Thursday, July 31, 2008

Gittin 20b - Mukaf G'vil

Tosafos proves from the gemara that makes the case where he leaves behind the areas between the lines, to be when the get is "me'urah". At first Tosafos understands that it refers to the letters from the upper lines (such as the lamed) actually touching the letters in the line above. Based on this we can prove that by a gett the letters don't have to be surrounded by klaf on all sides (mukav g'vil), they can even be touching one another (so long as they retain the shape of the letter). But Tosafos then says that it is not such a good proof because it may be speaking when the letters aren't actually touching, rather the lamed in the lower line goes into the heh of the upper line so that it is "me'urah" but still mukav g'vil. Even without a proof though, Tosafos concludes that we don't need mukaf g'vil by gett since it is a din in kesiva tama (as the gemara says in menachos) and that is only a requirement for STA"M. The minhag brought in shulchan aruch e.h. 125 is to be makpid l'chatchila about mukaf g'vil. The Beis Shmuel (7) explains the minhag either because we want the letters to be clear, and not attached to one another, or because we want to be makpid l'chatchila for the rules of STA"M. The nafka mina is if it the letters are touchin on the bottom which don't really ruin the form of the letter, according to the first reason it is ok, but according to the second it is not. However, the chazon ish (hilchos tefillin) understands that even the din d'oraysa by STA"M of kesiva tama and mukaf g'vil are for the purpose of having clearly defined letters. Also, based on the minhag we should be makpid for kutzo shel yud which is also a din in kesiva tama (menachos 29a), even though it is not me'akev.

Tuesday, July 29, 2008

Gittin 19b - Reading a Contract for the Witnesses

The gemara gives examples of cases where the eidim were not able to read the contract themselves, so we allow for others to read for them. It is not clear whether we are speaking of eidim who cannot read but fully understand the language, so that the reader only needs to read but does not need to translate, or can the eidim even have a translator. The Shach in C.M. 44:3 (at the end) explains that even the Rambam who seems to require the eidim to understand the language, doesn't mean to exclude the possibility of a translator. The Rambam is just saying that if the reader is reading a language that the witnesses don't understand without translating, it is not valid. But, just as we allow for a reader, we also allow for a translator. The Shach actually paskens that if we have no choice we will allow a gett to be read for the eidim and translated.
It seems to me that Tosafos 9b is meduyak like this Shach. Tosafos asks, how can we allow others to read for the eidim, it should qualify as eid m'pi eid. Tosafos should have answered that they are not testifying anything, they are merely reading. But instead Tosafos writes:
ולא הוי עד מפי עד שאין צריכין להעיד על עיקר המעשה אלא שאומר שכך כתוב בשטר
Tosafos seems to say that they are indeed testifying to something, but since they are not testifying about what happened, they are only testifying as to what is written in the shtar it is valid. This rationale should allow them not only to testify that what they are reading is accurate, but even that what they are translating is accurate. Hence, a raya to the Shach.

Monday, July 28, 2008

Gittin 18a - Kesuba written by day and signed at night

The gemara says that a kesuba which is written by day and signed at night is kasher. There are 2 rationales how it can be kasher. 1. Shmuel holds that since a kesubah is a t'nai beis din, the chiyuv goes into effect prior to the signatures being placed on paper. Just as a t'nai beis din, the chiyuv is created by their pesak din, so too by kesubah the chiyuv is created by the chupah even without the document (Rashi, Tosafos Rid is more clear). This rationale would only apply to a case where the chupah preceded the writing of the document, but not with our minhag which is to write the kesubah at the chassan's tish. Also, this leniency is really a machlokes rishonim whether we pasken like rav or shmuel, see Ran. 2. The gemara says that all agree that if the kesubah is written by day and they are osek in the inyan of the chupah without interruption, then even if it is only signed at night, it is valid. Seemingly, this shoud apply nowadays, to consider a kesubah that was written (and signed by day) to be effective even though the chupah took place at night. However, R. Moshe (O.C. 5:9:2) where he explains that the leniency of asukin b'oso inyan only applies to a case where the kiddushin has already taken place, so that the kesubah is technically applicable. But, in our situations where the kiddushin and chupah are both taking place only later, the kesubah must be written, dated, and signed on the day the kiddushin and chuppah take place, and asukin b'oso inyan will not help. Therefore, R. Moshe paskens that if the kiddushin and chupah were delayed until after nighfall, the kesubah must be rewritten.

Sunday, July 27, 2008

Gittin 15b - Sofer being the Messenger to deliver the gett

The Pischei Teshuva 142:1 discusses whether the sofer who writes the gett can be the shliach to deliver the gett. The problem is that he has to say upon the delivery "b'fanai nichtav ub'fanai nechtam", which implies that it was written by someone else in his presence, and is inaccurate since he himself wrote it. The other option is to say "Ani kasavtiv ub'fanai nechtam", but the problem with that is that it is a shinuy from the takanas chachamim.
There seems to be a clear proof from the gemara today that if one actually wrote the gett them self, they cannot use the language of "b'fanei nichtav". This is evident from Rav Ashi who does not allow one of eidim who signed the gett to be a shliach to deliver the gett since he will have to say on his own signature "ani chatamti" and on the other "b'fanai nechtam", and will not be completely using the method of kiyum, nor will it completely use the takanas chachamim. Why not let the shliach just say "b'fanai nechtam" on both signatures (even though one of them is his own)? Clearly we see that if it is his own signature it would be sheker to say "b'fanai nechtam". Similarly, if it is his own writing it would be sheker to say "b'fanai nichtav". This is a big question on the Radvaz that is quoted in the pischei teshuva who rules that although if he said "ani kasavtiv" it would work (and is not considered a shinuy from takanas chachamim), ideally he should say "b'fanai nichtav". The Radvaz argues that it is not michzi k'shikra since it is true that it was written in front of him. If the Radvaz is correct, why would Rav Ashi not offer the same solution?
Practically speaking, I have had that situation (and R' Nota Greenblatt who is often the sofer and shliach has the situation all the time), and R' Nota holds that one should say "b'fanai nichtav, ub'fanai nechtam, Ani kasavtiv, ub'fanain nechtam".

