Thursday, December 31, 2009

Baba Basra 133b - Writing Children Out of the Will

The Tana Kama and R' Shimon Ben Gamliel argue whether a father is allowed to take away his inheritance from his sons who would be inheriting him, when his motivation for doing say is that they aren't behaving properly. The conclusion of the gemara is that the tana kama holds that this is forbidden, and the rashbam points out that we pasken like the Rabbonon, against rsb"g.
However, it is unclear from the gemara if this halacha only applies when there are sons who should be inheriting, but not to other inheritors, or would it even apply to taking away the inheritance from whoever is in line to inherit? The question can be broken down into 2 parts. Is there a violation to take away from daughters when there are no sons? Even if there is a violation to take away from all his offspring even daughters, perhaps it would not apply when his father or brother are the inheritors?
The Aruch Hashulchan (282) raises the question. He points out that the gemara seems to imply that it is specifically a din when there are sons who should be inheriting. However, the Rambam uses the term "inheritors" implying that it would apply to all inheritors. He concludes by compromising. One should not remove ALL the inheritance from any inheritor, but as long as he is leaving some behind he is allowed to give some to others as well. However, when he has sons he is not allowed to take away any of the inheritance to give to someone else, but is allowed to give what he wants to tzedaka - דזהו ודאי שראוי לעשיר לעשות כן וכן מנהג העולם. But, the primary bulk of the estate should be given to his children.
The Chasam Sofer (cited in pischei teshuva 282) holds that the gemara which says that inheritance shouldn't be manipulated isn't limited to sons but applies to all relatives. Also, even if he is going to be doing a mitzvah such as tzedaka with the money, it shouldn't be taken away from any relative who would be inheriting. Furthermore, even if he is not going to be giving it all, just some of it to tzedaka, he shouldn't do that.
On the other hand, the Tashbetz holds that the severe violation is only if he takes away from sons and leaves nothing behind, but even for other inheritors and even if he leaves something behind the ruach of chachamim isn't content with him. BUT, if he doesn't have children then he should use the money for a mitzvah even though he will be taking away from the inheritors. The rationale is that when he doesn't leave sons he needs a zechus to be saved from geihenom and he has a right to protect himself before other relatives.
The Tashbetz also suggests that these restrictions may apply only to a person who is giving a gift of a shechiv mei'rah where the gift goes into effect only with his death. But if he gives a regular gift in his lifetime, he can do whatever he chooses. Although the gemara in kesubos seems to hold that the issur would apply even to a regular gift, so long as he leaves his children with a significant portion it is permitted.

Wednesday, December 30, 2009

Baba Basra (yeish nochalin) - Taking Away the Portion of the Bechor

The gemara 130a said that the source of R' Yochanan Ben Broka that you are allowed to increase to one brother and decrease from the others, is from the pasuk of לא יוכל לבכר את בן האהובה על פני בן השנואה הבכור. The pasuk implies that it is only the portion of the b'chor that cannot be manipulated by the father, but the pashut portions can be manipulated (at least to a son among sons, or a daughter among daughters).
The Ramban holds that לא יוכל doesn't mean that you are "unable" to do so, rather it is an azhara, that you are in violation of a prohibition by doing so. He learns this from Unkelos who translates the pasuk to mean לית לך רשו. It is a method that the Torah uses to exaggerate the issur. However, the Ramban admits that aside from the violation of a positive and negative mitzvah for violating, it is not effective [In his additions to sefer hamitzvos he explains that since the Torah prohibits the father from doing this, if he does it he is stipulating against the Torah so his stipulation is void and the bechor receives what he deserves]. He also understands that these prohibitions would be violated if the father would try to cover up which one is in fact the b'chor. That is actually the simple reading of the pasuk - You are not allowed to give bechor writes to another child, כי את הבכור בן השנואה יכיר לתת לו פני שנים, but rather you are obligated to use the rights that the torah granted the father of "yakir" to identify the bechor and ensure that he gets the double portion he deserves [The ketzos hachoshen (281:1) points out that the gemara 127b which struggles with what the Rabbonon use the word "yakir for, implies that it is not an obligation on the father to reveal the b'chor, from the fact that the gemara doesn't say that].
But, the Ramban understands that if the bechor dies, even though the children of the bechor can inherit the double portion from their grandfather, if the grandfather would take away the b'chor portion and distribute it to his other children, it would be binding and there wouldn't be any obligation because the torah states - על פני בן השנואה הבכור, which implies that the issur is only in the presence of the bechor.
Based on the opinion of the Ramban (which the Rambam would seem to disagree with), the Ketzos HaChoshen (281:1) asks how the gemara 130a can deduce from the fact that the portion of the bechor cannot be manipulated, that the other portions can be. Maybe even the regular portions cannot be manipulated, yet the Torah isolates the portion of the bechor to say that by attempting to manipulate it he would be in violation of a l'av, but for the other portions he wouldn't be in violation of a l'av? The Ketzos answers that the extra word of יוכל, by saying לא יוכל לבכר comes to indicate that aside from the prohibition, it isn't binding, implying that for the other portions there wouldn't be a prohibition and it would be binding [The Rabbonon who disagree with R' Yochanan don't hold of this diyuk, therefore the pasuk wouldn't imply anything about the other portions. The Ohr HaChaim points out that this answers Tosafos question on how the Rabbonon would deal with this pasuk]. Therefore, if the father attempts to manipulate the b'chor portion, the rationale for it not being binding isn't just that he is מתנה על מה שכתוב בתורה, rather that the pasuk itself adds a word to indicate that it isn't binding.
Ian Brody (one of our daf yomi learners) asked, how was yacov able to violate this issur by giving yosef the b'chor privileges (which the gemara says on 129a clearly that is what he did, as the rashbam there explains the pasuk in divrei hayamim). Even if we suggest that Yakov wasn't bound to keep every mitzvah in the torah when he had a reason to do otherwise so that he wasn't considered to be in violation, the question can still be asked why was it binding since aside from the violation the father doesn't have the ability to make it happen?
According to the Ramban in sefer hamitzvos (cited above) that the pasuk is saying an issur, just that if the father violates the issur he is stipulating against the torah, therefore not binding, then the question can be answered. Since the inability to make it effective stems from the issur, yakov who lived prior to matan torah and didn't have the issur, was able to make it effective. But, according to the ketzos where the wording of the pasuk itself is indicative of 2 points, one that it is assur to attempt to take away the portion of the b'chor, and secondly that it isn't binding; even though Yakov lived prior to matan torah, the inability to take away from the b'chor should have existed?
The S'forno asks this question and answers that if this is done because the b'chor is a rasha or did an aveira, it is permitted. Yakov's justification for doing it was that Reuven did an aveira by moving the bed, so he was able to give the b'chor portion to Yosef. The da'as zekainim says something very close to this. The s'forno learns it out from the pasuk which indicates that you can't favor the son of the wife you love just because you love her, but you can do it for a valid reason such as the b'chor is a rasha.

Monday, December 28, 2009

Baba Basra 130a - Following Piskei Halacha

After I finished learning Hilchos Nida, I visited MTJ to meet with the Rosh Yeshiva, R' Dovid Feinstein. Rather than it being a farher, which is what I was hoping for, he allowed me the time to ask him some of the questions that I had in Hilchos Nida. I took the opportunity to focus on those related to the pesakim of his father, Rav Moshe, that were printed in the Igros Moshe (he has some difficult assumptions in his teshuvos regarding bedikos at the time of vestos, and some chiddushim in harchakos). When I asked him one particular question, claiming that the Shulchan Aruch seems to say against what R' Moshe assumes, R' Dovid responded, "if you don't agree with a pesak in the Igros Moshe, then don't pasken like it". Later, I realized that rather than explaining the position of his father on the particular issue that I was asking about, he was actually living and breathing the position and approach of his father in halacha.
The premise of his response emanates from our gemara. Rava said that when a pesak din of his comes before R' Papa and R' Huna brei d'rav Yehoshua and they have a strong question on it, they shouldn't discard it until they bring it to his attention because he may have an answer. But, after his death they should not tear it up because if he was there he may have been able to answer, but should not pasken based on it because אין לדיין אלא מה שעיניו רואות. Rava was teaching that piskei halacha are good for one who is unfamiliar with the sugya. Without having enough knowledge to deal with the sugya, it is safe to follow the p'sakim of the chayei adam, shulchan aruch ha'rav, and kitzur. But, if one learns through a sugya, and understands it differently, they are obligated to pasken against the seforim that just offer the pesak halacha without justification. Similarly, one is obligated to pasken against seforim that offer the reason, when they have a question on the reason that has been offered.
In the hakdama to the Igros, R' Moshe actually says this straight out:
הנני רק כמלמד ההלכה שהשואל יעיין בעצמו ויבדוק ויבחור, שאיני כלל כפוסק ומורה וכו' ולכן מצאתי גם לנכון להדפיסם מאחר שאיני בזה אלא כמברר ההלכה שכל ת"ח ומורה הוראה יעיין בהדברים ויבחון בעצמו אם להורות כן, וכאשר יראה שאני לא סמכתי כסומא בארובה אף על חבורי רבותינו אלא בדקתי בכל כחי להבין שהם נכונים וכו' וכן אני מבקש לכל מעיין בספרי שיבדוק אחרי דברי ואז יורה למעשה
Furthermore, the braisa warns that one cannot act on a sevara that is said in the context of learning or a ma'aseh that he witnessed, until the ruling is given "halacha l'ma'aseh". Relying on something that was said in the context of learning is not allowed because the teacher may not have explored all sides of the issue since it wasn't relevant at the time. Relying on a situation that occurred where there was a p'sak issued isn't allowed because there may have been factors that made that case special. Therefore, one may only rely on a p'sak that is issued for the purpose of a real situation that arose. For this reason, many of the pesakim found in sifrei likutim that gather various teshuvos from across the spectrum becomes completely useless in the realm of p'sak halacha. These type of seforim can be more dangerous than simple piskei halacha, because they enable the reader to sound like he did research and due diligence by name dropping, when in fact the reader is completely unfamiliar with the issue and unfamiliar with the sources he is quoting. In essence these seforim are a violation of paskening from a "ma'aseh" because the reader is unaware of the other tzirufim and tzedadim that helped form the p'sak, thereby misleading the person he is paskening for.

