of "kavod hatorah". How does this fit with the issue raised in the mishna in Avos that one should not use the torah as a "kardom lachpor" as we find in the story in the gemara where a tanna refused to disclose his identity because he did not want to receive any personal benefit from the Torah?

Friday, November 16, 2007

Kesubos 77a - Married for 10 Years w/o Kids

The gemara brings a machlokes when one is married for 10 years without children, whether there is a chiyuv to divorce. Rashi makes it clear that the issue is whether we force divorce so that he will fulfill the mitzvah of p'ru u'rvu, just as we force for all mitzvos aseh. The gemara also implies that the issue is not her complaint, since even if she accepts to stay married we would still force divorce. Why is the mitzvah of p'ru u'rvu different from other mitzvos aseh that we force for? Why is there a dispute whether or not we force? Perhaps it is because we are not directly forcing to fulfill the mitzvah, as rashi points out it is only called a d'rabonon, even though the actual mitvah is d'oraysa, we refer to it as d'rabonon since the mitzvah would only require him to marry another woman, not necessarily to divorce this one. That is why R' Asi says that we don't force at all since there is no way to directly force to do the mitzvah. Nevertheless, we pasken (Even Haezer 154:10) that we do force, but nowadays we don't force (Rama).
The halacha seems to imply that although nowadays the custom is not to force divorce, but he is really obligated to divorce. Based on this the Pischei Teshuva (154:27) deals with a Talmid Chacham who wants to stay married to his wife since he is ill and she is a real yarei shamayim and takes great care of him, but they don't have kids, so must he divorce her? After quoting various limitations of this halacha (i.e. only in E"Y....), he says that one is not required to spend more that 20% on a mitzvas aseh, and since her kesubah happens to be expensive, he would not be required to spend that much on p'ru u'rvu, especially since this mitzvas aseh is weaker than others since there is an opinion in the gemara that we don't force for it (since even if he gets divorced we don't know if he will really perform the mitzvah).
I would suggest that even if her kesubah is less than 20% he would still not be obligated to divorce her since she is worth more to him that 20% of his assets. R' Menchem Spira pointed out that R' Moshe (Igros Moshe 1:57) makes a similar claim regarding a widow who cound not find a job to support her kids if she would cover her hair. Based on Rashi Kesubos 72a he considers it to be a mitzvah to cover rather than an aveira not to (so not covering would be a bitul mitzvas aseh), so she would not have to spend more than 20%, and the ability to find a job is worth more to her than 20% of a normal person's assets.

Thursday, November 15, 2007

Kesubos 76a - Chezkas Haguf of Daughter Supporting Claim of Father

Rav Ashi is mechadesh that although according to R' Gamliel we should follow the chezkas haguf and say that the mum developed a moment before it was discovered, and therefore if it was discovered post nissuin the husband should loose, and even if it was discovered pre-nissuin post-eirusin the husband should still loose since we should say that at the time of the eirusin she did not have a mum; the chezkas haguf on the girl cannot support the father's claim on the kesubah, therefore if the mum was discovered post-eirusin the father cannot collect the kesuba.
Although Tosafos originally tries to explain that the logic being used by R' Ashi is that the father cannot claim a definitive claim as to when the mum developed, Tosafos ultimately submits to Rashi that the peshat is because her chezkas haguf cannot support the father's claim. It would seem that the logic is that chezkas haguf is a birur like we said yesterday, that the mum developed very recently. This only works if complimented with a claim by someone who knows when exactly the mum developed, but the father has no idea when this mum developed on the body of the girl and that is why her chezkas haguf cannot support his claim. It is only when she is making the claim that she can use the support of chezkas haguf since she presumably knows exactly when the mum developed.
Tosafos (76b d.h. kalla) applies this argument also to the case where the original owner of the donkey claims that the donkey died after it was sold, but he does not have a chazaka that it was alive and remained alives supporting him, since the chazaka on the donkey can't support the owner of the donkey just as the cheskas haguf of a girl cannot support the father. This would fit with the rationale that the chezkas haguf can only support the person who is expected to know the truth, but the original owner of the donkey has no idea when it died.

