Sunday, November 30, 2008

Kiddushin 54a - Wearing Bigdei Kehuna after the Avoda is finished

The gemara discusses the concept of whether bigdei kehuna can be worn even after the avoda is over. In Meseches Yoma 69a the gemara also discusses this issue, in conjunction with the issur of kelayim which existed in the avneit (even if bigdei kehuna is permitted after the avoda, the avneit which is kelayim could be worse).
Rashi holds that the concept of לא ניתנה תורה למלאכי השרת is matir a kohein to wear bigdei kehuna even after the avoda is completed, so long as it remains a shogeg - meaning, that he removes it as soon as humanly possible. Based on this, Rashi explains that the mishnah holds that if one is mekadesh a woman with bigdei kehuna b'shogeg, she would not be mikudeshes, because there is no violation of me'ila with bigdei kehuna since included in the permitted use of bigdei kehuna is the shogeg. Meaning, the sevara is not only matir the specific use to wear the bidei kehuna after avoda, but is matir all accidental use of bigdei kehuna.
However, Rashi 66a by the story of yanai hamelech, implies that it is permitted even l'chatchila to wear bigdei kehuna, even if it is not a shogeg. Rashi seems to assume that Yanai Hamelech, although not a great tzaddik, would not have worn the tzitz unless it was permitted (or at least understands from the fact that we don't seem to hold it against him, that it is not part of the things he did wrong). Tosafos rejects Rashi because our gemara implies that we are only matir b'shogeg, meaning that we insist that he remove the bigdei kehuna as soon as humanly possible (Tosafos explains that wearing the tzitz was an exception to the rule based on the pasuk of "tamid"). Tosafos is asking a very strong question on rashi, how can he be matir even l'chatchila, meaning even b'meizid, since our gemara is matir only b'shogeg?
Perhaps Rashi understands that the sevara of לא ניתנה תורה למלאכי השרת is matir all use when the intent is not to remove the item from hekdesh status. Therefore, putting it on even l'chatchila when not doing the avoda is permitted since the intent is not to remove it from hekdesh status. Similarly to use it for kiddushin by accident would also be permitted since he is not intending to remove it from hekdesh status. But, to use it for kiddushin realizing that it is hekdesh, would by definition be trying to remove it from hekdesh status and is assur. This is meduyak in rashi - 
שלכך הוקדשו מתחלה ליהנות בהן שוגגין רק שלא יתכוין לחללן - meaning, the only thing we don't allow is intentional use to remove it from hekdesh status.

Wednesday, November 26, 2008

Kiddushin 50a - Eidim on her acceptance of kiddushin

The Avnei Miluim (27:6) says a tremendous chiddush based on our gemara. The gemara tries to prove that devarim sh'bleiv einam devarim from our mishna where she claims to have accepted in her heart at the time of the kiddushin that even if he is not a kohen, she wants to marry him. From the fact that she is not mikudeshes must be because devarim sh'bleiv einam devarim. The gemara pushes this off that maybe she can't use devarim sh'bleiv to uproot a t'nai that was verbally articulated, but normally we will allow devarim sh'bleiv. Why doesn't the gemara say that even if devarim sh'bleiv is significant, the witnesses aren't able to know what she is thinking and it is like kiddushin that is not in the present of witnesses, so she is not mikudeshes? From the fact that the gemara is not concerned about the witnesses seeing her consent implies that the witnesses only have to know that he intends to do kiddushin and see the ma'aseh kiddushin. But they do not have to know that she consents to the kiddushin. The rationale for this is based on the Ran in nedarim 30a that a woman's role in kiddushin is passive, and is simply to allow him to take her. Therefore, her consent is not part of the "davar sh'berva" aspect of kiddushin, and does not need witnesses. Based on this, if she would make a legitimate claim that would not violate the concern of devarim sh'bleiv, even without the knowledge of the eidim, she would be mikudeshes.
R' Moshe (Even H'aezer 1:82) explains that the eidei kiddushin have to be sure that they witnessed an act of kiddushin. His discussion is a case where 2 teenagers were fooling around about kiddushin, and the eidim witnessed a full ma'aseh kiddushin but were convinced that it wasn't intended to be a real kiddushin, so he is matir. However, in his case both of them were just clowning around. 
Based on R' Moshe and the Avnei Miluim - If the case would have been that the man intended for kiddushin and she was just clowning around, and the eidim say that they are sure he intended for kiddushin but have no idea what her intent was (meaning, they admit to the real possibility of not knowing that she consented to the kiddushin) - the avenei miluim would say that since we only need eidim on him and not her, this qualifies as eidim on the kiddushin even if she claims to have been just clowning around.

Tuesday, November 25, 2008

Tzadik Gamur / City People

1. Tzadik Gamur - The gemara says that a known rasha who is mekadesh a woman on condition that he is a tzadik gamur, we are choshesh for his kiddushin (Ran) because maybe he had a thought of teshuva. Similarly, if he is a known tzadik and is mekadesh on condition that he is a rasha, we are choshesh that he had thoughts of avoda zara (which the gemara said on 40a that Hashem considers like a ma'aseh). The minchas chinuch (164) struggles with this gemara, based on the premise that teshuva is a process that requires many steps including viduy, so a thought of teshuva should not be sufficient to render someone a tzaddik. To answer this he says a tremendous chiddush, that the steps of teshuva are necessary to achieve atonement, but to change one's status from rasha to tzadik, all that is needed is a thought of teshuva to not do any more aveiros from now on. Based on this, it should follow that the thought to do aveiros starting from now should render a person a rasha even though he has many zechuyos for past mitzvos. But by aveiros Hashem doesn't consider thoughts to be action, and that is why the gemara says he would only be turned into a rasha by a thought of avoda zara. The gemara didn't want to say that he can be turned into a rasha by having charata on past mitzvos (as it says on 40b), because that may take aways his zechuyos for the past but won't render him a rasha.

2. City people
The mishna says that if he stipulates that he is a small city person or large city (krach) person, and he is the opposite, then the kiddushin is void. Rashi explains that even if he is actually a small city person, and he stipulated that he is a large city person which is a change for the better, the kiddushin is void. The maharsha asks on rashi that in the gemara earlier when we were trying to prove that R' Shimon's silence in the later mishnayos implies that only a change for the better in monetary issues would be a valid kiddushin (not a change in guf), from the fact that R' Shimon doesn't argue in our mishna about the kohen, levi, mamzer. The gemara then asks that he also doesn't argue in the mishna later about having a maid which seems to be a monetary issue. Why doesn't the gemara ask from this earlier case where R' shimon doesn't argue even though it is a monetary issue. Based on this the Maharsha disagrees with Rashi and says that a small city is not objectively better than a large one, nor is the opposite true, but different strokes for different folks (a large city has more amenities but also more noise). That is why R' shimon agrees, because there is no objective better and worse. Perhaps we can be meyashev Rashi based on the Rashash, who points out that this issue is listed together with "guf" things, such as kohen, levi mamzer. This implies that the issue is not whether he presently lives in a large or small city, rather where he was raised because it would have a definite impact on his personality. Now, even if Rashi is correct that an small city is better than a 'krach', R' Shimon would not argue since these are changes in his guf, not a monetary change.