Saturday, December 26, 2009

Baba Basra 128a - Pesulei Eidus

An Overview of Halachos of p'sulei eidus

Often people are mesader kiddushin and aren't sure who is passul to sign together on a kesubah, or be witnesses under the chupah. These are the halachos from Choshen Mishpat (33) in a nutshell:
A rishon b'rishon includes all immediate relatives in all directions such as a father/mother, son/daughter, brother/sister and even a wife.
A rishon b'sheini is one level removed such as a man to his brother's son (nephew), or man to his uncle.
A sheini b'sheini is one level removed on both sides such as first cousins (parents are brothers so they are rishon b'rishon, their children are sheini b'shein).
A rishon b'shlishi would refer to two levels removed such as a man to his brother's grandson, or to his great uncle (father is rishon, grandfather is sheini, grandfather's brother is shlishi).
Therefore: Father to son is rishon b'rishon. Grandfather to grandson is rishon b'sheini. Great grandfather to great grandson is rishon b'shlishi.
In terms of when we also invalidate a spouse: For a rishon b'rishon we apply בעל כאשתו (husband and wife are the same) even two times so that the husbands of two sisters are considered rishon b'rishon. For rishon b'sheini we definitly apply בעל כאשתו once, but there is a machlokes whether we apply it twice. For a sheini b'sheini we definitely apply ba'al k'ishto, but only once. For a rishon b'shlishi there is a machlokes rishonim (rashbam and tosafos 129a) whether it is passul at all. Even those who say that it is passul (rabbeinu tam and b'hag both hold that it is passul but argue if it is d'oraysa or d'rabonon) would agree that we don't say בעל כאשתו at all. The Rama holds that we only apply בעל כאשתו twice for a rishon b'rishon, we apply it once for a rishon b'sheini and a sheini b'sheini (but two people who are sheini b'sheini even with two בעל כאשתו such as the husbands of two first cousins, shouldn't sign a contract together because we are worried about a beis din mistakingly invalidating the contract), but for a rishon b'shlishi even those who are machmir (Rabbeinu Tam), admit that we don't apply בעל כאשתו at all.
It is important to point out that the concept of בעל כאשתו only applies to make the wife invalid to be testified about by the husband's relative, and make the husband invalid to be testified about by the wife's relatives (machlokes rishonim whether we apply this in both direction m'doraysa or only m'drabonon - see aruch hashulchan 33:1). But, בעל כאשתו does not create a relationship to make the wife's relatives assur to testify for the husbands relatives. The halacha is clear in shulchan aruch that the father of the husband can testify for the father of the wife (we don't even count it as a sheini b'sheini as a result of viewing the husband and wife as a rishon b'rishon, certainly we don't view it as a rishon b'rishon by viewing the husband and wife as one entity).
Now, Mar Bar Rav Ashi says that a grandfather can testify for a grandson and visa versa, but the gemara says we don't pasken like him. Rashbam explains that a grandfather to a grandson is a rishon b'shlishi. The maharsha already points out that this is inaccurate, because a father to a son is a rishon b'rishon, so that a grandfather to grandson is a rishon b'sheini! The maharsha explains that the rashbam is trying to justify the position of mar bar rav ashi. The fact that there is a large generation gap "איתפלג דרא", causes mar bar rav ashi to regard it as a rishon b'shlishi to permit one to testify for the other. Tosafos uses this logic to explain how mar bar rav ashi would justify saying that two first cousins cannot testify for one another (sheini b'sheini), but a grandson can testify for a grandfathter - איתפלג דרא make is permissible.
The Sm"a (33:15) writes that since a husband and wife is considered a rishon b'rishon, according to Rashbam and Rambam that a rishon b'shlishi is permitted, a husband may testify for his wife's grandfather because it is a rishon b'shlishi. The Taz argues with the Sm"a because the grandfather to his son would be rishon b'rishon, to his grandaughter would be rishon b'sheini, so to the husband would be a rishon b'sheini with one בעל כאשתו which would be assur according to everyone. See the nesivos who quotes the machlokes. Why does the sm"a consider this to be a rishon b'shlishi, rather than a rishon b'sheini with a בעל כאשתו? The Gr"a answers based on Tosafos. Although we don't pasken like mar bar rav ashi, we learn from him an important lesson. The larger the generation gap, the more likely we are to be matir based on איתפלג דרא, even if it should technically be assur. Therefore, since a wife is 2 generations removed from her grandfather, we don't consider the husband with the wife's grandfather to be a rishon b'sheini with a בעל כאשתו, rather we consider it a rishon b'shlishi. Just as mar bar rav ashi considers a grandfather and grandson to be a rishon b'shlishi, we reject that, but if we add a בעל כאשתו, then we also consider it a rishon b'shlishi.

Tuesday, December 22, 2009

Baba Basra 124a - Taking Double in Money Owed to Father

The gemara says that the bechor has a right to take a double portion on any money that a borrower owes to the father on which the father has a shtar chov. The obvious implication is that the bechor doesn't get double in any debt that is owed to the father for which the father doesn't have a contract. The distinction is that we consider the father to be muchzak in a debt on which he has a contract, but a mi'lveh al peh is only considered ra'uy, and a bechor doesn't take double it what is ra'uy. But, why is a mil'veh b'shtar considered muchzak and a mi'lveh al peh considered ra'uy?
The Rashbam says that when the father has a contract he is considered muchzak in the money because the actual shtar is considered the "guf" and the money that is collected with it is considered the "sh'vach" that comes automatically. This would be based on the the opinion of Rebbi who says that any sh'vach that comes automatically a bechor gets double in. Based on this, it should be obvious that a mi'lveh al peh isn't considered muchzak because we consider the money collected to be sh'vach, and there is no object on which the sh'vach can accrue automatically. Therefore, even if the father was 100% confident in being able to collect the money through witnesses, without a shtar it would be considered just ra'uy and a bechor doesn't get double. But, the Rashbam doesn't say this. Rather the Rashbam explains that a mil'veh al peh is considered ra'uy because the borrower can claim to have repayed it and the lender isn't confident in his ability to collect. Why does the Rashbam need to say this, even if he could absolutely collect, the absence of a shtar makes it only ra'uy?
R' Elchonon Wasserman suggests that any debt which the father was absolutely confident about collecting, even in the absence of a shtar is considered muchzak, and the bechor can get double. Based on this approach, the Rashbam didn't technically have to consider it as if the sh'vach accrued on the sh'tar.
Tosafos on 124b disagrees with the Rashbam's approach that we view the money collected to be sh'vach that accrues from the shtar. According to R' Yehuda, the Rabbonon who disagree with Rebbi and hold that a bechor doesn't get double in any sh'vach would hold that he doesn't get double in a debt with a contract either. But, if the Rashbam were correct that the shtar is like the "guf", then we should give the bechor double in the guf and view the money afterward as sh'vach that accrues after the bechor already received the guf, from which he can certainly get double. Perhaps Tosafos isn't content saying that we view the money collected as sh'vach that accrues between the death of the father and the splitting of the estate, because if that would be the case then we have no understanding of the "shalchu mi'tam" who hold that according to the Rabbonon the bechor does get double in the money collected. Since the Rabbonon hold that a bechor doesn't get double in sh'vach that accrues automatically between death and the division of the estate, the bechor should also not get double in the debts collected.
Based on this, Tosafos would be forced to learn that the reason a debt with a contract is considered muchzak is because the father is absolutely certain that he will be able to collect it so it is as if the money is in his hand, whereas by a mi'lveh al peh he isn't certain that he will be able to collect.
Tosafos seems to go lishitasam. On 145b Tosafos writes that a bechor doesn't get double in "shushbinus" (the returning of gifts sent to a chasan), even if he gets double in a debt, because maybe the shushbinus will never be collected. The Maharsha asks on Tosafos why he has to say that since we say that only a debt with a contract is considered muchzak for the bechor to collect double, so "shushbinus" is at best like a debt without a contract. Therefore, even if it will definitely be payed, the bechor shouldn't collect double? The Maharsha answers that shushbinus can be collected in beis din and is more powerful that a milveh al peh. Tosafos holds that the fundamental difference between a debt with a contract and without a contract, is how sure the father is that he will be able to collect it. This seems to be li'shitasam in our gemara where Tosafos rejects the Rashbam that the technicality of having a contract is not what enables the bechor to collect double, rather it is the confidence of being able to collect.

Monday, December 21, 2009

Baba Basra 123a - Who is the Bechor of Yakov?

