Thursday, October 30, 2008

Kiddushin 23b - Appointing a messenger for something you can't do yourself

We mentioned this issue in nazir 12 - see there

The gemara asks whether an eved can appoint a shliach to receive his gett, according to the opinion that he cannot receive his own gett since he is still owned by his master. The gemara concludes that although one cannot typically appoint a messenger to do something that they cannot do themselves, nevertheless an eved my appoint a messenger to receive his gett since he is included in the concept of receiving a gett - he can receive a gett for his friend who is an eved from his master. The mitzpeh eisan explains rashi, who explains the logic of the gemara. The primary issue is whether the inability of the eved to receive his own gett from his master is a weakness in the eved's ability to receive a gett, in which case he should not be able to appoint a messenger either. Or is it merely a technicality that the gett has to leave the master's reshus which we learn from teh gezeira shava from isha. The fact that an eved can receive a gett from another eved is evidence that it is not a lack in his ability, rather a technicality. So, the requirement of "only able to appoint a shliach for something you can do yourself" = one can only appoint a shliach for something that they have the power to do themselves (if not for a technicality that makes them unable to do it by himself).

Kiddushin 22b - Acquiring a Shifcha with Bi'ah

The gemara in its discussion about acquiring a shifcha with hagba'ha and chazaka discusses whether you can acquire her with bi'ah. The suggestion would be that through bi'ah she essentially is carrying him, and should qualify as chazaka. However, the gemara starts making distinctions between an eved lifting his master where the eved does not receive hana'ah and having bi'ah with a shifcha where she receives hana'ah. At first glance, this seems to be an irrelevant distinction - who cares whether there is benefit or not? The bottom line is that she is "carrying him"!? However, after thinking about it a little more the gemara seems to be defining the type of work that would qualify as chazaka. Chazaka by an eved means to demonstrate that he is subjugated to the will of the master and must work for him. The rishonim have a discussion whether it is sufficient to do a work that does not directly involve the master such as sewing his clothes or preparing a bath for him. But all agree that the concept is to demonstrate servitude. When the eved lifts the master he is showing that he is obligated to carry the master so that the master won't have to walk. This must be done in a way where the eved receives no physical pleasure from what he is doing, because if he does then he is not demonstrating servitude. It is for this reason that the gemara understands that if the shifcha would be receiving pleasure from the bi'ah thereby possibly doing it for her own purposes, it would not qualify as a hagba'ha, since hagba'ah is not the kinyan, rather the kinyan is to show servitude.

Tuesday, October 28, 2008

kiddushin 21b - retziah for kohen

the braisa says that a kohen cant begome a nirtza because it will make him a baal mum. the gemara asks, so what if he turns into a ba'al mum. The gemara answers that he has to be ableto return back to his original status after he goes free which for a kohen includes able to do avoda. it seems that the gemaras original question is just 'so what if he becomesva baal mum' - is there any issurto make a kohen a bal mum. But rashi adds to the question that there is a mitzvah to do retzia. why does rashi need to adt this? rashi implies that for a kohen o make a mum without mitzva would surely be an issur, presumabely bec. he would be passul l'avoda (or maybe because of chovel b'atzmo). But since here is a mitzva, there isn't any issur mitzad hilchos mumin that would prohibit making a mum - so the gemara asks that he should be allowed to make a mum for mitzva. To this the gemara respondsthat there is a requirement in hilchos avodim that if he can't return to his original shteller then he can't be a nirtza.