Monday, November 24, 2008

Kiddushin 48a - Kiddushin d'rabonon working m'doraysa

The gemara says that R' Meir and Chachamim argue about milva b'shtar, when he is mekadesh her with money he is owed by someone else whether she would be mekudeshes, and offers a few suggestions as to what the point of argument is. One of the suggestions is that they argue about whether one who sells a shtar chov has rights to be mochel it. According to R' Meir she is mekudeshes because he doesn't retain the ability to be mochel after being makneh it to her as kesef kiddushin, and Chachamim says he retains the ability to be mochel so she isn't convinced that she will be able to keep the money (no semichas da'as) so she isn't mekudeshes. Tosfaos explains that the ability to be mochel a shtar chov even after selling it off is based on the assumption that the sale is only binding m'drabonon but not m'doraysa (See Ritvah here and Ran in kesubos who offer a different interpretation that he retains a shi'bud haguf and is only selling the shi'bud ma'mon).
The gemara also suggests that they argue by a milva al peh that he was makneh to her through ma'amad shelashtan. R' Meir holds that ma'amad shelashtan works so that she is mikudeshes and the chachamim say that ma'amad shelashtan doesn't work on a loan.
The question is whether according to R' meir where the selling of a shtar chov is only d'rabonon and the kinyan of ma'mad shelashtan is only d'rabonon, would she be mikudeshes only d'rabonon or even m'doraysa?
The Avnei Miluim (28:33) discusses at length the issue of kinyan d'rabonon working m'doraysa based on hefker beis din. He quotes Rabbeinu Yerucham who says that ma'amad shelashtan will only create a kidushin d'rabonon, but the beis yosef argues and says she would be mikudeshes m'doraysa. According to the Beis Yosef that by ma'mad shelashtan the kiddushin would be d'oraysa, would it also be d'oraysa by being makneh to her a shtar chov (according to tosafos that the kinyan is only d'rbonon)?
The Avnei Milum offers a sevara that by selling shtaros where the seller retains the ability to be mochel because the kinyan is only d'rabonon, the kinyan d'rabonon cannot transform into a kinyan d'oraysa because that will prevent mechilla, so we have to assume that chazal never strengthened the kinyan d'rabonon to be d'oraysa using hefker beis din. But, regarding ma'mad shelashtan it is possible that the rabbonon completely transformed the kinyan d'rabonon into a d'oraysa and would therefore create a kiddushin d'oraysa. 
This would be very consistent with Tosafos who say that by the shtar chov, mechila would work because the kinyan is only d'rabonon, but by ma'mad shelashtan Tosafos says that mechila would not work. Since the mechila would not work for the ma'mad shelashtan, it is very possible that chazal transformed the kiddushin d'rabonon into a kiddushin d'oraysa.

Sunday, November 23, 2008

Kiddushin 47b - Mekadesh B'milveh

The gemara says that one cannot be mekadesh a woman with a loan that he previously lent her, but can be mekadesh her with a loan that someone owes him, by transferring the loan to her (so that she is now owed the money). The Rishonim have different approaches to explain the difference between being mekadesh her with a loan to her and a loan to someone else:
1. Tosafos (d.h. l'olam) - The reason one cannot be mekadesh a woman with a loan that he previously lent her, is because he is not giving her anything write now. Since at the time he lent her the money it was meant to be spent, and is no longer in existence at the time of kiddushin (even if it is, it is as if it isn't), he is not giving her anything now because that money is already hers (just that she owes the same amount back). But, when he is mekadesh her with a  debt that someone else owes him, he is giving her something now i.e. the contract, and therefore she is mikudeshes with the money that was owed to him.
2. Ran - Basically the Ran agrees with Tosafos as to why he can't be mekadesh her with money that he previously lent her. However, when he uses a loan that is owed by someone else, he is not being mekadesh her with kesef, since the money is not here. Rather, he is being mekadesh her with the benefit she receives by now having the ablilty to collect a debt from someone else, which is a definitive benefit that he is providing her with. This approach is based on the assumption that although one cannot be mekadesh a woman with the actual money of the loan that she owes him, he can be mekadesh her with the benefit that she receives from him being mochel the loan. Therefore, he can be mekadesh her with a debt that someone else owes him, since that is no worse that being mekadesh her with some benefit.
3. Aveni Miluim (28:31) - The reason that one cannot be mekadesh a woman with money she owes him is not because it is already hers. Rather the reason is because it is a davar sh'elo ba'ah l'olam. Meaning, he doesn't have control over the money to be able to be makneh it to someone else. Although he is able to be mochel it to her, since he has no ability to be makneh it to someone else, it is not considered to be money coming from him. Therefore, when he is makneh to her a loan that someone else owes him and does it with kesivah u'mesirah to make a real kinyan, it is a davar sheb'ah l'olam that is why it works. Based on this the avenei miluim says that if she owes him money and he takes the shtar chov that says she owes him and is makneh it to her with kesuva u'mesira, as he would do with a shtar chov of someone else, she would be mikudeshes.

Thursday, November 20, 2008

Kiddushin 44b - Shlichus for a Kattan

The gemara says that when a ketana makes a shliach to receive her gett, it is not binding until the gett reaches her hand. Rashi explains that this is because there is no shlichus for a kattan, so the shliach she appointed to receive the gett becomes a shliach l'holacha and the gett is only binding after she receives it.
Why can a kattan not make a shliach?
Rashi 42a said because we learn shlichus from gett, and since by gett it says "ish", only a man can appoint a shliach not a child. Rashi in Baba Metzia 71a takes a similar approach, that another source for shlichus is teruma and by teruma we need someone who is capable of separating teruma, to the exclusion of a child who's hekdesh isn't binding. The Ketzos Hachoshen (188:3) asks: if we learn from teruma then a child who is 12 (mufla samuch l'ish) and his nedarim are binding, should be able to make a shliach. If we learn from gett, then a boy should not be able to appoint a shliach because it says "ish" by gett, but a girl should be able to appoint a shliach since she is capable of receiving her gett?
The Rambam (Gerushin 6:9) gives a technical reason for a girl not being able to make a shliach:
וקטנה אינה עושה שליח לקבלה אע"פ שחצרה קונה לה גיטה כגדולה, מפני ששליח קבלה צריך עדים ואין מעידין על הקטן שאינו בן דעת גמורה
The reason a ketana cannot make a shliach is that shliach l'kabala needs eidim to verify that they were appointed and it is impossible to have eidus testifying that a ketana had enough da'as necessary to appoint a shliach l'kabala. Meaning, although she has enough da'as to appoint a shliach l'kabala, she does not have enough da'as to convince the eidim that she has enough da'as to appoint a shliach l'kabala - the ketzos understands that this technicality can be used as a source as to why a girl can never appoint a shliach.