The gemara says that because of Leah's davening and tears she merited having Reuven, the bechor born to her. But in the zechus of Rachel's selfless "tznius" of giving over the simanim to Leah to prevent her from embarrassment, she earned back the rights of the bechor (Yosef got a double portion in EY by both Ephraim and Menashe taking a share). The gemara rejects the idea that Reuven lost rights to the bechor because of moving the beds, rather even if he wouldn't have done so, Yosef would still be the bechor.
Yakov calls Reuven ראשית אוני, which means that she was conceived on his wedding night with Leah (rashi on vayechi 49:3 based on yevamos 76a), prior to Yakov's marriage to Rachel which occurred a week later. Tosafos in Yevamos 76a explains that although it isn't typical to get pregnant from the first bi'ah, Leah did get pregnant with Reuven from the first bi'ah. Therefore, Rachel wasn't even a candidate to have the bechor since she wasn't even married to Yakov at the time that Reuven was conceived. But, the gemara means to say that the tefilos of Leah prior to her marriage to Yakov, to avoid marrying Eisav, earned her the zechus to be the first wife of Yakov thereby having the Bechor. Then the gemara says that Rachel received the rights of the bechor back as a result of her "tznius". The gemara isn't saying that Rachel earned it back in the merit of the great "tznius" or chessed that she exhibited. Rather, the gemara is saying that she was entitled to it all along. The only reason she lost it was because she was concerned about her sisters embarrassment, so Hashem made it that the act of kindness she did wouldn't cause her to lose the rights of the bechor.
The difficulty is that after everything is said and done, Leah's tefillos didn't seem to help at all because ultimately, Rachel's child Yosef became the bechor. Why does the gemara say that Leah's tefillos helped, when in fact they didn't help at all? Perhaps the gemara is saying that her tefillos helped that she actually married Yakov, because had Yakov married Rachel first he would never have married Leah at all. So, Leah's tefillos earned her the marriage with Yakov and the right to Bechor, but since the bechor rights only came from Rachel's selflessness, she eventually got it back. But, the gemara seems to be saying more than that. It seems to be saying that Leah's tefillos even earned her some bechor rights. But, those rights were given back to Rachel?
The pasuk says in divrei hayamim (1:5:1) - ובני ראובן בכור ישראל, כי הוא הבכור ובחללו יצועי אביו ניתנה בכורתו לבני יוסף בן ישראל ולא להתיחס לבכורה. Rashi in divrei hayamim explains that Reuven was the bechor and should have been king, but lost rights of being king by moving the bed, and it was given to Yosef. However, Yosef didn't merit the malchus either because his "bechor" he wasn't given those privileges. The Rashbam on our daf learns this pasuk differently. The Rashbam learns that Reuven only lost monetary rights to being the bechor and the double portion was given to Yosef, but Reuven still retained the status of being the bechor - דלעולם ראובן קרי בכור ישראל. Based on this, the tefillah of Leah did in fact earn her the zechus of having Reuven who would always have status of the bechor, even though the double portion was given to Yosef.
Regarding the contradiction, that the pasuk indicates that Reuven lost rights to the bechor because of moving the bed, whereas the gemara says that even if not for that story, Yosef would have gotten it? Perhaps the Yosef deserved it anyway, but unless Reuven did something to lose it, Hashem couldn't have taken it from him.
Regarding the issue of "tznius" - why was Rachel's action called tznius, it was really chessed to prevent her sister from embarrassment? Furthermore, in Midrash Eicha (pesicha end of 24) the midrash considers the act of Rachel to be a midah of overcoming jealousy, for which she asks Hashem that He should also overcome the קנאה of the Jews worshiping Avoda Zara just as she overcame jealousy for her sister and provided the simanim. In what way is this "tnzius"? Rashi in megilla 13b says מסרתן ללאה, והוא צינעות שלא יתפרסם הדבר שמסר לה סימנין. Rashi seems to be saying that the middah may have been chessed or overcoming jelousy, but the action was that of tznius. The primary embarrassment for Leah wasn't that Lavan was using her to trick Yakov, rather the embarrassment was that Yakov took the initiative to give simanim to Rachel in order to avoid marrying Leah. This would be devastating to Leah for the entire community to realize that Yakov made up simanim with Rachel, just to avoid marrying Leah. The rejection by Yakov was far more embarrassing than Lavan using her to trick Yakov. Rachel did an act of "tznius" to conceal the simanim and hide it from the community, so that her sister would suffer the embarrassment of publicizing her being rejected by Yakov.

Friday, December 18, 2009

Baba Basra 119b - Honoring a Student in the Presence of His Rebbi

The gemara says that one is not required to honor his rebbi even in the presence of his rebbi's rebbi, unless the rebbi's rebbi went out of his way to show honor to the rebbi indicating that he wants you to honor him. Presumably the rationale is that to honor a student in the presence of his rebbi, even if that student is your rebbi, is considered a lack of kavod for the rebbi, therefore, it is only permitted if the rebbi is mo'chel on his kavod and allows you to show honor to his student in his presence. The Shulchan Aruch (Y.D. 242:21) paskens this. One shouldn't stand up for their rebbi in the presence of his rebbi or stand up for his father in the presence of the father's rebbi, unless the rebbi indicates that he allows the honor shown to his student. However, the Rama qualifies this to cases where the student of the rebbi is also a student of the rebbi's rebbi, but if the student is only a student of his own rebbi and has no connection to the rebbi's rebbi, he isn't required to show kavod to the rebbi's rebbi by not honoring his rebbi in the presence of the rebbi's rebbi.
But, the Shach (40) quotes the Mahar"i HaKohen from krakow (maharik) who argues and holds that even if the student never learned anything from his rebbi's rebbi, he is obligated to honor him and show more kavod to the rebbi's rebbi than to the rebbi. And if he even learned a little from the rebbi's rebbi then he cannot show kavod to his rebbi in the presence of the rebbi's rebbi (unless he is mo'chel).
The nachalas tzvi explains that the source for the Maharik that one is required to honor his rebbi's rebbi even if he hasn't learned anything from him, is the gemara in kiddushin that says that the kavod of a father preceeds a mother (assuming they are married) because she is also obligated in the kavod of the father. Similarly, the student should show more kavod to the rebbi's rebbi than to the rebbi, since the rebbi himself is obligated in the kavod of his rebbi. But, the difficulty with this concept is that we hold that the kavod to a father supersedes the kavod to a grandfather (shulchan aruch 240:24) - why don't we say that the grandson owes more honor to his father's father, since his father is also obligated to honor him? This question is the key point in determining our halacha. If we assume that a grandson is obligated to honor a grandfather, as the rama writes (240:24), then we see that even though the son is obligated to honor his grandfather, and the father is obligated to honor the grandfather, the honor to a father would still come first. Therefore, the rama goes li'shitaso that the honor shown to a rebbi would supersede the honor to a rebbi's rebbi, and you don't need permission to honor the rebbi (unless you are also his student). But the maharik must hold that there is no real mitzvah to honor a grandfather, and therefore would hold that we can't compare our case to a father and grandfather, because here there is still a mitzvah on the talmid to honor the rebbi's rebbi as a chacham. Therefore, even if the student has not learned anything from the rebbi's rebbi, he is still obligated to honor him more than his rebbi.
The underlying issue is whether the requirement of the rebbi to honor his rebbi, would also require the student to honor his rebbi's rebbi even more than his rebbi, or do we only require the student to honor the rebbi's rebbi more than his rebbi when he has a direct connection to him because he actually learned from the rebbi's rebbi also.

Thursday, December 17, 2009

Baba Basra 119a - Tzlafchad the Mekoshesh

The gemara groups together tzelafchad and the one who gathered wood on shabbos (after the sin of the meraglim) not only because these were 2 halachos that moshe had to consult on and were attributed to the person he raised the issue, but also because the gemara says in shabbos that the mekoshesh was tzlafchad.
The gemara says that Moshe knew that the daughters of tzlafchad had rights to inherit, but didn't know if they were entitled to the right of bechor because he didn't know if EY was considered muchzak in the hand of Cheifer. Also, Moshe knew that the one who gathered wood should be killed but didn't know which death penalty he deserved. The parsha of inheritance was attributed to the daughters of tzlafchad from which they benefited (by receiving yerusha) and the parsha of stoning for chilul shabbos was attributed to the mekoshesh from which he was killed - this teaches מגלגלין זכות ע"י זכאי וחובה ע"י חייב.
However, Tosafos 119b writes that the mekoshesh wasn't quite as bad as we think. The story happened immediately following the meraglim because he was afraid that when people realize that they aren't going into EY for 40 years they won't be accountable for the keeping of mitzvos. He davka violated shabbos so that he can be publicly killed to teach a lesson to all the Jews that we are still bound to the mitzvos. The maharsha asks, if his intent was truly l'sheim shamayim, how was he able to do this? How can he do such a severe aveira just to make a point? The maharsha answers that since he was doing it just to make a point, it wasn't actually a violation of shabbos because it is a מלאכה שא"צ לגופה, since the melacha isn't being done for its intended purpose. Based on this, the mekoshesh wasn't really mechalel shabbos, he just gave the impression to the witnesses of being mechalel shabbos so that he can be killed to make the point of showing the severity of keeping mitzvos.
The approach of Tosafos as explained by the Maharsha seems to indicate that the mekoshesh was a big tzadik who was moser nefesh to teach the Jewish people the severity of mitzvos. Why then does the gemara say that the mekoshesh was מגלגלין חובה על ידי חייב, he should have been considered a tzadik? We learn from here that although the mekoshesh technically didn't do an aveira of chilul shabbos, and although he intended l'sheim shamayim, but the fact that he did an aveira that gave the impression of chilul shabbos, it was considered a chilul hashem which he is considered guilty for. Although the mekoshesh sacrificed his life to show the severity of mitzvos, and technically didn't violate anything, he was considered a rasha for giving the impression that he violated shabbos. We learn from here how sensitive a person has to be not to even give the impression that he is doing something wrong, even when it is completely correct.