Wednesday, November 14, 2007

Kesubos 75b - Chezkas Haguf

There are 2 approaches on today's daf (Rav Ashi we will discuss tomorrow) to explain the mishna. The first is that R' Yehoshua and R' Gamliel argue whether the chazaka on the money of the husband is stronger than the chezkas haguf of the father (Reisha is like R"Y and seifa is like R"G). R"Y says chezkas mamon is stronger (so husband wins), but w/o chezkas mamon the chezkas haguf would be stronger than the chezkas p'nuya. R"G holds that the chezkas haguf is stronger than the chezkas mamon (so father wins). Tosafos explains that according to R"Y the chezkas haguf, even though there is a rei'usa against it (the blemish is in front of us), it is still stronger than the chezkas p'nuya. Basically, without a chezkas mamon, both R"Y and R"G agree that the chezkas haguf even with a rei'usa is stronger than a chezkas p'nuya. Why?
Perhaps it is because the entire chezkas p'nuya is dependent on whether or not she has a blemish and that is determined through the chezkas haguf. We can further explain this based on R' Shlomo Zalman (Shmatsa 2:1 note 4) who explains the opinion of Pnei Yehoshua that chezkas haguf is stronger than Rov, because Rov is a statistic whereas chezkas haguf is a clarification that this is the way it is (birur). A Rov is stronger than a standard chazaka such as a chezkas p'nuya since they are both merely statistics and the Rov is a more reliable statistic. But, it is not stronger than a chezkas haguf which is a birur. Therefore, a chezkas haguf which is a birur completely overwhelm es the chezkas p'nuya which is only a statistic. Once the chezkas haguf paskens that she did not have a mum when she got married, there is no reason to follow a statistic style chazaka i.e. chezkas p'nuya.
Rava says that when the mum is discovered prior to nissuin when she is in the father jurisdiction, we say "kan nimtzah kan haya" and assume it was there from before eirusin so that it is a mekach ta'os and husband wins. Although there is a chezkas haguf against the kan nimtza, they cancel each other out and the chezkas mamon paskens in the husbands favor. But, when the mum is discovered after nissuin then we assume it only came now. Even if the husband finds witnesses that she had the mum between the eirusin and nissuin when she was still in the father's reshus, she wins. Tosafos explains the rationale that although she has 2 chazakos (chezkas haguf and ein adam shoseh b'kos...) and he has 2 chazakos (kan nimtzah and ein adam mifayes b'mumin), her chazakos are more powerful since they work independently of each other, whereas for him they must both be true.

75 ...they say galus is a blessing in disguise...

אמר אביי וחד מינייהו עדיף כתרי מינן אמר רבא וחד מינן כי סליק להתם עדיף כתרי מינייהו דהא רבי ירמיה דכי הוה הכא לא הוה ידע מאי קאמרי רבנן כי סליק להתם קרי לן בבלאי טפשאי

the shita explains that the natural ability of the Israeli born are superior, but the men of Bavel work harder and train their minds more, so therefor the israeli's are better off, but if a bavel man goes to israel he is now superior because all those years where his natural ability was less caused him to sharpen his mind, so when he has his sharpened mind plus natural abilities of א"י he now becomes superior.
the same can be said of galus, as the famous mahal goes, a blind man has to make up for his blindness by getting acquainted with objects thru other senses, so in a sense, the blind man can know the objects more intimately.
i often feel this way about the "kids at risk" those who do come back (probably most) have thru their tribulation's gained a deeper sense of their connection to G-D that others might not have. and in doing so they forced a host of others around them to think about issues they never before did. PERHAPS what the papers see as the worse things happening to the jewish people has also a bright side to it. WHILE no one wants ח"ו to be in that position, still in a global sense the whole concept of galus is just that. This idea is very deep and i think is discussed in the deeper sources. just wanted to share that you can learn this from our gemara. it is the source for the avrohom fried song .... i asked the wise, they tell me that galus is a blessing in disguise... just don't ask me to sing...

Tuesday, November 13, 2007

Kesubos 74a - Conditions and Agent for Chalitzah

The gemara says that one is not able to make a stipulation that will prevent the chalitzah from taking effect, because we learn out from t'nai b'nei gad u'bneir reuven, that only that only a ma'aseh that can be done through an agent can one make a t'nai on it, but if it can't be done through an agent, one cannot make a stipulation on it. Tosafos explains the connection between making an agent and the ability to limit the action through a stipulation. Any action that is totally within one's control that he can even set up an agent to carry it out, it is also under his control to be able to make a stipulation to prevent the action from taking effect. But, an action that is not under one's control to set up an agent, but rather must do it himself, he cannot impose a stipulation to prevent the effect of that action. Therefore, since chalitzah is an act that cannot be done through an agent, one cannot impose a stipulation to prevent the chalitzah.
Rashi seems a bit strange. Rashi says that chalitzah cannot be done by an agent means, "one cannot say to his agent, if she gives you 200 zuz then do chalitzah, therefore it does not qualify as a stipulation to ruin the chalitzah". Rashi clearly understands that the inability to set up an agent on the act of chalitzah, is not enough of a reason to disallow a stipulation on chalitzah. The gemara is not focusing on a weakness in the act, rather on a weakness in the stipulation. Meaning, any situation where you can't set up an agent with a stipulation, you can't make a stipulation at all. v'dok!

