Sunday, August 31, 2008

Gittin 52 - Chinuch by an Apitropes

When one adopts a Jewish child (or ger kattan), is there an actual obligation of chinuch incumbent upon the parents who adopted the child? It seems clear from the gemara that there is. The gemara says that the caretaker of the orphans has the authority (and requirement) to purchase for them the articles with which they can fulfill positive mitzvos such as lulav, sucah tzitzis, tefillin and mezuza e.t.c. Why should he use their money to purchase these things, since they are children and exempt from mitzvos? Shulchan Aruch (C.M. 290:15) writes that although they are exempt there is indeed a mitzvah of chinuch incumbent on the apitropes. The Aruch Hashulchan explains a little more clearly that the caretaker is literally in place of the father and takes over all of his obligations. Based on this it seems clear that a father who adopted a child would be no less than a caretaker (especially since the mishnah indicates that a caretaker need not be appointed, so long as he is the person that the children rely on). It would follow that if a single woman would adopt a child, she too would have status of the "caretaker" and would be obligated to provide the child with these mitzvah articles for chinuch purposes (although the beis din would not appoint a woman, rashi explains that is only to deal with their money for business purposes, but if she was appointed by the father she would have the full jurisdiction of an apirtropes). This seems to contradict the discussion of the achronim (see magen avrohom o.c. 343) who say that a mother is not obligated in the mitzvah of chinuch for a child. Perhaps this should be true in the presence of a father who can do it, but in the absence of a father, the mother should be no worse that an apitropes who would be obligated in their chinuch. This distinction would answer r' akiva eiger's question in succah 3b, why hilni hamalka was obligated in chinuch for her sons - perhaps there was not father so it was incumbent upon her as an apitropes. However, it could be that the mitzvah of chinuch of the father would require him to use his own money to provide his sons with mitzvah articles, but the obligation on an apitropes would be to spend their money, not his own. Therefore, a mother (even the absence of a father) or a parent who adopted a child, may only be responsible as an apitropes, and therefore she would not be obligated to spend their own money.

Thursday, August 28, 2008

Gittin 49b - Doreish Ta'ama D'kra

The gemara suggests that even though one who damages pays from his best quality fields, m'doraysa, the mishna refers to it as "tikun ha'olam" because the tana of the mishna holds that we darshen the reason for the torah which is a tikun ha'olam to deter people from stealing. It seems very strange that the braisa asks why does a damager have to pay from the best of his own fields, and answers that it is to prevent robbers and thieves. What does robbers and thieves have to do with one who accidentally damaged another? The rashash suggest based on R' chiya in baba kama who lists a thief among the 24 avos nezikin, it would make sense. Presumably the rashash means to say that since a thief should pay from his best fields as a deterrent, so too all damagers must pay from their best so that we don't distinguish between one type of damager and another. I would like to suggest a different approach. This gemara is perhaps the source for Rabbeinu Yona (beginning of avos) who says that there is a prohibition to damage someone else's property since it qualifies as stealing. Basically people who damage are generally neglectful to some degree and therefore in violation of stealing someone's property. The braisa means to say that a damager must pay from his best fields to prevent "thieves", meaning those who are careless about damaging others and thereby in violation of stealing. By forcing them to compensate with their best fields, it will deter them from stealing.
M'inyan l'inyan, Tosafos (as explained by maharam) says that the issue of darshening the reason behind pesukim is only a machlokes when it makes a practical difference (such as here, by darshening the reason, the mazik will have to pay from his best rather than having to pay from the nizak's best). Meaning, all agree that we darshen the reasons of pesukim for the sake of learning and better understanding, but R' Shimon is of the opinion that even where it makes a practical difference in the halacha we darshen the reason to limit or expand the halacha. Tosafos seems to hold that R' Yehuda who does not darshen the reason of the pasuk, will maintain that we do not darshen the reason behind the pesukim anytime it makes a nafka minah, even if the nafka mina would be l'chumra. In other words, R' Yehuda only studies reasons behind pesukim as an academic pursuit, but rejects the entire notion of darshening the reason behind pesukim whenever it makes a difference l'halacha, even if it will result in a pure chumra (rather than just rejecting it when it results in a leniency) because he is philosophically opposed to the concept of controlling the Torah by human logic.
However, the Chasam Sofer (Teshuvos Y.D. 254) suggests that only for a kula (or monetary issues where a chumra for one is always a kula for the other) would R' Yehuda reject the notion of darshening the reason. But when it will result in a pure chumra, R' Yehuda would agree with the notion that the halacha of a pasuk would be controlled by the reason, and we would have to be choshesh for any reasons that would result in stringency that perhaps that is the "real" reason for the pasuk.