Sunday, October 26, 2008

Kiddushin 19a - Kattan making a Kinyan

Tosafos proves from the fact that a ketana is able to accept her own kesef kiddushin, that when there is a da'as acheres being makneh something to a child they are able to make a kinyan m'doraysa. Tosafos proves this from the gemara in gittin 65a where r' chisdah holds a child can be koneh m'doraysa even without da'as acheres makneh, so when there is da'as acheres makneh all would agree that he can make a kinyan.
This issue is actually a machlokes rishonim. Based on the gemara in Succah 46b, the Shulchan Aruch 658:6 rules that one should not give a lulav to a child prior to being yotzei himself, because the child can be zocheh but cannot give back. However, if the child reached an age of "pe'utos", the Shulchan Aruch quotes a machlokes as to whether he can give back. The Rambam holds that he still cannot give back, whereas the Ran holds that he can. Why would the Rambam say that he cannot give back, since the gemara in gittin states explicitly that the Rabbonon instituted that a child who reached pe'utos can be makneh to others? The Biur Halacha explains that the Rambam holds that with da'as acheres makneh, the child is zocheh m'doraysa (like our tosafos) and therefore even if he reached the age of pe'utos, he can only return it m'drabonon. Since m'doraysa it would still belong to the child, the adult cannot be yotzei with this lulav. But the Ran holds even with da'as acheres makneh the child is only zocheh m'drabonon, therefore the ability to give back m'drabonon (when he reaches age of pe'utos) is sufficient. Based on this approach, it would seem that if the father already gave the lulav to the child who did not reach the age of pe'utos, the Ran would say that the father should still use the lulav since he owns it m'doraysa, and perhaps would even be able to make a bracha on it.
Another approach to understanding the opinion of the Ran is that he holds that although the child was koneh on a d'oraysa level, he can give it back m'drabonon and that would be sufficient because a kinyan d'rabonon would work m'doraysa. This could even be the point of argument between the Rambam and Ran.
It would also seem that according to the Rambam where the child who reached pe'utos can't give it back because he is zocheh m'doraysa and not just m'drabonon, that is only because of da'as acheres. So, if the father would be mafkir the lulav and allow the child to take it so that he is only zocheh m'drabonon, then even the Rambam would agree that the child can return it once he reaches the age of pe'utos (which would be a solution for a situation where the father for whatever reason couldn't fulfill his mitzvah before letting the child use it).
Based on the assumption that a child can only acquire m'dorabonon even with da'as acheres being makneh, the gemara would have to be explained that the girl can receive her kiddushin money m'din areiv (cosigner) as Tosfaos originally entertains.

Thursday, October 23, 2008

Kiddushin 16a - Eved Ivri Gufo Kanuy

Now that yom tov is over I hope to be more diligent about posting!
Tosafos discusses whether hefker would be a viable option to free an eved ivri. Tosafos claims that hefker works by an eved k'nanin and should also work for an eved ivri. However, according to the opinion that hefker by an eved k'nani would not be sufficient to permit him to marry a jewish girl, there is a machlokes by an eved ivri if hefker alone would be enough. The Ritva holds that just as an eved k'nani requires a shtar to remove the issar aspect that forbids him to a jewish girl, similarly an eved ivri requires a shtar to forbid him to marry a shifcha k'nanis. However, Tosafos clearly holds that even though a shtar would be necessary for an eved k'nani, hefker would work completely for an eved ivri and no shtar would be necessary. The question is, how can hefker change his status and forbid the eved ivri to a shifcha k'nanis? R' Moshe (dibros, heara 5) explains that by an eved k'nani there are 2 seperate kinyanim, one is monetary that binds him to work and the other is a kinyan for the purpose of issur that forbids him to a bas yisroel. Therefore he is not permitted to a bas yisroel through hefker, since it does not remove the seperate kinyan for issur. However, an eved ivri is the same as any other jew. The right to marry a shifcha k'nanis is not a seperate kinyan in him that would change his status of being a regular jew. Rather, it is an outgrowth of being owned by someone else that his master is entitled to provide him with a shifcha. It is literally part of the master monetary entitlement that allows him to work with the eved by day and night as the gemara says 15a. Therefore, as soon as the ownership is removed using hefker, the eved ivri is automatically assur to a shifcha. R' Moshe is so convinced that Tosafos approach makes sense that he is troubled with the Ritva.