Monday, November 12, 2007

Kesubos 73b - Ein Adam O'seh B'ilaso B'ilas Z'nus

There is a well known argument between R' Moshe and R' Heinken regarding people who are married in secular courts and live together as husband and wife, whether we have a chazaka of "ein adam o'seh..." to create a marriage. Although often R' Moshe comes up with a novel leniency, in this case the simple reading of Shulchan Aruch (Even Haezer 149:5, 6) supports R' Moshe; the issue of "ein adam o'seh...." does not apply by 2 strangers who move in with one another. The Shulchan Aruch states explicitly that when the marriage takes place in arkaos "even if they have yichud with one another every day in the presence of many, we are not choshesh for kiddushin".
One way or the other, I would like to suggest based on the gemara today and Rashi that "ein adam o'seh b'ilaso...." does not automatically create a kiddushin. Rather, rashi explains many times on the page (primarily in d.h. lo ta'os) that since a person would not want his bi'ah to be z'nus, at the time of bi'ah he would realize that the conditions that were previously stipulated may not have been kept, and he is conciously wants this bi'ah to be a bi'ah l'sheim kiddushin. However, if we are sure that this person has no idea that bi'ah can actually serve as a ma'aseh kiddushin (he missed the first mishna in kiddushin), it would not be possible to create a ma'aseh kiddushin with just the um'dana alone. Therefore, in most situations where the husband is not very well learned, all should agree that the bi'ah will not serve as an automatic kiddushin.

Sunday, November 11, 2007

Kesubos 72a - Married to a Rasha

It seems from the mishna that a woman looses her kesuba for violating da'as moshe i.e. to be machshil her husband in issurei torah, and for da'as yehudis i.e. to act in a way that chazal consider to be preitzus. It seems that if one is married to a woman who is a rasha that is not grounds for divorce. It is only if she would at least try to machshil him, even if she was unsuccessful, then it would be valid grounds for divorce and she would loose her kesuba (tosafos implies that the language of the mishna compels the gemara to find a case where she actually fed him issur, but really even attempting to feed him issur would be a violation of da'as moshe). This seems interesting that according to chazal one is not justified to divorce his wife even if she decides to be not religious at all, so long as the devarim shebeino l'beina are maintained.
But, perhaps once she is not religious she is no longer believed in inyanei kashrus and nidah (presumably v'safra lah applies only to a religious woman), and since he won't be able to trust her to have relations with her, it would be the equivalent of a moredes m'tashmish?

ksubos 72b סימפון

בתוס' ד"ה על מנת, הקשה דמדוע צרי לעל מנת כדי שהקידושין יבטלו הרי מדין סימפון רואים ששייך קידושי טעות אפילו בלי תנאי מפורש, ולכאורה כל קושית התוספות מקידושים דווקא ולא מנישואין, דהרי מסימפון גופא מוכח שכל החשש הוי בקידושין אך אחר נישואין אין חשש סימפון, והיה נראה של"ש לבטל האישות אחר הנישואין ע"י מקח טעות - יהיה מאיזה טעם שיהיה- וכן בתירוץ התוספות שמבאר שלשמואל איצטריך על מנת למימרא דבכל ענין לא צריכה גט אפילו כנסה סתם, ולכאורה מוכח שכנסה סתם לשמואל הוי מקח טעות רק במקום שהיה התנאה בקידושין, אך כשלא היה התנאה בקידושין לא שייך מקח טעות דאל"כ לשמואל היה צריך לומר חידוש גדול יותר ששייך מקח טעות אפילו בלי תנאי כלל. כך היה נראה, אלא שידוע שבמקרים מסויימים הפוסקים דנו שמקח טעות באישות אפילו אחר נישואין, ורק התחלתי הסוגיא אך בהשקפה ראשונה צ"ע. ובאמת ההוכחה מתוספות לא מוכח ממש דאפשר לומר שסתם מקח טעות שייך אפילו אחר נישאוין אלא שלא שכיח ולכן אין חשש סימפון, ולשמואל י"ל שהוי חידוש טפי שלגבי תנאי שאין לה נדרים שרק הוי הקפדה אם מתנה ממשבזה אפילו כנסה סתם ל"צ גט