Wednesday, August 27, 2008

Gittin 48a - Bikurim

The gemara says that if we assume: 1. kinyan of peiros doesn't qualify as kinyan haguf. 2. we don't hold of breira (at least on a d'oraysa). 3. brothers who split are "buyers" rather than inheritors, it would be impossible for one to bring bikurim and read the parsha (which includes the declaration "the land that you have given to me") except for an only son who has an only son e.t.c. all the back to yehoshua bin nun. The rationale is that any yerusha which requires brothers to split are considered to be receiving a portion of their brothers share, and it is not entirely theirs. Tosafos (47b d.h. tevel) asks, even if we do not accept breira as a determination that each one received their full portion, nonetheless each one still has some portion of the land and therefore have some portion of the fruits they receive, so they should be able to make the declaration "the land that you have given to me" (although Tosafos implies that the question is in regard to the bringing of the bikurim rather than the reading of the passage, the maharam shif explains that the only issue that exists is the ability to read the passage)? Based on this Tosafos concludes that we don't consider each person to necessarily have any portion in the fruits they are bringing, rather it is possible that the entire portion that reuven received technically belongs to shimon his brother.
The Maharam Shif answers for Rashi - It is true that in each and every kernel of wheat both reuven and shimon have a portion. The problem is that according to the approach of ein breira, since when yovel arrives the entire field goes back to the "pot" and has to be redivided, it is not sufficient that the fruit grew in a portion that was partially reuven's. Reuven cannot declare "the land that you have given me" unless he would have the land forever, but since he has to return it when yovel arrives, the land doesn't qualify as his.

Tuesday, August 26, 2008

Gittin 47b - Pesukim in the Torah Based on Dinei D'rabonon

Tosafos (d.h. l'beischa) writes a very interesting yesod. Tosafos asks, how can the pasuk of "l'beischa" come to teach that a husband can bring bikurim (and read the parsha) on nichsei m'lug produce, since the husbands rights to fruits of nichsei m'lug is only d'rabonon, so the Torah cannot be making a reference to that? Tosafos answers that sometimes the Torah bases itsefl on assumptions that were normally done, albeit not required until the rabbonon came along and implemented it as a requirement. Even though a husband is only entitled to fruits of nichsei m'lug m'drabonon, it was the norm for a wife to give the peiros to her husband, so the Torah makes the assumption as if he owns the fruits of her nichsei m'lug. Similarly the gemara in Kiddushin 4a implies that the Torah gives the father ma'aseh yadayim of his daughter in exchange for feeding her, even though m'doraysa he is not required to feed her, since the norm was to feed her.
Similarly, Rashi in Parshas Chayei Sara (25:6) writes that the difference between a wife and a pilegesh is that a wife has a kesuba and a pilegesh doesn't. Ramban asks that this can't be the Torah difference between a wife and pilegesh, since kesuba was a rabbinic institution and not d'oraysa? Ramban answers for rashi:
אבל אפשר שגם בני נח כאשר ישאו להם נשים כמשפטן בבעילה היו נוהגים לכתוב להן מהר ומתן, ואשר רצונה שתהיה להם פילגש וישלח אותה כאשר ירצה ולא יהיו בניה בנוחלים את שלו, לא היה כותב לה כלום

Gittin 47a - What constitutes a "hafka'ah" from mitzvos?