Wednesday, November 19, 2008

Kiddushin 43a - More on Shliach l'dvar aveira

1. Yesterday I mentioned the teshuva of the Nodeh B'yehuda who held that when one appoints a shliach to divorce his wife against her will, in violation of the cherem d'rabbeinu gershom, is a case of eish shliach l'dvar aveira, and based on tosafos in baba metzia the shlichus is batul so that the divorce is invalid.
I found that the ketzos hachoshen (182:2) cites this nodeh b'yehuda, and explains that it depends. If the husband appointed the shliach to divorce her against her will, then he is a shliach for a d'var aveira and the consequence is as the nodeh b'yehuda says. But if the husband appointed the shliach without any mention of divorcing her against her will, and the shliach decided on his own to divorce her against her will, the aveira that is being done is incidental to the shlichus so that the gett is still binding. It is the equivalent of one appointing a shliach to do an act b'heter, and the shliach on his own decides to do it b'issur, the shlichus is binding.
It seems clear that the ketzos would agree that if a kohen made someone a shliach to marry a woman for him without specifying who, and the shliach on his own chose a gerusha, that would qualify as "ein shliach l'dvar aveira" just as if the kohen would have explicitly told him to be mekadesh a gerusha. We would not say in this case that the aveira of the shliach was done on his own and is incidental to the shlichus. The distinction is pashut - since there is no heter way for the kohen to be married to this gerusha, the issur is inherent to the shlichus and therefore we say ein shliach l'dvar aveira. But in the case of violating the cherem, there is a heter way for the husband to be divorced from this woman without violating the cherem, therefore even if the shliach violates it, so long as that wasn't part of what he was appointed to do, the act would be binding.
2. The ketzos (105:1) explains that ein shliach l'dvar aveira only applies when there is an issur on the sender, but if it is permitted for the sender and only an issur on the shliach, the he can be a shliach. Based on this he disagrees with the Pnei Yehoshua in Kesubos who says that one who tries to be zocheh for a ba'al chov, when it is a detriment to others, doesn't work because it is a shliach l'dvar aveira. The Ketzos argues that since there is no issur on the person the shliach is being zocheh for i.e. mishalei'ach, he would not be considered a shliach for an aveira.

Tuesday, November 18, 2008

Kiddushin 42b - Ein Shliach l'dvar Aveira

The gemara concludes that in general there is no shlichus for an aveira, meaning that the agent is responsible for his own actions and they cannot be blamed on the sender. Tosafos holds that this only applies so long as the shliach is doing it intentionally and realizes that it is an act of aveira, but if the shliach doesn't realize that it is an aveira (he does it b'shogeg) then shlichus does apply and the sender is responsible. The Ketzos Hachoshen (348:4) discusses this and proves from rashi 50a who says that by me'ila if the sender is intentional and the agent is shogeg, then since the sender can't be in violation of me'ila (since me'ila is only b'shogeg), the regular rule of "ein shliach l'dvar aveira" kicks in to make the agent liable. From the fact that Rashi applies "ein shliach l'dvar aveira" to even a case where the shliach is shogeg, implies that he argues on Tosafos. The ketzos continues that Tosafos who holds that the shliach should not be liable when he is shogeg, would have to explain the gemara that the shliach violates me'ila based on rashi in chagiga 10  who says that since the ba'al habayis remembers that the money is hekdesh, he is mevatel the shlichus so that the agent is no longer his shliach and therefore liable for his own actions.
The Pischei Teshuva (Even Ha'ezer 119:6) quotes the Nodeh B'yehuda (kama 75) who is mechadesh based on tosafos in baba metziah, that ein shliach l'dvar aveira doesn't merely make the agent responsible for the aveira, but it also invalidates the act that was done. Therefore,  if one sends an agent to divorce his wife against her will (thereby violating the cherem), the divorce is not binding. The Pischei Teshuva says that many achronim took issue with this ruling, but the Nodeh B'yehuda justified his position in subsequent teshuvos. It is slightly meduyak in rashi 42b who says that eish shliach l'dvar aveira is only in respect to being mechayev the sender, implying that for all other purposes the shlichus is binding. I think i once mentioned on this blog previously that his mechutan referred to a mishna l'melech who conforms to this ruling that the action is invalidated. The Nodeh B'yehuda responded by saying that the reference to the mishne l'melech was just trying to undermine his own chiddush, because there is no mishne l'melech regarding this, it is "my own chiddush". The Pischei Teshuva continues to show how this opinon is actually apparent from the mishneh l'melech in hilchos geneiva (3).
Based on the opinon of Tosafos who says that if the shliach is shogeg then yesh shliach l'dvar aveira, it will come out that in the case of the nodeh b'yehuda, if the agent was unaware of the cherem that forbids divorcing a wife against her will, we would say "yeish shliach l'dvar aveira" so that the divorce would be binding even according to the noda b'yehuda, and that the aveira would be attributed to the husband.

Monday, November 17, 2008

Kiddushin 41a - Shlucho Shel Adam K'moso (Mitzvos)

The K'tzos Ha'choshen (182) quotes the Tosafos Ri"d who asks why do we not allow the concept of שלוחו של אדם כמותו by mitzvos such as tefillin and sitting in a succah? The Tosafos Ri"d seems to say very simply that a mitzvah must always be done by the individual himself, with the exception of marriage and divorce since the actual חלות of the kiddushin/gerushin is for the sender. The Ketzos asks, that if this is true, why would we need a special source to say אין שליח לדבר עבירה, which implies that without a special limud, we would assume that reuven can be responsible for an act of aveira done by shimon. Even without a special source, we should never be able to trace the aveira of shimon back to reuven, just as we can't trace the mitzvah act of shimon back to reuven? The Ketzos has an entirely different approach to this question (i mentioned it in my sefer nasiach b'chukecha pg. 113).
The Ohr Sameiach (shlichus 1:1) comes to explain the Tosafos Ri"d. There are certain mitzvos where the intent of the Torah is that everyone should do a particular act. For example the Torah wants every individual to wear tefillin, eat matzah and sit in a succah, so it is impossible to say that when my shliach does these acts, it is as if i did it myself, since that would undermine the entire intent of the Torah. If one were able to appoint an agent for these activities, one person could eat matzah for the rest of the world, which surely undermines the intent of the Torah. However, when the intent of the Torah is that the action should be attributed to me, such as korban pesach where the Torah isn't interested in my shechita, rather my association with the korban pesach, a shliach can do it for me. Similarly by kiddushin, the torah wants everyone having a wife, but there is not concerned that everyone should do the act of kiddushin himself, and it can therefore be done by a shliach.
Based on this approach, when it comes to stealing, killing, adultery.... the torah demands that no one do these acts, to prevent the result. Since the intent of the Torah is not merely to refrain from the act, but to prevent the result, these aveiros are similar to kiddushin and gittin where the main purpose is the result, not the act. Just as the Torah says that Reuven can appoint shimon to do kiddushin since  primary issue is the result which can be attributed back to the sender. Similarly the Torah forbids stealing and killing because of the result, so when Reuven causes someone to be killed or stolen from by appointing Shimon to do it, the act can be attributed back to the one who causes the result, Reuven. Therefore, without a special pasuk teaching that you can't have a shliach for aveira, one would think that Reuven can be held accountable when Shimon does these acts for him.

