Wednesday, February 27, 2008

Nedarim 69a - Being Sho'el on Hakama

The Ran explains the tzad in the gemara that one can be sho'el on a hekem that the case would have to be where they are sho'el the same day they hear about the neder so that they will be able to be meifer after the hakama is removed, because if the day had already passed it is no different than the day passing b'shtika where the opportunity of hafara is lost עכת"ד. The Ran holds that one cannot be meifer a neder after the day he heard about it passes, even if the rationale for not being meifer on that day is because he had a hakama preventing him from being meifer. Rashash points out that Tosafos (kesubos 71b) is mesupak about this, and the Tur assumes that one can be meifer on the day they are sho'el on their hekem. Perhaps we can explain the point of argument between the Ran and Tur, to be how we view the concept of "the day he heard". The Tur understands that "the day he heard" means the day he has the opportunity and possibility of doing the hafara, so if he fails to take advantage of the opportunity until the end of the day, he looses it. But in our case where he cannot be meifer that day because he has a preexisting hakama, he would not loose his opportunity. Rather, we would look at the day he is sho'el on his hekem when the opportunity of hafara presents itself, and he fails to take advantage for that entire day, he would loose the opportunity. The Ran argues because he holds that it is not an issue failing to take advantage of the opportunity, rather he holds that as soon as he hears about it we start the clock for his ability to be meifer and that expires when the hour hits 6pm - so even if he could not be meifer on the day he heard, he would not be able to be meifer later. Another possible explanation for the Ran is that the Ran holds that if one did hakama and hafara on the day he heard of the neder, and the next day was sho'el on the hakama, the hafara would go into effect retroactively (I think R' akvia eiger says something like that). Based on this, the Ran may very well hold that he looses the opportunity of hafara because he failed to take advantage of it on the day he heard, like the Tur, but even in our case he should have taken advantage of the hafara since it would accomplish something if he were to later be sho'el on the hakama.
The Rashash asks an interesting question: Everyone seems to hold that the only type of "hakama" that one can be sho'el on is an active hakama, but if the day he heard passed and created a passive hakama, all agree that he cannot be sho'el on that hakama - Why is this true, since the whole concept of "b'yom sham'oh" is that the day passing will be a hakama, so he should be able to be sho'el on that as well? Based on the first explanation i said for the Ran that "b'yom sham'oh" is like a time clock that expires at the end of the day, it is not an issue of hakama, rather the time opportunity of hafara simply expires (but the Rashash understands based on the pasuk that it is not a time expiration, rather tantamount to an actual hakama).

Tuesday, February 26, 2008

Nedarim 68a - Nisrokna Reshus

First, a very simple question: The gemara clearly assumes that the hafara of the father OR husband alone accomplishes something, the only question is whether it accomplishes weakening the entire neder or removing half the neder. How then does the Ran (67a) explain that hafara of the husband or father alone is "very weak because by itself it is nothing", to justify why the hakama of the other can destroy the hafara of the first?
I thought it would be worthwhile to present the 5 cases of nisrokna to possibly provide some clarity in this complitacted sugya. Basically we always say "nisrokna" to pour the husbands rights into the father, but not the fathers rights into the husband, except for case #5 where the neder remains weakened so beis hillel maintains that we don't allow nisrokna even into the father's reshus.
1. Husband was not mekayem then neder (he was not actively mekayem and he either died on the day he heard about the neder or if he died the next day he was meifer on the earlier day), with the death of the husband, his rights of hafara are poured into the father who now has full rights of hafara. But, if the husband was actually mekayem the neder or mekayem it by default (he died the next day without being meifer), since the husband himself has forfeited his hafara rights, the father cannot inherit hafara rights from the husband.
2. Father was meifer and then died, the father's hafara is nullified with his death, and the fathers hafara rights are not poured into the husband. This is even if the husband did not hear about the neder while the father was alive which would give the father stronger jurisdiction over the neder, so that when the father would die there would be very little strength left to the neder, even that small remaining amount cannot be removed by the husband.
3. Husband was meifer and then died, the husband's hafara is nullified with his death, and the husbands hafara rights are poured into the father to allow the father to be meifer. This is even true if the father has not heard about the neder so that the husbands had strong jurisdiction over the neder and weakened to a degree where it is more difficult to pass on to the father, nevertheless the rights are still given to the father since with the death of the husband his hafara is nullified so that the father is actually inheriting a significant amount of the neder rights.
4. Husband is meifer and then the father dies, the husband cannot be meifer the portion of the father. This is true even though the father did not know about the neder so that the husband had strong jurisdiction over the neder originally, so that his original hafara removes most of the neder and there is only a small part remaining, even that small amount he cannot be meifer since a husband can never be meifer without active participation from the father.
5. Father is meifer and then the husband dies, the father can be meifer the portion of the husband. The opinion that the father can in fact be meifer is that of beis shamai, and this is true even if the husband did not know about the neder so that the original hafara of the father removed the bulk of the neder, we do not consider the neder "weakened" to prevent the father from inheriting full hafara rights and nullifying the neder by himself. Beis hillel disagrees and maintains that since the original hafara of the father was strong (because the husband didn't know about the existence of the neder) we consider the neder weakened to a point that the husbands portion on which there was no hafara done yet, is not transferable to the father and therefore the father cannot do hafara on such a neder.