Wednesday, December 16, 2009

Baba Basra 118a - Complaining for More Land

In sefer Yehoshua the b'nei Yosef complain that they are a large tribe with too small of an inheritance in Eretz Yisroel. Yehoshua seems to allow them to conquer uninhabited land from other shevatim, or at least to cut down the trees to make what is already belongs to them more inhabitable. However, the Rashbam explains that this could not have been the intent of Yehoshua, because he couldn't steal land from another tribe, and they didn't need special permission to use what already belonged to them. Therefore, the gemara understands that Yehoshua wasn't even attempting to solve their problem, rather he was telling them that since they merited such bracha of increased numbers, they should protect themselves from ayin ho'rah (to which they responded that it wasn't necessary since they descended from Yosef and aren't affected by ayin ho'rah). Nonetheless, it seems a bit strange that Yehoshua wasn't helping them solve the problem that they were faced with? Perhaps the message that Yehoshua was sending them is that they shouldn't complain about the bracha they were zocheh to, even if it comes with a housing shortage. He was telling them to appreciate their bracha and protect it by hiding from ayin ho'rah, rather than complaining about their plight.
On a side note - the Meshech Chochma (Pinchas 26:62) asks why the tribe of Levi was so small, less than half of other tribes even though they counted the children above 30 days old. The approach of the Ramban that since they didn't undergo the shi'bud of mitzrayim, they weren't zocheh to the bracha of כן ירבה וכן יפרוץ, would still not explain why their growth rate was so slow. In the first count (Bamidbar 3:39) they were 22,000 and in the second count they were only 23,000? The meshech chochma explains that since they weren't going to inherit any real part in EY, Hashem had the foresight to keep them small so that they don't complain about their housing shortage, as the descendants of Yosef complained. Furthermore, since they were supported by the rest of the b'nei Yisroel, Hashem didn't want them to be a major financial burden so he limited their growth to completely natural numbers, without any special divine bracha as was given to the other tribes. He then continues to read this into the pasuk which says that they were 23,000, counted from 30 days old "because they weren't given a portion in Israel". Simply, the pasuk is saying that the reason they were counted from 30 days rather than 20 years is because 20 years old was only important for inheritance. But, the meshech chochmah explains that the pasuk is explaining why their numbers were so small - "because they didn't get an inheritance", so Hashem specifically kept them small.

Monday, December 14, 2009

Baba Basra 116b - Understanding the Concept of Ra'uy

The Rashbam explains that if yacov would die in the lifetime of his father yitzchok, Reuven (son of yacov) would only get the double portion in the estate of yacov his father, but not in the estate of yitzchok his grandfather because it is only considered "ra'uy". Tosafos disagrees with the Rashbam because Reuven has absolutely no claim on a double portion in the estate of Yitzchok. Since yacov himself is not a bechor and isn't entitled to double in the estate of yitzchok, when Reuven comes to inherit through yacov he also doesn't deserve a portion even if a b'chor is entitled to get what is ra'uy. Rather, we consider ra'uy the regular portion that yacov would be inheriting b'kever from yitzchok - Reuven wouldn't get a double portion in the chelek pashut that yakov passes on from yitzchok since yacov was never muchzak in that portion.
Regarding the determination of what is considered ra'uy, the ketzos (278:15) discusses a case where someone takes an oath to give a gift to yacov, but yacov died before it was given. Does Reuven take a double portion in that? He proves it from matnos kehuna which the gemara considers the father (who is a kohen) to be muchzak in (when he is makirei kehuna) even though he doesn't have it yet. The idea is that even things which the father doesn't presently own at the time of his death, if they will be definitely coming to him because such as the case of shavua or matnos kehuna, where it is assur for the giver to back out, we consider it to be muchzak.
The Steipler (38) uses this idea to explain the shitah of the Rambam. Based on the kesef mishne (nachalos 5:6) quoting the Teshuvos HaRosh to explain the Rambam, the steipler says that the Rambam would seem to hold that if Yacov would have 10 children, but 5 of them died in his lifetime (and they don't have children), we view it as if the remaining 5 brother inherit half the estate from their father and the other half from their brothers who died. Based on this, when Reuven comes to collect the portion of bechor from the estate of yacov, we divide the estate 11 ways, and give Reuven only 1 portion for as a bechor. Then we should take the remaining 10 portions and divide them equally among the remaining 5 brothers, so that each will take 2 portions. Yet, we don't say this, rather we allow Reuven to collect his bechor portion from the entire estate - why? Shouldn't the portion that he inherits through his deceased brothers be considered ra'uy? From here we see that anything which is set to come to the father is not considered ra'uy, so the portions of the 5 sons who died is considered muchzak by the father so that Reuven can collect his bechor portion from that.

Thursday, December 10, 2009

Baba Basra 113a - Why is a Husband the Primary Inheritor?

The gemara concludes that in a case where leah inherits from her father lavan and then leah dies, her husband Yacov would inherit her. But, if Leah dies before lavan, so that the property of lavan is only considered ra'uy to yacov, then yacov wouldn't inherit, rather reuven who is the son of leah and yacov would inherit. The gemara explains the rationale for this to be that leah's son can inherit from his grandfather lavan through her, but a husband cannot inherit through his deceased wife. Simply, this could have been explained based on the fact that when leah dies, she is no longer married to yacov, so the relationship is completely broken as if they were divorced so that yacov is no longer able to inherit through her. But, the gemara seems to hold that since at the time that leah died she was standing to inherit from lavan, we should consider it as if her inherits the properties that lavan would eventually bequeath to her, already now at the time of her death. Therefore the gemara explains that since the property is only ra'uy to leah at the time of her death, and she didn't yet have it in her possession, yacov cannot inherit if from her.
Tosafos asks, if we allow a son to inherit property that is ra'uy and not a husband, so we see that the son has more power. So, why are we so convinced that the husband inherits before a son, maybe a son should always be first? Tosafos answers that a husband doesn't inherit as a "relative" rather he is called a "she'er", meaning he and his wife are considered one unit, so once we know that he has rights to inherit, he comes first since it is considered as if the property is staying where it was.
However, the Rashbam seems to understand that this is not a strength in a son over a husband because Reuven doesn't inherit ra'uy from his mother, rather reuven inherits from his grandfather. Meaning, at the time Lavan dies, Leah would inherit him b'kever, and pass it on to reuven her son. She wouldn't pass it on to her husband since at that point in time he is no longer her husband (the moment she dies, their relationship is broken). The husband is only entitled to inherit at the time of her death, but has no inheriting rights on things that come to her only after he death (even the hava amina that he would inherit ra'uy, that is because we consider her to have the possessions of lavan in her possession at the time she dies - until we establish that ra'uy isn't in her possession at the time of her death). Therefore, the Rashbam doesn't have to come onto the chiddush of Tosafos that the husband inherits before a son because he is considered one "guf" with her. But, in truth, the rashbam 111b d.h v'ha'ish, offers his own rationale that a husband inherits before the son. He explains that the rationale behind the husband comes first is that he isn't a blood relative at all and therefore shouldn't inherit at all. Yet, the Torah says he does inherit, so it is like a gezeiras hakasuv that he comes before all relatives even a son.

Tuesday, December 08, 2009

Baba Basra 109b - 110a - Understanding Yehonasan (Grandson of Moshe Rabbeinu)

The gemara 109b says that a persons children will inherit the attributes of the family he marries into. Moshe married the daughter of Yisro who spent his life steeped in idolatry and therefore had Yehonasan as a grandson who served as a priest for the idol of Micah. But, Aharon who married the daugher of Aminadav (sister of Nachshon), had Pinchas who was a great tzadik.
The connection between marrying the sister of Nachshon and having a child like Pinchas seems clear. Nachshon was known for his mesiras nefesh to be mekadesh shem shamayim, being the first to jump into the Yam Suf. Pinchas was also moser nefesh by being mekadesh shem shamayim by killing the Nasi of Shimon, despite the ridicule he had to suffer (as the gemara says that all the shevatim made fun of him that he descended from Yisro who worshiped Avoda Zara).
It would seem that the connection between Yisro and Yehonasan is also clear. They were both involved in idolatry. But, the gemara on 109a explains that Yehonasan was misled by a tradition that he heard - "A person should alwasy rent himself out to avoda zara, rather than take tzedaka". Yehonasan understood this literally, that for parnassah one may work as a priest for avoda zarah. The Rashbam seems troubled by how he could made such a mistake and writes - אלא שלא יהא לבו לעבודה זרה. Yehonasan thought that as long as he is not intending to worship the avoda zara, he is not doing anything wrong. This seems to be an honest mistake based on the misunderstanding of the tradition (that avoda zara meant menial tasks, rather than actual avoda zara - see rashbam who says a big chiddush :) - לעשות מלאכה להתפרנס אין כאן גנאי), so why does the gemara indicate that he was a Rasha - he never actually worshiped idoaltry?
The Rashbam quotes a Yerushalmi that elaborates on the behavior of Yehonasan. Yehonasan was entirely motivated by $. People would bring sacrifices to the Pesel of Michah, to which Yehonasan would say that they are wasting their time. He would then tell them that they should give him precious gifts and he will bring it to the avoda zara. When they left he would indulge in the gifts. When confronted he admitted that the Avoda Zara has no power and he is only working there for parnasah. The aveirah of Yehonasan is that his desire for wealth blinded him from realizing what he is doing. He may have honestly been confused and thought that the tradition that he had permitted what he was doing, but the only reason he made such a grave error is because he was blinded by his desire for wealth.
Where did this great desire for wealth and physical possessions come from? Perhaps this came from Yisro. In parshas Yisro we find that Yisro comes (according to Ramban it was prior to matan torah), then after giving moshe advice he returns to his family, but the Ramban explains that he came back again while the Jews were still camped as Sinai. Then in parshas B'ha'aloscha (10:29) he tries to leave again. Why? Rashi explains - אם בשביל נכסי אם בשביל משפחתי. He wanted to go back to his wealth rather than join the Jews into EY. Moshe then begs him not to leave because as rashi explains, people will say he only converted to get a portion in EY, so when he realized that converts aren't entitled to a portion he left. Moshe then has to guarantee Yisro some financial incentive to get him to stay - והיה כי תלך עמנו והיה הטוב ההוא אשר ייטיב ה' עמנו והטבנו לך. Rashi explains that the "good" that is being referred to is that when EY was divided, Yisro received "doshna shel yericho", which he would have until the time when the Beis Hamikdash would be constructed. The Ramban (yisro) understands from this rashi that moshe successfully convinced yisro to stay by offering financial incentive. Targum Yonasan also says that the good that Moshe promised to Yisro was בפילוג ארעא, namely a portion in EY. Based on this, we can suggest that the poison that Yisro brought into the genetic pool of Moshe's descendants was not service of Avoda Zara because Yehonasan his grandson never actually worshiped avoda zara (also, Yisro did teshuva from avoda zara). Rather, the poison that Yisro brought which the gemara refers to, is the great desire for material wealth that caused Yehonasan to make such a fatal error.