Thursday, November 13, 2008

Kiddushin 36a and 37b - 2 Aggadata points

1. The gemara quotes a machlokes whether the pasuk of בנים אתם לה' אלקיכם applies only when they are doing רצונו של מקום or even when they are not doing the ratzon of Hashem. The gemara in Baba Basra 10a explains similar to R' Yehuda that they are only called children when they are doing the ratzon of Hashem, but when they are not doing the razton of Hashem they are called עבדים. The K'sav Sofer (Achrei Mos) explains that רצונו של מקום doesn't just mean to do mitzvos, it means to do mitzvos because it is the ratzon of Hashem. Based on this approach, the definition of אין אתם עושין רצונו של מקום means, when you are doing mitzvos but not li'shma, meaning not because it is ratzon Hashem. When they are doing the mitzvos because it is the will of Hashem they are called children, because will to for their parents out of love, for the sake of the parent. But an eved will only serve his master because he is rewarded for serving him, therefore when they are not doing ratzon Hashem, meaning they are not doing it out of love for Hashem, they are like avadim.

2. Tosafos 37b qutoes Rashi that the Jews only brought one korban pesach over the 40 years in the midbar. Tosafos has 2 approaches why; either because there was no requirement of korban pesach until they came into eretz yisroel, or that even though they were required while they were in the desert, they were mostly missing bris mila (which for health reasons they couldn't do while travelling). One way or the other, it was considered degrading for them not to have gone in since the sin of the meraglim caused them to remain in the midbar for 40 years and loose out on the opportunity to bring the korban pesach. The Maharal (Gur Aryeh) writes that it isn't necessary to say that גנותן של ישראל was the indirect cause of the meraglim. The very fact that they missed out on the mitzvah, even if it was a result of o'nes, it is still a g'nai. The Maharal continues that although mitzvos that were not yet commanded until they went into eretz yisroel were not a g'nai for not doing, the mitzvah of korban pesach was a g'nai since they were metzuva just that the אונס prevented them from doing it.

Wednesday, November 12, 2008

Kiddushin 36b - Chodosh nowadays

Tosafos discusses the issur of chodosh in light of the mishna where R' Elazar considers it to be something applicable in chutz la'aretz. Tosafos writes that most of the grains planted were planted prior to 16 Nissan so there would not be a problem of chodosh. It is only if someone knows specifically that this grain was planted after, that it is assur. The problem is that nowadays there isn't necessarily a rov that the grain is yoshon, so the poskim try to justify why we are not makpid about chodosh:
1. Rama - Even if there is no rov that the grain is yoshon, there is at least a s'fek s'feika, maybe the tevuah is from last year, and even if it is from this year, maybe it was planted after 16 Nissan. When there isn't a s'fek s'feika such as when it is known that the planting is done after pesach, the Rama says that one should be machmir (but not tell others since mu'tav she'yihyu shogigin). The difficulty with this approach is twofold - A. Chodosh is a davar sheyesh lo matirin where some are machmir even for a s'fek s'feika (shach). B. R' Akiva Eiger (and teshuvos mutzal me'eish) ask that based on the concept of שם אונס חד הוא, a sfeik sfeika has to have 2 independent rationales to be permitted, not just 2 way that it can be last years grain. 
2. Bach - Argues on Tosafos and proves from the Yerushalmi that chodosh doesn't apply to grain that was from the field of a gentile. The taz and shach strongly disagree. The Gr"a also says that the achronim already "hit him over the head".
3. Taz - Considers the fact that there is a machlokes ta'naim whether it applies outside of Israel, and says that in a pressing situation we can pasken like the tana kama of our mishna that it only applies in Eretz Yisroel. Magen Avrohom also takes this approach. The Shach in nekudas hakesef strongly rejects the Taz.
The Gr"a concludes that the only legitimate heter is the Rama that it is a s'fek s'feika. Regarding the question of "shem o'nes chad hu", it must be that since there are 2 distinct ways that it can be last years produce, one that it actually is last years produce, and another that even if it is this years maybe it took root before pesach, it qualifies as a s'fek s'feika.
Regarding the second question on the Rama that it is a davar she'yesh lo matirin, R' Moshe (Igros Moshe Y.D. 4:46:4) explains that the shach answers this in two ways: 1. The only time we don't allow sfeik sfeika to be matir a davar sheyesh lo matirin, is when it is a mixture that definitely contains the issur. But here where the grain in that each individual is deciding on eating may not contain chodosh at all, we can use sfek sfeika to be matir. 2. In a situation where it is a tzorech we can rely on the opinions who allow sfek sfeika even by davar sheyesh lo matirin. R' Moshe holds that nowadays the tzorech is much less than it was, so the second approach is no longer valid, but the first approach is still valid.

