Monday, December 31, 2007

Nedarim 11a - T'nai Kaful

The gemara seems to assume that the machlokes of whether you need a t'nai kaful is really an argument whether we can deduce from the language that he used what he really means to say (m'chlal lav ata shomeia hein). Why does the gemara understand the din of t'nai kaful to be a general principal in how we interpret a persons language and whether we can derive what he means by his implication, maybe it is a gezeiras hakasuv in laws of tenaim that they condition has no power to hold back the action that was done unless it follows a specific format i.e. kaful? The Steipler seems to ask this question but asks it slightly differently. The Steipler asks, since we find by a neder that a yad is sufficient and we are entitled to some level of interpretation, so why don't we use m'chlal lav ata shomeia hein, as a "yad"? The Steipler explains that since we find in Tosafos in a few places that even R' Meir agrees that we don't always require t'nai kaful, so long as the circumstances indicate his intent (sometimes he doesn't even have to speak out the condition at all), if by nedarim it would have the status of a yad, then in other areas it should have the status of circumstantial evidence and be a binding condition even without repeating both sides. It must be that the requirement of t'nai kaful is that, although we can normally use the circumstance to help understand his intent, the Torah does not allow us to use inference to interpret his intent. Once we see that there is not an absolute requirement by every t'nai to be kaful, there is no reason to assume that this is a gezeiras hakasuv of t'nai, rather we assume that this is a general concept that although circumstances may be used to release one from requiring t'nai kaful, nevertheless inference cannot be used to understand a persons intent - we don't make an inference from la'v to hein or from hein to l'av. So by nedarim as well we do not use michlal la'av ata shomeia hein and it would not qualify as a yad mochiach to what he means.

Sunday, December 30, 2007

Nedarim 9b - Chumra of Shimon haTzadik

R' Moshe (dibros heara #54) makes a fascinating point from the story of Shimon Hatzadik who refused to eat from the asham offering of a nazir tamei, except for the one time that he was convinced that his kavana was complete and did no have any regrets about his neziurs. When an Asham is sacrificed in the Beis Hamikdash all the kohanim present have a joint responsibility (even if we call it a chiyuv on the cheftza see hearos daf 4b) to eat the entire korban. The chumra of shimon hatzadik was very strange in that if all the kohanim would keep this chumra they would be in violation of a chiyuv to eat the korban. The chumra of Shimon Hatzadik could only be kept because there were other kohanim who did not have such a chumra. But clearly, if all the kohanim present in the azarah would have had such a chumra, even Shimon Hatzadik would forgo on this chumra in order to ensure that the chiyuv of eating the korban be fulfilled. Furthermore, if all the kohanim present had such a chumra they would all have an obligation to partake of the korban, rather than drawing lots and forcing the looser to be the one who eats, since this would be a real zilzul of the mitzvah.

Nedarim 9a - Shavua on Mitzvah - Ran and Rosh

I pointed out on daf 8a a machlokes between the Ran and Rosh whether a vow to fulfill a mitzvah is binding to be in violation of ba'al yachel. They seem to go li'shitasam here. They both ask the question on the mishna which implies that only reshaim make nedarim and not keshayrim, but what about a vow to fulfill a mitzvah? The Rosh says that such a vow does not count since it it not at all binding and only works as a ziruz. The Ran says that although it is binding, it doesn't fit the term "nedava" since there is already a prior obligation to keep the vow. On the previous daf, i pointed out that the Ramban quoted in the gilyon hashas seems to agree with the Rosh. However, R' Moshe (Dibros heara #51) points out that the Ketzos haChoshen (73:5) is medayek from the Ramban that although there is no korban or violation of ba'al yachel for a mitzvah vow, there is a mitzvas aseh because otherwise it would be a violation of shavuas shav. R' Moshe points out that both the Rambam and Rosh seem to hold that there is no additional Torah violation at all. His diyuk from the Rambam is that the Rambam recommends against one who makes nedarim to set them on the straight path is praiseworthy but it is preferable try and achieve the goal without the means since it may set one up for violating their vow. When it comes to a shavua to fulfill a mitzvah the Rambam does not recommend against it - R' Moshe understands that there is no additional violation, merely a ziruz and that is why there is no concern.