Wednesday, July 23, 2008

Gittin 13a - Zachin, Get l'achar misa, Ma'amed Shloshton

Just some scattered thoughts today:
1. Rashi 9b explained that when the agent is zocheh in the shtar shichrur for the eved, he won't be free immediately, just that the zechiya prevents the owner from changing his mind. This was the opinion of the Rif. Tosafos 9b points to rashi 13a who changed his tune and says that if the shtar would be around and the shliach would be zocheh for the eved, he would be free immediately and there wouldn't be any issue of gett l'achar misa. See Rambam that the issue in not being zocheh immediately is not a lack of power of zechiya, rather "te'in k'zchi" means to be zocheh only in regard to preventing retraction, but if given full permission to be zocheh, all would agree that it is effective immediately. The Rosh (13) argues on Rif and says zechiya works as if it reached the slaves hand since it is working through shlichus and cannot be effective partially. He proves this from the gemara 12b that implies as soon as the shliach receives the shtar shichrur the slave could not eat teruma.
2. Rashi on the mishna 13a says that a gett cannot be effective after the husband dies since he lost his writes over her with his death. Rashi on 9b also says by a shtar shichrur that it can't go into effect after the master dies since the eved already left his reshus and now is in the reshus yorshim. However, Rashi in kesubos 2b says that the reason a gett cannot be effective after misah is because אין המתים מגרשים. There is a subtle yet significant difference. The idea of "ein hameisim migarshim" implies that since the dead husband can't divorce, and if the gett is in the hand of an agent, the agent can't do what he himself can't do. But, the Rambam holds that if one appoints an agent and then becomes a shoteh, the agent CAN divorce even though the husband himself can't. Ketzos (188:2) points out that here too we should allow the agent to divorce even though the husband is dead and can't do it himself? The ketzos explains that is why we need rashi to give another rationale, that the woman and eved has already left his jurisdiction so that he had no power to do anything over her. See Tosafos D.H. lo yitnu, that we have 2 mishnayos teaching ein get l'achar misa, to teach both these concepts: 1. in a case of shliach, he can't do what the husband cannot do (and a dead husband can't divorce). 2. even if she has the gett, it can't go into effect after he is dead because she leaves his domain through his death.
3. Tosafos says that although when Reuven sells a debt that he is owed to Shimon, he can still be mochel, but if he gives it through ma'amed shlashtan he cannot be mochel. Tosafos usually explains that the rationale that Reuven can be mochel a shtar that he sold is because kinyan shtaros is only d'rabonon. Even though ma'amed shlashtan is only d'rabonon (Tosafos 14a), Tosafos holds they empowered the receiver more than through a sale. But the Ran (in kesubos) explains that Reuven can be mochel because he only sold the shibud nechasim but retained the shibud haguf, if by ma'amed shlashtan Reuven can't be mochel, it must be because chazal actually transfer the shibud haguf (this is a chiddush that chazal would do such a thing!).

Tuesday, July 22, 2008

Gittin 11b - Tofes l'bal chov b'makom she'chav l'acherim

The gemara says that one does not have the right to grab money from a borrower to be zocheh for the lender, in a situation where the borrower owes to others, because although his action is a zechus for one borrower it is a chov for the other. Rashi in baba metziah says that if the lender would appoint him as an agent to grab from the borrower, he would be able to be zocheh for the lender even though it is a chov for others. Tosafos and the Rosh disagree that even if he is appointed by the lender and given power of attorney, he cannot take from the borrower when it is a chov for others. The primary argument of Tosafos is that zechiya is by definition shlichus [which means that it is an 'anan sahadi' that the lender would want him to be a shliach, and it is as if he was actually appointed by the lender explicitly], so what is the difference if the lender appoints him as his agent or not, since by being zocheh for him he becomes his agent. The Ketzos Hachoshen (105:1) explains that rashi must hold that zechiya is not based on shlichus, therefore rashi holds there would be a difference whether he would be appointed as an agent of the lender or just grab it from the lender on his own. He explains that zechiya according to rashi isn't shlichus, rather it is a gezeira hakasuv that for a zechus the grabber cans serve as an extension of the lenders hand. Based on this, the concept of zechiya is limited to a situation of an absolute zechus, meaning it is not a chov for anyone else. But, if the lender actually appoints him as a shliach, that would work even if it is a chov for others.
The difficulty with this approach is that rashi writes explicitly that zechiya works m'din shlichus - רש"י ט ע"ב בד"ה יחזור, וז"ל דקסברי זכות הוא לעבד שיוצא מתחת רבו לחירות וזכין לו לאדם שלא בפניו דאנן סהדי דניחא ליה דיהוי האי שלוחו להכי עכ"ל
Clearly, rashi holds that zechiya works based on shlichus, so how can rashi in baba metziah hold that there is a distinction between whether he was made a shliahc explicitly or not?
I would like to suggest that Rashi agrees that zechiya works through shlichus. However, the shlichus only begins once we have established that it is an absolute zechus. Only when there is an absolute zechus, are we able to then say that the "anan sahadi" would turn him into a shliach. In a situation where it is not an absolute zechus because it is a chov for other lenders, then the concept of zechiya doesn't begin to turn him into a shliach. But in a case where the lender appoints him as a shliach, he doesn't need it to be an absolute zechus to implement the shlichus since he was explicitly appointed a shliach.