Tuesday, November 11, 2008

Kiddushin 35a - More on Time-bound Positive Mitzvos

In my sefer, Naiach B'chukecha (see pic on left!), I quoted the Ohr Sameach (Tum'as Tzara'as 11:6) in the context of doing mitzvos in chavilos, where he is mechadesh that this issur doesn't apply to mitzvos that one can do through an agent. At the very end of that section, the Ohr Sameiach writes:
ודע, דכיוצא בזה ביארתי במקום אחר לפי הטעם שכתבו דמשום הכי אשה לא מפקדא על מצות עשה שהז"ג משום דמשועבדת היא לאב או לבעל (דעת האבודרהם), יתכן דדוקא מצות עשה שאין לקיימה ע"י שליח, ולכן חשיב מזוזה ומעקה שבבית שהיא דרה מוכרח להיות מזוזה ומעקה, לכן רק משום שאין הזמן גרמא, אבל מילה ובכורים ושריפת נותר דאפשר ע"י שליח, לא פטרינן לה משום שהזמן גרמא, רק במילה צריך קרא לפוטרה ואכמ"ל
R' Meir Simcha suggests that based on the Abudraham (although he doesn't quote it by name) that the rationale to exempt women from time bound positive mitzvos is that they are tied to serving the father or husband, it would be logical to obligate them in any mitzvah that they can do through a shliach. The rationale of the exemption only applies to mitzvos that they must to themselves, therefore mitzvos that an agent can perform for her, she should be obligated in even when it is time bound.
The rationale of the Abudraham seems strange. If the rationale to exempt women from time bound mitzvos is that she is too busy fulfilling requests from her father and husband, then we should exempt them when the conflict arises. Why would there be a blanket exemption even when there is no present conflict?
It seems to me that there is already a precedent to this idea in the gemara that when a woman needs to be available for other obligations, we have to exempt her across the board and not just in a specific situation of conflict. The gemara 30b, 35a says that regarding fearing one's parent - אשה אין סיפק בידה לעשות שרשות אחרים עליה. Seemingly, this is only an exemption for a woman from kibud av, in a specific situation where there is a conflict with her husbands requests. However, the Shulchan Aruch writes:
אחד האיש ואחד האשה שוין בכבוד ובמורה של אב ואם אלא שהאשה אין בידה לעשות שהיא משועבדת לבעלה, לפיכך היא פטורה מכבוד אב בעודה נשואה
The Shulchan Aruch implies that she is actually exempt from the mitzvah for the duration of her marriage even when there is not conflict so that she will be available to her husband (just that the shach writes that when there is no conflict she is chayeves). This is also meduyak in Rashi. The gemara 35a had a hava amina that since she is bound to her husband, she should completely exempt from kibud av, but concludes that she is chayev. Rashi explains that the hava amina is that even a single girl should be patur, to which the gemara concludes that even a single girl is chayev. Why does Rashi have to explain "לא תתחייב כלל" refers to a single girl? It can just as easily refer to a married woman, but the hava amina is to exempt her even when there is no conflict, and the conclusion is that she is only exempt when there is a conflict. From the fact that Rashi jumps to speak about a single girl implies that a married woman is exempt from kibud av even in when there is no specific conflict like the implication of the Shulchan Aruch.

Monday, November 10, 2008

Kiddushin 34a - Mitzvah Aseh She'hazman Grama (Time Bound Positive Mitzvos)

2 Hearos about z'man grama:
1. The gemara gives a list of mitzvos that are time bound so that women are exempt, and a list of mitzvos that aren't time bound so that women are obligated. Tosafos asks that in the list of mitzvos that are not time bound and woman are obligated, there are mitzvos that have a supporting lo ta'aseh, which would obligate them with or without the aseh. So, why is it important to list these as not being time bound so that women are obligated, since women are anyway obligated due to the lo ta'aseh? Tosafos answers that there are situations where the aseh applies without the lo ta'aseh, so it is important to say that women are obligated in the aseh even under those circumstances.
Tosafos offers another answer that if a woman would be obligated only in the lo ta'aseh then another mitzvas aseh could sometimes push off the lo ta'aseh, but since she is obligated in the aseh also, another mitzvah could not push it off (since aseh can't push off aseh and lo ta'aseh). Tosafos rejects this approach because even if the aseh is time bound, once they are obligated in a lo ta'aseh that has an aseh supporting it, the lo ta'aseh is strengthened so that another aseh cannot push it off.
The Ran assumes that whenever there is a lo ta'aseh together with an aseh, even if the aseh is time bound, women are obligated in the aseh and lo ta'aseh. But this is only if the aseh and lo ta'aseh are inseparable, so that whenever the aseh is present the lo ta'aseh is also present. But if the aseh is sometimes separated from the lo ta'aseh then being obligated in the lo ta'aseh would not obligate them in the aseh.
R' Akiva Eiger points out that Tosafos and the Ran argue when you have a lo ta'seh and aseh that is time bound, Tosafos holds that women are only obligated in the lo ta'aseh, but the Ran holds that they are also obligated in the aseh.
2. Tosafos assumes that women are not obligated in the aseh of yom tov since it is time bound. R' Akiva Eiger says that when we exempt women from time bound mitzvos, the mitzvos must be similar to tefillin which are fulfilled b'kum v'aseh (actively), but mitzvos that are fulfilled passively, even if they are time bound women are obligated in. R' Akiva Eiger says that if a woman misses ya'aleh v'yavo on yom tov, according to Tosafos she doesn't have to repeat. Why? Because she is patur from the mitzvah of simchas yom tov, therefore is allowed to fast, and therefore doesn't repeat birchas hamazon (since the gemara says that repeating doesn't apply to cases where אי בעי אכיל אי בעי לא אכיל). But according to R' Akiva Eiger's suggestion that a passive mitzvah women are obligated in even if it is time bound, she would have to repeat birchas hamazon.
The Minchas Chinuch (112) clearly disagrees with R' Akiva Eiger. The Minchas Chinuch is troubled with why the poskim seem to assume that a woman is obligated in the mitzvah of shevisas ha'aretz during shemittah - it is a time bound positive mitzvah? The Minchas Chinuch explains that the rule of time bound positive mitzvos is only an exemption for mitzvos on one's body but is not an exemption for mitzvos outside of one's body (with this he answers Tosafos question 29a that time bound positive mitzvah would not be sufficient to exempt a mother from milah on her son since it is a mitzvah not on her body). Being that the mitzvah to rest the land during the shemittah year is not a mitzvah on her body, the exemption of z'man grama doesn't apply so she is chayev. Based on R' Akiva Eiger, it is much easier to explain why she is chayev, it is a passive mitzvah - from the fact that the minchas chinuch needs to jump through hoops to explain why a woman is chayev in shemittah (at least plowing during shemittah which is only an aseh), he clearly rejects the sevara of R' akiva eiger.

Sunday, November 09, 2008

Kiddushin 33b - Standing up more that twice a day

R' Yanai says that a talmid should not stand for his rebbi more than twice a day so that the kavod for the rebbi doesn't exceed kavod for hashem (krias shema which is kabalas malchus shamayim and only twice a day). The Ri"f holds that R' Elazar who says that if you don't stand for your rebbi you are called a rasha, argues on R' Yanai and we pasken like R' elazar (gr"a y.d. 242:53). But the Rambam paskens like R' Yanai.
Tosafos asks, why do we find that the rava was makpid that his talmidim didn't stand for him, maybe they already stood up twice that day without him realizing? Tosafos answers that when one is in a situation where the people don't realize that you already stood up, you are required to stand up more than twice. It is only if the people around all know that you already stood up twice that you don't have to stand up.
The Tosafos Yeshanim asks the same question as Tosafos and answers that אין תלמיד רשאי לעמוד מפני רבו אלא שחרית וערבית doesn't mean that he is not allowed to, rather it means he does not have to. Since he is allowed to, the Rebbi can be makpid if the talmid chooses not to stand. Based on the answer of the Tosafos Yeshanim (using the definition of "r'shai" from tosafos 33a), there is nothing that compels the chiddush of Tosafos that when you are in the presence of people who don't know that you stood up, you have to stand more than twice.
In other words, if "אין ת"ח רשאי" means "he is not allowed", then we are compelled to say that when in the presence of people who don't know he already stood twice, he has to stand again. But if it means "he is not required" then he is never required more than twice a day even when in the presence of new people who don't know that he already stood up. Based on this, there is a question on the Rama (y.d. 242:16) who translates "not required" implying that he is allowed to stand multiple times like the tosafos yeshanim, yet he writes that when in the presence of new people who don't know that he already stood twice, he must stand again, like Tosafos! Why does the Rama feel compelled to make the distinction of Tosafos if he is learning the words אין ת"ח רשאי like the tosafos yeshanim?