Sunday, October 12, 2008

Kiddushin 4b - Double Ring Ceremony

In the gemara today, there is a hava amina that kiddushin can be accomplished by her giving money to him and/or her saying she is mekadesh her (or that she is mikudeshes to him). R' Moshe in Dibros Moshe points out that this hava amina seems to undermine the entire process of kiddushin. Kiddushin is for him to acquire her, and it is strange for the gemara to entertain that she can acquire him. But he explains based on rashi that the gemara thinks that perhaps kiddushin is not a kinyan at all, rather the exchange of money from him to her or even her to him creates a commitment from both of them to join in a state of marriage. The gemara rejects this notion and insists the kiddushin is only when he "acquires" her.
R' Moshe has 2 teshuvos regarding a double ring ceremony. In (E.H. 3:18) he explains that if he gives her a ring and says "הרי את מקודשת לי" and then she does the same, although it is assur [based on a brilliant diyuk from the gemara in Shabbos 14 that one is not allowed to do an action of shtus that makes it look as if it is part of a torah procedure], the marriage is completely binding. Yet in (E.H. 3:25) he writes of a reformed wedding where there is a double ring ceremony (even if the eidim would be kasher) the entire wedding is invalid becasue they are merely committing to want to be in a state of marriage but never doing the procedure of him being koneh her [R' Moshe explains that even according to R' Henkin that a secular marriage in a court will turn into a halachic marriage based on not wanting bi'as z'nus, that will only be where they recognize that they never had a religious ceremony. But where they think they are married based on a religious ceremony, the assumption is that all future bi'ah will be based on the premise that the ceremony under the chuppah created a status of marriage, so that the marriage will never be halachically binding].
R' Moshe (E.H. 4:32) was asked that these teshuvos seem to contradict one another whether a double ring marriage is binding but assur, or not binding at all. To this R' Moshe responds that he doesn't see any problem in reconciling these 2 teshuvos. In Siman 18 the ceremony was performed by an orthodox rabbi where the procedure was done properly, just that afterward he allowed her to do her mishagas by giving him a ring and saying some nonsense statement of him being mekudash to her. But in Siman 25 the reformed rabbi considered the exchange of rings to create the marriage - "הרי שפיר מוכיח שאין עושין קידושי התורה אלא שהוא נתינת טבעות בעלמא על שנעשו איש ואשה אבל לא היה שום מעשה על הקדושין". B'kitzur, it would be assur for him to give her a ring under the chuppah, but so long as it is clear that the kiddushin was achieved by him giving her the ring, it would not prevent the kiddushin from taking place. It would seem clear that if she wants to give him a ring later i.e. not under the chuppah, just for a symbol that they are married, that would be totally fine since it in no way is connected to the process of marriage.

Friday, October 10, 2008

Kiddushin 3a - Kesef, Chalifin and Shtar

Just some quick thoughts right before shabbos....
The gemara says that one cannot be mekadesh a woman with chalifin. Rashi explains by making 2 statements: 1. The reason less than a peruta doesn't work as kidushei kesef is because it is degrading to her. 2. Since chalifin by definition does not have to be worth a peruta, it doesn't work to be mekadesh an isha even when it is worth a peruta.
Regarding #1, Tosafos disagrees and explains that less than a peruta does not qualify as "kesef", and is therefore not included in the gezeira shava from where we learn that kesef works for kiddushin. There seems to be a dispute between Rashi and Tosafos as to whether less than a peruta qualifies as "kesef".
Regarding #2, Tosafos explains that the whole gemara is addressing chalifin that is worth a peruta. Originally the gemara thought that chalifin that is worth a peruta is similar enough to kesef to work as kesef, but rejects this and says that it is a seperate kinyan which we have no source for by kiddushin. Rashi and Tosafos would therefore argue if it were possible to entertain that chalifin would work when it was worth less than a peruta. Rashi holds that it was a possibility for chalifin to work even though it is a seperate kinyan from kesef, whereas Tosafos holds that we only thought it could work when it would be similar to kesef. I would like to suggest that perhaps their machlokes revolves around the definition of kidushei kesef. Is it a ma'aseh kinyan (like chazaka) or is it a reimbursement for which her receives the woman as a wife in return? Chalifin is clearly a ma'aseh kinyan from the fact that it can work when it is less than a peruta. Rashi holds that kesef is also just a ma'aseh kinyan, and therefore would be similar to kesef even though it is not worth a  peruta. But Tosafos understands that Kesef is a reimbursement type kinyan, so chalifin which is just a ma'aseh that results in a kinyan would not be comparable to it at all.
There seems to also be a machlokes rashi and tosafos whether shtar that is more than a peruta, but for whatever reason an invalid shtar, would work as kidushei kesef. Rashi on the mishna implies it would (since he makes the case of kidushei shtar to be when it is less than a peruta, implying that if it were more than a peruta it would work as kesef), whereas Tosafos d.h. v'isha, implies that it would not (Tosafos says that chalifin worth a peruta should work, even if shtar would not work when worth a peruta. The reason shtar would not work is because it can be written on issurei han'ah implying that it doesn't need any value at all, whereas chalifin at least needs some value. This indicates that chalifin is still associated with the value of the object, and therefore when it has a peruta it should work like kesef). 
If Rashi holds that shtar worth a peruta would work as kesef, why would chalifin worth a peruta not work as kesef? Perhaps rashi means to say that the Rabbonon were mevatel Toras Chalifin even when worth a peruta when it should work as kesef, so that you would not come to use chalifin when it is worth less than a peruta. But Shtar can work as kesef if it is passul when it is worth a peruta, because since normally it works less than a peruta chazal had no reason to uproot it from working as kesef.