Friday, December 28, 2007

Nedarim 8a - Shavuah l'vatel Mitzvah

2 points:
1. The Ran and Rosh argue whether a shavua to be mekayem a mitzvah is binding in the sense that one would be in violation of ba'al yachel for not keeping his promise. Ran understands that a shavua on a mitzvah is not binding for the purpose of a korban but is binding for the purpose of ba'al yachel. The Rosh seems to understand that it is not binding at all, which is also the opinion of the Ramban brought by R' Akiva Eiger. Based on this understanding, they also argue as to what the chiddush of R' Gidal is. The Ran understands that the shavua is binding and therefore obviously not a shavuas shav, so the chiddush is that one is encouraged to make these types of shavuos. But, according to the Rosh that the shavua is not really binding, the chiddush is simply that by making such a shavua it is not an automatic violation of "lo tisa", since it at least accomplishes a function of encouraging the person to fulfill the mitzvah.
2. The Gemara says that when one makes a vow to learn a specific mesechta, it is binding even in regard to a korban, and is not considered a vow to fulfill a mitzvah. The reason is that since the torah does not explicitly indicate an obligation to learn any more than just krias shema in the morning and evening, the vow is completely binding on anything beyond what is explicitly stated in the torah. However, the Rashash asks that since one is not obligated to learn that specific mesechta, the vow should be binding to learn a specific masechta. Actually the Ritva learns this approach to be part of what the gemara is saying - since one can fulfill there obligation with some other type of learning i.e. krias shema, or any other mesechta, therefore when he makes a vow on a specific masechta, it is fully binding.
Tosafos writes that even if one makes a vow not to learn something specific, the vow is binding. R' Moshe (Dibros Moshe heara #43) explains that Tosafos cannot be understood by saying that one is not obligated to learn all sections of Torah, because both the obligation of knowing torah and the obligation of constantly learning torah actually requires a person to learn all sections of torah every day, just that it is impossible, but there is technically an obligation on every single aspect of Torah. Therefore, Tosafos can only be explained like the Ran that the obligation to learn every section of Torah is not stated explicitly. Based on this, the Rosh and Ramban would hold that a vow not to learn even a specific or obscure section of Torah on any particular day would not be binding at all.

Thursday, December 27, 2007

Nedarim 7a - Safek Matnos Aniyim l'kula

The Ran elaborates to prove that a safeik that arises whether or not one has an obligation to give matnos aniyim, we go l'kula and not l'chumra. Although if we view it as an issur we should say safek d'oraysa l'chumra and the monetary obligation stems from the chiyuv and therefore we would obligate him to give, in reality we view it as a monetary safeik where we pasken that the aniyim have the burden of proof that it belongs to them, so m'safeik there is no obligation to give. The Turei Even in Rosh Hashana 14a regarding the story with R' Akiva who was unsure whether the produce he had was chayev in ma'aser sheini or ma'aser ani (based on a safeik when the rosh hashana l'ilanos is), and was machmir to do both, implying that he actually gave it to the aniyim m'safeik. After some discussion the Turei Even in his avnei miluim says that we are machmir by safeik matnos aniyim.
However, the imrei baruch in his hearos on the Turei Even explains that it depends on the specific type of safeik. If there is a chezkas chiyuv and the safeik is whether some situation arose to exempt him from the obligation then we would say safeik l'chumra, but if the safeik is whether or not he has an obligation altogether then we pasken safeik l'kula like the Ran. We find this concept in other places as well - the shach in y.d. kuntres hasfeikos (110:20) says that one of the limitations of safeik d'rabonon l'kula is that we are not meikil if there is a chezkas issur. Meaning if there is a chezkas issur, then the chazaka paskens to be machmir and we never implement the safek d'rabonon l'kula (the pri chadash argues on shach). Based on this concept, the shach in nekudos hakesef (hilchos melicha siman 69) argues on the Taz (69:24) who paskens that if there is a safeik about a piece of meat whether it was salted, we say safeik d'rabonon l'kula (blood that was cooked is only assur m'drabonon), and the shach argues that since it is 'Ischazek Issura' we have to be machmir. The Binas Adam (29) says that the machlokes shach and taz is dependent on the 2 answers of Tosafos in pesachim 9a.

Wednesday, December 26, 2007

Nedarim 6b - Yados by Kiddushin

The gemara has a question whether there are yados by kiddushin, peiah, tzedaka, hefker and hasmana l'beis hakisei. Although "yad" is a gezerias hakasuv in the context of neder (and applies to nezirus based on a hekesh or visa versa), it would certainly apply to korbanos since that is also a form of neder. The gemara explains the tzad that it would apply to peiah, tzedaka, and even hefker is also based on the hekesh. However, it is unclear what the source would be that yad should work by kiddushin. The Ran explains that it would be based on a 'ma matzinu' from nedarim.
Based on the Ran before 4b that a 'ma matzinu' cannot give you malkus (the mishne l'melech is not sure; see maharatz chiyus that it depends on why there is no malkus from kal v'chomer - if it is bec. a kal v'chomer is not strong enough to give malkus then certainly a ma matzinu is not strong enough, but if it is because malkus may not be strict enough for the chamur and is only a kapara for the kal, then by a ma matzinu where the two are equal there is malkus -v'dok), if yados kiddushin are learned from a ma matzinu, there should be no misah for a woman who is mikudeshes through yados and commits adultery since 'ein onshin min hadin' (l'maseh that we leave with a safek whether there are yados by kiddushin, just that we are machmir, there would anyway be no punishment for adultery because we can't punish her m'safek). However, according to the Rosh who understands that tzad that there is yad by kiddushin is based on the language being similar to hekdesh, not a 'ma matzinu', then on the tzad that there are yados by kiddushin she would be punished for adultery.
Another advantage to the Rosh, is that R' Akiva Eiger asks that according to the Ran that the hold tzad not to learn kiddushin from a ma matzinu from nedarim is that it involves a ma'aseh and not just dibur, then it should be obvious that we learn tzedaka from a ma matzinu from nedarim (even without a hekesh), so why does the gemara have a question (see poras yosef who answers that when one says selah zu l'tzedaka, can still change his mind until given to the gabai, so we see that action also plays a role similar to kiddushin). According to the Rosh the whole question doesn't start since he never entertains that a ma matzinu is a valid source to learn yados from (since we can easily come up with a pircha as we see in the gemara on 4b), so 'ma matzinu' is not a possible source for yados by tzedaka and the only possible source is the hekesh.