Monday, July 21, 2008

Gittin 11b - Zachin l'adam she'lo b'fanav

The Rabbonon in the Mishna explain that a shliach cannot be zocheh in a gett for a woman because it is a chov for her to get divorced, but can be zocheh in a shtar shichrur for a slave since it is a zechus for him to go free. Tosafos quotes from Yerushalmi that a slave of an important officer would rather be a slave than go free, so it would be a chov. Similarly, a wife of one who has a bad "mum" would rather be divorced than married so it would be a zechus. The Yerushalmi offers a cryptic answer and Tosafos doesn't explain it very clearly. However, the Tosafos Ha'rosh explains that the Yerushalmi is really only coming to answer the question about the slave, why do we always regard it as a zechus? Because the officer can always sell the slave to someone who is not important without consulting the eved, therefore the eved prefers to be free rather than be in a state where he stands to possibly be sold to a unimportant person (since then it would clearly be a zechus to be free). The question about the woman is not answered by the yerushalmi, but Tosafos Harosh explains that we rely on the gemara Yevamos 118b that we always assume a woman would prefer to be married than single.
There is a difficult Ran at the beginning of the 6th perek of Gittin that indicates that we never really answer the question about whether it is a zechus for a woman to receive a gett when there is a brother, to avoid yibum. The Beis Yosef (E.H. 140) explains that although the gemara seems to conclude that it is still a chov to get divorced, the Ran explained the gemara was just rationalizing the tzad that it could be a zechus, but ultimately remains an unanswered question.
The Ran in Yevamos at the end of the 15th perek asks, why don't we just ask the woman if she wanted a divorce, and if she answers "yes" then it is a zechus? He answers that something which is assumed to be a chov, is considered a chov even if we later consult her and she claims she would want it. The implication is that divorce is always deemed an absolute chov, therefore her claim that she wanted it, is not believed. But, in Pischei Teshuva (E.H. 140:5) he is mesupak in a case where a woman appointed a shlicah l'kabala to receive the get, but the husband handed appointed a shliach l'holacha, would he be able to be zocheh for her since from her appointment of the shlicah l'kabala it is clear that she wants a gett.

Sunday, July 20, 2008

Gittin 10b - Contracts in Secular Courts

The Mishna says that contracts that are done in secular courts and signed by non-jewish witnesses, are bidning even between 2 jews. The gemara explains that by contracts of proof that do not effectuate an acquisition we have an umdana to trust the court since it would not have written a contract unless the sale was done properly (Tosafos 9b and 10b) assumes that even this is only binding through a special takanas chachamim. However, a contract that actually makes the acquisition go into effect and causes a change of ownership, such as a gift contract, should not have the ability to work. The gemara concludes either that it works through dina d'malchusa dina or that in fact it doesn't work. However, there should be a different method that would make a gift contract effective, namely, hoda'as ba'al din. Tosafos writes matter of factly that hoda'as ba'al din doesn't apply in this situation. Why? The Rashash is bothered by this and suggests that perhaps in the secular courts the giver doesn't give over the contract (which would be inherently admitting that he is passing on ownership), rather he testifies before a court and the court writes the documents, so without dina d'malchusa there isn't any halachically acceptable kinyan to make the property change hands.

Gittin 10a - Appointing a messenger that is detrimental to someone else

The Pischei Teshuva (E.H. 119:6) quotes the Nodeh B'yehuda (E.H. kama 2) who is mechadesh based on a Rosh (the rosh says that shlucho shel adam k'moso doesn't apply when it is a chov for others) that even though the inability to divorce a woman against her will is a cherem of Rabbeinu Gershom, not m'dina d'gemara. Even the gemara will agree that there is an issur to divorce a woman against her will using a shliach, because a shliach cannot be appointed to do something that is a detriment to someone else. The P.T. there, and the Maharatz Chiyus point out that this is against our gemara in Gitiin 10a that states explicitly that a get can be sent through a shliach l'holacha against her will. The Nodeh B'yehuda pushes off the gemara by saying that it must be referring to a case where the get is actually beneficial to the woman and not a chov. The son of the Nodeh B'yehuda in Teshuvas Shivas Tziyon (88,89) upholds his father's position and writes that he is doubtful that anyone of the gedolei hador that would see his father's teshuva would go against it. Nonetheless, the sefer Get Mekushar writes that the Nodeh B'yehuda is certainly against the pashtus of the sugya and concludes that one may appoint a shliach to divorce a woman against her will.

Thursday, July 17, 2008

Gittin 7a - Listening to Music (Rav Moshe's Chumra)

It is well known that R. Moshe (Igros Moshe O.C. 1:166) held that it was forbidden to listen to any musical instruments unless it is within the context of a real seudas mitzvah (he is mesupak whether a fundraising dinner for a tzedaka would even qualify since the seudah is not a mitzvah, the raising money is). As R. Moshe himself points out this pesak is somewhat radical since it directly contradicts a Rama (560:3). The Shulchan Aruch forbids: 1. to play or listen to musical instruments for simcha. 2. vocals even without instruments cannot be sung while drinking wine (the bach is machmir that all singing is assur unless it is a work song for the purpose of team building to accomplish a job like we see at the end of Sotah). The source for the Shulchan Aruch is the Rambam. However, the Rama qualifies the first din in regard to musical instruments, that it is only forbidden if it is routine, but not if it is only once in a while. We generally rely on the Rama to permit attending occasional concerts and the like.
Rav Moshe points out that this entire distinction between instrumental music and vocals, made by the Rambam, seems to contradict our gemara in gittin 7a which implies that we had a hava amina to assur only instruments, but concludes that even vocals are assur. Rashi limits the issur to singing while drinking and Tosafos suggest being machmir even without drinking based on the Yerushalmi to sing routinely even without drinking. From both Rashi and Tosafos we have no indication that there would be any issur (even with instruments) so long as it was without drinking and not routine. But, the R. Moshe explains that the Rambam learned the gemara differently. The gemara means to say that had we would have limited the pasuk of "b'shir lo yishtu yayin" to instruments, but once we have another pasuk implying that instruments are always assur, we use the pasuk of "b'shir lo yishtu yayin" to assur even vocal singing over wine. Being that from Rashi we only see the issur of vocal singing while drinking since that was the topic of the question, but it is possible that rashi would agree to the Rambam that instruments are always assur (unless it is a mitzvah), we must assume that all agree to the Rambam and assur musical instruments even once in a while. The limitation of the Rama to one who does it routinely is only for vocal singing, but instruments are always assur (this is clearly not the opinion of the Rama himself since he places his comment limiting the issur to cases of routine on the discussion of instrumental music). Rav Moshe's approach undermines the proof of the Bach to assur vocal singing from the gemara in sotah that assurs the sone fo the weavers, because in those situations it was a routine, but if it is not routine then vocals are permitted. But instruments are never permitted unless it is a mitzvah (he even considers radio and tapes of musical instruments to be assur - apparently he would of also signed the ban against lipa's "big event"!).
In conclusion, the gemara which assurs the singing of the weavers (gardiyim) in sotah, seems to either prove like the bach that singing is always assur even without wine, or like r. moshe that the distinction between routine and just once in a while applies to vocals without music. But if we are going to assume that the Bach is wrong because vocals are only assur with wine, and R. Moshe is wrong because the heter for non-routine music is even by instruments and not just by vocals; then why would the vocal singing of the gardiyim be assur?
[this is one of the reasons that i never sing, the other is that i can't carry a tune]