Monday, February 25, 2008

Nedarim 67a - Hakama of the husband ruins the hafara of the father

The Ran explains that if the father would to hafara, and the husband hakama, even if the husband would uproot his hakama (by being sho'el on in like a neder), the hafara of the father would be lost. However, the Ran quotes a machlokes between the Ramban and Rambam. According to the Ramban although the original hafara is lost, the opportunity is not lost. The father can simply be meifer again together with the husband and rid her of the vow. However, the Rambam (and Rosh) disagree, they maintain that once the hafara of the father becomes nullified, the opportunity is lost forever and there is no way for such a neder to have hafara. What is the point of argument? It seems to me that they argue whether hafara is an action that is accomplished through a statement, or is it a continuous state that is put into place through the statement. The Ramban maintains that it is a specific action and can be done multiple times. Therefore, even if the first time was ineffective (due to the husbands hakama), he has the opportunity to do it a second time together with the husband. But, the Rambam holds that hafara is a continuous state. It is as if the father who was meifer continues to be meifer at every moment. Nevertheless, the hakama of the husband ruins the ongoing hafara of the husband, therefore the repetition of the hafara by the father doesn't add anything to the existing state of hafara of the father, so once it is lost, the opportunity is gone forever.
Another interesting point that was raised in the kollel: If in fact being sho'el on the hakama removes it as if it was never done, how can it ruin the hafara of the father. Although at the time the hakama was done the hafara of the father becomes unable to combine with the husband to facilitate hafara, but since the husband uproots that hakama as if it were never done, the original hafara of the father should not be effected at all? I think it is clear from the Ran that he holds, although the husband being sho'el on his hakama completely uproots the hakama from his own perspective, it doesn't erase it as if it never existed, therefore any negative impact that it had on the father's hafara which was to nullify it since at that moment it was not fit to combine, cannot be repaired by the father being sho'el on the hakama.

Sunday, February 24, 2008

Nedarim 65b - כל דמעני לאו עלי נפיל

The gemara seems to imply that in a city where the custom is to give the gabai tzedaka who will then distribute to the poor, one would not have an obligation to give to a poor person who knocks on the door. It is interesting to note that the chofetz chaim in his sefer Ahavas Chesed (2:17) has an elaborate footnote screaming about the terrible system of collecting all money in some sort of keren and not allowing the poor to collect individually in the city. How does that fit with the system that the gemara assumes to be the norm? Perhaps the system that the gemara refers to will still allow the poor to try and collect, but one is not obligated to give since he has already contributed to the keren, whereas the chofetz chaim was speaking of a system where they would not allow the aniyim to collect at all (but it doesn't sound like that from what he says).
A second point is: R' Asher Weiss (Breishis 38) discusses one's obligation to give all their possessions to an ani collecting for a situation of pikuach nefesh. He concludes that one is definitely obligated to give ALL their assets as the chofetz chaim writes, but: סוף דבר נראה ברור לענ"ד דחייב אדם להוציא כל ממונו להציל נפש אחת מישראל, אמנם זה רק במקרה קיצוני שהוא לבדו יכול לעזור. אבל ברור ופשוט שאין האדם חייב למכור ביתו וכל אשר לו להציל חולה וכדומה כשיש רבים המצוים להציל ומהיכא תיתי יתחייב הוא ולא אחרים שמצוות התורה מוטלת גם עליהם, וזה ברור ופשוט
R' Asher ends up saying on his own the concept that we find in our gemara: "not every person who becomes poor falls on me to support" - meaning that one's responsibility is ultimately to contribute their share along with everyone else. BUT, it is a big chiddush to apply this concept in a case of pikuach nefesh.

Saturday, February 23, 2008


עיין שער המלך ריש הלכות שבועות מהראשונים שמקשים איך שאל צדקיהו על שבועתו והרי צריך לפרוט הנדר וכבר נשבע שלא יגלה הדבר ואם יפרוט הנדר הרי כבר עובר על השבועה. ותירץ שאה"נ במקום צורך גדול יכול לסמוך על זה שיותר לו למפרע. ועוד תירצו שפרט הנדר בדרך כללי כגון שאמר שנשבע לאחד שלא לגלות שראהו אוכל ארנבת חיה ולא אמר למי.
ובדרוש המעשה צ"ע מה ביאור דברי בגמרא? וצ"ע