Tuesday, December 25, 2007

Nedarim 5b - Yadayim Sh'ein Mochichos

I have some trouble understanding the source of requiring yadyaim mochichos. The gemara says that rava learns from a pasuk that by nezirus you need yadayim mochichos just as you need by actual nezirus. The problem is yadayim mochichos seems to be a very general issue that is not limited to nezirus or even nedarim, it applies to kiddushin and gittin as well. It seems to be a din in language, meaning whether a chalos can take effect based on an ambiguous language (unless it is compensated for by the context of the situation i.e. ein adam megaresh eishes chaveiro or nazir passing in front). Why then does rava need a specific source by yados of nezirus that it must be mochichos?
Another point, regarding gittin where abaye says that there is a special requirement of yadayim mochichos because it says "krisus" - the Rosh seems to understand that since we need to do something very strong called "krisus" to break the relationship, it could be that all agree that you need yadayim mochichos to do that, but the commentary in the place of rashi seems to explain that it defines the language needed i.e. a language that is clear to be koreis.

Monday, December 24, 2007

Nedarim 4a - Nazir while in cemetery

The gemara concludes that r' yochanan and reish lakish agree that if one accepts nezirus in the cemeter it is chal. They argue about malkus. Ran explains that they argue whether or not he ill be chayev malkus for eting grapes while in the cemetery. Rosh says that they argue whether he gets malkus for staying in the cemetery and not leaving. The Rosh is forced to explain that they both agree that la'av she'ein bo ma'aseh gets malkus (or their entire discussion is about issur malkus). Why does the Rosh not say simply like the Ran? The Rosh seems to hold that since all agree that the nezirus is chal while he is in the cemetery, it is obvious that there would be malkus for eating grapes. The only possible discussion would be in regard to malkus for the remaining in the cemetery since the tu'mah preceded the acceptance of the nezirus, it is logical to say that he is not liable for the tu'mah. However, the Ran would hold that for remaining in the cemetery he would definitely not get malkus and the only possible discussion would be about eating grapes while still in the cemetery. The rationale for Reish Lakish that you would not get malkus is that the nezirus that is chal on him while in the cemetery is not the full nezirus and is not strong enough to receive malkus for - v'adayin ta'un biur!

Sunday, December 23, 2007

Nedarim 2a - Introduction

Mazal Tov on Kesubos!
As an intro to nedarim i think it is very worthwhile going through the sefer hachinuch (not even the minchas chinuch) on mitzvah 30 of "lo sisa" in the aseres hadibros. He elaborates about the difference between nedarim and shavuos. We know from the gemara on 2b that nedarim are an issur cheftzah whereas shavuos are an issur gavrah. This is why a neder can only be chal on an object but cannot be used to make a commitment whereas a shavua can be used to commit to doing something. This is also the reason that a neder is not chal on a preexisting neder, nor is a shavua chal on a preexisting shavua, but a neder can be chal on a shavua and visa versa. For this same reason if one is obligated to do a mitzvah such as eating matzah, that is a chiyuv on the gavra, so he can make a neder to assur the matzah, but cannot make a shavua not to eat since he is already mushbah v'omed so it is like a shavua on a shavua.
Another distinction is that a shavua by definition invokes the name of Hashem, whereas a neder has nothing to do with the name of Hashem. The Chinuch explains that a shavua is:
שגומר האדם בלבו ואומר בפיו להיות מקיים אותו דבר שנשבע עליו ולא ישנהו לעולם כמו שהשם ברוך הוא קיים ולא ישתנה לעדי עד
Although the Ran proves that a shavua is binding if one used the language of shavua or a kinuy even if he didn't use the name of Hashem, it seems that nevertheless a shavua invokes the name of Hashem as if it were said. Based on this we can understand how one violates "lo sisa" through a shavuas shav even though the name of Hashem was not used. However, a neder does not at all invoke the name of Hashem, rather it is a power to be makdish something with one's speech and make it assur like a korban so long as either the object is owned by the madir or the subject that becomes assur is the madir. Also the Chinuch indicates that breaking a shavua is like denying Hashems eternal existence and therefore their should not be anyway to break it - the ability to be matir a shavua with charata or a pesach is a chesed of Hashem, whereas by a neder the concept of being matir it with charata is more natural and not a special chesed of Hashem.