Wednesday, July 16, 2008

Gittin 6b - Scratching lines in Tefillin

The gemara in menachos implies that not only is it unnecessary to draw lines in tefillin to keep the writing straighter, but there is an assumption that this was specifically NOT done. Why? Tosafos here and in menachos writes that since you are exempt, it would qualify as a middah of hedyotos to be machmir. Tosafos in Sotah 17b (cited by R. Akiva Eiger) claims that it is actually a halacha l'moshe misinai not to do it. Nonetheless, Tosafos says that if one cannot keep the writing straight without lines, they can draw lines for the say of beauty of the mitzvah. Although our Tosafos implies that there would not be any distinction beween sefer torah and tefillin in regard to beautifying it with straight lines (which apparently is what we rely on to draw lines in tefillin), Tosafos in Menachos quotes Rabbeinu Tam that only by sefer torah is there an inyan of beauty, but tefillin which are covered have no advantage of beauty with the parshiyos.
The Beis Haleivi (end of sefer al hatorah) points out from Tosafos question, "why don't we say that the tefillin had sirtut?", we can deduce that mezuza which does need sirtut does not need sirtut lishma. The lomdus is that the gemara implies that if mezuza needs sirtut, you would not be able to turn tefillin into mezuza, because tefillin is missing sirtut. On that Tosafos asks that the gemara should answer that we may be speaking of tefillin that has sirtut, and only tefillin which had sirtut could possibly be turned into a mezuza (to which tosafos says, it must be that one would never find such an animal, since it is a hedyotos to do that). Why doesn't Tosafos answer that mezuza needs sirtut li'shma, therefore even if one were to do sirtut on tefillin for the purpose of tefillins, since tefillin technically don't need sirtut, it would not qualify as sirtut li'shma, and that is why one would never be able to turn tefillin even with sirtut into a mezuza. From the fact that Tosafos doesn't say this, implies that mezuza would not need sirtut li'shma and therefore if one would find tefillin with sirtut it could be turned into a mezuza (so Tosafos has to say that one would never find such a thing). This is against R. Akiva Eiger in Hilchos mezuza who says that sirtut has to be li'shma.
An entirely separate point - pashut he'ara. Tosafos says that the pilegesh b'giva didn't really commit adultery, because if she had her husband would never take her back. Although, it is technically mutar for a husband to take back a pilegesh after adultery, "it was not the derech to do so". Tosafos proves this from Dovid Hamelech who didn't take back his pilagshim after they were with Avshalom. The meforshim in the back ask that one cannot cite a proof from Dovid Hamelech since our case is different for 2 reasons: 1. They didn't commit adultery with Avshalom, rather they were raped. 2. Dovid Hamelech was different because his wives were "profaned" and therefore unfit for a king (similar to the idea in Avoda Zara 11a that we burn the keilim of a king so that it is not used by a hedyot - just as something used by a king cannot be used by a hedyot, these woman used by a hedyot are unfit for a king). I would suggest that the 2 distinctions compliment one another to explain the proof. If for a normal person it would be "the derech" to take back a pilegesh after adultery, then it should not be considered a bizayon for a king to take her back after being raped because a king would only have to be one notch above a regular person. From the fact that it was a bizayon for Dovid to take them back even after being raped, it must be that for a regular person it is not the derech to take them back after commiting adultery.

Tuesday, July 15, 2008

Gittin 5b - Eid Na'aseh Dayan

The halacha follows R. Yochanan who says that the sheliach who is delivering the get can become one of the dayanim, therefore we only need 2 others present. However, the Rama (E.H. 142:4) writes that some suggest being machmir to have 3 people besides the sheliach, to prevent giving the gett in the presence of only 2 when the sheliach is in fact related to either him or her or the other dayanim, in which case he can't be a dayan. Based on this the minhag is l'chatchila that whenever a get is given through a shliach so that he must declare that it was written and signed in his presence, it should be given in the presence of 3 dayanim (not including himself). But, if only 2 are available, it can be delivered with only 2 others since the sheliach so long as he is a kasher eid (not a woman) and not related to anyone, he can become a dayan.
It would seem that if the gett is being given in the presence of 3 dayanim, there wouldn't be any problem if the shliach is related to one of the 3 dayanim (or him/her) because there is no need for the shliach to combine as one of the dayanim, so he should not have to be kasher. However, the Rama (141:33) writes that l'chatchila the shliach should not be related to one of the dayanim. Presumably the chumra is that a dayan should not be related to the witness, and since the shliach is acting as a witness, he shouldn't be related to the dayan. I recently had this situation when I was a shliach and wanted to use my brother, R. Aryeh Lebowitz Shlit"a Moreh d'asrah of Beis Haknesses of North Woodmere (and the best daf yomi shiur for miles in all directions!) as one of the dayanim and was told by R. Greenblatt that I should find 3 who I am not related to.
I just found in the Aruch Hashulchan (141:69) that a shliach is not considered an eid and therefore we only passul for shlichus a person who is not able to be a shliach i.e. kattan, goy. Therefore, m'ikar hadin, a shliach can be related to the dayanim.
The Aruch Hashulchan writes:
ורבינו הרמ"א כתב בסל"ג וז"ל ויש מי שכתב שבמקום שאפשר לכתחלה לא יהא השליח קרוב לאיש ולא לאשה ולא לדיינים שנותנים הגט לפניהם עכ"ל, ואין נוהגים עתה ליזהר בזה לפי שיש בזה לפעמים תקנת עגונות כשאינה יכולה ליתן שכר שליחות כראוי, מתנדב אחד מקרוביה להיות שליח כאשר כן אירע כמה פעמים, אבל במקום שאין עיכוב מטעם דררא דממונא ודאי מצוה לשמוע דברי רבינו הרמ"א אם אפשר בכך