אין אדם משים עצמו רשע

הגמרא מקשה מנע ידע דהיא מעבירתו על הדת לגבי נידה, ומקשים הראשונים דנימא דהיא מודה אחר התשמיש שהיתה נידה, והר"ן מביא את הראב"ד דמתרץ דלא נאמנת דאין אדם משים עצמו רשע. והראשונים מקשים על הראב"ד דהרי לגבי ממון אמרינן דהודאת בע"ד כמאה עדים ולא אמרינן אין אדם משים עצמו רשע, והכא היא מודה להפסיד כתובתה. וראיתי שיש מתרצים לראב"ד כך - שוודאי לגבי ממון אמרינן הודאת בע"ד אלא שהבא ההפסד של הכתובה לא הוי ששימשה איתו נידה אלא מפסידה כתובתה כיוון שאי אפשר לדור בכפיפה אחת עם נחש, וא"כ לפני שמפסידה כתובתה צריך קודם להוכיח שהיא רשעה - וע"ז אמרינן אאמע"ר, דהיינו שזה שתי שלבים והבן - ועיין לעיל באלו נערות מה שדיברנו בנושא זה ומקצר אני
מפני דוחק השעה

Friday, November 09, 2007

Kesubos 70a - Mitzvah l'kayem divrei ha'meis

It seems that this concept of mitzvah to fulfill the words of the meis, is not just an obligation but a legally binding concept that can override the rules of inheritance as we see from the case of giving a shekel. Tosafos seems to confirm this by asking, why do we need both the concept of divrei shechiv meira k'ksuvin umesruin and also the concept of mitzvah l'kayem divrei ha'meis. Clearly, the concept of divrei shechiv meira... is a legally binding transaction, so it seems that mitzvah l'kayem divrei ha'meis is also legally binding. Tosafos explains that the advantage of mitzvah l'kayem divrei ha'meis is that it works even for a healthy person who gave a tzava'ah prior to his death, however it only applies if one gave the money to a third party i.e. set up a trust, for that purpose (Tosafos in first answer, Rosh, Shulchan Aruch and Rama in C.M. 252:2 pasken that mitzvah l'kayeim only applies when given to a third party for the purpose of making an acquisition for the receiver).
People often like to use this concept of "mitzvah l'kayeim divrei ha'meis" homoletically to require people to follow instruction of one who has passed away. The pischei teshuva (C.M. 252:1) quotes Sh'vus Ya'acov that this is a total misrepresentation of the concept. There is no rule anywhere that one is bound by the rule, will, or even straight out demand of one who has passed away. Furthermore, the Ketzos Hachoshen (end of 252) explains that even if the niftar made his desire and will very clear, and even took a neder that something positive should be done with his money, the inheritors are not in any way bound to keep his neder (so long as it wasn't done with a language that can qualify as matnas shechiv meira k'ksuvin umesurin - see nesivos on the ketzos).

Thursday, November 08, 2007

is רבי יוחנן a תנא?

the gemara seems to say that ר יוחנן has a right to argue on Rebbi. it sounds that ר' יוחנן has the status of תנא הוא ופליג as rav does. in truth it's a big debate amongst the mefarshim. The way to get out of it is to say that he found another ברייתא or he knew that this ברייתא is a mistake etc.
עיין מהר"י בי רב קידושין צז ב, מהר"י קורקוס ריש פ"ג מהל' עניים, פר"ח יו"ד קי"ג כ"א, לעומת זה ברמב"ן סוף פרק ט"ו בשבת, ריטב"א כתובות ח ב, ועודתוס' יבמות ז' ב' ד"ה ר' יוחנן, כתובות ח' א' ד"ה רב וע"ע קובץ שיעורים בב" תרל"ג מהגר"ח

Kesubos 69a - Title "Rabbi"

The gemara says that when R' Anan sent a message to R' Huna and refered to him as "Huna our friend", R' Huna was offended and responded by forcing R' Sheishes to refer to R' Anan as "Anan, Anan". It is clear from the gemara that R' Huna was justified since he was greater than R' Anan and should not have been referred to as "Huna, our friend".
The Ya'avetz asks, even if R' Huna placed a shamta on R' Sheishes to speak to R' Anan with tremendous chutzpah, R' Sheishes should not be bound to keep such a shamta. Even one who was told by a king to violate the Torah, would not listen; here also, it is a violation of kavod chachamim and R' Sheishes should not have listened (he even goes so far to say that the shamta should not even be binding). In the course of his question he points out that it is true that there are those who don't need titles i.e. moshe, ahron...., because "greater than the title "Rebbi" is his name", but once it became proper to use titles it would be wrong for R' Sheishes to refer to R' Anan without a title, and certainly where his whole intent is to degrade him?
Perhaps since R' Sheishes gave a whole hakdama that the words he is about to say is a direct quote from R' Huna, it is the equivalent of delivering a letter written directly by R' Huna to R' Anan and R' Sheishes himself wasn't expressing any chutzpah.