Monday, December 07, 2009

Baba Basra 108b - 109b - Explaining Pesukim in Order of Inheritance

איש כי ימות ובן אין לו והעברתם את נחלתו לבתו, ואם אין לו בת ונתתנם את נחלתו לאחיו, ואם אין לו אחים ונתתנם את נחלתו לאחי אביו, ואם אין אחים לאביו ונתתם את נחלתו לשארו הקרוב אליו ממשפחתו וירש אותה
בן- בת- אחים- אחי אביו- שארו הקרוב אליו

The gemara quotes a machlokes who "שארו" is. The gemara on 108b says that it refers to the father of the deceased, and the by writing הקרוב אליו the pasuk is teaching that the closest relative comes first, which the gemara understands to mean that the father of the deceased is in between the daughter and brothers. However, the gemara on 109a quoting R' Yishmael understands that the pasuk of והעברתם implies that we remove the inheritance from where it is meant to be, which is the father, and give it to the daughter, implying that the father comes after the daughter and before the brothers.
Either reading of the pesukim is strange. Why would the Torah not write straight out that the father inherits after the daughter before the brother? Meshech Chochma suggests that the pesukim are not giving a halachic order, rather they are meant to describe a natural progression of the world. As the gemara begins on 108a, it is considered a bracha for a son to bury the father which the rashbam understands is the bracha given to yakov וישית ידו על עיניך, that he will be buried by Yosef. It is considered a curse to have the father bury a son. Therefore, the pasuk doesn't describe a person dying and being inherited by his father, because it wants to avoid speaking of a son dying in his father's lifetime. Therefore, the pasuk skips to the brothers. It also leaves out the grandfather inheriting for the same reason and skips to the father's brothers inheriting. But, the Meshech Chochma explains that a careful reading of the pasuk implies that since a brother is related through the father, the father will inherit first. Similarly, since the uncles are related through the grandfather, the grandfather will inherit first.
The pasuk writes that in the absence of uncles (father's brother) - לשארו הקרוב אליו ממשפחתו וירש אותה. He explainst that the שארו הקרוב אליו refers to the brother's of the grandfather. Meaning, if the father has no brothers, then go up a generation to allow the grandfather's brothers to inherit. Why? Because they are the קרוב אליו ממשפחתו - The term משפחתו means their father. Meaning the reason that the grandfathers brothers inherit is because they are children of the great grandfather. Based on this reading, the pasuk is saying that the reason that the grandfathers brothers inherit is because they are the closest relative through the great grandfather. Thus, the reason the fathers brother's inherit is because they are the closest relative through the grandfather, and the reason that his own brothers inherit is because they are the closest relative through the father. Clearly then, the father will inherit the deceased before the sons of the father, and the grandfather before the uncles, and the great grandfather before the great uncles.

Thursday, December 03, 2009

Baba Basra 105a - Grabbing After the Safeik

Tosafos gets into a discussion whether tefi'sa helps even after the safeik is realized to change the muchzak to be the grabber and force the other person to bring a proof. The gemara which says that when one rents a place without it being clear whether the extra month is included in the price, if the renter makes the claim on the first day of the month he must bring a proof since he is trying to be motzi from the owner. But if the renter shows up with his claim on the last day of the month, after already living there that month, he is now a muchzak because the owner is trying to get the money out of him. This implies that the grabbing of the renter changes who the muchzak is. Tosafos rejects this approach and holds that tefisa doesn't work after the safeik has been realized, and the only reason the renter has the upper hand at the end of the month is that the fact that the owner let him live there indicates that he admits to him. B'kitzur, it is a big machlokes rishonim whether tefisah helps to become a muchzak - see rashi kesubos 20a who holds that it does, tosafos argues. see tosafos 2a d.h. l'fichach.
The Shev Shmaitsa (4:16) quotes the shach in takfa kohen (123) who says that one has the right to make a claim of "kim li" - i hold like, even when he is choosing a minority against a majority, and even to grab away from the muchzak. The shach explains that we don't follow majority when it comes to monetary issues, so a person has the right to grab the object from someone else, and then claim "kim li" like the minority view who hold that it belongs to him. The Shmaitsa disagrees and holds that only one who is the true muchzak can claim kim li to prevent the other one from taking it away, but one cannot grab from the other and then use the claim of kim li. R' Shlomo Zalman in his comments on the shev shmaitsa doesn't understand how the shach can claim that a grabber is treated exactly like a muchzak to be able to say kim li like a minority opinion and prevail. His logic is that the whole reason that a muchzak can claim "kim li" like a minority opinion and we don't follow the majority, is that we pasken המוציא מחבירו עליו הראיה and a rov is not a proof. Therefore, the muchzak can keep the object claiming he holds like the minority opinion. This only makes sense if the muchzak is the original muchzak, but why should reuven be able to grab from shimon and then say kim li. Furthermore, he quotes from the kuntres ha'sfeikos (6:9) who explains that kim li is considered a ta'anas ba'ri - definitive claim. R' shlomo zalman asks, how can we allow every am ha'aretz to claim kim li as if he knows that the minority opinion is correct - ואינו יודע בין ימינו לשמאלו להכריע בדבר שגדולי הדורות לא ידעו להכריע. R' Shlomo Zalman suggests that the entire ability to claim kim li should be limited to a case where the muchzak claims that he knows that it is really his, just that he can't be zo'cheh in din, then he can use the claim of kim li like the minority opinion to maintain what he truly knows to be true. But, how can one use kim li without having any knowledge or ability to support the minority opinion that he is relying on? Even if we are slightly more liberal and allow kim li with any muchzak, we certainly cannot allow one to grab away from the other and then use the claim of kim li! It should be incumbent upon the grabber to conduct himself according to the din and not to grab when he knows good and well that he doesn't have the intellectual capacity to be machri'ah like the opinion that rules in his favor.

Sunday, November 29, 2009

Baba Basra 101b - Mitzvah to Bury Fetus

The gemara says that they would make special kevarim inside the me'arah especially designed for nefalim. This would indicate that there is in fact a mitzvah to bury a neifel.
The Rama in hilchos yom tov (526:10) writes that one is not allowed to bury a neifel on yom tov, rather he should be buried the next day. The source is from the Hagahos Maiomonies who holds that there is no mitzvah to bury a neifel. However, the Magen Avrohom (20) says that in his opinion there is a mitzvah to bury a neifel. The Hagahos Maimonies cites the gemara in pesachim 9a which implies that there was a pit that was designated to throw nefalim into, implying that there isn't any mitzvah of kevurah. The Gr"a also takes this approach, that the fact that they were thrown into a bor indicates that there isn't a mitzvah of kevurah. But, the M.A. disagrees and holds that being thrown into a bor would qualify as a kevurah. Furthermore, the M.A. cites a proof from the Toras Kohanim which says that a Kohen cannot be metamei for his son or daughter that is a neifel - this implies that there is a mitzvah of kevura because if there wouldn't be a mitzvah of kevura it would be obvious that a kohen can't be meta'mei since he can only make himself ta'mei for the purpose of kevurah. Finally, he cites our gemara which says that they would make graves for nefalim, implying that there is a mitzvah of kevurah. The M.A. ends by saying that the gemara in Nidah implies that not only would there be a mitzvas kevurah for a neifel, but there would even be a la'av of ba'al talin. On this last point, the Nodeh B'Yehuda (o.c. kama end of 16) says that he doesn't understand where the M.A. is drawing his proof from that there is a violation of ba'al talin. The N.B. argues that m'svara the la'av of ba'al talin (not leaving the deceased over night) is a din in kavod ha'meis which would not apply to a neifel. The machatzis Hashekel tries to justify the proof of the M.A. that there would be a la'av of ba'al talin, from Tosafos in Nidah 57 who says that the kusim would temporarily bury the neifel with the intent of moving them later. If they were going to move them later, why bury them temporarily? This implies that there would be a violation of ba'al talin that would compel one to bury the neifel temporarily.
It seems to me that Tosafos in Pesachim 9a also holds that there is a mitzvah to bury a neifel. Tosafos writes that the kohein who leaned over to check if there was a neifel in the pit was a fool. why? Because even if it was his own child, a kohein can only make himself ta'mei for a bar kayama, not a neifel. Tosafos continues - ועוד דכאן לא היה לצורך המת. Tosafos says that the kohen couldn't make himself ta'mei because it wasn't a need of the meis. This implies that if it were for the purpose of burying the meis he would be able to make himself ta'mei, presumably because there would be a mitzvah of kevurah (proof to magen avrohom). But, perhaps Tosafos means to say that a neifel is always considered not l'tzorech of the meis since there isn't any mitzvah of kevurah (like the hagahos maimonies).