Monday, July 14, 2008

Gittin 4a - Eidei Chasima and Eidei Messira

The gemara concludes that we pasken like R. Elazar that the eidim who witness the giving over the gett are considered the ones who make the divorce go into effect. There is a big machlokes rishonim (rif and ran at the end of the masechta - ran has a very mechudash approach that eidei chasima work as if they were eidei messira) whether R. Elazar agrees that the witnesses signed in the gett can effect the divorce or only eidei messirah. Tosafos here is of the opinion that only the witnesses who see the gett being given make the divorce effective. The difficulty with Tosafos approach is the statement of R. Elazar that "eidim sign on the gett for tikkun ha'olam" just in case the eidei messira die or are overseas, which implies that when eidei messirah aren't present, the eidei chasima work by themselves? Tosafos explains that really the eidei chasima don't do anything, but their presence is an indication that the gett was delivered properly in the presence of eidei messirah.
Based on Tosafos assumption that eidei chasima really don't do anything, Tosafos (d.h. modeh) asked why should their be a problem of mezuyaf mitocho when the gett was signed not lish'ma. Normally mezuyaf mitocho is a concern that you will rely on the passul eidei chasima elsewhere, but here when it is signed not lishma, there would be no problem relying on them elsewhere. To answer this question Tosafos was forced to say that we make a gezeira that if the signing will be done not lish'ma, one will also come to write not lish'ma. However, according to the approach that R. Elazar agrees to rely on eidei chasima also, the question doesn't begin. Since we sometimes need to rely on eidei chasima, even R. Elazar maintains that it must be signed lishma.
Tosafos suggests that even according to R. Meir who holds that eidei chasima make the divorce effective, will agree that it must be delivered in the presence of witnesses to accommodate for "ein davar sh'berva pa'chos mi'shnayim". Being that the source of 2 witnesses by ervah is learned from money, we should require 2 witnesses to be present by a kinyan as well, and not rely on the signatures in the contract alone. However, Tosafos makes a distinction between money where the signed contract can work based on the person admitting to the transaction, but this concept of "hoda'as ba'al din" won't apply by get because it is detrimental to her by forbidding her to the kohein. However, see Rashi on the mishna 86a (bach writes that it is not really rashi, just a hagaha) who seems to say that when a husband writes the gett, it is effective without any witnesses according to R. Meir, based on the concept of hoda'as ba'al din. Rashi seems to hold that this concept applies to gittin, and we don't consider it a detriment by assuring her to a kohein, because in her present state of a married woman she is anyway assur to the kohein (perhaps if the husband is a kohein then even rashi would agree).

Sunday, July 13, 2008

Gittin 2b - Eid Echad Ne'eman B'issurin

The gemara is clear that we only believe an individual witness for issurim when there isn't a chezkas issur. Rashi and Tosafos explain based on the gemara in yevamos that although we do believe an eid echad for shechita even though there is a chezkas issur, that it is because it is completely in his control to rectify the situation. Tosafos explains that not only if it still is in his hand, but even by shechita where right now it can't be fixed but since it was in his hand originally, an eid echad is believed.
Rashi at the beginning of the 10th perek of Yevamos implies that the source for eid echad being believed is a sevara, because otherwise people could never eat in each others home, which is assumed to be not possible. Tosafos however writes that it is learned from Nidah who is believed on her tahara. Tosafos therefore asks, if we learn from Nidah then we should even believe her when there is a chezkas issur? Tosafos answers (based on maharsha) that regarding the tu'mah that results from the actual bleeding, that is not regarded as chezkas issur since there is no chazaka that she will continue bleeding past the 7 days, and in regard to the aspect that once she has been tamei she remains tamei until immersing in a mikvah on which there is certainly a chezkas issur, that is in her hands to control since she can now immerse. Therefore, it conforms to the rules that an eid echas is only believed if there isn't a chezkas issur or it is in his control.
The Ramban offers another answer: Since she is believed for herself, she is believed for her husband. The Maharatz Chiyus says that the Chasam sofer explains the Ramban to mean that since she established her status of Nidah, she is believed to say that it has been removed. But he points out that it doesn't fit with the Ramban since the Ramban says explicitly that she is believed even if the husband knew on his own that she is a Nidah. The M.C. therefore explains based on a principal that if one knows the chazaka to be wrong, he is not bound by it. Since she knows that the chezkas issur is wrong because she is now tahor, she is not bound by the chezkas issur. Now, once she is believed to prevent herself for receiving malkus for having relations with her husband, she is believed to prevent him from malkus as well.
Another answer of the Ramban is that it is a gezeiras hakasuv that she is believed without eidim since it is impossible to have eidim on this. However, this answer will only work with Rashi because based on this, Nidah certainly will not be able to serve as the source for the concept.
The final answer of the Ramban sounds like Tosafos, but is really different. The Ramban says that since it is in her hand to change her state at some point in the future by counting and going to the mikvah, she is believed. The difference between the Ramban and Tosafos is that according to Tosafos the fact that the bleeding will stop makes it no longer a chezkas issur, but according to the Ramban it is still a chezkas issur just that eventually it will be in her hand to become tahor. The Steipler points out that according to Tosafos, we cannot prove that a chazaka that is going to change such as the bleeding retains power of chazaka, because tosafos says that it will not be considered a chezkas issur. But according to the Ramban we can prove that even if the chazaka will change it is considered a chazaka because here also we consider it a chezkas issur, just that it is in her hands.