Tosafos discusses the precise definition of being "mafkia" the land of Israel from Ma'aser. Tosfaos proves that R' Meir (avoda zara 21a) holds that non-jewish ownership is exempt from ma'aser, because R' Meir says that selling land in Israel to a goy is "mafkia" it from ma'aser. Tosafos explains that the hafka'ah from ma'aser cannot simply mean that it is chayev in ma'aser, but the goy won't be doing it. Rather R' Meir means that by selling to a goy the land will no longer be chayev in ma'aser, therefore the sale is considered a hafka'ah from ma'aser. Tosafos proves that "hafka'ah" must mean uprooting the chiyuv, rather than simply not performing the mitzvah from the continuation of the sugya in Avoda Zara. The gemara asks that by a house also it should be assur to sell to a goy since you are "mafkia" the house from the mitzvah of mezuza - clearly the gemara did not think that a goy's house is chayev in mezuza just that he won't be doing it, rather the gemara knew that the house of a goy is exempt. So we see from the gemara's question by mezuza that the definition of hafka'ah is to put the house in a situation where it is going to be exempt from mezuza, similarly by the land, the hafka'ah would be to put it in a situation where it is exempt from ma'aser (the answer of the gemara is that by a house the mitzvah only begins with a jewish person living in the house, meaning it is not a responsibility on the house, rather on the person living there, whereas by a field it is really an obligation on the field so selling to a goy qualifies as a hafka'ah).
Now, Rashi and Tosafos argue on the girsa of the mishna. The basis for their argument is that Rashi assumes that if m'doraysa the field of a goy is chayev in ma'aser, it is also chayev in bikurim, therefore even if the jew sold the filed to a goy, he would be responsible to buy back the bikurim to do the mitzvah (since it is incumbent upon him). Tosafos understands that even if the field owned by a goy is exempt, there would not be a chiyuv on the Jew who sold it to buy back the fruits to bring the bikurim (therefore the responsibility to buy it back would at most be a takanas chachamim). They seem to be arguing whether we conisder bikurim a mitzvah that is incumbent upon the person (and therefore he would have to make sure he fulfills his mitzvah even though the goy may charge a lot to purchase back the fruits), whereas Tosafos does not consider Bikurim to be incumbent on the Jew. The Maharsha draws a parallel between mezuza and bikurim. Just as mezuza is a mitzvah on the jewish owner, nevertheless he may sell the house to a goy because it is not considered a hafka'ah, so too bikurim is a mitzvah on the Jew but he need not buy back the fruits from the goy because although the goy won't give bikurim it isn't considered a hafka'ah since the land is not in the control of a jew to do it. The Maharsha is very strange, because he implies that when a jew sells a house to a goy, the jew remains technically liable to put up a mezuza just that the goy's ownership makes it unable for him to do so! See Karnei R'eim.