נדרים ס"ה - המודר הנאה מחבירו אין מתירין לו אלא בפניו

הראשונים מביאים הירושלמי שיש שתי טעמים מדוע צריך להתיר בפניו, אי משום חשד או משום בושה. וטעם של בושה צריך ביאור ומצאתי שיש בזה מחלוקת ראשונים. מהר"ן נראה שלמד דטעם בושה כוונתו לומר שכשאדם נודר לטובת אחר כעין משה שנשבע לטובת יתרו, צריך שיתבייש הכוונה צריך שישאל לדעתו של יתרו שיתן לו רשות להתיר השבועה, ולכן הר"ן מביא דברי ר"ת שלומד שאין מתירין לו אלא בפניו הכוונה מדעתו, ובר"ן משמע שזה הולך לטעם של בושה .
אך י"א טעמם של בושה הוי כפשוטו שהנודר יתבייש ואולי אם יתבייש לא ישאל על הנדר, אך וודאי ל"צ לרשותו של יתרו, וכך נ"ל שהרא"ש למש. ויש עוד פירוש בבושה שהוי מידה כנגד מידה, שכיוון שהנודר בייש המודר א"כ צריך שהנודר יתבייש, וזה שייך רק בנדר שהוא כנגד המודר וצ"ע מיתרו. את המראי מקומות אפשר למצוא בהערות החדשות על הב"י בהוצאת מכון ירושלים.

Friday, February 22, 2008

Nedarim 64a - Nolad: Story of R' Akiva

The rishonim all ask why the neder made by R' akiva's father in law was able to be removed using a pe'sach that he became a "adam gadol", it should be a problem of Nolad. There are many nuances in the Rishonim in how they answer this question, so i thought it was worthwhile pointing them out.
1. Tosafos kesubos 63a - It is not considered nolad since he went to learn in yeshiva and the derech of one who goes to learn in yeshiva is that he will be a talmid chacham (that was apparently true in the time of R' akiva!). This Tosafos needs some explanation because our mishna indicates that becoming a talmid chacham is unexpected and therefore nolad. Perhaps tosafos means that for something to happen in an unexpected way i.e. becoming a talmid chacham without going to yeshiva then it would be nolad. But, since actually going to yeshiva is still within the expected norm, and becoming a talmid chacham is a normal result of going to yeshiva therefore it is not nolad.
2. Tosafos kesubos 63a (2nd answer) - His father in law stated explicitly at the time of the neder that it was made with the assumption that he will not become a talmid chacham, and since it was stated explicitly it does not qualify as nolad.
3. Ran nedarim 50b - R' akiva married her with the condition to become a talmid chacham so in that case it was at least expected that he would learn a little bit and therefore it was not nolad.
4. Ritva Nedarim 64a - Although becoming a talmid chacham is nolad and cannot be used as a way out of the neder, since he revealed that he would not have made the neder even if r' akiva would learn a little, that is expected and therefore not nolad.
5. Nimukei Yosef Nedarim 64a (in the name of the ritvah??) - It is only considered nolad if at the time of the neder the person was not involved in Torah study at all, but R' Akiva had already begun to study torah at the time of the neder היה משתדל בדבר כבר הרי אמרו יגעתי ולא מצאתי אל תאמין, ור"ע באותה שעה צנוע ומעלי ומשתדל בתורה הוה. Nolad only applies if the even had not yet happened at the time of the neder, but since R' akiva began learning which will definitely turn him into a talmid chacham, it is not considered nolad. We find a similar point in Rashi on dassan and aviram becoming poor was not considered nolad (to answer the shita of chachamim who argue on r' elazar), that even though poverty IS nolad (not like the Ran and Rosh), since it had already happened at the time that moshe made the neder, it is not nolad.
6. Perhaps the entire question only begins based on the assumption that the term "sofer" means talmid chacham, but according to Tosafos in Nedarim 64a that becoming a sofer refers to the city scribe who writes contracts, that is considerd nolad, but becoming a talmid chacham is not nolad at all.

Thursday, February 21, 2008

Nedarim 62b - Dividing Lechem HaPanim; 63b - Adar Rishon

1. Rashi unlike the Ran explains that part of v'kidashto is that when the kohanim are dividing the lechem hapanim they should give "him" the first portion. Who is the "him" when kohanim are dividing? The maharsha suggests that we are speaking of a Kohein who is a Talmid Chacham, which indicates that the kovod to show a talmid chacham as pointed out by the gemara, is really included in the passuk of vikidashtu and not just a rabbinic addition. However, the cheshek shlomo (r' shlomo vilna) suggests that we are referring to when the kohein gadol is dividing with them and there is an obligation of vikidashto on all kohanim for the kohein gadol.

2. The Ran paskens like R' Yehuda that the main adar is the first so that in contracts and gittin one can right "adar" to refer to adar rishon. The Rambam paskens like the distinction between whether one knows about it or not, therefore if one knows that there is an adar sheini we assume he refers to the second adar unless he explicitly writes adar Rishon. The Beis Shmuel in Hilchos Gittin (126:19) question why this Rambam is not recorded l'halacha in hilchos gittin (the halacha in shulchan aruch is that you should be specific both for the first and for the second, but the rama writes that if you wrote "adar" to refer to the first it is kosher bidieved). The Beish Shmuel writes that by nedarim which is an issur d'oraysa we are choshesh for the shitas ha'Rambam, but by contracts including gittin even if the implication of "adar" is the second, it would just be a shtar meuachar which is kosher meikar hadin so we don't have to be choshesh for the Rambam.