Thursday, July 10, 2008

Sotah 48b - People of little Faith

The gemara says that one who has enough for today and says "what will i eat tomorrow" is considered on of little faith. This was the aveira that the gemara mentions on 46b when Elisha improved the water and ruined the parnassah of the "ketanei amana" who were worried they would not have what to eat. However, when Rashi explains "anshei amana" - people who have faith, he writes "they spend money on hiddur mitzvah, tzedaka, and shabbos v'yom tov". By each one of these there is a specific guarantee that it will be on Hashems cheshbon. Hiddur mitzvah - baba kama 9b, tzedaka - ta'anis 9a, shabbos and yom tov - beitzah 16a. It is understandable that since Hashem gave a special promise that one will be reimbursed, one should not hesitate to spend money. But, if one has what to eat for today and not for tomorrow why is he counted as "ketanei amana" for being nervous; he wasn't given a divine guarantee? The gemara implies that just as Hashem guarantees on the items listed in rashi, he also gives a havtacha of "umasbiah l'chol chai ratzon" and therefore one is considered ketanei amana if he has for today and is nervous about tomorrow - a pretty high level of faith!

Sotah 48a - Kol Isha

The Sridei Eish has a famous teshuva where he was asked about men and women singing shabbos zemiros together. He recognized the problem but was ultimately matir for the purpose of kiruv. He writes that the gedolim in ashkenaz where far more advanced in maintaining an orthodox religion in a secular society than those of poland who were far less tolerant. He tells of a visit by R. Yisroel Salanter to Germany where R. Ezriel Hildisheimer offered Torah classes to young women. R. Yisroel commented "if this would be done by a rav where he comes from he would be defrocked, and he should be, but he wishes that his chelek in gan eden would be with the tzaddik R. Ezriel". [Palo Alto 2008 = Germany 1850]
I am not sure if this story took place before or after R. Yisroel's own son became a mathematics professor and stopped practicing religion.
So, in that teshuva (1:87 - in the older printings) he writes that when he originally came to berlin he was surprised to see this practice of singing zemiros together in chareidi homes, but he mentions the famous sevara of תרי קולי לא משתמעי and somehow applies this to the context of kol isha. He says that he was originally not so excited about the heter, but then found that the sdei chemed also quotes a sefardi rabbi who is matir singing zemiros kodesh together.
The gemara on today's daf, especially with Rashi's comments (d.h. k'eish) seems to clearly indicate that even if there would be many women singing together, it would be forbidden for men to listen to their singing. True, it is not speaking of zemiros kodesh, but why would that make a difference?

Wednesday, July 09, 2008

Sotah 47a - Shelo Li'shma leads to Li'shma

Tosafos in many places (pesachim 50b for one) asks how are we to reconcile the concept that one should to mitzvos even not li'shma, with the concept that if one does mitzvos not li'shma it is better that he wouldn't have been created. Tosafos always answers that there are different types of not li'shma, if one is doing it for alterior motives it is positive, but if one has destructive motives it is negative. Based on this, the Maharsha (Horyos 10b) asks what is the proof from balak since clearly his intent was destructive to destroy klal yisroel?
Also, R' Eliyashuv points out that if the entire advantage of shelo li'shma is that it leads to li'shma, then what is the proof from balak since his korbanos never led to li'shma?
The Maharsha explains that since Balak felt threatened, his intentions were regarded as a valid form of shelo lishma, rather than being a destructive type of shelo lishma. This seems to be what Tosafos says earlier in Sotah 22b that balak's intention was for personal benefit, not destruction. To answer the question of R' Eliyashuv, the Maharsha explains that "will lead to li'shma" doesn't mean that the person himself will come to do it li'shma, rather it means that the reward even for "lo li'shma" is that it will lead to a descendant such as Shlomo Hamelech doing the same mitzvah lishma.
Another chiddush that we see from our gemara is that the reward that one receives for doing a mitzvah "she'lo li'shma", is both a positive reward for the action, and a fulfillment of his intent even though it was not positive. This is clear from the fact that Balak was zocheh to the reward of Ruth and Shlomo as a descendant, and he succeeded in causing harm to klal yisroel in the time of Elisha because he merited to have his bad intentions fulfilled (as rashi explains).

Tuesday, July 08, 2008

Sotah 46a - Difference between time of work and not time of work for Para Aduma and Egla Arufa

The gemara says that both by Parah Aduma and Egla Arufa, there is a distinction between a yoke and other things. A yoke passuls even when it is "not the time of avoda", whereas other work only passuls "at the time of avoda". The Chazon Ish (E.H. 146) quotes that Rash in Para that the definition of "not the time of avoda" is when the person doesn't want it. Meaning, the requirement that the work must be consented by the owner, only applies to other type of work, but by a yoke it passuls even if it the owner doesn't want it to have been done.
But, the chazon ish points out that rashi implies that even for a yoke we require the owner to consent in order for it to passul. Rashi defines "not at the time of work" to mean that the person is not interested in making it work now, he is just using the animal as a place to put something down that he no longer wants to hold on to. The difference between a yoke and other work is that for a yoke it will be passul even if he is not intending to work with the animal, but it is only where he is happy that the work was done (so that he doesn't have to continue holding the yoke in his own hand).