Sunday, August 24, 2008

Gittin 45a - Redeeming captives for more than their value

It has been a while since I posted in Hebrew, the hour is late and Hebrew would be quicker so here goes:
במשנה תנן שאין פודין את השבויין יתר על כדי דמיהן [בשיעור כדי דמיהן עיין בפ"ת יו"ד ס' רנ"ב ס"ק ה' שהוא כמו שנמכר לעבד אילו היו עבדים נמכרים בשוק, או כשיעור שבויי עובדי כוכבים - ולפי הטעם דלא ליגרבו ולייתו, מסתבר כדרכו של הרדב"ז דכדי דמיו היינו כדמי שבויי עובדי כוכבים, דכיון שאין הישראל שוה יותר מנכרים לא ימסרו את עצמן לשבות ישראלים יותר מנכרים אחרים]. ובגמ' חקר אם הטעם משום דוחקא דצבורא וממילא אם בעיא לבזבז יותר מכדי דמיהן הרשות בידו אלא שאין כופין , או אם הטעם דלא ליגרבו ולייתו טפי ולטעם זה אסור להוסיף אף לבנו ובתו [לאפוקי לעצמו ולאשתו שהיא כגופו, כדהוכיחו התוס' מהגמ' בכתובות, ומסתברא שהטעם משום דלגזור שלא לבזבז ממונו על עצמו הוא נגד הטבע ולא שייך שיתקנו כן, דרוב בני אדם אין מחשיבין ה"כל מאודיך" יותר מה"כל נפשך"]. אמנם בגמ' נח ע"א מביא מעשה שפדה ר"י בן חנניה לרבי ישמעאל בן אלישע כשהיה קטן להרבה יותר משויו, ולכאורה הוא סותר סתם מתניתין שתקנו שאסור לעשות כן. ולזה תרצו התוס' ג' תירוצים: א. תרצו בדף מה וכן בדף נח שמופלג בחכמה שאני [ומבואר בשו"ע דלאו דוקא מופלג בחכמה אלא בכל ת"ח הדין כן, אלא דבילד שעדיין לא הגיע להיות ת"ח, בעינן שיהא מופלג וחריף כדי שיהא אפשר שיהיה ת"ח]. ב. בדף מה תרצו דבשעת החורבן לא שייך דלא ליגרבו. ורצונם לומר, דבשעה שהעכו"ם תופסים וגם הורגים כל היהודים שהם יכולים ולא שייך שמא ירבו ויעשו טפי, דכל מה שידם מגעת לעשות יעשו אף אם לא יפדה ליתר על כדי דמיהן, נמצא שכל נפש שמציל הוי הצלה, וכדאי לבזבז הכל כדי שיציל עכ"פ מה שאפשר להציל. ג. בדף נח תרצו בתירוץ הראשון דבמקום שיש לחוש לסכנת נפשות יכול לפדותם ליתר על כדי דמיהן [וראייתם מהגמ' מד ע"א אינו מובן, עיין ברש"ש]. ומסתברא דלטעם זה גם אם יש לחוש שיענש השבויים ביסורין שהם קשים ממיתה כדאיתא בכתובות לג ע"א ממאי דמיתה חמורה דלמא מלקות חמורה וכו']. והנה, בשו"ע (יו"ד ס' רנ"ב ס"ד) פסק כטעם דמופלג בחכמה שאני, וממילא אין הכרח לשאר תירוצים, ולכן אין הכרח דבמקום סכנת נפשות פודין אף ליתר על כדי דמיהן. אכן, בפ"ת (ס"ק ד') הביא דעת הסוברים כתירוץ התוס' דבמקום שיש לחוש לסכנת נפשות מותר. והביא בשם הכנסת יחזקאל שהשיג עליהם וז"ל דהאי תירוצא דסכנת נפשות לא שייך אלא אם טעמא משום דוחקא דצבורא, אבל לטעמא דלא ליגרבי, הסברא להיפך דאם בסכנת נפשות פודין ירצו להרוג את השבוים כדי שיפדו יותר מכדי דמיהן וגם יגרבו להרוג עכ"ל. ונלענ"ד דהגם שסברתו ישרה ונכונה, מ"מ אי אפשר לומר דכוונת התוס' דבמקום סכנת נפשות מותר להוסיף על כדי דמיהן, שהוא רק להטעם דדוחקא דצבורא. שהרי להטעם דדוחקא דצבורא הקושיא ממעשה דרבי יהושע בן חנניא ורבי ישמעאל בן אלישע אינה מתחלת, שהרי משמע שרבי יהושע בן חנניה לא כפה הצבור לפדותו, אלא שפדה אותו בעצמו, ובזה לא שייך דוחקא דצבורא כלל. ועל כרחך מדהקשו התוס' דמעשה דרבי יהושע בן חנניה פליג על מתניתין דלעיל דאין פודין ליתר על כדי דמיהן, ע"כ ס"ל להתוס' כהטעם משום דלא ליגרבי ולייתו טפי, ואעפ"כ תרצו בתירוץ הראשון בדף נח ע"א דכי איכא סכנת נפשות פודין. והטעם דלא ניחא להו להתוס' בסברת הכנסת יחזקאל לומר דבסכנת נפשות יש לחוש טפי דליגרבו ולייתו, היינו משום דס"ל להתוס' דבסכנת נפשות לעולם דנין במה שלפניו, וכיון שיש סכנת נפשות לפניך, אין מוותרין על חייו מפני חיי שבויין אחרים שעדיין לא נשבו כלל ואין סכנתם לפנינו. כנ"ל דעת התוס'. ולפי"ז שפיר נתקיים תירוץ התוס' דבדאיכא סכנת נפשות מותר להוסיף על כדי דמיהן אף להא דקיי"ל שהטעם משום דלא ליגרבו ולייתו, ולא רק כשהטעם משום דוחקא דצבורא כדכתב הנכסת יחזקאל. מ"מ לדינא פסק השו"ע כהטעם דמופלג שאני ודו"ק. ולמעשה בזמנינו, מסתברא שלא שייך תקנה זו, דבזמננו דומה לזמן חורבן הבית כמש"כ התוס' דלא שייך שמא יגרבו, כיון שהישמעאלים לעולם יתפסו וישבו כל מה שיכולים לעשות אף אם לא ישלמו יתר על כדי דמיהן