Wednesday, February 20, 2008

Nedarim 62a - Lish'ma: Nefesh HaChaim

ראב"צ אומר עשה דברים לשם פעלם [ראש: לשמו של הקב"ה שפעל הכל למענהו], ודבר בהם לשמם [רא"ש: כל דבורך ומשאך בדברי תורה יהיה לשם התורה כגון לידע ולהבין ולהוסיף לקח ופלפול, ולא לקנטר ולהתגאות] ע"כ
The Nefesh HaChaim at the beginning of sha'ar 4 uses this gemara as his source for his definition of Torah li'shma, which is really the definition of the Rosh. Li'shma means for the purpose of mastering Torah, meaning study Torah with the focus and mindset of mastering the material. This is different than the intention needed for a mitzvah, which is for the sake of G-d (as the rosh explains), but by learning it is not for the sake of Hashem, rather for the sake of mastering the Torah.
Rashi seems to disagree because his girsa is דבר בהן לשם שמים which implies that even Torah should be studied for the purpose of serving Hashem. The Nefesh HaChaim already points this out and says that even Rashi doesn't mean d'veikus to hashem but rather just to the exclusion of ulterior motives such as arrogance. Nevertheless, the Nefesh HaChaim claims that Rashi would entirely agree with the Rosh that the definition of "li'shma" is for the sake of mastering Torah. However, in the footnotes on Nefesh HaChaim (Goldberg) he points out that rashi in Ta'anis 7a in the context of Torah li'shma being a medicine for life, defines "li'shma" to mean "because G-d commanded me to do so". This clearly seems to be different that the Rosh cited by Nefesh HaChaim.
I would suggest that everything depends on the context of what you want from the Torah. R' Elazar Bar Tzadok is talking about what one needs to do to acheive maximum reward in olam ha'ba, and that is accomplished by studying Torah for the purpose of mastering Torah. That is why the Nefesh HaChaim connects this to R' Yochanan Ben Zakai (succah 28a) who was zoche to "li'hanchil l'ohavai yesh" - receiving s'char for his efforts. But, when one wants a physical benefit from the Torah such as serving as a "medicine of life", the Torah must be studied for the purpose of being submissive to G-d and learning because of Hashems command. Being mevatel one's physical self to the command of Hashem is in essence putting his body in G-d's hands and causing Hashem to take responsibility for his physical health (as a master takes responsibility for the health of his servants).

Tuesday, February 19, 2008

Nedarim 60b - Nidrei Mitzvah are encouraged even by R' Nosson

The Ran explains that R' Nosson's statement that a neder is tantamount to building a bama, and keeping the neder rather than being sho'el on it is like sacrificing at a time of issur bamos, is limited to nedarim on a d'var ha'reshus. But, a neder on a d'var mitzvah is encouraged even according to R' nosson. Based on this, if one would make a neder on a something which is not kosher or has a shayla in kashrus, even r' nosson would agree that there is no mitzvah to be sho'el on such a neder. Since the whole source for neder being yeish lo matirin and therefore not batul, is R' nosson, it comes out that if one were to make a neder to prevent eating a chashash issur, that neder would be ein lo matirin since there isn't a mitzvah to be sho'el and therefore would be batul. [Regarding the issue whether an item with 2 issurim, one ein lo matirin and one yeish lo matirin is batul, would seemingly be dependent on the machlokes rashi vs. Ran by yeish lo matirin. Acc. to the Ran it has issur status because of the ein lo matirin and therefore should be batul, but acc. to rashi since he can avoid the issur that is yeish lo matirin and eat it b'heter much'lat at a later time, he should wait so it isn't batul].

Monday, February 18, 2008

a small הערה on the new perek

the mishna in the new perek calls Rosh Chodesh להבא while calling Rosh Hashana לעתיד. Why the change in description? I think it's very good according to the Gemara that says that Rosh Chodesh is referring to the 1st day of a 2-day Rosh Chodesh, so this day is not yet in the future month but is part of THIS month, just that we give it a din of להבא. The gr"a in many places tries to show how the gemara is hinted too in the mishna, and i perhaps hit 1 such example.