Thursday, December 20, 2007

Kesubos 111a - Bavel is like Eretz Yisroel

Rav Yehuda says in the name of Shmuel: Just as it is assur to leave E.Y. to go to other lands, it is also assur to leave bavel and go to E.Y.
The Ya'avetz comments that this was in the time of the amoraim where bavel was a torah center, but no longer applies. Rashi also indicates that there is no special kedusha of bavel, rather it is the place of yeshivos and harbatzos hatorah. However, the Rambam records this halacha that one cannot leave bavel and go to eretz yisroel, which seems a little strange since at the time of the rambam bavel was not necessarily the center for torah as in the times of the amoraim.
It seems that the Rambam records this halacha to teach the concept. Although it may not apply to bavel even in the times of the Rambam, it would be assur for anyone to leave whatever place is the "bavel" = Torah center, of that generation.
This is mefurash in the Meiri:
וכשם שאסור לצאת מא"י לחו"ל כך אסור לצאת מבבל לשאר ארצות, שכל מקום שחכמה ויראת חטא מצויין שם דינו כארץ ישראל וכו' שכל מה שאמרו לא אמרו אלא מפני שסתם חו"ל אין חכמה ויראת חטא מצויין בה לישראל לרוב הצרות ועול הגליות שסובלים שם, אא"כ ע"י עמל גדול וצער גלגול סבל הצרות וכו' וסתם ארץ ישראל חכמה ויראת חטא מצויין בה עד שמתוכם משיגים כבוד בוראם וזוכים ליהנות מזיו השכינה וכו

Wednesday, December 19, 2007

Kesubos 110b - Living in Israel in this day and age

For a more elaborate discussion about this, see the article I wrote in our bi-annual journal "focus" regarding the mitzvah of living in the land of Israel.
R' Chaim mentioned in Tosafos claims that "nowadays" there is not mitzvah to live in Israel since ther are many mitzvos that one will fail in keeping properly. Simply speaking, this is not a statement describing the nature of the mitzvah, rather he is saying it is b'geder 'yatzah secharo b'hefseido', because the reward for living in Israel would be countered tenfold by the punishment for failing to keep the mitzvos properly. However, I wanted to suggest that R' Chaim is actually describing this mitzvah of living in Israel to be for the purpose of fulfilling the mitzvos that apply in Israel. If one were to live in Israel without properly performing the mitzvos, they are not only loosing out on these additional mitvos, they are also not fulfilling the mitzvah of living in Israel. In a sense, this mitzvah may be somewhat of a "hechsher mitzvah" that is meant to lead to something greater.
A proof to this point can be from the gemara in Sotah 14a where the gemara asks why Moshe Rabbeinu wanted to go to Eretz Yisroel; did he want to enjoy the good fruits! His desire to go must have been fueled by his yearning to perform the mitzvos that apply in Israel. Why didn't the gemara answer more simply that he wanted to go to Eretz Yisroel to fulfill the mitzvah of living in Eretz Yisroel (Meshech Chochma in parshas R'eh raises this question and offers an alternative answer that the mitzvah of yishuv could be fulfilled on the east of the jordan, so moshe's desire to cross the jordan was only to fulfill the mitzvos)?
Based on the above suggestion, the whole purpose for the mitzvah to live there is to fulfill the mitzvos that apply there, so the gemara focuses on the goal rather than the means. Therefore, this gemara is actually a proof to that understanding of R' Chaim in Tosafos.

Kesubos 109b - Signing on a field and then Claiming to have bought it

The gemara says that even if the father made this field that he is claiming was stolen from him a border for the sale of another field and signed as a witness on the contract, after he dies the caretaker of the yeosmim can claim that at the time that the father signed the contract the field did not belong to him, but he went afterwards and purchased it from its owner. Abayei admits that the caretaker of the yesomim is believed to make such a claim, the question is: WHY? There are 3 approaches.
1.Rashi says that there is a 'peh sheasar huh hapeh shehitir", meaning since the yesomim have witnesses that the field did previously belong to their father, just that making it a siman b'achar causes him to loose his claim, he is believed with a migu to say that he later purchased it from the muchzak.
2.Tosafos asks that this would not qualify as a migu since at the time he is claiming to have bought it, it was too late to retract on the making it a siman b'achar. Tosafos says that he is believed with a migu he could claim that the contract that he is signed in as a witness is forged (and therefore is only believed if that contract is not mekuyam).
3. Tosafos Ri"d says that to negate the concern of making it a siman b'achar which would constitute admitting that he is not the owner, any claim is believed to counteract that concern even without a migu. Since he has witnesses that it originally belonged to him and is able to counteract the concern of asa'ah siman b'achar by claiming that he later purchased it, he is believed.