gittin 45b - tzitzis by a woman

tosafos has quotes from rabbeinu tam that justas wepassul sta'm by a woman because whoever is not included in tying tefillin isn't included in writing, we also passul a woman from making tzitzi since she isn't included in wearing them. tosafos argues that the gemara implies the opposite since by sta'm we need a special drasha to assur her. how would r't answer tosafos question? perhaps we need special drasha only to exclude a yisroel mumar who is commanded in tefillin but doesn't do it. those who r exempt such as a woman, we wouldn't even need a drasha for. see mahratz chiyus that we even exclude a jew who doesn't believe in chazal, which we certainly need a drasha for.
l'maseh, the shulchan aruch 14:1 paskens like tosafos to allow a woman to make tzitzis, but the rama recommends being machmir for those who passul. it seems from the gemra that achild is also passul according to rabbeinu tam, since he is exempt from wearing tzitzis. however, the biur halacha suggests that the rama may not be machmir for rabbeinu tam, rather be machmir for the maharam that e exclude a woman from tzitzis with a specific drasha, but there is no rule passuling anyone who is not included in the mitzvah. the nafka mina would be tzitzis made by a child. we are machmir lichtchila based on pri megadim and derech hachayim (nesivos) who r choshesh for rabbeinu tam.

Thursday, August 21, 2008

Gittin 42b - Chatzi Ben Chorin eating Teruma

Tosafos writes that the possibility of a "me'ukav gett shichrur" eating Teruma (that the gemara has a discussion about) is speaking of a half eved half ben chorin. The maharshal points out that this is not possible, because a half ben chorin should not be able to eat teruma since his half ben chorin side is definitely assur from eating Teruma. The Maharsha disagrees with the Maharsha (kidarko bakodesh) by proving that just as a chatzi ben chorin cannot be mekadesh an isha and his kiddushin is not binding at all, even though his ben chorin side should technically be permitted to a regular bas yisroel, so too it is possible that if he is a chatzi eved of a kohen he can eat teruma without worrying about his chatzi ben chorin side. The Karnei Ri'eim and Pnei Yehoshua point out that kiddushin is completely different than Teruma. The rationale for kiddushin not to be binding at all is that he it can only be binding on half of him, and there is no such thing as kiddushin of half of a person. But in regard to Teruma, it should certainly be assur to eat Teruma since his chatzi ben chorin side is not owned by a kohen. Although the Pnei Yehoshua doesn't agree with the comparison to kiddushin, he attempts to justify the position of the Maharsha and Tosafos that a chatzi eved chatzi ben chorin, may qualify as a kinyan kaspo even on the side of the ben chorin, since practically speaking he is a person who is at least somewhat owned by a master. The status of kinyan kaspo would enable him to eat Teruma. However, the Pnei Yehoshua rejects this suggestion based on a Toras Kohanim that an eved owned in partnership of a kohen and a zar, cannot eat teruma.