69B ואחריך לפלוני

אילפא ... תנא ליה האומר תנו שקל לבני בשבת וראוין ליתן להם סלע נותנין להם סלע ואם אמר אל תתנו להם אלא שקל אין נותנין להם אלא שקל ואם אמר אם מתו יירשו אחרים תחתיהם בין שאמר תנו בין שאמר אל תתנו אין נותנים להם אלא שקל
-ופרש"י אל תתנו: הרי מיחה בידם ולא עשה יורשין אלא בענין זה. אם מתו: בלא בנים

ומבואר מרש"י שאי יש לו בנים א"כ כשמת עובר לבנים - אך בשאין לו בנים עובר לאחר, והפוסקים מקשים על רש"י שהרי אם הוי לו דין יורש צריך להיות שהוא יורש לעולם ולא שייך דין אחריך לפלוני ביורש כדמבואר בב"ב, אלא צ"ל שהכא לא נתן לבן אלא סכום זה ולאחר נתן במתנה את השאר, וא"כ אפילו אי יש לו בנים אחרי מיתתו עובר לאחר. עיין בש"ך על רנ"ג סעיף י"ז איך שהב"י הבין ברש"י ומה שתמה בזה

Wednesday, November 07, 2007

מר עוקבא

בהא מעשה דמר עוקבא דנו הפוסקים, דלכאורה צ"ע דאין רוח חכמים נוחה בזה שמעבר אכסנתא אפילו היכא שמקדיש נכסיו לשמים - כדמוכח בבב"ב קלג ב', ועיין למשל באגר"מ חו"מ ב' נ' שדן בזה וחילק שהיכא שהכוונה לעבור הירושה אסור אפילו אי מעביר לשמים אך אם כוונתו לשם צדקה מותר כל עוד שהשאיר סכום מכובד ליורשים, ובשו"ע של הגר"ז בסימן א' סעיף ח' כתב שאם מניח דבר המספיק ליורשים מותר ולפ"ז מר עוקבא שהיה עשיר גדול לית לן בה. הדברים חביבים לי כיון שהולך אני לשיעור שבועי על שו"ע הגר"ז בחו"מ ובספר אמרי יעקב עליו שמבאר דבריו בדומה למנ"ב ובה"ל

Kesubos 68a - Evaluating the Father's generosity

The gemara says that according to Shmuel who paskens like R' Yehuda in the Mishnah we evaluate the father's generosity and give the dowry accordingly, rather than simply giving 10% of his assets. Tosafos is bothered why by supporting the daughters i.e. food, we have a bare minimum (as in the mishnah 64b) and increase according to his wealth, but for the dowry we base it on his generosity. Tosafos answers that supporting the daughters is imposed on him by the tenai beis din, and therefore not pending on his generosity, rather it is an obligation based on his total assets. The dowry on the other hand is not imposed on him and therefore is based on his generosity. The Malei Haroim (back of gemara) asks, Tosafos answer is sufficient to explain why we we not evaluate the father's stinginess to lower his obligation of support, but perhaps we should evaluate his generosity to increase the level of support even if he is not that wealthy? He answers based on an important yesod in Tosafos 50b, that even acc. to Shmuel that we evaluate the father's generosity, that is only to decrease the amount to less than 10%, but we will never give her more than 10% even if he is extremely generous (the reason being is that chazal were careful not to abolish the inheritance rights of the son, so they limited the automatic dowry to be no more that 10% - unless the father stated explicitly otherwise). Therefore, the cap for the dowry is 10%, whereas the cap for support is assessing his assets, the only question was, why we don't take into consideration his stinginess to decrease support, and to that Tosafos answers that it is an absolute obligation not at all based on his level of generosity.

Kesubos 67b - Embarrassing vs. Killing

The gemara cites a story with Mar Ukvah where he and his wife jumped into an oven in order prevent embarrassing the poor person that they gave money to. The gemara says that the reason they took such extreme measures is that one should throw themselves into a fiery oven rather than embarrassing someone, as we see that Tamar was prepared to die in order to prevent embarrassment to Yehuda.
Is the gemara saying that Mar Ukvah actually jumped into an oven that under normal circumstances would kill him and was actual suicide, just that he was saved through a miracle in the zechus of tzedaka, or is the situation of Mar Ukvah not quite a "fiery furnace" and although uncomfortable, it was not suicide? Based on the second possibility, it would seem a bit strange why the gemara asks how they were able to do this. But according to the first possibility, it doesn't seem to be so parallel to Tamar. Seemingly, embarrassing someone in public is EQUAL to murder, not more not less (as Tosafos in Sotah 10b seems to assume). Therefore, one would be obligated to allow themselves to be killed passively rather than actively embarrass someone, as we find by Tamar. But, one would not be obligated to actively jump into an oven and kill themselves as Mar Ukvah did, in order to prevent embarrassing someone passively. Just as Tosafos explains in Yoma, that one does not give his life to prevent someone else from being killed passively since we say the opposite sevara of the gemara, "who says his blood is redder and his live is more important, maybe my blood is redder and my life is more important". Here too, Mar Ukvah should have said that his own life is more important than the embarrassment of someone else.