Monday, December 17, 2007

Kesubos 108a - Benefiting from One who Is Mudar Ha'na'ah

The gemara quotes the mishna in nedarim 33a that if reuven made a neder not to receive any benefit from shimon, shimon may pay his shekel, pay his debt and also return his lost object. Regarding the heter of paying his debt the gemara explains that it is either based on chanan or it is not a regular type of debt rather a debt that does not have to be payed back. Regarding the heter to pay his shekel which presumably buyes reuven a portion in the korbanos tzibur, Rashi maintains that even without giving the money reuven would have a portion in the korbanos, therefore shimon is not benefiting him at all. This implies that if reuven's portion in the korbanos would be pending on his shekel, then shimon would not be able to give the shekel for him.
Regarding shimon returning reuven's lost object, the gemara says in nedarim 33b "he is giving back to him his own object", meaning that reuven is the owner of the object anyway so he is not receiving anything from shimon. The Ran 33b seems to be bothered that shimon is still helping out reuven and returning the object that would otherwise be lost, why is that not a benefit being given to reuven? He answers that it qualifies as mavriach ari - meaning chasing away potential damage to his object. However, this doesn't seem to be sufficient. Perhaps shimon picking up the object to protect it from damage may be "mavriach ari", but the searching for reuven and tircha invested into the actual return of the object should still be considered a benefit that he is providing for reuven?

Sunday, December 16, 2007

Kesubos 107a - Retracting on Forgoing Mezonos

Rav and Shmuel argue whether an eishes ish who's husband dissappears for an extended period of time is given mezonos from his estate while he is gone. Shmuel says that we don't give mezonos for one of two reasons: 1. R' Zvid - we are concerned he left her with money for mezonos. 2. R' Papa - we are concerned that he said to her to use he ma'aseh yadayim in place of mezonos and she accepted it.
The gemara seems to assume that had he said that she should use ma'aseh yadayim in place of mezonos, she would have no claim on receiving mezonos so long as she accepted the deal. It seems clear that she does not have the right to back out of the deal, because otherwise there would be no concern to prevent her from getting mezonos. From the fact that she can't claim that she want mezonos and wants to back out of any deals that were made, implies that she cannot back out. Rashi indicates this by saying that only after he dies can she back out of the deal and not continue it with the yesomim. Tosafos also says explicitly that even if now she does not have sufficient ma'aseh yadayim to support herself, had she accepted the deal before he husbands departure, she is stuck and cannot demand mezonos.
This seems to contradict Tosafos on 83a (d.h. k'drav kahana) who says that if a woman would tell her husband that she will not provide ma'aseh yadayim and will not demand mezonos, she can change her mind and go back on the deal at her will. Ran (58b) cites the Re'ah that once she make the deal she must stick to it and cannot go back on it, but the Rema (E.H. 69) holds like Rabbeinu Yerucham and Tosafos that she always retains the right to back out of the deal.
To reconcile the apparent contradiction in Tosafos, it would seem that although when she proposes the deal to keep her ma'aseh yadayim and not receive mezonos, she can go back at her will, but when he proposes the deal and she agrees, she is essentially being mochel any claim over mezonos and therefore is stuck to the deal even if she does not earn enough to feed herself.

Friday, December 14, 2007

Kesubos 105a - Payment for Mitzvos

The gemara goes through a discussion about Karna, trying to explain how he was allowed to receive money for judging. The gemara begins from the perspective of bribery and establishes that so long as he is taking the money from both, and that it is not being given as bribery rather as payment for the din, then there is no problem of bribery. However, the gemara continues that there is still a prohibition for a judge or anyone else doing a mitzvah to take money for the mitzvah (based on 'ma ani b'chinum, af atta b'chinum') and the consequence would be that the din is batul. The gemara concludes that if it is payment for din then the din is batul, if it sechar b'teila the din is binding but it is still assur, and if it is sechar b'teila d'muchach it is even mutar.
Tosafos asks, Why did the gemara not have an issue with the daynei gezeiros who would take payment from the terumas halishka - although there may not be an issur of bribery, there should be an issur of taking payment for a mitzvah? Rabbeinu Tam says that it is only assur to take money from the ba'lei dinin, but from the tzibbur it is allowed. This answer is hard to understand, since it only explains why there would not be a concern of bribery, but would not justify the concern of 'ma ani b'chinum....'. The primary answer of Tosafos is that a person who does not have another job and his involvement in tzarchei tzibbur prevents him from earning a living any other way, it is incumbent on the tzibbur to support them so that they will be available to judge, teach.....
Based on this it is understandable why the gemara assumes by the dayanei gezeiros that if they would want more than they needed to live, they would be considered a rasha. In Karna's situation where his heter is s'char b'teila, he can certainly take more than the bare minimum needed to support his family. But by the daynei gezeiros where the heter is solely based on the communal obligation to support him, it would only be a heter for the amount he needs to live, but not anything extra.