Kiddushin 33a - Mochel on Kavod

The gemara 32b concludes that everyone can be mochel on their kavod except for a king. Yet, the gemara on 33a says that R' Nachman would not stand up for gentile elders because "if not for torah, there would be many nachmans in the market". Rashi explains that the reason he did not stand up is - אין חשיבותי בשביל עצמי אלא בשביל תורה. This sounds like what the gemara thought originally that Torah does not belong to the Talmid chacham and he has no right to be mochel, but the gemara concludes that תורה דיליה היא. Based on this conclusion, R' Nachman could have been mochel on his kavod, so why didn't he? Perhaps the peshat is that the gemara says that although a chacham can be mochel, hidur still needs to be done. Meaning, some small symbolic respect must be shown. It seems clear that if the mechila would not help completely even for the hidur, certainly it will not help for things which are clearly degrading. For R' Nachman to stand for a gentile elder would be degrading for the kavod hatorah, this he could not be mochel on.
However, in regard to kibud av the gemara says 31b that R' Yakov allowed his mother to serve him. Seemingly this was also not just mechila but even degrading. Furthermore, Tosafos 31b quotes a story where R' Yishmoel was told to allow his mother to wash his feet, which was certainly degrading - how does mechila help for this? The answer is that Tosafos is meduyak that the rationale is not mechila, rather it is that her will is her kavod - רצונה זהו כבודה (תוס' ר"י הזקן). Mechila would not allow for bizayon, but if her desire and will is to do it, that is considered her kavod.
There would still be a question on this approach from the gemara 32a where the gemara says that for Raba to get angry at his father R' Huna for tearing the silk would not have been a violation of kibud av, since he was mochel on his kavod. Seemingly, getting angry would be degrading, not merely abstaining from kavod, yet mechila seems to have helped for that. Perhaps there is a difference between a talmid chacham and a father - for a talmid chacham mechila doesn't help for bizayon, but for a father it does. Any thoughts?

Kiddushin 32a - Prioritizing mitzvos (kibud av)

The gemara says that we pasken like isi ben yehuda, that if one is faced with a mitzvah that cannot be done by others and the mitzvah of kibud av, he should choose the other mitzva. But if the mitzvah can be done by others then he should choose kibud av. Rashi adds that the type of mitzvah we are talking about is a mitzvah overes, that if not done now would be lost forever. This implies that a mitzvah that can be done later, even if it cannot be done by others would be pushed off until after the kibud av is done. This is all assuming that one has not yet begun to do the other mitzvah, but if he already began the other mitzvah, he would never stop for kibud av since we rely on the rule of osek b'mitzvah patur min hamitzvah as the Ran writes and is recorded in Rama [In my sefer, at the end of the chapter of osek b'mitzvah he'ara 18, i tried to suggest that the osek b'mitzvah rule would not apply to the mitzvah of kibud av. Meaning that if one was osek in kibud av and a mitzvah that could not be done by others and was overes came his way, he would have to stop doing kibud av and do the other mitzvah - see there].
The concept of a "mitzvah overes" by definition is a mitzvah that cannot be done by others and cannot be done later. If it can either be done by others such as pidyon shevuyim, or can be done later by me such as tefillin, then it would not qualify as overes.
The gemara is clear on daf 29b that a mitzvah overes will always come before a mitzvah that is not overes. It is for this reason that aliya l'regel comes before pidyon ha'ben. Even the Rabbonon who disagree is based on a pasuk that gives importance to pidyon haben, but by other mitzvos would agree to the concept. This is mefurash in Tosafos Ri Hazaken - 
והלכה כרבנן וכו' אבל בשאר מצות מודו ליה לרבי יהודה דטעמא קאמר, ושמעינן מיהא דבשאר מילי עביד מצוה עוברת ברישה לדברי הכל
Obviously, this rule would only help prioritize when one is faced with 2 mitzvos, one being overes and the other not overes, but when one is faced with 2 mitzvos each being overes, other criteria will have to be used to determine priority.
Based on this rule, the mitzvah of kibud av v'eim should rightfully be pushed off for any mitzvah overes. There is nothing special aboug kibud av in this case, because all other mitzvos would also be pushed off for a mitzvah overes. The chiddush in the gemara is not in the words of isi ben yehuda, rather in the word of elazar ben masya who implies that you would always forgo kibud av for the sake of another mitzvah since the father is also obligated in other mitzvos (at least m'din arvus) he has not ability to use his power to prevent the fulfillment of that mitzvah. Meaning, in the presence of another mitzvah, kibud av doesn't exist. But Isi ben yehuda says that kibud av follows the same rule as any other mitzvah - since it is not considered a mitzvah overes, one must forgo kibud av for a mitzvah overes, but not for a mitzvah that can be done by others or can be done later.
By Talmud Torah we find a similar distinction that for a mitzvah that cannot be done by others one must stop learning. But the chiddush by Talmud Torah that the gemara says in mo'ed kattan is that even though talmud torah is also a mitzvah overes, since every minute is an independent mitzvah, you would still push off talmud torah for another mitzvah. This is unique to Talmud Torah for 2 reasons: 1. Talmud Torah itself is a mitzvah overes. 2. the rule of osek b'mitzvah allows one to continue even at the expense of a mitzvah overes, yet by talmud torah we insist that he must stop learning.
For more discussion of prioritizing mitzvos and criteria that should be used, see R' Akiva Eiger Teshuvos (siman 9) and also printed in shulchan aruch beginning of hilchos mezuza.