Monday, October 06, 2008

Gittin 88b - Forced Gett

The Rambam (2:20) explains the mechanics of a forced gett is that:
לפיכך זה שהוא רוצה להיות מישראל ורוצה הוא לעשות כל מצות ולהתרחק מן העבירות יצרו הוא שתקפו, וכיון שהוכה עד שתשש יצרו ואמר רוצה אני כבר גירש לרצונו
This implies that only one who "wants to be part of klal yisroel" would be considered consent after being forced, but one who converts to christianity or islam and does not wish to be part of klal yisroel, cannot be forced even by a jewish beis din to give a gett. The Ohr Sameiach quotes the maharitatz who points this out and therefore rules that for a convert to another religion, a forced gett would be invalid, since it only works for one who wishes to remain part of klal yisroel. The Maharik suggests that under the circumstances of a convert maybe chazal use the mechanism of uprooting his kiddushin, but clearly that is a very difficult approach to accept. Therefore the Ohr Sameiach asks, Why is the "minhag" to force a convert to give a gett?
The Ohr Sameiach develops a complicated yet brilliant approach. When Beis din forces to fulfill a mitzvah, their power is limited to their ability to actually accomplish their goal. Meaning, if they would be certain somehow that this person will never consent and will give up his life to not perform a mitzvah, they would not have the right to force him (since the force is for the purpose of getting him to do the mitzvah, not as a punishment). Based on this we should never be able to force anyone, because anyone would tell you that they would ultimately not want to give the gett so that beis din will loose their ability to force, rather than his "rotzeh ani" qualifying as consent which empowers beis din to apply force! It is to answer this question that the Rambam has to explain that the inner will of every jew is to be part of klal yisroel and do mitzvos. Meaning, that as far as "consent" is concerned, the fact that he declares "rotzeh ani" in the end is all we care about since דברים שבלב אינם דברים. The only reason we need the logic of the inner ratzon is to serve Hashem is to explain why we have the right to whip him to begin with. And that is, we assume that the inner will of every jew (who wants to be a jew) is to serve Hashem, and give a gett when the din requires it. This inner ratzon is not needed to qualify as consent, rather is necessary to give the beis din the power to force to begin with. Now, this whole explanation is only necessary for one who want to be part of klal yisroel and is not a idolator because our ability to force him is only if we would be convinced that his inner will is to consent. Without that we have no right to consent based on the logic of forcing for an aseh. But one who is an idolator who we have the right to PUNISH and even kill for his aveira of idolatry, we don't need his ultimate consent to entitle us to whip him. We have a right to whip him even if we knew he would never consent, as a punishment for his aveira. Therefore, we don't need his inner ratzon to consent, we just need him to say "rotzeh ani" after suffering and that is sufficient to make the gett work. Based on this the Ohr sameiach is mechadesh that for a convert to christianity or islam, even if we force "shelo k'din", the gett should be valid because we don't need a heter to whip him.