Thursday, December 13, 2007

Kesubos 104a - Rebbi didn't receive any benefit from this world

Tosafos seems to understand that Rebbi's claim of not getting any benefit from this world was a very general claim and therefore it is well connected to the point of the midrash. Similarly, Tosafos in Avoda Zara 11a asks how the gemara can claim about Rebbi that he had all delicacies in all seasons, since the gemara says here that he did not benefit from this world? Tosafos answers that although Rebbi had the delicacies at his table, he personally did not derive any benefit. Clearly, this Tosafos also assumes that Rebbi was making a general statement of not receiving any benefit on this world.
However, the Ya'avetz in Avoda Zara 11a writes that Rebbi's statement was referring to his investment in Torah learning, specifically recording the mishna which he did with his ten fingers (apparently Rebbi knew how to type), that he did not receive any personal benefit from his Torah. The language of the gemara: שיגעתי בעשר אצבעותי בתורה ולא נהניתי אפילו באצבע קטנה definitely implies like the Ya'avetz. This can also be read into Rashi, that the second half of his statement is qualifying the first, that although he invested ten fingers worth of energy into Torah, he didn't derive even one finger worth of benefit. Based on this approach, it seems as if learning l'ishma would be to the exclusion of any enjoyment that one receives from learning, which is against the Eglei Tal's vort in his hakdama. But, כמובן יש לחלק.

Wednesday, December 12, 2007

kesubos 103b - R' Chaim Cohen would be metamei for Rabbeinu Tam

Tosafos quotes R' chaim cohen who has a pretty wild explanation of the statement "the day Rebbi died 'kedusha' ceased to exist". R' Chaim Cohen understands that kedushas kehuna was not applicable and kohanim were allowed to make themselves tamei to attend his funeral. Although Tosafos rejects this understanding and says that at most what could have been batul is tumah d'rabonon, R' Chaim Cohen seems to understand that there is some justification to be mevatel even tu'mah d'oraysa. Some understand this to be based on Tosafos Baba Metzia 114b that tzadikim are not metamei, but this would not fit the language so well since the implication is that the kedushas kehuna was batul but the tu'mah remained in tact. So, what is peshat in R' Chaim Cohen?
The Taz (o.c. 128:45) quotes a story with Rabbeinu Tam who allowed a kohen to serve him and justified his position by saying that there is no tu'mah nowadays. The Taz explains that serving Rabbeinu Tam was beneficial to the kohen "this is kedushaso", and that is the real reason that Rabbeinu Tam allowed him to do so, but did not want to say that because of humility.
The Meshech Chochma in Emor writes on this story:
וזה ברור, וכמו שכתב הט"ז דכהן שיצק מים לרבינו תם זו היא קדושתו, וקל וחומר אם במות רבי בטלה קדושה זו, כל שכן בחייו של רבינו יעקב
The footnotes on the Meshech Chochma (קופרמן) struggles with this "kal v'chomer" of the meshech chochma, and seems to have missed the point. Clearly, when the meshech chochma makes a reference to our gemara, he is doing so in light of the comment of R' Chaim Cohen. He understands that just at "זו היא קדושתו" is a justification to forgo "וקדשתו" and allow a kohen to serve a gadol, it is also the rationale to forgo the kedushas kehuna of not being metamei l'meis. Based on the story of R' Chaim Cohen we find that he would violate his kedushas kehuna to make himself tamei for Rabbeinu Tam after his death based on "זו היא קדושתו", certainly we can use this rationale to forgo kedushas kehuna to show respect to Rabbeinu Tam while he is alive. Granted, it is a wild understanding of R' Chaim Cohen, but i think it is clearly the approach that R' Meir Simcha Hacohen is taking.

Tuesday, December 11, 2007

Kesubos 102b - shi'bud of a borrower vs. cosigner

I mentioned yesterday that there is a discussion whether the machlokes r"y and reish lakish is speaking of a case where someone admits to a previous debt by writing a statement in a document (rashi), or is it speaking of a case where he is creating a new debt by being mesha'bed himself (Rabbeinu tam in tosafos and Ran both learn that once we conclude that we are speaking about writing a statement in a document, it is speaking about creating a new shi'bud through the document).
When the gemara tries to make the machlokes r"y and r"l dependent on the machlokes R' Yishmael and Ben Nanas by areiv, the gemara concludes that even reish lakish who holds that when one writes a statement in a document he is patur, can agree with R' Yishmael who says that an areiv who writes that he is willing to be an areiv is chayev, because an areiv is "shayach to shi'bud d'oraysa". According to Rabbeinu Tam's understanding of the sugya that the issue is when he is trying to create a new shi'bud upon himself, it is more likely that one can do such a thing when he is trying to model after a known shi'bud d'oraysa such as areiv. Therefore, even r"l can agree that when one creates a shi'bud by declaring himself as an areiv, he will be chayev. However, according to rashi, where the whole sugya discusses someone admitting to a preexisting debt, what is the difference if he claims he is a borrower who owes, or an areiv who owes, one way or the other it should be the same? Why is an areiv considered more "shayach" to shi'bud d'oraysa than a borrower?
Perhaps the answer is based on Tosafos 56a d.h. harei, that a borrower is not considered a milveh ha'kesuva b'torah since the ikar chiyuv is common sense, that if you borrow you must repay your debt. An areiv obligation is explicitly mentioned in the Torah (as rashi quotes from "anochi a'arvenu - see baba basra 173b where this is a hava amina for how we know areiv in the torah), but the obligation of a borrower is primarily m'svara. Therefore, when admitting to a preexisting debt, the chiyuv is more easily established by admitting to be an "areiv" which the torah recognizes as one who is chayev through the matan ma'os of the loan, rather than a "borrower" who is chayev m'svara and not from the torah being mechayev him.
I am open for other suggestions as to what the distinction of the gemara is - Any suggestions?