Thursday, November 06, 2008

Kiddushin 29b - Birchas Hatorah for women

The Shulchan Aruch (47:14) paskens that women make birchas hatorah. The obvious question is why, since they are exempt from the mitzvah of studying torah as we see from our gemara? The Magen Avrohom quotes the Agur who says that they are chayev in parshas karbonos and in the mitzvos that apply to them. Simply speaking the Agur means to say that although they have no mitzvah to study torah at all, they do have a requirement to know the mitzvos that are applicable to them. You can't know without learning and since they are forced to learn, they can make a bracha on that learning. The difficulty with this approach is that it doesn't justify how they can make "אשר קדשנו במצותיו וצוונו לעסוק בדברי תורה" if the bottom line is that they are not commanded to learn? The Beis Halevi (Teshuvos 1:6) raises this question (his approach doesn't seem correct - עיקר חסר מן הספר).
Another possibility is that the Agur is not simply saying that women have to know, which requires a them to learn so that they know. Perhaps he is suggesting that they actually have a mitzvah to learn the areas of halacha that pertain to them. According to the first approach if a woman is always around someone who can instruct her what to do there would be no purpose in her learning, but according to the second approach she has a mitzvah not only to know what to do when the situation arises but she has a mitzvah to learn all areas of halacha that pertain to her so that she will be proficient in them. Even according to the second approach, the value is not in the learning, rather in the knowledge to perform, but the nature of the mitzvah is to be proficient so that she will be able to perform the mitzvos better. Being that the nature of the mitzvah is to learn so that she will be proficient, it is understandable why she would be able to make birchas hatorah.
The Gr"a (and beis halevi) say that the only justification for a women to make birchas hatorah is to rely on Rabbeinu Tam (Tosafos R"h 34a) that women are entitled to make a bracha on mitzvos that they are not commanded in such as lulav, succah and tzitzis. Similarly, they can make bracha on Torah. This approach only justifies the bracha of אשר קדשנו במצותיו וצוונו לעסוק בדברי תורה. The Gr"a clearly holds that the bracha of אשר בחר בנו מכל העמים ונתן לנו את תורתו was never a question - that is a bracha of praise that can surely be made by women. The only point of discussion is how they can make the first bracha, and for that they need to rely on Rabbeinu Tam. This is clearly the approach of the Minchas Chinuch (end of mitzvah 430), that the bracha of אשר בחר בנו is an independent mitzvas aseh to make a bracha prior to learning, and the bracha of אשר קדשנו במצותיו וצוונו לעסוק relies on Rabbeinu Tam.The difficulty with the approach of the Gr"a and Minchas Chinuch is that the Shulchan Aruch does not hold like Rabbeinu Tam, he paskens like the Rambam that women can only make a bracha on mitzvos that they are obligated in.
The Brisker Rav (hilchos brachos) has an approach where he explains that birchas hatorah is not a birchas hamitzvah, rather it is a din that תורה בעי ברכה, meaning that one most show importance to torah by making a bracha on it prior to learning. This would certainly explain how woman can make a bracha, but it would logically only apply to the bracha of אשר בחר בנו, which is the Gr"a seems to hold was never a question to begin with. It is true that the brisker rav himself holds that his answer will explain both brachos, it doesn't seem to work for the bracha of אשר קדשנו במצותיו וצוונו which is the nusach of a standard birchas hamitzvah.
I would like to suggest based on the shulchan aruch (47:6) that the bracha of והערב נא should be said with a vav because it is not independent, rather a conclusion of the first bracha. It is clear from the gemara in sotah that although a woman is obligated to learn torah, she is obligated to provide emotional support to her husband and sons so that they excel in torah. The bracha of:
אשר קדשנו במצותיו וצוונו לעסוק בדברי תורה והערב נא ה' אלקנו את דברי תורתך בפינו וכו' ונהיה אנחנו וצאצאינו וצאצאי עמך וכו
Perhaps the וצוונו is not going just on the לעסוק בדברי תורה but rather on the entire bracha so that the bracha is not speaking of a command to learn torah personally but rather you commanded klal yisroel to study Torah, and commanded them to raise children that study Torah - this a woman is certainly commanded in.

Wednesday, November 05, 2008

Kiddushin 29b - Creating the greates Talmid Chacham

R' Yehuda says that when one is faced with a situation where they can either invest in their own learning or their sons learning but not both, it depends. If all is equal then the learning of the father comes before the learning of the son (just as by pidyon we say that mitzvah d'gufei is more important), but if the son will excel more than the father then the father should forfeit his own learning to enable his son to learn. This needs to be understood better. Would the same halacha apply if I have a friend who will excel in learning more than I will, that I should invest my money in his learning rather than investing in my own? Obviously not, the gemara limits this concept to a son. Clearly, one is not supposed to forfeit their own learning for the sake of someone else, even if that person has more potential. Why then should a father forfeit his own learning for the sake of his son?
The Shulchan Aruch Harav (hilchos talmud torah 7) seems to deal with this issue. He writes:
אם בנו הוא נבון ומשכיל מה שילמוד יותר מן האב, הרי לימוד בנו קודם ללימודו כי מאחר שבלימוד בנו גם הוא מקיים מצוה של תורה כמו בלימוד לעצמו, והרי בנו נבון ומשכיל יותר בלימודו ע"כ
This halacha is limited to a father/son because the very same mitzvah that is mechayev the father in talmud torah, requires the father to teach his son. Therefore, whether the father learns himself or teaches his son he is fulfilling a mitzvah of limud hatorah. It is the very same mitzvah of limud ha'torah "ושננתם לבניך". Therefore, the gemara requires the father to be as effective with this mitzvah as possible. Why? Because the mitzvah of limud includes not just the learning but the mastering of Torah. Just as one would be obligated to use a method of learning that would yield maximum success rather than a method which will not be so effective, so too one is obligated to choose his son rather than himself if that will achieve maximums success. But, this only applies to a son where the father's investment is the same mitzvah of limud hatorah as the father, it would not apply to supporting someone else at the expense of one's own learning.

Tuesday, November 04, 2008

Kiddushin 28a - Calling someone a Rasha

The gemara says that when one calls someone a rasha they are allowed to be יורד עמו לחייו. Rashi in Baba Metzia 71a explains that it is not a justified right, rather a predictable outcome that it will result in creating serious friction between them - they will fight to the point where it is as if he is coming to kill him. Rashi also mentions another possibility, that it is in fact a right to compete against him for the purpose of causing him a financial loss. However, Rashi questions this approach - וקשה בעיני שיתירו חכמים לישראל להנקם ולגמול רעה - it cannot be that the chachamim sanction revenge. Yet, Rashi in kiddushin quotes only the second approach that the victim is allowed to hate the name caller and even do things that negatively effect his parnasa. To deal with Rashi's question in Baba metziah that this does not seem to be the way of the chachamim to sanction revenge, Rashi adds that Beis din is not required to get involved and prevent the victim from causing a financial loss. Although they may not encourage it, it is allowed. Tosafos in Baba Metziah quotes from teshuvos ha'geonim that you are permitted to directly destroy 1/3 of his produce, and then questions where such a right would come from.
Tosafos explains that both the calling someone an eved which results in niduy, and the calling him a mamzer which results in malkus, are in fact mida k'neged mida (a measure for measure). Calling him an eved who descends from k'na'an and is damned forever, is also cursed by being placed in niduy. Calling someone a mamzer is claiming that the person deserves malkus for violating the prohibition of mamzer marrying a bas yisroel, and therefore is punished with malkus (Tosafos implies that this is only if the victim is in fact married - see ritva). Tosafos fails to explain the mida k'neged mida for calling someone a rasha - why are you entitled to ruin him financially?
The Tosafos R"i Hazaken explains: כלומר, אין ב"ד נזקקין לו ראלא מותר לו לצערו או ליטול אומנתו ממנו וכו' הואיל ומוציא עליו שם שהוא רשע, וגורם לו בשם זה שלא יתנו לו שום דבר להרויח ויצערוהו בכל יכולתם שיש לבני אדם הכשרים להבדל מן הרשעים בשם עסק ולצער אותם כפי היכולת, משום הכי יורד עמו לחייו
The Tosafos R"i Hazaken seems to understand differently then Rashi (he later quotes rashi and says that he prefers his own approach). Rashi understood that the victim is allowed to ruin the livlehood of the person who called him a rasha out of hate, merely for the purpose for ruining him. The Tosafos R"i Hazaken understands that the result of calling the victim a rasha will be that he will have trouble earning a living since people will not want to have what to do with him, so chazal give him the right to take the livelihood of the one who caused him these problems. Perhaps the victim can't ruin the parnasa fo the one who called him a name just for the purpose of ruining him, but beis din won't stop him from taking the parnasa of the other in order to support himself. If this is true that the victim can recover his loss at the expense of the other, but cannot intentionally ruin him for fun, it would answer the question that Rashi asks in baba metziah, how chazal can allow for revenge. The answer is that they don't, they merely allow the victim to recover his losses (but the tosafos R"i hazaken seems to allow even causing unnecessary pain to the other, which implies that it is permitted even though it will not provide benefit to the victim).