Wednesday, August 20, 2008

Gittin 41a - Aseh Pushing off Lo Ta'aseh for Chatzi Eved

I saw a rashash today that I should have included in my sefer Nasiach B'chukecha. Tosafos asks that rather than forcing the master to free the chatzi eved to fulfill the mitzvah of sheves, we should allow him as is to marry a regular woman because the mitzvah of pru u'rvu should push off the issur of lo yihyeh kadesh? Tosafos gives 3 answers: 1. Since we can force him to free the slave it is possible to fulfill both and therefore we don't allow d'chiya. 2. It is not simultaneous because p'ru u'rvu is only done at g'mar biah. 3. If he would marry a bas chorin or shifcha she would be violating an issur without a mitzvah, and even if she is commanded in sheves (although not in p'ru u'rvu) she can marry someone like her.
The Maharsha asks on the first answer, why don't we say that the mitzvah of "l'olam bahem ta'avodu" which is an issur aseh not to free a slave, should push off the issur of lo yihyeh kadesh. Meaning that when we want the mitzvah of pru u'rvu to push of lo yihyeh kadesh, we should not consider freeing the slave an option since it itself can push off the issur? The Rashash answers, that we never find an issur aseh that is achieved by NOT doing something, can push off an issur b'kum v'aseh. Interesting yesod but I don't know if it fully answers the question. The question of the maharsha can still be that although the mitzvah of l'olam bahem ta'avodu in and of itself is not able to push off an issur, it at least should not be considered an option. When the mitzvah of p'ru u'rvu comes to push off lo yihyeh kadesh, and we want to say that it can't because there is an option to free the slave, that should not be considered an option since it would entail the violation of an issur. Obviously this question is only according to those who disagree with the Ran back on 38b and consider this a real mitzvas aseh that doesn't disappear even when not being done for the sake of the eved.

Tuesday, August 19, 2008

gittin 40b - Kattan Freeing the Slave

The gemara tells a story of a father who knew that beis din would force him to free his slave, so he was makneh his eved to his child since the beis din would not use physical force on a child, thereby protecting himself from freeing his slave. However, Rav Papa ruled that they should: a. set up a caretaker for the child, b. give the child some money, c. write a contract to free the eved. But, there is a major machlokes Rishonim exactly how the mechanics of this worked.
1. Rashi held that the caretaker is only there to make sure to evaluate the market value of the eved which is to be given to the child. The child is considered the owner of the eved on a d'oraysa level, and is able to sell the eved to himself on a d'oraysa level but also needs a shtar shichrur to permit the eved to a regular bas yisroel.
2. Tosafos agrees that the child is the owner of the eved on a d'oraysa level. However, Tosafos holds that the child has no way to relinquish his ownership of the eved because the takana of peutos being able to do mekach u'memkar is only d'rabonon and based on hefeker beis din. The freeing of the eved is not accomplished by the child, rather by the caretaker. But Rabbeinu Shmuel and Rabbeinu Tam argue how the eved is freed. Rabbeinu Shmuel says that we penalize the owner by taking the eved from the child and giving him to the caretaker who frees him. The purpose of giving the child some money is simply so that they don't have to go against the will of the child who would otherwise be making a claim that the eved is his. Rabbeinu Tam holds that it is not a penalty, rather the caretaker has the authority to free the eved by selling him. Even the shatr shichrur is really not necessary me'ikar hadin, only a chumra m'drabonon.
3. Tosafos Rid holds that a child cannot even make an acquisition on a torah level. Therefore, the eved really belongs to the father m'doraysa, and to the child m'drabonon. There are 2 shtar shichrurs written, one by the child who we entice with money to write a contract to relinquish his rabbinin ownership, and the other is written by the father who we force to write a contract to relinquish his d'oraysa ownership.