Sunday, October 05, 2008

Gittin 88a - Being Mevatel a gett before and after it is completed

Rashi explains the gemara's question "Be concerned that he changed his mind" to be that the was mevatel the gett and then decided to continue writing it. Tosafos points out that this implies that the bitul to the gett is effective, which seems to contradict R' Nachman who says that when one is mevatel a gett, if he later decided to use it, the gett itself was not batul and can be used? Tosafos answers that after it is written and is a complete entity the bitul will not be effective, but until it is completed the bitul will effectively nullify the gett.
The Rambam (Hil. Tzitzis 1:15) writes that when one puts tzitzis on a garment that already has tzitzis on it, but his intent is to be mevatel the original ones, and use the ones that he is tying on now for the mitzvah, his bitul is effective to remove the mitzvah status from the original ones. The Sha'ages Aryeh (30) is troubled by this - כיון שאין בהן שום פסול, כי מבטלן איהו מאי הוי, וכי ספר תורה או תפילין ומזוזה שנכתבו בהכשר כדינם וכי אפשר להוציאם להכשירן ע"י ביטול ויהיו נפסלין ומכאן ולהבא ע"י שביטלן, הא לא שמענו, ואי איתא להא מילתא לא אישתמיט שום תנא או אמורא להשמיענו חידוש גדול כזה
To answer this question the Sha'ages Aryeh suggests that the Rambam goes l'shitaso in Hilchos Gittin (6:21)that when the husband is mevatel the gett, it can never be used again - it is like חרס הנשבר "broken pottery". Just as the Rambam holds bitul works by a gett, he holds l'shitaso that it works by mitzvos, but most poskim disagree with the Rambam that bitul doesn't nullify the gett from ever being used again, and similarly hold that it doesn't work by mitzvos.
The Sha'ages Aryeh tries to push off the Rambam as some radical opinion that bitul helps by gett and by mitzvos, but all other poskim would disagree with the Rambam in principal and maintain that bitul is not at all effective. However, based on Rashi and Tosafos that bitul would be effective prior to the completion of the gett, they should also maintain (based on the equation of the sha'ages aryeh, which needless to say is not muchrach) that bitul would be effective to a half written sefer torah or half written mezuza. If this is true, then the majority of poskim do not disagree with the Rambam in principal, they just hold that after it is completed it is not susceptible to being nullified. But in principal they would also agree that one can "nullify" mitzvos and successfully disqualify a half written mezuza from being a kasher mezuza even after it is completed!

Gittin 85b - Must a Gett have ודין די יהוי ליכי מינאי

The minhag is that we end off the gett by writing:
והרי את מותרת לכל אדם, ודן די יהוי ליכי מינאי ספר תירוכין ואגרת שבוקין וגט פטורין
We fulfill both the tana kama and R' yehuda in the mishna by writing both the "והרי את וכו'" and "ודן די יהוי וכו", but it is not clear from the conclusion of the gemara whether we really need ודן or not. When the gemara says that we should right ודן without a yud, so that it doesn't say "din". But Rashi and the Rambam disagree with the problem of it sayin "din". Rashi says that it implies that he is required to divorce her, which indicates that since he is not actually required to divorce her the gett should not be valid. The Rambam says that it implies that they made up a "mishpat" between themselves to be divorced. The Beis Yosef understands that according to the Rambam the term "din" would not be misleading, just that you would be missing the term "ודן" which is a requirement in a gett. Based on this, the sefer gett pashut, quoted in Pischei teshuva points out that if the woman would be a Sotah so that he is in fact obligated to divorce her, Rashi would hold that ודן can be written with a yud, whereas the Rambam would hold that ודן must still be written without a yud. This approach assumes that the Rambam paskens like R' yehuda that ודן must be written to indicate that he is divorcing her with this gett, whereas rashi paskens like tana kamma that ודן is not necessary.
The sefer gett pashut points out that this approach is problematic. Although in the pirush hamishna that Rambam paskens like R' Yehuda that ודן is necessary. In the yad, the rambam quotes the language of the tanna kamma that gufo shel gett is just הרי את מותרת לכל אדם. This contradicts the assumption that the Rambam paskens like R' Yehuda? He quotes the Mahari Levi who suggests that the entire machlokes about ודן is only d'rabonon. Meaning, all agree that the gufo shel gett on a a d'oraysa level is הרי את מותרת לכל אדם. But the Rambam holds like R' Yehuda that m'drabonon we need to write ודן. This is a pretty radical approach because the pashtus of the mishna is that ודן is required m'doraysa according to R' Yehuda!