Monday, November 03, 2008

Kiddushin 27b - Chazaka vs. Kesef

The Rosh infers from the gemara that a chazaka on one field will not work for a field that is located elsewhere, unless it is paid for in advance, that for a neighboring field the chazaka will work even if it hasn't yet been paid for (this assumption can be debated, because the sevara of "sadna d'arah chad hu" seems to suggest that there is no difference at all between neighboring fields and fields in different places). The Rosh suggests that chazaka would even work in the absence of shtar, even in a place where it is customary to write a shtar. Why is chazaka more powerful than kesef, namely that kesef does not work in a place where it is customary to write a shtar, yet chazaka will work even in a place where it is customary to write a shtar? The Rosh answers that kinyan chazaka is stronger than kesef because an action is being done in the "גוף הדבר", similar to meshicah which works even without kesef because the action is being done to the object itself.
The suggestion of the Rosh seems difficult to accept. The rationale for kesef not working in place where is is customary to write a contract is not a weakness in the kinyan, rather there is an unspoken assumption that the buyer and seller were expecting the contract to make the kinyan (that is why if they explicitly stated that the kesef should work without a shtar, it works as the gemara says 26a). So, why should chazaka being "stronger" make a difference, since the issue is not about the ability of the kinyan to work, rather about the intent of the kinyan to work?
I would like to suggest that the Rosh is making a simple distinction between kinyanim where the kinyan is merely in the act, and kinyanim that demonstrate ownership. Kinyanim like kesef and chalifin which are merely an act that the Torah considers valid to be a kinyan, but do not inherently demonstrate ownership, are not able to work when the expected act of kinyan is to use a shtar. However, when one is using a kinyan such as meshicha or chazaka which are methods of demonstrating ownership, the da'as of the buyer and seller would presumably be that demonstration of ownership works even in a place where the act of kinyan would demand a shtar.

Sunday, November 02, 2008

Kiddushin 26 - Kinyan Agav

The gemara has a discussion about kinyan agav whether the objects have to be on the land. There is a general machlokes rishonim whether kinyan agav itself is d'oraysa or d'rabonon. Tosafos in Baba Kama 12a holds that it is only d'rabonon, therefore one who acquires an eved cannot be koneh metaltilin with him since for d'rabonon things an eved is not considered like property. However, Rashi in Gittin 77b indicates that agav would work to acquire a gett and be divorced m'doraysa, implying that it is d'oraysa. Similarly, Tosafos in kiddushin 5a d.h. sh'kain, suggest using agav to refute a d'oraysa kal v'chomer, implying that it is d'oraysa.
The gemara seems to understand that the kinyan that Rabban Gamliel used to be makneh the ma'aser was a kinyan agav (the only issue is whether we can prove from there that the metaltilin needs to be tziburin). Both Rashi and Tosafos seems to agree that the acquisition must be binding m'doraysa. Rashi assumes that the purpose was to be mafrish to avoid an issur of eating tevel which implies that it was binding m'doraysa. Tosafos assumes that the issue wasn't the separating, rather the distributing to fulfill the mitzvah of bi'ur, which also implies that it had to be binding m'doraysa. This seems to be a strong question on the opinion of Tosafos in Baba kamma who says that agav is only a kinyan d'rabonon.
The ketzos hachoshen (202:5) deals with a similar question from the gemara in baba metzia 46a that implies that kinyan agav works to avoid paying a chomesh, which implies that it is binding d'oryasa. He suggests that just as we find by ma'amad shelashton which is only a kinyan d'rabonon, that it works d'oryasa based on hefker beis din, the same thing could apply to kinyan agav. This would also answer the question from our gemara. He then suggests that even rashi who says that it works by gett may agree that it is only d'rabonon and works based on kol d'mekadesh ada'ata d'rabonon mekadesh.

Saturday, November 01, 2008

Kiddushin 25b - Partial Tevila

R' Moshe (igros y.d. 1:57 - i mentioned it in the last page of my sefer mayim rabim on mikva) has a chiddush regarding tevilas keilim of electrical appliances. After proving the the electrical element and wires are considered a separate keli since they serve an entire different function than the rest of the keli (such as to heat the contents rather than hold the contents). Regarding the point that the 2 parts of the keli are attached, and water is not penetrating that spot, R' Moshe says that it has a din of beis hastarim that doesn't need to come into contact with the water or even need to be fit to come into contact with water (unlike a person where beis hastarim needs to be fit for bi'as mayim).
It seems from rashi that he rejects this sevara. The gemara says that all agree that for tevila the tongue is considered beis hastarim and water does not have to touch the entire tongue. Rashi asks, that since part of the tongue sometimes protrudes out of the mouth, the front end of the tongue shouldn't qualify as beis hastarim and should have to come into contact with the water. Rashi explains that since the back part of the tongue is inside the mouth, we never find the concept of "tevila b'miktzas". therefore either the entire tongue requires contact with the water or the entire tongue does not need contact with the water - we assume the latter. Based on R' Moshe's suggestion that the point of contact between the container part of the vessel and the electrical element does not need contact with water, and it is sufficient to dip the kli half way, that should also be a possibility with the tongue. Maybe the front end of the tongue needs bia's mayim until the part which is always in the mouth and would qualify as beis hastarim, as well as the point connecting the front half and back half which would also be beis hastarim. Why then does rashi insist that it is impossible to have tevila b'miktzas?
Perhaps a distinction can be made between the point of contact between what is essentially 2 keilim, each with its own function, and the notion of doing a partial tevila on the tongue which is one unit.