Friday, November 27, 2009

Baba Basra 100a - Acquiring the Land by Walking Through it

Hashem said to Avrohom: קום התהלך בארץ לארכה ולרחבה כי לך אתננה. R' Elazar and the Chachamim argue what the purpose was. R' Elazar holds that Avrohom made a kinyan on the land by walking through it, and proves from here that property can be acquired through "hi'luch". The chachamim disagree and hold that without a proper chazaka of improving the property, the land cannot be acquired. So, according to the chachamim the purpose of walking through it must have been כדי שיהא נוח לכבוש לפני בניו.
The Mishneh l'melech in Prashas Derachim (derech hakodesh drush 9) explains that according to R' Elazar, it must be that Avrohom actually made a kinyan on EY at that time and it became his from then. It cannot be that he did a ma'aseh kinyan now for later because חזק וקני לאחר ל' יום לא קנה, a kinyan now doesn't work for later because it is "kal'sa kinyano" - the kinyan ended before it took effect. Based on this, we can explain the machlokes between the shepherds of Avrohom and Lot, to be the machlokes R' Elazar and Chachamim (prashas derachim has a different approach). Lot held like R' Elazar that Avrohom made a proper kinyan which was effective immediately and as rashi (lech li'cha 13:7) explains, realized that he is the inheritor of Avrohom and therefore has the right to graze his sheep in fields of EY. But, Avrohom's shepherds disagreed - why? As rashi explains - והכנעני והפריזי אז יושב בארץ. This can mean simply that they held like the chachamim that Avrohom didn't make an actual kinyan on EY so that Lot's calculation was wrong. Perhaps we can offer another approach, that although technically speaking the shepherds of Lot may be correct (even Avrohom held like R' elazar), that the land belongs to Avrohom already. But, since the nations of kena'an and pri'zi were still "dwelling" in EY, and in their minds the property belonged to them, it would be a chilul Hashem to allow the animals to graze without permission. A halachic disagreement between Avrohom and Lot wouldn't have caused Avrohom to part ways from him, since Lot had halachic justification. The problem was that they agreed from a hashkafa perspective, whether we should behave in a way that makes us look bad in the eyes of others, even when we are technically correct. Just as we are required to be והייתם נקיים מה' ומישראל, we are certainly required to be "clean" in the eyes of the goyim so that we can make a kiddush Hashem, rather than the opposite.
Regarding the peshat in כדי שיהא נוח לכבוש לפני בניו, there are many peshatim. 1. Rashbam - it is a way to symbolize to the satan that EY is ours. Perhaps this can be explained based on rashi in Rosh Hashana 16b, when we show love for mitzvos or EY, it quiets down the satan. 2. Ramban in lech licha explains that it was a ma'aseh avos siman l'banim. It was symbolic of the Jews taking over EY in the future. 3. Based on Rambam and Kesef Mishneh in hilchos bikurim who writes that Avrohom became the av hamon goyim, which means that if all the nations of the world should have an equal claim on EY. Based on this we can explain he had to show ownership over it prior to his name being changed to AvroHOM. 4. It was a psychological acquisition. The purpose was to make the children of Avrohom feel that EY was theirs so that they would be moser nefesh to conquer it in the future.

Thursday, November 26, 2009

Baba Basra 99a - Direction of Keruvim

There are 2 opinions in the gemara how the keruvim of moshe were designed. According to one opinion they were designed facing each other, but when the Jews weren't doing רצונו של מקום they would turn away. According to the other opinion they were designed to face on a diagonal. The Rashbam and Tosafos explain that the gemara can't say that according to the second opinion they were initially designed to face the wall, but when the jews would to the will of Hashem they would turn to face each other, because it is not logical that they would initially design the keruvim to face in a way that indicates that the Jews weren't doing the will of Hashem. But according to the first opinion they were originally designed to face each other representing that the Jews were doing the will of Hashem, just that they would turn away if the Jews would reject Hashem.
The question is: If the original design of the keruvim is to face one another, there is no longer a miracle representing the Jews doing the will of Hashem. Actually, the miracle would occur when the Jews stop doing the will of Hashem. Wouldn't it make more sense to design the keruvim on a diagonal (like the second opinion) so that when the Jews were doing the will of Hashem, it would be apparent from the miracle of the keruvim turning to face each other?
The Rashbam seems to hint to answering this question by writing:
ומתחלה כך נעשו, פנים אל פנים, כדי שתשרה שכינה בישראל וישראל יעשו רצונו של מקום, וכשאין עושין הופכין בניהם לבית ע"י נס
The Rashbam holds that the purpose of making the keruvim facing one another is to show Hashem that this is the relationship that we desire - פנים אל פנים. It is a way of showing Hashem that we expect and hope to be doing the will of Hashem and we show this by designing the keruvim in this way. This is more of a symbol than the miracle of the keruvim turning to face one another - why? Because our initial design of the keruvim indicates our inner ratzon to do the will of Hashem and have a relationship. This is more valuable to our relationship with Hashem than the miracle of them turning to face one another, because it is a way of showing Hashem initially that our inner ratzon is to have a relationship.
Based on this, we can understand the question raised by R' Chaim Volozhin in Nefesh HaChayim 1:8, who asks why according to the second opinion did they design the keruvim on a diagonal? Why would it make sense to design the keruvim not facing each other? Based on what I said, we cannot answer that we specifically design them on a diagonal so that we can appreciate the miracle of them turning to face one another when we do the ratzon Hashem, because it would still make more sense to initially design them to represent our true desired relationship with Hashem. So, R' Chaim Volozhin asks, why were they designed on a diagonal according to this opinion? He elaborates in his explanation that the Jews in EY are not able to devote their entire lives to service of Hashem because as a group they are required to work and earn a living. Therefore, the diagonal facing keruvim more accurately represents the relationship that people on the whole will have with Hashem (only the individuals will be zocheh to ובכל מאודך and give their entire lives to the service of Hashem).

Wednesday, November 25, 2009

Baba Basra 97a - Kiddush on Cooked wine

The gemara says that any wine that is unfit for the mizbei'ach, is unfit for kiddush. The implication of the gemara according to both the Rashbam and Tosafos is that we are coming to the exclusion of something that qualifies as wine to make a bracha of hagafen, but is unfit for kiddush. Therefore, Tosafos and the Rosh explain the gemara doesn't discuss wine that is mevushal. The gemara is looking for something which is wine, but unfit for kiddush due to הקריבהו נא לפחתך, but mevushal wine is either not considered wine for hagafen, or even considered wine for kiddush. Rashi, Rash and R' Tzemach gaon (in rosh) hold that wine that is cooked undergoes a change for the worse and therefore looses its status of hagafen. But, Rabbeinu Tam and the Rosh hold that cooked wine is considered to undergo a change for the better, not a change for the worse so that it retains its full status of wine. The reason it is unfit for the mizbei'ach is because we require wine that doesn't undergo any change at all, but regarding כוס של ברכה and hilchos brachos, so long as the change is for the better, it retains its fulls status of wine. Shulchan Aruch (272:8) cites both opinions, but the rama says the minhag is to use mevushal wine even when non-mevushal wine is available (when the mevushal wine is higher quality). However, the Rosh seems to imply that "mevushal" wine doesn't mean that it was flash cooked in a sealed container so that it doesn't actually dehydrate. The Rosh implies that during the cooking process the wine will dehydrate so that it becomes stronger. The machlokes is whether this change of being stronger and more concentrated is considered an improvement. Based on this, our mevushal should not be considered a change at all regarding the bracha or kiddush, and should be usable even according to rashi and rash because it doesn't dehydrate at all.

Another point - when the gemara says that wine that retains the status of wine for hagafen, but is not prime quality as is therefore unfit for the mizbei'ach, so it can't be used for kiddush either, is this only li'chatchila or even bi'dieved? The rashbam uses the language of "passul" throughout the sugya, implying that הקריבהו נא לפחתך would make the wine unfit even bi'dieved. M.B. (272:1) quotes from the Ramban who also implies that it is passul for kiddush even bi'dieved, but the biur halacha questions why should the p'sul of הקריבהו נא לפחתך be passul even bi'dieved? The biur halacha supports his question from the fact that rashi in menachos 64 says that a weak animal cannot be brought as a korban because of הקריבהו נא לפחתך, yet it would surely be kasher bi'dieved, so why should the wine be passul even bi'dieved? It must be that this passul is given over to the chachamim to decide when to only passul l'chatchila and when to passul even bi'dieved. In other words, the din הקריבהו נא לפחתך is twofold. First, it creates a category of items that are unfit for mizbei'ach and devorim she'bikedusha - and the rabbonon decide what should be in that category. Secondly, it is a din on every individual that even on items that are fit for a mitzvah, one should try to bring the best. See rashi in chulin 23a that an animal missing a limb is passul because of הקריבהו נא לפחתך. Rambam in issurei mizbeiach also writes that a treifa is passul because of הקריבהו נא לפחתך. Clearly, we find that chazal were able to use this passuk to even passul bidieved.