Monday, July 07, 2008

Sotah 45b - Head Separated from Body

The Mishna speak about a case where the head is separated from the body, R' Eliezer argues with R' Akiva if the head follows the body or body follows the head. The Mishna then speaks about which part of the body we measure from, R' Eliezer says the stomach and R' Akiva says the head. The Rambam in his commentary on mishna explains that R' Eliezer focuses on food since that is necessary to keep the person alive, and R' Akiva focuses on breathing since that is a more desperate need (one can go without food longer than he can go without air).
The gemara makes a point of saying that the first machlokes where the head is separated from the body is not a machlokes regarding the measuring for egla arufa because that is coming up, rather it is a machlokes about Yehoshua's institution that a meis mitzvah is koneh m'komo. It is not clear from the gemara what the opinions would be in a case where the head is separated from the body. But the Meiri points out that the machlokes between the tibur (stomach) and chotem (nose) applies also when the head is separated from the body, whether we measure from the nose or the stomach. The gemara understood that since the language of their dispute is whether the head follows the body or the body follows the head, it implies that they must be arguing about acquiring the 4 amos because regarding measuring we already know that one opinion focuses on the head and the other on the body, so we don't have to make the head follow the body or visa versa.
We pasken like R' Akiva that we measure from the nose, and if the head is separated from the body we measure from the head. This is not because the body follows the head, rather all that we care about in regard to measuring is the head.

Thursday, July 03, 2008

Sotah 41a - Degrading to tzibbur to skip in Torah reading

The Mishna lists the parshiyos that were read by the king. Rashi is bothered how the king is able to skip from one parsha to another, since we said in the mishna that we don't skip unless you will be able to roll to the destination point before the translator finishes? Rashi answers that the king didn't have a translator so he was able to skip. The Rashash wonders why this halacha isn't mentioned in shulchan aruch (that with out a translator you can make people wait), but it seems completely counter intuitive! If there is no translator one should not be allowed to skip at all?
I found that the Meiri (right before 32b) asks this question -
והדברים מתמיהים שאם כן אף בפחות משיעור זה אסור
The Meiri offers another approach that it is not considered g'nai for the tzibur for anything which is a kavod for the king. This idea is explained by Tosafos 41b that a king can only be mochel on his kavod for mitzvos that are a direct kavod Hashem, but for a mitzvah that is kavod for a human being, a king cannot be mochel because the requirement to honor a king takes precedence over any other mitzvah of kavod. Here too, the kavod that the tzibur has to have for the king out weighs the kavod hatzibur that the king is supposed to have for them. See also Tosafos Yom Tov.
But, What is the peshat in rashi, it seems to make no sense?!
Perhaps Rashi holds that the genai to the tzibur is that the translator is going to make them wait, but the reader making them wait is not a problem. The rationale is that the reader is like the mouthpiece of Hashem reading for the public. Any waiting caused by the reader is considered waiting for Hashem to continue speaking kaviyachol and therefore not a g'nai. But if there is a translator who stops translating, and then the tzibur has to wait, that is a g'nai for the tzibur. This is meduyak in rashi 40b d.h. v'ach - ולא יגלל ס"ת לשם מפני שהוא רחוק ויש שהות שיפסיק מתרגם, וישתוק לפניהם ואין מתחיל בפסוק אחר ואיכא גנאי - Rashi is speaking about the translator, that his silence is causing the tzibur to wait and that is the g'nai.

Sotah 41a - Mistake in Sefer Torah

The Rama (o.c. 143:4) paskens that when a mistake is found in a sefer torah, if the reader is at a place where he can stop (3 pesukim into the parsha and no less than 3 until the end of the parsha) then the o'leh should make a bracha achrona on the first sefer, and then take out a second sefer with a new o'leh. However, if the mistake is in a place where stopping is not an option, then a second sefer should be taken out and read from the place where the reader is up to without making a bracha rishona on it at all.
This position of the Rama is actually a complicated compromise of various Rishonim. The Bach however rules like the Mordechai that under all circumstances a bracha achrona should be made on the pasul torah.
The Mordechai's souce is from the gemara today where Reish Lakish says that there isn't an option to take out a second sefer torah because a new sefer torah would require a new bracha. The gemara implies that a new sefer requires a new bracha rishona. Based on this the Mordechai claims that one cannot take out a new sefer torah and continue reading without a bracha, because a new sefer torah would require a new bracha. Therefore the mordechai concludes that the bracha achrona should be made on the pasul torah. Both the Shach and Taz try to justify the position of the Rama that allows one to take out a second sefer and continue reading without a bracha (if the mistake was found in a place that you can't break).
The Shach (y.d. 279:2) says that in the case of the gemara when the original bracha was made on parshas achrei mos, he didn't have in mind for the bracha to go on the reading of "ach b'asar" and therefore would require a new bracha, but in our gemara where his intent originally was on this parsha that is being read, since he had intent to make a bracha on this section he can read this section even on a second Torah without requiring a new bracha.
The Taz tries to understand why the gemara assumes that a new sefer torah would require a new bracha, since he originally would have had in mind when he made the first bracha that they would bring a new sefer for the second reading. It should be like one who has in mind to eat apples and oranges and makes a ha'etz on the apples, he doesn't need a new bracha on the oranges even though they are only brought out later. It must be that the requirement of a new bracha is because it is a separate chiyuv of Torah reading which requires a new bracha. This applies only when the second reading is a new obligation but when it is only a make up for the first reading (because the torah was passul), it is not necessary to make a new bracha.