Nedarim 59b - Issur being mevatel heter

The gemara concludes according to the ran the assumption of the gemara all along that if the gidulin are mutar then they are definitely mevatel the ikar of issur, applies only in that case where the ikar is assur and the gidulin are mutar. When trying to be mevatel issur in heter, it doesn't matter if he is going through 'tircha' to be mavatel, because it is easy for issur to be batul in heter. But when the ikar is heter and the gidulin are assur, and we are trying to be mevatel the ikar in the gidulin to make it assur, then it depends: if he is being 'toreiach' to be mevatel then it will become batul but if it is simply happening by itself then the heter will not be batul in the issur. The ran explains the rationale behind why it is easier to be mevatel issur in heter, than to be mevatel heter in issur is "שהאיסור דרכו להתבטל ולא ההיתר". This means to say that "heter" is the absence of any issur, whereas issur is a status ("chalos"). When trying to be mevatel issur, all we need to do is remove the status from the issur to make it like the heter. But when trying to be mevatel heter in issur, we are not removing heter status, rather imposing issur status on the heter, which is obviously more difficult to do.
Perhaps the entire concept of being mevatel heter in issur, is only d'rabonon and that is why we only allow the bitul if he is toreiach to be mevatel (it is very hard to accept that the sevara of toreiach levatel should make a difference on a d'oraysa level), but on a d'oraysa level heter cannot possibly be turned into issur (except when the issur puts ta'am into the heter, where there is a discussion about chaticha na'aseh neveila). However, the Mahartz chiyus points out that we do find cases where the heter is batul in the issur elsewhere.

Sunday, February 17, 2008

Nedarim 58a - Back to davar sheyesh lo matirin

The Ran says that shivi'is before the z'man biur is considered a davar sheyesh lo matirin which is not batul b'mino but is batul b'shishim in eino mino. My question is that according to the Ran on 52a the rule of davar sheyesh lo matirin being batul in eino mino in 60x, only applies to something which is assur now but will become mutar later (by either doing something such as pidyon, or bringing it to yerushalayim by ma'aser sheini, or time expiring like by chadash). But something which is actually mutar now like meat that falls into something parve, it is more similar to heter than davar sheyesh lo matirin and therefore will not be batul even in eino mino. Based on this, how can the Ran claim that shivi'is before the zman biur will be batul in eino mino, since it is mutar now it should be worse than davar sheyesh lo matirin and not be batul whether it falls into mino or eino mino?

Thursday, February 14, 2008

Nedarim 55b - Bracha on Hydroponics

The gemara says that we only make "ha'adomo" on something that grows and receives nourishment from the ground, to the exclusion of mushrooms which are considered to receive nourishment from the air not from the ground (When i said this over, a microbiologist took some offense to the claim that mushrooms receives nutrition from the air more that any other plant. I responded that perhaps nourishment from the air is simply a way to refer to the fact that they can be grown on moist logs and things of that sort that are not at all connected to the ground. Air may simply be a way of saying not the ground). The question is raised regarding what bracha to make on vegies grown in water - hydroponics. The Chayei Adam (51:17) writes that wheat grown in a flower pot would not be subject to "hamotzi lechem min ha'aretz" since it would not qualify as "aretz". Similarly, he proves from a gemara in Chulin 139b in the context of shiluach hakan where the gemara says that a nest on a persons head would qualify for the mitzvah, since a person is called "adama" and therefore dirt on a persons head retains status of "adama", whcih he the gemara proves from a pasuk. From this he deduces that if the connection is broken with the ground it will no longer qualify as "adama", so a borei pri ha'adama can't be made (this would seem consistent with the nishmas adam posted yesterday that brachos follow loshon hatorah, because otherwise he could not prove from a pasuk that it is ha'adama for brachos).
Although even if one were to argue with the Chayei Adam regarding vegies grown in pots, that could be based on the fact that dirt is called "adama" even inside a flower pot and therefore the bracha of "ha'adama" applies. But, water would certainly not qualify as "adama" and therefore one cannot make "ha'adama" on vegies grown in water.
The argument can still be made that vegies which are normally grown in the ground and the fact that the seed originated from the ground, ha'adama should be made even when this particular cucumber is grown on water.
See the Nishmas Adam (152:1) where he discusses a lulav grown in a pot whether it qualifies as an "eitz". His conclusion is basically that regarding bracha it would qualify as "eitz" and therefore one can make "boreh pri ha'eitz" on a fruit grown in a pot. Someone in my daf shiur pointed out that if this is true then we find an example of a situation where the bracha of "borei pri ha'adama" will not work even beidieved for something that requires "borei pri ha'eitz".