Tuesday, November 24, 2009

Baba Basra 96b - Grape Juice from Concentrate

The gemara discusses wine that is made from sediment concentrate and concludes that it would depend on whether it yields more wine than the water that was put in. The Shulchan Aruch (204:5) paskens that with strong wines we allow as much as 3 parts water for one part juice to require hagafen. If there is less than that ratio, or with our wines that are weak we make shehakol since the wine taste very diluted. The rule is that we measure based on the custom to mix wine in every particular location. In short, if the adding of water will yield more wine than water so that we are sure that it contains some juice AND it taste like wine, we consider the entire mixture to have the status of wine and make hagafen.
Based on this, it would seem that grape juice made from concentrate which has the full taste of the regular grape juice, should also be a borei p'ri hagafen see the actual concentrate contributes to the amount of wine at a significant ratio (20%).
However, R' Shlomo Zalman has a very interesting teshuva (mincha shlomo 1:4) where he explains that grape juice may be different than actual wine. The only reason we make hagafen on grape juice is because it has the capacity to ferment and develop into wine, so that even if that process is disabled by cooking it, it still retains its status of pri hagafen. Therefore, the chiddush that we find by wine that it has the capacity to turn even the water that is mixed into it, into wine, may only apply to actual wine but not to grape juice. Based on this he concludes that grape juice concentrate that is mixed with water to restore the taste of grape juice at a ratio of 4 to 1 (20% juice, 80% water), would not be considered wine. He submits that regarding the bracha rishona, one should make hagafen since the bracha rishona is completely dependent upon the taste and grape juice concentrate after being mixed with water tastes exactly like actual juice that is squeezed from the grape. But, it is not considered wine so that the bracha achrona should be borei nefashos since he only drank a ri'vi'is of water, not of wine. Similarly when it comes to kiddush, R' Shlomo Zalman says that since many rishonim don't allow even wine that is mevushal, although we rely on the rosh to permit mevushal wine for kiddush, that is only due to the fact that it doesn't undergo a change for the worse. But when it is boiled to the point that it reduces its quantity by 1/5 and is turned into concentrate, it is passul for kiddush at that point since it isn't even fit to drink, so the adding of water should not be able to restore it into being wine once again.

Monday, November 23, 2009

Baba Basra 95b - Bracha on Spoiled Food

The gemara discusses the proper bracha to make on wine that begins to spoil, whether you make hagafen or shehakol. The rashbam and tosafos conclude that so long as it still has the taste of wine, even if it smells like vinegar, we make hagafen - as the shulchan aruch paskens 204:3. The same is true with other foods as well as the braisa says on 95b - on spoiled bread you make shehakol rather than hamotzi. In both cases, you only make shehakol as long as it is still eatable, but if it is so spoiled that it cannot be eaten then you wouldn't make hagafen as shulchan aruch writes (204:2) by wine, and the m.b. (204:1) writes by bread.
The Biur Halacha raises a very interesting question. The Rambam writes that all these spoiled items where the bracha rishona is shehakol, the bracha achrona is borei nefashos. The Biur Halacha asks that although bracha rishona is within the power of the rabbonon to determine that the bracha on partially spoiled food should be reduced to shehakol, but birchas hamazon is d'oraysa! Since the bread is still eatable and for yom kippur we consider achila al yidei ha'dchak to be an achila, so on a d'oraysa level we consider it to be an achila (furthermore, the sha'ar hatziyun 18 says a sevara that on yom kippur we are stricter about what we consider to be an achila since we require yi'suvei da'atei, whereas by brachos all we require is ha'na'ah). How then can one just make a borei nefashos, since m'doraysa he should be required to say birchas hamazon? The Biur Halacha suggests that perhaps we are speaking only when one ate a shiur kezayis so that his chiyuv to bentch is only d'rabonon, but if one would eat a shi'ur se'viah, he would actually be obligated to say a full birchas hamazon. However, it is not mashma from the rambam that you only make a borei nefashos when you eat less that a k'dei se'viah. Perhaps the rambam goes li'shitaso who holds that the bracha me'ein shalosh on the 7 minim, which includes non-bread items made from grains, is only d'rabonon. This is also the implication of the shulchan aruch (209:3) that only on bread should one say birchas hamazon mi'safeik d'oraysa, but not on a tavshil of the 7 minim. It could be that spoiled bread, although it is considered food, it looses its chashivus as "lechem" and is demoted to be just like a tavshil of the 7 minim where the bracha is only d'rabonon, therefore the rabbonon were able to say that borei nefashos is sufficient.

Sunday, November 22, 2009

Baba Basra 94b - Passul Witnesses

In the sugya discussing imposing penalties to prevent people from doing issurim, the gemara discusses collecting the principal in a shtar that has ribbis whether we impose a penalty to prevent the lender from collecting even the principal. Tosafos asks, how can the Rabbonon hold that we use the contract to even collect the principal from property on which he has a lean (where the shtar itself is being used to collect), since the witnesses who signed in the contract are passul eidim for doing an aveira of signing a contract that would enable the collection of interest? Tosafos answers that witnesses tend to assume the issur of ribbis is only on the borrower and lender, but they don't realize that their is an issur on the eidim as well, so they don't become passul. A second answer is that we are speaking about a case where their lives were being threatened so that they don't become passul for signing. Tosafos in Baba Metzia offers another answer, that although by an issur d'oraysa one who does an issur not intending to profit would be passul, on an issur d'rabonon he would only be passul if he is doing it for monetary gain. Therefore, we are speaking about a contract where the ribbis is d'rabbonon, so that the witnesses who have nothing to gain would remain kasher witnesses.
This answer of Tosafos is paskened in the Rama (C.M. 34:3), that one who violates an issur d'rabonon is passul l'eidus on a rabbinic level, but only if it is a type of aveirah where there is a monetary gain. Meaning, the violation of an issur d'oraysa for any reason labels the person as a rasha (according to what we pasken), but the violation of an issur d'rabbonon doesn't label him as a rasha, just that we are concerned that he will lie in court for monetary gain, as he has done in the past (sm"a s.k. 5).
But in truth, the shulchan aruch (4) paskens that those who bury the dead on yom tov, violating yom tov, aren't passul since in their own minds they think that they are doing a mitzvah. The main point is not so much that they think they are doing a mitzvah, but rather that since in general their is a mitzvah involved, they don't consider their actions to be an aveirah. This is really the answer of our tosafos, that the witnesses don't consider the signing of a contract that has ribbis to be an aveirah. Being that the Shulchan Aruch accepts this approach, he would be willing to accept the answer of tosafos by us and therefore has no reason to be mechadesh as Tosafos does in baba metziah that an aveira d'rabonon only passuls when there is monetary gain. Furthermore, the gr"a points out that the opinion of the Rambam is that a witness will only be passul if he violates a la'av that has a ma'aseh (as shulchan aruch writes in si'if 2), therefore a ribbis vioation which is nituk l'aseh of וחי אחיך עמך, has no malkus, therefore the shulchan aruch will be able to answer tosafos question very simply by saying that signing in a contract of ribbis will not passul the eidim, even for ribbis d'oraysa. So, there is no reason to be forced to answer like tosafos in baba metziah and say that an aveira d'rabonon requires monetary gain to be passul.

Thursday, November 19, 2009

Baba Basra 91b - Woe to the Ship that Lost its Captain

אותו היום שנפטר אברהם אבינו מן העולם עמדו כל גדולי אומות העולם בשורה, ואמרו אוי לו לעולם שאבד מנהיגו ואוי לה לספינה שאבד שאבד קברינטא

Avrohom Avinu accomplished 2 things. First, he managed to turn a pagan world into a monotheistic one. This is described by the Rambam in detail (hilchos avoda zara chapter 1). The kesef mishne explains that avrohom made an effort to not only practice himself, but preach his practices to others. This was very different than the practices of sheim and eiver who would keep to themselves and only teach those who walked into their beis midrash. Avrohom was more involved in outreach as the Rambam describes his travels from place to place to debate and undermine the pagan beliefs. The Chasam sofer (teshuvos - hakdoma to y.d. called pisuchei cho'sam) points out that this approach earned Avrohom the title of אברהם אוהבי, because one who truly loves and cares about another, isn't content with his own service but wants others to also do good for their beloved. Similarly, Avrohom showed his love for Hashem by trying to convince the world to love Hashem, therefore the k'mayim panim el panim, Hashem in turn considered Avrohom his beloved. The second characteristic of Avrohom was his chessed. His display of kindness to others. The bridge between these two ideas is the gemara in Sotah 10b that says that Avrohom would invite guests and provide their physical needs. When they tried to thank Avrohom, he responded by turning their attention to the true provider - Hashem (Maharatz chiyus says that this gemara is actually the source of the Rambam mentioned above). These 2 characteristics of Avrohom weren't separate from one another, rather they fully complimented and strengthened one another. R' Yakov Kamintezky points out at the beginning of parshas Toldos that Avrohom exemplified chessed. This midah came from his awareness of the chessed that Hashem displayed in the world. The chessed of Avrohom came as a direct result of recognizing the existence of Hashem, thereby emulating the chessed of Hashem. It was through this chessed that Avrohom successfully brought others under the wings of the shechinah. He introduced them to his chessed teacher - Hashem.
The maharsha in our gemara explains that the eulogy offered by the goyim about Avrohom was 2 things. First, he was the "manhig" of this world. Why? Because he introduced the world to their Creator who is the ultimate manhig and controls the world. Secondly, he was the Captain of the ship. The captain keeps the ship from veering to the sides. Avrohom was the captain of the moral ship, showing the ways of chessed to the entire world. The nations of the world said both eulogies for Avrohom together, because they recognized as R' Yakov explained that the 2 midos of Avrohom are really one in the same.

Tuesday, November 17, 2009

Baba Basra 88b - Teshuva for Inaccurate Weights and Measures

The gemara says that the punishment for faulty weights and measures is worse than the punishment for arayos because teshuva is not a possibility since there is no way to actually return to all the people who were ripped off. R' Elchonon asks, why is this considered a "chumrah" of middos u'mishkalos? Since technically teshuva should work, just that there is a technicality that he doesn't know who to return to, it isn't a "chumrah" of middos u'mishkalos. Furthermore, he is an o'nes in the ability to do teshuva so why is the punishment so severe? Perhaps the gemara is saying that by other aveiros where teshuva is usually a possibility, even if in one particular situation he is an o'nes from being able to do teshuva, the aveira isn't inherently more severe since at the time it was violated, teshuva was assumed to be a possibility. But, when it comes to bad weights and measures, he knows from the start that it will be impossible to return the money to the customers, yet he decides to do the aveira anyway. The fact that he is an o'nes from being able to do teshuva doesn't lighten the issur since he knew from the beginning that he wouldn't have the ability to do teshuva. Based on this approach, the question of tosafos is answered. Tosafos asks, how is this worse that arayos where a mamzer is born which is a מעוות לא יוכל לתקון and teshuva is not a possibility? Even if we assume like the assumption of Tosafos that when a mamzer is born, teshuva isn't a possibility, it still isn't as severe as bad weights and measures because at the time of the ma'aseh aveirah they didn't know for sure that a mamzer would be conceived. Whereas, by selling with bad weights and measures it is obvious from the start that teshuva wouldn't be a possibility, yet he chooses to do it anyway.