Wednesday, July 02, 2008

Sotah 40b - Sitting in the Azara

The purpose of the previous post was to solicit comments.
Now back to the real stuff:
The gemara says that only descendants of dovid who are kings can sit in the azara. Mishneh L'melech (Beis Habichira 7:6) writes that Rashi in Sanhedrin 101 says that it is d'oraysa from halacha l'moshe misinai. Rashi in yoma 25 and 69 quotes a pasuk of "la'amod l'shareis". However, the Mishneh L'melech has the most difficulty with Rashi here in sotah that says it is not kavod shamayim to sit and even the mal'achim didn't sit, which implies that it is only d'rabonon. But, he then proves from rashi himself that he holds it is d'oraysa but he is giving the rationale. Because when Rashi says that descendants of dovid can sit because "Hashem gave them kavod" implies that both the issur and the exemption for beis dovid are d'oraysa. But Tosafos in Zevachim 16 d.h, hagaha, seems to be unsure about it.
Out of all places where rashi can give the rationale, is there any reason that he chooses the context of this gemara to explain that the purpose it to show kavod? Perhaps it is in line with the previous gemara of showing kavod for the talmid b'makom ha'rav, here too Hashem showed kavod for the descendants of dovid even in his presence. v'dok!

Sotah 40a - Maharsha on Ba'alei Batim

In the biography on R. Moshe (printed at the beginning of chelek 8 pg. 23) it tells that when he came to the U.S. he was offered a position in both Torah V'da'as and YU. He rejected both because "he is not interested in working for a yeshiva that is run by ba'alei batim".
Perhaps his concern was as the SM'A writes (C.M. 3:13) regarding a dayan who is going to sit on a beis din with ba'alei batim:
ואם תשמע לעצתי לא תשב אצל הקהל בשום דין דידעת שפסקי הבעלי בתים ופסקי הלומדים הם שני הפכים
This yesod is also expressed by the Maharsha on today's daf. The gemara implies that R' Avahu forfeited a public position because he didn't need the money and convinced them to take R' Aba d'min ako who needed the money. From this the Maharsha points out that in those days people would run from public position unless they had no choice, but nowadays it is the opposite, the more money you have the more you use it to influence to buy yourself the honor of public position. He then points to R. Yehoshua ben gamla who restored Torah to Klal yisroel by setting up a yeshiva system, and later bought into the position of kohen gadol and became a rasha [i seem to recall tosafos saying that it must have been a different person]. The maharsha then explains what he considers to be the root of the problem:
שהבעלי בתים הם הם הממנין ומבררים להם ראש כפי רצונם לפי הנאת כל אחד מהם וביותר בממון, אבל מן הראוי שהלומדים והרבנים בעצמם יבררו להם ראש וכו
Well, so much for democracy......
I once heard from a big talmid of R. Moshe that when the mishna 20a says that whoever teaches his daughter Torah it is like teaching her tiflus, and rashi 21b explains that it is a language of trickery and deceipt, should not really be applicable to women more than men. The reason why it says it by women is because they will generally not be shakuah completely in Torah since they have so many other responsibilities whereas men can be completely shakuah in torah. But, those who aren't completely shakuah in torah and aren't mevatel their da'as to what the torah is teaching, are the same as women where the Torah becomes a "tiflus".

Tuesday, July 01, 2008

Sotah 39a - Bracha for Birkas Kohanim

R. Elazar ben Shamua attributed his long life to 3 things, one of them being that he never went up to duchan without making a bracha. Rashi implies that this refers to the birchas hamitzvah - לברך את עמו ישראל באהבה
Why is this considered something special, it is a standard birchas hamitzvah?
Also, why were chazal mesaken the language of "b'ahava"? [Maharatz chiyus says it means kavanas ha'leiv - not so clear what he means. Magen Avrohom says that without love the bracha won't work].
Also, in the gemara in Shabbos R. Yossi comments that he never violated the request of his friends and that even though he wasn't a kohein, when they asked him to go up to duchan he would go. Tosafos in the name of the R"I comments, what is the big deal, what issur is there for a non-kohein to go up [this is very difficult because the pashtus is that it is a violation of an aseh like the rama says (128:1)? 1. Rama says perhaps there wouldn't be an issur if done with kohanim, but most achronim disgaree (m.b.). 2. Another approach brought by the m.b. (3) is that if it is not done b'kavana l'sheim mitzvah, rather just to fulfill the pushing of his friends it is permitted. 3. Maharsha says he went up but did not say anything. 4. Mitzpeh Eisan in Shabbos suggests it is only an issur in the mikdash to use the sheim hameforash], except for that it may be a bracha l'vatala since only kohanim have the mitzvah. Tosafos is very strange. What do they mean that it would only be a bracha l'vatala? It would certainly be a bracha l'vatala, and furthermore a bracha l'vatala is a serious thing! [Maharsha is madchik to explain that he certainly would not have said anything since that would be a bracha l'vatala, and since he didn't say anything there wouldn't be anything wrong with going up].
I would like to suggest an approach that would answer everything. When we look at the nusach of the bracha, it is not a standard birchas hamitzva of אשר קדשנו במצותיו וצוונו rather it is אשר קדשנו בקדושתו של אהרן וצונו לברך וכו. The Radal (back of gemara) points out that perhaps chazal were never really mesaken a birchas hamitzvah for birchas kohanim, just as they weren't for birchas hamazon or kiddush since the whole mitzvah IS a bracha [See Ma'aseh Nissim hagaddah, based on this we don't make a bracha on sippur yetzias mitzrayim because chazal instituted to do the mitzvah in the nusach of a bracha and therefore didn't institute a birchas hamitzva]. Instead chazal were mesaken an option to make a birchas ha'shevach for giving special kedusha to the descendants of Aharon - אשר קדשנו בקדושתו של אהרן וצונו לברך וכו - meaning, they give praise to hashem for giving them kedusha and commanding them that when they give the bracha to klal yisroel it must be done out of love. The entire statement is a shevach to Hashem rather than a birchas hamitzvah. This explains why R' Elazar ben Shamua took pride in making it, because it wasn't required like a standar birchas hamitzvah. It also explains why they stuck in "b'ahava" to turn it into a birchas hashevach. It also explains why Tosafos in Shabbos wasn't convinced that it would be a violation of a bracha l'vatala since even yisroelim may be able to give this shevach.