Friday, August 15, 2008

Gittin 36b - Power to introduce Pruzbul

According to rashi, abaye and rava argue about the power of hillel to introduce a concept of pruzbul and uproot the mitzvah of shmittah. Abaye holds that it is based on the concept of shmittah nowadays being only d'rabonon (which implies that we pasken like Rebbi, not the Rabbonon), so both the institution and the uprooting are d'rabonon. Rava holds that even according to the Rabbonon that shmittah is d'oraysa, the takana of pruzbul can exist based on the concept of hefker Beis Din. However, when rashi explains the position of Rava, he writes:
דבדבר שבממון אין כאן עקירת דבר מן התורה במקום סייג וגדר דהפקר ב"ד ממון היה הפקר
Rashi is coming to explain the power of the beis din to uproot the hashmata of shivi'is, but why does he mix 2 concepts, one of hefker beis din, and also the concept of geder and siyag that the gemara in yevamos 90b says empowers the chachamim to uproot a mitzvah?
Rashi can be explained by prefacing Tosafos 36a who argues and says that Rava is simply coming to give another answer as to how the chachamim could be mesaken shmittah when it should not exist d'oraysa, but is not coming to offer a suggestion for pruzbul working even within the shittah who holds that shmittah is d'oraysa. The main issue that Tosafos has with rashi is that, even if the Rabbonon had the power to uproot shmittah d'oraysa, they should not do so. With this we can understand why rashi inserts the words "geder" and "siyag" together with hefker beis din. Rashi holds that the power is based on hefker beis din, but the reason that chazal would uproot a d'oraysa mitzvah is becasue of geder and siyag like we find in yevamos that for a siyag they are willing to uproot d'oraysas (but this would not supply them the power to do so because here they are uprooting the mitzvah of shmittah and allowing the lender to collect against the torah, which is not a shev v'al ta'aseh - that is why we also need the hefker beis din rationale).
Being that the end of the shmittah year is mishameit loans, and it is rapidly approaching, I wrote a kuntros this year on the issues that I am making available here.
Please let me know if you find mistakes (either typo or more importantly in content).

Tuesday, August 12, 2008

Gittin 32b - Bitul of a Gett in front of Beis Din

The gemara has a machlokes between r' nachman and rav sheishes whether bitul of a gett must be in the presence of 3 dayanim or if it is sufficient to only have 2. On 33a the gemara makes this machlokes dependent on the machlokes r' yochanan and reish lakish why the chachamim decreed against bitul in fron of a beis din. R' Yochanan holds like r' nachman that bitul in the presence of 2 is sufficient which will not be enough for the word to get out that he was mevatel, therefore this process can lead to her thinking she is divorced when she is really married and her children from her new marriage being mamzeirim. This problem would be solved by simply instituting that 3 must be present on the beis din, but Tosafos points out that R' Yochana is also concerned of the aguna problem addressed by reish lakish. Reish lakish holds like r' sheishes that bitul requires 3, therefore she will surely find out that she is not divorced, but chazal wanted to protect her by making it difficult for him to nullify her divorce by forcing him to be mevatel in her presence or the presence of the messenger.
It would seem that the basic machlokes between r' nachman and r' sheishes whether bitul requires 2 or 3 on the beis din, is a machlokes on a d'oraysa level. However, Tosafos (32b) implies that all agree that on a d'oraysa level the husband can be mevatel even without 2 people hearing his bitul (perhaps even without anyone hearing it). The requirements of 2 according to r' nachman and 3 according to r' sheishes are for the concerns that r' yochanan held to be the reason for the decree to prevent this type of bitul, namely, she will be married and think she is divorced and her children will be mamzeirim. It comes out from Tosafos that according to r' nachman, m'doraysa one can be mevatel even without 2, the entire heter to be mevatel in front of 2 was a concern of mamzeirim - Rabban Gamliel held that this was still a concern and would have been mesaken 3 (just as r' sheishes holds that chazal were originally mesaken 3 due to a mamzierim concern), but because of the aguna concern they required notifying the woman or shelaich.
The Ran seems to reject Tosafos assumption and holds that 2 people are necessary to be part of the beis din on a d'oraysa level, because "ein da'var sh'berva pachos mishnayim". It is only R' sheishes who requires 3 for the concern of mamzeirus.