Wednesday, February 13, 2008

Nedarim 55b - Mezonons on an Apple

The Ran quotes a machloeks in the yerushalmi as he does also on 49a between r' yochanan and r' yoshiya whether nedarim follow loshon torah or loshon b'nei adam (when they contradict one another). We always assume based on the bavli 49a that even r' yoshiya holds that nedarim follow loshon bnei adam. What about Brachos? When chazal are mesaken the nusach of a bracha does it follow loshon torah or loshon bnei adam? The Ran quotes a gemara in eiruvin 30a that if one makes a neder on "mazon" it includes all food even fruits. The gemara then asks that this seems to contradict rav and shmuel who say that mezonos can only be made of the 5 grains but not on anything else? The gemara answers that although "mazon" only inlcudes the 5 grains, if one woulds sy "kol ha'zan" that would include everything. This gemara seems to indicate that mazon would certainly not include fruits and the like, so if one made a mezonos on an apple, it would not work even b'dieved.
However, the Kesef Mishna (Brachos 4:6) writes that if one made mezonos on fruits it would work bidieved. The Nishmas Adam (58:3) justifies the position of the kesef mishna based on a Tosafos in eruvin 30a. Tosafos writes that the gemara only has a question on rav v'shmuel who say that mazon refers only to the 5 grains but not to rice and millet which indicates that even though we are koveia seuda on rice and millet, "mazon" only includes the 5 grains. But, according to the amoraim who we follow that mezonos is made on rice and millet as well, there is no question because although the term "mazon" technically includes all foods, chazal were only mesaken the bracha of mezonos on something that we are koveia seuda. Now, bases on tosafos that there is a machlokes amoraim whether "mazon" includes only the 5 grains or everything, what is the basis of this argument? It seems unlikely to the Chayei Adam that they are arguing what the loshon bnei adam of mazon refers to. Rather all would agree that the loshon bnei adam of mazon only refers to the 5 grains, but they argue whether "mezonos" in a bracha is meant to follow loshon torah (which would inlcude all foods but l'chatchila would be limited to foods that one is koveia seudah on such as rice and millet), or is "mezonos" in a bracha limited to what is loshon bnei adam as well, which would be only the 5 grains. Therefore, by nedarim where we follow loshon bnei adam only the 5 grains are included in "mazon" but by bracha where we include items that are called mazon b'lashon torah, it would include all food, just that the takana of mezonos l'chatchila was made only for things that the derech is to be koveia seduah, but bidieved since "mezonos" does inlcude fruit b'loshon torah and brachos follow loshon torah, mezonons would work on fruits as the kesef mishna paskens.

Tuesday, February 12, 2008

בסוגיא דממלך השליח במ"ח ר"ע וחכמים

בשיטת ר"ע בנדרים לפירוש הר"ן יוצא שדילועין רק נכללים בנדר על ירק אם יש שני תנאים, הלשון מרבה יותר מסתם ירק, ועוד תנאי שצריך שהשליח ימלך בבעה"ב אי כוונתו על דילועין. ולכאורה צ"ב למה צריך שתי התנאים, דמה כל תנאי מוסיף, וכן צ"ב דהרי בסוגיא דמעילה ל"צ לריבוי לשון אלא רק לזה שהשליח ימלך בבעה"ב וזה מספיק לגמרא (בהו"א) שבעה"ב ימעול.
והנראה בביאור, שתנאי של מימלך מהני שאנו יודעים מה כוונת הבעה"ב או הנודר וזה מהני למעילה, אך בנדרים צריך שהלשון יאמר אותו דבר שכוונתו לומר, דהיינו שלשונו יתפרש לדילועין. ולכן נראה שמה שמסופק לר"ע הוי אי דין זה של מימלך השליח מספיק להפוך את הלשון שיתכוון לדילועין, ולכן ר"ע מסתפק רק בנדרים ולא לגבי מעילה ששם אין דין לשון אלא שצריך לדעת כוונתו.
ואם כנים הדברים, נראה לי שלגבי עוף ודגים ג"כ יסתפק ר"ע אי נכללים בנודר מן הבשר, כי לשון של בשר בתורה הרי לר"ע לא כולל עוף, דהרי ס"ל שעוף בחלב מדרבנן, א"כ אולי שגם לגבי נדר ה"ה שלשון בשר לא כולל עוף, אא"כ נדחה לומר שבלשון בני אדם עוף נכלל בבשר, אך עכ"פ לגבי דגים נראה פשוט שדין ממלך השליח לא יעשה לוודאי אלא רק ספק. ועיין בקרן אורה וצ"ע

Monday, February 11, 2008

Nedarim 52b - More regarding bitul according to Ran

The Ran holds that the concept of requiring opposites for bitul is d'oraysa, but on a d'oraysa level even a davar sheyesh lo matirin is assur enough to be opposite of heter and is batul in the heter. What would be the din of a davar sheyesh lo matirin that falls into a davar sheyesh lo matirin where the issur on the former will expire after the issur on the latter? For example if someone makes a 30 day neder on something that gets mixed up with something else that is assur to him b'neder and will expire in 10 days. Do we say that since at the time of the ta'aroves bitul cannot take place (i am assuming that this is even d'oraysa) because the heter and the issur are too similar, so even when the 10 days expire the ta'aroves will remain assur d'oraysa, or do we say that when the 10 days are up there is bitul d'oraysa since it becomes a standard case of davar sheyesh lo matririn so there is bitul d'oraysa just not d'rabonon? Furthermore, within the 10 days if one would eat the mixture it would seem to be a d'oraysa violation of both nedarim because the 30 day issur cannot be batul in the 10 day issur since right now they are too similar to facilitate bitul. - food for thought!