Monday, December 10, 2007

Kesubos 101b - Admitting to Owing Money

Rashi explains that the machlokes between R' Yochanan and Reish Lakish is speaking about a situation where reuven is admitting to a preexisting loan that he owes shimon, and the machlokes is when he admits in front of eidim, whether the eidim can now testify that reuven actually owes the money. The gemara then says that if reuven told the eidim "a'tem eidai" then all agree that reuven is responsible to pay, and if he did not then all agree he is not responsible to pay. The case of argument is where reuven writes shimon a contract that says he owes him $100. Rashi seems to be bothered how this case would be different than a case where one signs a contract admitting to a preexisting debt, where the contract would definitely be binding. Rashi explains that we are speaking about a case where there is no signature, rather reuven writes "i owe you $100" and hands it to shimon in the presence of witnesses. Rashi seems to imply that even at this stage of the gemara we are speaking where reuven is admitting to a preexisting loan, but if he is trying to create an obligation through this contract that did not exist before, it would not be binding. The Ran agrees with rashi in the first stage of the gemara but then switches to explain this stage of the gemara to be referring to a case where reuven is using this contract to "create" a new obligation, not an admission to a preexisting debt. The Rambam (as explained by the Ran) learns the entire gemara from beginning to end to be referring to a case where reuven is trying to create a new obligation by either telling shimon that he owes him money in the presence of witnesses, or writes a contract who's purpose is to create this obligation. The Rambam's opinion seems clear that admitting can to much more than serve as evidence to a preexisting debt, it can even create a new obligation that did not previously exist.

Sunday, December 09, 2007

Kesubos 99b - O'na'ah by Land

The gemara says a rule that there is no o'na'ah by land - meaning that even if the buyer or seller is ripped off by more than a sixth, the sale is binding. Tosafos (98a d.h. almana) quotes from yerushalmi that this applies so long as there is not a 100% discrepancy from the fair market value, but if there is a 100% discrepancy (buyer pays 1k for $500 land, or seller gives 1k land for only $500) the sale is null and void. The gemara says on 99b that part of the power of a beis din is that even when there is a 100% discrepancy, the sale is binding, which implies that in the absence of a beis din it would not be binding (but that may only refer to a case when it is not sold by the owner).
However, the gemara says that when an agent of the seller sells the property, even if there is any small discrepancy from the fair market value the sale is void, because the owner can claim to the agent "i sent you to benefit me not to harm me" (shulchan aruch c.m. 227:30 cites 2 opinions whether the sale is nullified even if the buyer was ripped off, even though the logic should only apply to when the seller is ripped off). Regarding the issur of o'na'ah as applied to land, R' Akiva Eiger quotes a machlokes between Tosafos in baba metziah and Ramban, whether lands (and shtaros and avadim) are excluded from the bitul mekach of o'na'ah but there is still an issur (Ramban) or are they excluded even from the issur of o'na'ah (Tosafos). According to Ramban that there is an issur of o'na'ah even by property, who is in violation of the o'na'ah when an agent sells the property? It seems fairly obvious that regarding the issur we would say ein sheliach l'dvar aveira, and the issur would be on the agent, not on the owner.

Saturday, December 08, 2007

99a- rashi

ברש"י ד"ה אמאי מעל וז"ל אע"ג דליכא למימר הכא טעמא דאפושי שטרי מיהו אי בעלמא מעביר על דבריו הוי על כרחין לא עשה שליחותו ע"כ ובא לתרץ מדוע זה דומה ללעיל, ועיין תוספות שפירש כפשוטו, ודברי רש"י תמוהין דלמעשה הכא אין ריעותא בזה שקנה חלוק של שלש (דהיינו שקנה שווה שש בשלש) וא"כ מדוע שבעה"ב לא ימעול? ומצאתי שהבית אהרון הכא פלפל בזה, ועוד מצאתי בנזר הקדש על מעילה שתירץ שכיוון שדין של יש שלד"ע הוי חידוש במעילה א"כ זה נאמר רק כאשר השליח ממש עושה רצון בעה"ב אך הכא כיוון ששייך שיהיה ריעותא ואז לא עושה שליחותו א"כ כבר נחשב שדעת השליח באה לכאן ולא הוי ממש מעשה של בעה"ב כי כבר צריך שיקול דעת לראות אם מעשה זה כדאי או לא כדאי לבעה"ב, ומצאתי הדברים נחמדים