Thursday, August 07, 2008

GIttin 27b - Tevi'as Ayin

The gemara is mesupak whether standard simanin are d'oraysa or d'rabonon. But the gemara is clear that siman muvhak, and tevias ayin are definitely d'oraysa and would be sufficient proof to return a gett to the one who lost it. Siman muvhak, rashi explains "דאין עדות ברורה מזו" - meaning that it is conclusive evidence beyond the shadow of a doubt. It would seem that DNA would qualify as siman muvhak when applicable.
Regarding tevias ayin, which is the person claiming to recognize it even though he has no specific simanim, Tosafos explains that although everyone is assumed to have tevias ayin, we only trust a Talmid Chacham. The rationale is as rashi and tosafos both explain, the talmid chacham won't lie. This is not to say that others will lie, rather others will use lower standards and claim to have a recognition of the gett even if they don't really have a recognition of the gett, but a Talmid Chacham who claims to have that recognition is believed to have it.
Someone asked this morning in my shiur, what is the torah source to trust tevias ayin? I answered based on Tosafos Rid, that the entire concept of trusting testimony of eidim assumes that their tevias ayin is sufficient. The Tosafos Rid writes:
ואי אמרי עדים שאנו מכירין אותו בטביעות עין בלא שום סימן כשר, שכל עדות העכדים בעלמא בטביעות עין הוא כגון הא דאמרי כלי זה שביד ראובן של שמעון הוא או פלוני הרג את הנפש וכל כיוצ"ב, היאך מעידין כי אם בטביעת עין
Perhaps the fact that the Torah believes eidim, confirms that the torah considers tevias ayin to be valid. Just that with an eid echad, there is a chashash of lying, unless he is a talmid chacham. When he is a talmid chacham, his tevias ayin will still not be sufficient in court when 2 eidim are required, but for a lost object or to eid echad ne'eman b'issurin, tevias ayin works.

Monday, August 04, 2008

Gittin 25a - Breira: Dependent on you or others

The gemara makes a distinction between breira that is "to'leh b'da'as atzmo" - dependent on the person making the stipulation, and breira that is "to'leh b'da'as acherim" - dependent on the decision of someone else. Rashi explains the logic for "toleh b'da'as atzmo" to be less likely to say breira than "toleh b'da'as acherim" is that when it is dependent on the person making the stipulation he is clearly undecided at the time that he is making the stipulation. This type of situation where the stipulator is clearly undecided does not allow us to pretend that the decision made later is retroactive, since right now the stipulator is telling us that he is undecided.Therefore, the clarification that occurs later is really occurring later and cannot be attributed to be retroactive. However, when it is to'leh b'da'as acherim, the stipulator is completely gomer da'as for the action to go into effect, based on the decision of someone else. Since at the time of stipulation he is completely gomer da'as without retaining the ability to control it anymore, the occurrence later can work retroactively.
The difficulty with this distinction is that the gemara considers the case where one separates teruma and ma'aser verbally now, based on what will be left over later, and categorizes that as to'leh b'da'as atzmo. If the whole problem with toleh b'da'as atzmo is that his condition reveals a lack of ability to make a decission now, and shows us that he is riding the fence, why should the case of teruma and ma'aser be to'leh b'da'as atzmo, that should be like to'leh b'da'as acherim since it is not dependent on a decission of the person making the stipulation? Shouldn't this case have the advantage of toleh b'da'as acherim where at the time of his stipulation he is making it completely dependent on some later occurrence of which wine would be left and no longer in his control to decide?