Saturday, February 09, 2008

nedarim 52a - bitul

the ran has a basic approach that the more difference the issur is from the heter, the morelikely it is for bitul to take place. on a d'oraysa level the chachamim and r' yehuda argue regarding min b'mino. r' yehuda holds that they are too similar for the issur to be batul. chachamim hold that we focus on the difference in the issur aspect, not the type of food, and as long as the issur and heter are from the perspective of issur, bitul can take place. therefore davar sheyesh lo matirin which is slightly similar to the heter since it will be mutar, there is only bitul b'sheino mino but not in mino because mino is too similar to the issur (but eino mino is different in the type of food which compesates for the similarity of davar sheyesh lo matirin). however something hich is mutar now just that it is fleishig cannot be batul even in eino mino to allow eating with dairy, since it is even mutar now it is too similar to the issur to use bitul. is this a chumra d'rabonon like davr sheyesh lo matirin, or is their no bitul even m'doraysa?

Friday, February 08, 2008

Nedarim 50a - Story of R' Akiva

One point that it didn't realize until now and is not mentioned in the kesubos version of the story, is that Eliyahu came to him in the appearance of a man asking for straw. The Ran explains that the purpose of this visit was to show R' Akiva and his wife that as bad off as they are, there are always others who are in more dire straits. The language of the Ran and Rosh bother me a little because they seem to say that it was a consolation to R' Akiva that there are people poorer than he. But is seems that they mean to say that R' Akiva was able to appreciate the little that he had when he saw others that had even less.

Thursday, February 07, 2008

Nedarim 49b - Getting sick over kiddush and havdala

The gemara says that R' Yehuda would abstain from wine because it made him sick, but would push himself to drink wine for kiddush, havdala and 4 cups on pesach (in my sefer i discussed how much suffering one is required to go through to fulfill a mitzvas aseh). For the 4 cups it makes sense that he had to push himself because the mitzvah was to drink and he could not be yotzei through the drinking of someone else (although tosafos pesachim 99b implies otherwise - famouse brikser rav on this issue). But kiddush and havdala he could have been yotzei from others, why did he have to push himself to drink?
A friend of mine pointed out to me that the ADERES (father in law of R' kook) has a kuntres that was just published where he writes some short hear'os on the chayei adam klal 68 (chaval i didn't have it 3 months ago!). In this kuntres called "machshirei mitzvah" he cites a sm"a (c.m. 291:27) explaining a gemara in baba metziah 42a that a talmid chacham makes his own kiddush and is not yotzei with others. Although the Magen Avrohom (296:10) wonders why this would be, the ADERES suggests that being yotzei from someone else is like a shliach, and we always say that the mitzvah is greater when one does it by himself and not through a shliach. Interestingly enough, he points out that the statement made in b"m 42a is by rava, because rava is the one who claims in kiddushin "mitzvah bo yoser m'bshlucho". The ADERES goes so far to say that it may be better to make kiddush on bread in order to do it by oneself rather than being yotzei through someone else - obviously a very big chiddush!

Tuesday, February 05, 2008

Nedarim 47b - Items exchanged for Issurei Hana'ah

The gemara is not conclusive whether there is a gezeira d'rabonon on items that were exchanged for issur hana'ah (or whether it is only assur by a neder when he uses a language that implies inclusion of even the exchanged items). The Ran writes that because the nature of the issur even if it exists is only d'rabonon and the gemara leaves with a safek whether the issur even exists, we can apply the rule of safek d'rabonon l'kula. Both the Poras Yoseif and the Mitzpeh Eisan ask that a neder is a davar sheyesh lo matirin, and by a davar sheyesh lo matirin we are not meikil out of safeik, so why should we say safeik d'rabonon l'kula here?
1. Mitzpeh Eisan - We are only machmir by a safek d'rabonon sheyesh lo matirin when the question is about what actually happened (sfeika d'uvda), but if it is a safeik in the halacha (sfeika d'dina) then we can rely on safeik d'rabonon l'kula. Perhaps the rationale is that normally we are machmir because the fact that it will become mutar later and the entire question of what happened will not be relevant, we must wait until late. But here the halachic question as to whether there is an issur on chilufin would still exist and be relevant for other cases, even if in this particular case the neder is removed. For example, we don't know if the egg is a yom tov egg and by waiting until after yom tov the halachic question will be avoided because from a halachic perspective it no longer makes any difference when the egg was formed. But when we have a safeik in the halacha, even though the safeik is yesh lo matirin through some sort of pe'sach or charata, the halachic question will still apply and is still pertinent for the next time. Since the question will never disappear, we can rely on safek d'rabonon l'kula.
2. Poras Yosef - He gives a much simpler answer. Since the quetion is not limited to nedarim, but is rather a issur hana'ah question. Even though by nedarim this question will manifest itself as a davar sheysh lo matirin, but once we are lenient by other issurei hana'ah to pasken that the exchange is mutar, we are lenient by nedarim as well.