Tuesday, November 06, 2007

68 what a poor person deserves

the gemnara seems to be consistent of what must be given to a poor person, that is- he must be supplied with what he is used too. see tosfos who explains the exception of fancy table cloths that we don't give this to him because he doesn't really need it.
what is puzzling is the story of rav nechemya where he didn't feel it was right for the poor person to require fancy foods
ההוא דאתא לקמיה דרבי נחמיה אמר ליה במה אתה סועד א"ל בבשר שמן ויין ישן רצונך שתגלגל עמי בעדשים גלגל עמו בעדשים ומת אמר אוי לו לזה שהרגו נחמיה אדרבה אוי לו לנחמיה שהרגו לזה מיבעי ליה אלא איהו הוא דלא איבעי ליה לפנוקי נפשיה כולי האי
the maharsha is bothered by this and he suggests that perhaps we only give the top tier food once in a while but not in a consistent basis. i am just wondering what is the logic for that, if this is what he needs (as demonstrated by his death) then why shouldn't we give it to him?

66B super-natural nation

בכה רבן יוחנן בן זכאי ואמר אשריכם ישראל בזמן שעושין רצונו של מקום אין כל אומה ולשון שולטת בהם ובזמן שאין עושין רצונו של מקום מוסרן ביד אומה שפלה וכו'
פירוש - שכלל ישראל היא לא אומה טבעית אלא הי חוץ לטבע, ומקום העוה"ז הוי נחלה לטבע ולשבעים אומות כמו כל מספר שבע ששייך לטבע וידוע, אך כלל ישראל יכולים לחיות רק עם חיבור למה שחוץ לטבע ע"י התורה, ולכן גזירת כליה של חטא העגל שייך לשיבור הלוחות וההצלה באה ביו"כ דווקא ע"י לוחות שניות. ודבר זה חסר בתודעה של האיש שגדל על תרבות אנשי המערב אשר חפץ לחיות את חייו בדרך טבעית כמו שכינו הגוי - ולא כך הדברים ודי לחכימא ברמיזא

66-67 בסוגיא דפוחתין חומש

בסוגיא דפוחתין חומש מהשומא ביאר תוספות ברש"י שיש שתי סיבות לפחות חומש או מצד שיש פחת לנכסים מחמת ההשתמשות או מצד שהשומא נעשית לכבוד הנישואין לא הוי שומא מדוייקת שמרבים השומא לכבודם
ונראה לי שזה תלוי בחפץ, שחפץ שמשתמשים בו הרבה יש בזה פחת של השתמשות ומצד שני כיוון שרבים משתמשים בזה א"כ על כרחך ששומתו ידועה לכל וא"כ לא מרבים שומתו ליותר משוויו כיוון שזה ממש שקר, אך בדברים שלא משתשמים תדיר א"כ אין פחת מההשתמשות אך מצד שני אין שומתו ידועה וא"כ שייך להרבות בשומא לכבוד החתן וכלה

ובגמרא סז א' שמקשה על ר' יוחנן מברייתא דת"ק ורשב"ג לכאורה צ"ע דמה דמקשה מת"ק אפשר להביא סיוע מרשב"ג ששמין הזהב בשויו? ומצאתי הקושיא בשיטה. ואשר נראה לי שיש פה דיוק ברש"י שהריטב"א מדייק, שאצל ר' יוחנן רש"י אומר שהוי חתיכות זהב משא"כ בברייתא פרש"י זהב שבור, ולכן נ"ל שכוונת רש"י שזהב לא הוי פחת מהשתמשות כעין כלי כסף אלא הנידון בזהב אי שומתו ידועה או לא - דאי שומתו ידועה ל"ש שיוסיפו על השומא, ור' יוחנן סובר שאפילו חתיכות זהב שומתן ידועה ולכן שמין אותן דווקא בשויין, וכל שכן שזהב שבור הוי שומתו ידועה, ולכן מקשה הגמרא ממחלוקת ת"ק ורשב"ג שרק נחלקו בזהב שבור אי שומתו ידועה אך בחתיכות זהב וודאי שלא הוי שומתו ידועה וקשיא על ר' יוחנן אף מרשב"ג - ועיין היטב בשיטה מה שהביא מהריטב"א ולא הבנתי דבריו אך השתמשתי בדיוקו