אגב ברש"י לעיל צ"ח ב' ד"ה דינר מקרקעי כתב וז"ל אחזיר ואקנה מן הלוקח שוה הדינר ואחזירנו להם ע"כ ולא הבנתי דקאי כעת לצד ששליח מוסיף וא"כ מה שמכרה יותר ממאה ממילא בטל ולא צריך לכאורה לחזור ולקנות, אא"כ נאמר שקשה לרש"י שהוי מעשה קנין אחד ואם בטל מקצתו בטל כולו, אך א
כ גם בשאלת הגמרא עצמה שמכר בית כור במקום חצי כור צריך לומר שהיה שני מעשי קנין ודחוק. ולענ"ד הדברים צריכים ביאור

Thursday, December 06, 2007

few questions

some hard sugyos!

א: במשנה צ"ה, צ""ע לכאורה דכשהאשה מוחלת שעבודה ללוקח שני לכאורה היא מפסידה את השיעבוד על קרקע זו. , וא"כ איך חוזרת וגובה שדה זו כשהיא אצל לוקח ראשון, וא"ל שרק מוחלת את הזכות לקחת לב"ד את לוקח שני ולא מוחלת עצם השיעבוד, דא"כ מה הזכות של לוקח שני לקחת בחזרה את הקרקע מהאשה הרי לא לקחה אותו לב"ד
ב: ובדומה מצאנו בעמוד ב' שם בדין אביי השני דותן המתנה נתן לאשה ע"מ שאין לבעל רשות בו ואם כל זה הבעל מוציא מלקוחות, דהיינו מכל הסוגיא מתבאר דיש מושג של שיעבוד באותו שדה כלפי אדם אחד ולא כלפי השני ואמהה איך זה עובד
ג: צו ע"ב - במ"ח תנאים דר' יהודה ור' יוסי, פרש"י לא מובן מכמה קושיות - מדוע בין לר"י ובין לר"י לכתחילה לא תפרש שמוכרת למזונות וכך לא תפסיד כתובתה מהלקוחות, ואם באמת מוכרת כתובתה מדוע שנשיא לה עצה לגבות שוב פעם שלא כדין
ועוד קשה, מדוע לא פרש"י רש"י בר' יהודה דאם לא תפרש היתומים יטענו שמכרה למזונות ונתנו לה מטלטלין לכתובתה

Wednesday, December 05, 2007

Kesubos 96b - Property in Chazaka of Almana

The gemara has a discussion whether the widow has a chazaka in the property of the estate for the part that she is claiming for her mezonos. Does she have a chazaka so that the yorshim have to prove that she received the mezonos, or do they have the chazaka so that she has to prove that she did not receive the mezonos. Rashi and Tosafos argue whether the discussion is about mezonos for the past year (tosafos) or for the upcoming year (rashi). They also seem to argue why she has a chazaka - Rashi says it is because of the tnai beis din to receive mezonos gives her a chazaka in the property. Tosafos says that her right to sell the property to collect mezonos indicates that she actually has a chazaka in the property. It seems that they go l'shitasam. Tosafos who says that the discussion is for past mezonos where her silence is indicative of perhaps receiving payment, but for future mezonos she certainly has the upper hand because of t'nai beis din, cannot say that the chazaka on the past mezonos is due to t'nai beis din. Tosafos understands that t'nai beis din will give her the upper hand even without a chazaka, therefore tosafos does not use the t'nai beis din to create a chazaka for past mezonos, and instead says that her right to sell indicates a chazaka. Rashi who says the discussion is regarding future mezonos, explains simply that the chazaka is created through the t'nai beis din.

Monday, December 03, 2007

Kesubos 94b - Shuda vs. Chaluka

There is a machlokes between Rav and Shmuel when 2 shtaros go out on the same day, whether it is better to split the $ (rav), or better for the dayan to decide who to give it to (shmuel). It is meduyak in rashi at the start of the sugya that shuda is a better system provided that it is possible that one of them deserves it and not the other. Therefore, at the beginning of the sugya rashi has to justify why according to r' meir it is impossible to use shuda and that is because both contracts go into effect at the end of the day that they were written therefore both buyers own it equally and should divide. This assumption would presumably be based on rashi's interpretation of shuda, which is that the dayan decides who really deserves it (meaning based on the sellers relationship and other forms of evidence, the dayan tries to guess which one rightfully deserves the land).
On the other hand, Rabbeinu Tam seems to understand that dividing is actually a better solution, therefore so long as it is possible that both contracts went into effect simultaneously (such as they were signed at the exact same moment) even though it is possible that they were not, we would still prefer the method of chaluka. Rabbeinu Tam is forced to explain why according to R' Elazar is chaluka not viable, and that is because it is impossible that he gave over to both of them at the same time. It is only because chaluka is impossible that we implement shuda. This would presumably be based on Tosafos approach to shuda which is that the dayan does whatever he wants (see also tosafos 85b), therefore it is not a very good option and is only used when chaluka is not a possibility.