nedarim 46a - Forcing the Noder to sell

The gemara understands that if one imposes a neder on himself that forbids him from receiving benefit from his partner, it is legitimate to force him to sell because of a combination of 2 reasons: 1. he is penalized for making the vow, and no one forced it on him. 2. it will prevent him from violating an issur because he is likely to use the property when he sees his partner using it. But, in a situation where one imposes an issur hana'ah on the other, there is no penalty. The reason is that although the first reason applies to the madir, the second does not, and although the second reason applies to the mudar the first reason doesn't.
The question is that according to the rambam that when the mudar violates the neder, the madir is in violation of bal ya'chel, both reasons should actually apply to a madir. He should be penalized for making the vow, and by forcing him to sell it will prevent him from a violation every time the mudar uses the property? The Ran should have used this gemara as his third proof against the Rambam?

Monday, February 04, 2008

Nedarim 46b - Rented Property

The Ran on this sugya is pretty confusing, so i thought it would be a good idea to summarize it. In a situation where there is an owner of a bath house who is not allowed to provide benefit to a bather, and the bath house is managed by a third party, it depends on the level of involvement of the owner. The gemara says that if the owner is somewhat removed from any direct involvement with the bath house, the mudar may bathe there. The main issue in the gemara is understanding whether the heter for the mudar to bathe there is based on the assumption that he is not receiving his benefit from the owner, rather from the manager, or is it because the original neder that was imposed by the owner never meant to include this case. The obvious distinction between the 2 approaches, is a bath house that was given over to a manager after the neder was made. Based on the approach that it is not called a benefit from the owner it is mutar since at the time of benefit the owner is removed from any involvement, but based on the approach that it is called a benefit just that it was not included in the neder, in this case since it was in the hands of the owner at the time of the neder it was certainly included in the neder. The Ran in the mishna at first implies like the first approach "דלאו מדידיה מהני אלא מהשוכר" and then quotes the rashba who says like the second approach "כל שאין לו בהן תפיסת יד, אין האיסור חל עליהם". A third possible approach is that even if the madir wants to assur the mudar, and it is considered benefit from the madir, the madir does not have the power to do so.
Ran asks: Since we find that an owner can make a house hekdesh and assur it on the renter, he should certainly be able to assur the house on someone else who is invited by the renter. So, why does our mishna allow the mudar to bathe in the bath house even though it is under control of the manager?
Answers brought in Ran:
1. Tosafos - Although the owner has rights to assur on the bather, he did not intend to include the bathhouse in the neder since he has no involvement in it. 2nd approach above.
2. Rabbeinu Tam - Hekdesh can uproot the lien of the manager/renter but a private konam cannot. In our mishna which speaks about a konam, the owner can't assur the manager/renter. So long as the manager/renter lien remains the owner is powerless to assur the mudar. (Ran disagrees and holds tha konam can uproot the lien). 3rd approach above.
3. Acheirim - When the manager/renter has already paid the entire year of rent, the owner has no power to uproot his lien and therefore is powerless to assur on the mudar. (Ran disagrees and holds that advance payment does not give the renter/manager a stronger lien). 3rd approach above.
4. Only hekdesh of kedushas mizbeiach can uproot the manager/renters lien, but kedushas bedek habayis like being makdish a house cannot. Therefore, if "a house" was rented, the owner can be makdish it since the manager/renter has no lien on "this house", but if "this house" was rented, the owner cannot remove the lien of the manager/renter. (Ran points out that this does not help to explain our case, because a konam is like kedushas mizbeiach since there is no possibility of redemption).
5. The case here is not a standard rental, but rather a sale that is paid by giving x amount of dollars per year to the original owner. The renter/manager is really an "owner" and the original owner has no power to break his lien/ownership. 3rd approach above.
6. Ran - Although the owner can technically break the lien of the manager/renter and assur on him and on everyone else for that matter; so long as he does make a konam against the manager/renter so that the lien stays in tact, the manager/renter is considered the "owner" in the sense that all benefit being provided to the mudar is from the manager/renter, not from the actual owner of the property (This is like the first approach above, that the neder was binding against the mudar benefiting from anything owned by the madir, but the bathhouse is considered benefit to the mudar from the manager/renter, not from the madir). 1st approach above.

Sunday, February 03, 2008

44b question

accordion to rebbi yossi, the gemara wants to say that after 3 days the מפקיר can be חוזר but m'drobonon they said he cannot. still, as the ran explains, the חזרה does work to the extent that the זוכה is obliged in giving תרומות ומעשרות מדאורייתא.
in other words, there is no הפקר ב"ד going on here because then the זוכה would not have to give trumos umaasros, still he is allowed to keep the hefker! why? isn't he stealing?

(as an aside, very worth while to look into the תורת זרעים on פאה פ"ה מ"א regarding hefker and our sugya)