Monday, November 05, 2007

Kesubos 67a - Tzedaka for Kavod

The gemara gives 2 explanations why Nakdiman Ben Guryon lost all his money despite the fact that he gave tzedaka: 1. He gave primarly (or maybe solely) for the sake of his honor. 2. He didn't give according to his ability. The Maharsha is medayek that the first answer seems to indicate that even if he would give according to his ability, if his intention was for the purpose of kavod, he would not have properly fulfilled the mitzvah. The Maharsha asks, why not? Don't we recommend giving tzedaka even for other motives such as pesachim 8b - if one gives tzedaka for the zechus that his son should live he is a tzadik gamur, here too even if his intent was for kavod, he should be considered a tzadik? Perhaps this can be answered based on what Tosafos says (pesachim 8b) that he would only be a tzadik gamur if he would not regret doing the mitzvah even if his son did not live, similarly here it could be that nakdimon gave tzedaka only for kavod and would not have given if he did not receive the kavod, therefore it is worse than the "so that my son will live". The question from ma'aser for the purpose of becoming rich can be answered simply by saying that it only applies to ma'aser but not to all tzedaka (see pischei teshuva at the beginning of hilchos tzedaka).
The maharsha answers that although most "shelo li'shma's" are encouraged, when it is done for kavod (honor) it is worse. The understanding is that "shelo li'shma" means for ulterior motives which are not bad and not good, but for the purpose of kavod is actually detrimental. The maharsha proves this point from Tosafos Pesachim 50b who indicates that kavod would be a harmful form of "shelo li'shma" and we would not encourage one to do mitzvos for the sake of kavod.

Sunday, November 04, 2007

Kesubos 65b - Supporting Young Children

The gemara says that although one is technically not obligated to support their children past the age of 6 (we still embarrass him into it as the gemara said on 49b), but very young children under the age of 6 one is obligated to support. The gemara proves this from the fact that a child under 6 is tied to his mother (and therefore follows her eiruv techumin rather than the fathers), so rashi explains "just as he must feed the mother, he must also feed the child with her". The Ran offers a slightly different approach that a young child and a mother are considered "like one body". According to both explanations, the Ran maintains that the requirement of the father to support his young child is a'gav the mother, but if the mother passes away then the father would not have an obligation to even support a very young child, since his entire obligation is simply to add extra food for the mother from which she can feed the child.
It would also seem from this Ran that if a mother would give up her own support by saying "don't feed me and don't take my earnings", it would be the mother's obligation (if any) to feed the child, but the father would not be obligated since his obligation is only when he is feeding the mother.
However, in Shulchan Aruch (71:1) this distinction is not made, and the Beis Shmuel points out that we do not follow the Ran, so a father must support a child even if the mother passes away.

65 the tehory of ירידת הדורות

בהא מעשה דגמרא דרבא תבע לבת רב חסדא, ולכאורה תמוה וכי יעלה על הדעת דגדול הדור ינהוג כך היום? וא"כ במה שונה בזמן הגמרא, ואשר יראה לי מפה וממקומות אחרים שכוחות הגוף היו הרבה יותר חזקים בזמן הגמרא, ובדומה לזה מצינן לעיל ס"א ב' במעשה דרימני פלי שכ"כ הזיק לה הצער שלא אכלה הרימני עד שנעשית נפוחה, ועוד בדומה במעשים דגמרא ברכות שגדולי החכמים ראו קרי בזמן ההליכה בדרך ועוד
והענין שכלל ישראל בכללותו יש לו צורת אדם שלימה, וכן הוא בכל דור ודור שכל כללות נשמות של הדור יוצרת צורת אדם שלימה וכן בכל ההיסטוריה כולה, וכך מפורש בספרים הקדושים, ולכן מבואר מהגר"א שדור שלנו הוי העקב של המשיח דהיינו שדור שלנו הוא סוף הצורת אדם והוא העקב, ובעקב ידוע שאין בו כמעט שום הרגשה של עצבים, והוא נחשב לאבר הכי מת שבאדם (שבו שם הנחש הקדמוי את כוח המוות בסוד ואתה תשופנו עקב), ולכן דורינו שלנו אין מרגישים את אותו כוח משיכה שהיה בזמן הגמרא, וזה לעומת זה עשה האלוקים שבזמן של גילוי כוחות השכל ותורה שבע"פ גם היה משיכה גדולה וכוחות גוף חזקים
ועוד שמעתי שמה שהעקב כן מרגיש זה דיגדוגים שגורם לצחוק שאין בו ממש וזה ממש דורינו שלנו - ה' יעזור ונתחבר לשאר צורת אדם ונזכה לראות פני משיח צדקינו ונזכה לאז ימלא שחוק פינו צחוק של בחינת יצחק

Friday, November 02, 2007

Kesubos 63b - Who is deserving of a get?

A Rav and big Talmid Chacham from Los Angeles once visited our Kollel in palo alto, I asked him to give a shiur. He chose to share with us a perspective that at the time seemed somewhat radical but seems to be sourced well in halacha. Is a woman who wants a get automatically deserving of one and classified as an "aguna" if she does not receive one?
The gemara says that a woman who wants out of a marriage because she claims that her husband is repulsive to her, is different from a woman who wishes to stay married but rebels to abstain from relations, in that the latter case we penalize her to stop rebelling by deducting her kesuba but in the case where she claims he is repulsive to her, we recognize her claim and allow for an immediate divorce without collection of a kesuba. It is not clear from the gemara whether or not we would force the husband to give a get. Tosafos brings those who maintain that her claim of finding him repulsive would entitle her to a divorce to the point that the beis din would force him to give her a get. Tosafos explains that the concern that she wants out because she is interested in someone else is not a concern since she would be loosing her Kesubah. Furthermore, even this opinion maintains that we must have some sort of evidence or indication that she truly finds him repulsive and cannot live with him, otherwise we would not force him to divorce her. However, Tosafos quotes Rabbeinu Tam who holds that the discussion in the gemara is whether we would exempt him from paying a kesuba to encourage divorce (when she claims he is repulsive) or whether we would require him to pay a kesuba to prevent him from divorcing her (when she rebeles), but one way or the other we would not force him to divorce her just because she finds him repulsive, and certainly not for a case where she just wants out for other reasons (that don't have a basis in halacha). In Shuchan Aruch 77:2 we pasken like Rabbeinu Tam (the Gr"a points out that the majority of rishonim rule like rabbeinu tam) and therefore we would not force him to divorce her.

62b mishkan

The מהרש"א points out that from our Gemara it sounds that the משכן was build in the מדבר because Hashem couldn't hold out to live with his people and wanted to bring his שכינה down and live with them even sooner.
There is, however, a very great debate amongst the Rishonim if בנ"י would've needed a משכן if not for the sin of the golden calf (see for example ספורנו שמות כד יח that holds one way and the רמבן לה א that holds the other).
the depth is that some hold that without the sin the kingship of Hashem would've been manifested in the WHOLE world and not constrained to the Mishkan, but after the sin the world is impure and only in the Mishkan can the שכינה rest. Again, our gemara doesn't sound this way.

Thursday, November 01, 2007

Kesubos 62a - Mitzvas O'nah vs. Peru U'rvu

The shulchan aruch writes in even haezer 76:6 that a woman who gives permission to her husband to be mevatel the o'nah, would exempt him from this mitzvah and obligation. However, the shulchan aruch qualifies that this only applies if the mitzvah of p'ru u'rvu has already been fulfilled, but if not he is obligated to have relations with her at every o'nah until he fulfills the mitzvah.
My question is, how is the mitzvah of o'nah related to p'ru u'rvu? The mitzvah of o'nah is dependent on the assumptions at the time of the marriage, therefore he can only change his job that will effect the o'nah with permission from her. It is totally dependent on what she is willing to accept. Why should the chiyuv of p'ru u'rvu be bound to this at all, it should be an independent mitzvah with entirely its own rules? Perhaps even if the o'nah would only demand once in 6 months, the p'ru u'rvu would demand twice a week or every day. The halacha is clear that o'nah is not just a minimum, but rather once should not have relation more often than the o'nah (o.c. 240:1), but why is there no mention that if he has not yet fulfilled p'ru u'rvu he should have relations more frequently?

where is the romance???

the gemara discusses the laws of marriage and what right does the husband or the wife has and when they can force their legal obligations.

once again it struck me how different the gemara deals with issues. One can deal with issue based on facts or based on the emotions that are behind the facts. both here and in general when discussing monetary laws the gemara seems to only deal with the raw facts on the ground. is there room for the interpersonal emotional stuff in halacha? and if not why not?
for example, if a woman is מורדת are we to see why she is, maybe her husband mistreated her (even if its not in an openly abusive way) etc. or let's take for example the laws of when a husband can leave his wife to go out of town AGAINST her wishes. are we worried about the mental effects it will have on their marriage? on their kids? in short what seems to take up most of the energies in interpersonal relationships the gemara seems to totally ignore! we can put it this way, all these אמוראים that went to learn for 2-3 years while their wifes were so so about it, I would think that Rav Yisroel would've told them that they are thieves and all their Torah is for naught, no?
Interestingly, the רבינו בחיי in his introduction to חובת הלבבות starts off by saying that he found no book dealing with the issues of the heart and mind, still he proves from all of Torah that the sate of mind is crucial in עבודת השם still once again it seems that to an extent it is ignored in the gemara.