Monday, November 16, 2009

Baba Basra 89a - Beis Din Requirement to Oversee Financial Markets

The gemara learns out from a pasuk that Beis Din is obligated to hire people who observe and scrutinize the business practices to ensure that people aren't being cheated. The Shiltei Giborim launches into a whole discussion about the requirement of beis din to make takanos over the tzibur, and all the transactions that will be done will be based on those takanos. Even Gittin and Kiddushin will be based on these takanos. Therefore, in a place where the minhag is to follow a particular posek regarding gittin, one cannot reject that minhag because the entire kiddushin is אדעתא דרבנן מקדש, and the takana of that place is to be mevatel the kiddushin only through a gett that is done in a particular way. He goes so far to say that any deviation in a gett against the minhag ha'makom my invalidate the entire gett since the original kiddushin was meant to only be annulled through the type of gett that is accepted in that place. He goes so far to say that since the entire kiddushin is based on the minhagim of the place where the kiddushin took place, the gett must also be done in accordance with the minhagim of the place of kiddushin. If the gett would be written in accordance with the minhagim of another place, it would not be valid. Furthermore, if there is a takana in a particular location regarding how the kiddushin should be done i.e. to require a minyan, or require the presence of her parents, the language of the takana will determine whether the kiddushin is binding bidi'eved.

Wednesday, November 11, 2009

Baba Basra 84a - Gan Eden on the East

The pasuk writes by adam, when he was thrown out of gan eden - וישכן מקדם לגן עדן, and by kayin when he was thrown out -וישב בארץ נוד קדמת עדן, both seem to contradict the pasuk ויטע ה' אלקים גן בעדן מקדם, which implies that gan eden was most to the east. How can they be thrown out to the east if they were already on the most eastern spot in the world?
R' Shalomi Eldar pointed out to me that although rashi seems to translate the word קדם in all these places as east, unkelos seems to translate as a place set aside from before. Therefore, according to unkelos both gan eden and the place they were exiled to were set up in advance for that purpose.
Tosafos in baba basra 84a also asks the question and says that גן עדן מקדם and קדמת עדן, don't mean east of eden, rather the east side of the world that is adjacent to eden. Based on this, both gan eden and the place adam and kayin were exiled to, were on the east, next to one another. But, this doesn't seem to fit with rashi 3:24 who says that they were במזרחו של גן עדן חוץ לגן - actually east of gan eden. Rashi in 4:16 also implies that the entrance to gan eden was on the east and they were thrown even more east to guard the entrance to gan eden.
R' Arye Schreiber asked on the pasuk by lot 13:11 which says that he traveled to s'dom by writing ויסע לוט מקדם, but s'dom is the eastern border of EY so he couldn't have traveled from the east and ended up all the way on the east? Rashi therefore makes a drasha that he traveled from the קדמונו של עולם. Unkelos answers that it means ונטל לוט בקדמיתא, meaning that lot took a portion on the east. But according to tosafos in Baba Basra it can mean the same as גן עדן מקדם that lot traveled to a place that was east of the world. The term מקדם doesn't mean that he was traveling from the east, rather he was traveling to an area that was the most eastern part of EY.

Tuesday, November 10, 2009

Baba Basra 81a - Ger in the Mitzvah of Bikurim

Tosafos quotes the mishnah in bikurim that says that a ger doesn't read the parsha of arami oveid...when he brings bikurim, because he can't declare "שהנחלת לאבותינו". Based on this, there is a discussion even when a ger davens whether he should say אלקי אבותיכם. The R"I holds that a ger can daven the same nusach of אלקי אבותינו because we pasken like R' Yehuda who holds in the yerushalmi that a ger can read the parsha of bikurim since avrohom was אב המון גוים. The Rambam also paskens like the R"I and holds that a ger can read the parsha by bikurim basedon the fact that avrohom was the father of the whole world since he brought them under the wings of the shechina (bikurim 4:3).
The Mishneh L'melech asks that even if goyim are able to consider avrohom their father and say שהנחלת לאבותינו, but practically speaking they don't have a portion in EY, so they shouldn't be able to read the parsha, just as women cannot read since they have no portion in the land and cannot say פרי האדמה אשר נתת לי? Why is a ger more able to say האדמה אשר נתת לי than a woman?
The Nemukei Yosef asks a similar question. Why is a Ger able to be motzi a born jew in birchas hamazon (which implies that he is chayev m'doraysa), he shouldn't be any better than a woman whereby the gemara has a tzad in Brachos that she is only be obligated in bentching m'drabonon since she doesn't have a chelek in EY? The Nimukei Yosef answers that a Ger is fit to receive an inheritance, just that he wasn't around at the time of yetzi'as mitzrayim when it was actually divided. Since a ger qualifies as a בן נחלה, he is obligated m'doraysa in bentching, unlike a woman who is not a bas nachala at all. This can also explain why he can declare האדמה אשר נתת לי, because he is fit to receive a portion, just that he wasn't present at the time it was distributed.
But in truth, this answer doesn't work for reading bikurim. The gemara says that one who doesn't own property cannot read the parsha of bikurim, even though he is a born jew and fit to own property. Clearly, the gemara holds that he must have actual ownership and control over property to make the declaration and it isn't sufficient to have a theoretical chelek in EY. Therefore, a ger who doesn't have any actual ownership over property should still not be able to read the parsha of bikurim. Furthermore, the Rambam is still difficult because the rambam himself writes that a ger cannot say viduy ma'aser since he doesn't have a chelek in EY, so why can he read the parsha of bikurim?
The Mishneh L'melech quotes an answer from the sefer kapos temarim (3rd perek of succah) that in the context of bikurim the pasuk says אשר נשבעת לאבותינו לתת לנו which speaks of the future. In the future a ger will have a portion in EY. Even though the geirim in the midbar didn't receive a chelek, that is because their conversion wasn't לשם שמים, but geirim who converted nowadays will receive a portion in EY in the future. But, by viduy ma'aser where the pasuk says אשר נתת לנו ה' כאשר נשבעת לאבותינו which is in the past, implies that he must already have a chelek, therefore a ger cannot say viduy ma'aser.

Monday, November 09, 2009

Baba Basra 81a - Some Points on the Mitzvah of Bikurim

1. Tosafos asks why we need a pasuk to exclude chutz la'aretz, since anyway bikurim is a mitzvah on fruits which are dependent on the land such as the mitzvah of teruma and ma'aser, which by default only applies in EY? Tosafos answers that the definition of mitzva that is te'luya ba'aretz, is when the mitzvah is on the produce rather than on the "gavra". The litmus test is whether the actual fruits are forbidden to eat prior to performing the mitzvah. Since the fruits are assur prior to teruma and ma'aser, we consider it a mitzva that is dependent on the land and by default only applies in EY. But by bikurim where there is no restriction on eating the fruits, we view it as a mitzvah that is not dependent on the land, rather on the person himself. Tosafos then points out that when we call bikurim a "cho'vas ha'guf", we don't mean that it is an actual obligation, because one need not purchase land from which to bring bikurim. Rather we consider bikurim like the mitzvah of tzitzis, so that if one finds themself in the situation of having a 4 cornered garment, or having first fruits, they are obligated to do the mitzvah.
Regarding the mitzvah of tzitzis we find in the gemara in menachos that the angel rebuked R' Katina for avoiding the mitzvah of tzitzis. Therefore, it is proper to go out of one's way to do the mitzvah even though they aren't obligated. Would we apply the same concept to bikurim and recommend going out of one's way to perform the mitzvah?

2. The gemara says that really the mitzvah of bringing bikurim and the reading go hand in hand, however when one purchases 2 trees (according to rabbonon) it is a safeik whether they acquire property with it. Therefore, the safeik will require the bikurim to be brought because safeik d'oraysa l'chumra, but not do read since it is a safeik issur since he will be declaring that he has property when he in truth doesn't. Whether he brings bikurim or not, he will passively be violating a mitzvah. If he brings bikurim, he will be violating the mitzvah of reading the parsha. If he doesn't bring it he will be violating the mitzvah to bring bikurim (but not the mitzvah to read the parsha, since the mecha'yev presumably will only be when he actually brings it). So, why would we require him to bring it, since either way he will be mevatel a mitzvah? Two possible answers: A. When he fails to bring bikurim he is me'vatel the mitzvah b'meizid, but when he doesn't read he is only mevatel the mitzvah b'ones (since reading would be sheker). It is better to be mevatel the mitzvah b'ones, rather then b'meizid. B. At the moment his chiyuv is to bring bikurim mi'safeik d'oraysa. The fact that he will in the end be mevatel the mitzvah of reading would not exempt him from fulfilling the mitzvah that is incumbent upon him right now.

3. The gemara says that we apply the concept of ראוי לבילה to the mitzvah of bikurim. Only bikurim that is fit to read the parsha is obligated to be brought, but if it is not fit for the reading then there is an exemption on the bringing. The Rashbam explains that when there is a safeik whether he is chayev in bikurim he is patur from bringing bikurim because on the tzad that he is chayev, he has an obligation to read. Since he can't read the parsha out of concern that he will be saying sheker, it is considered unfit for reading which is me'akev the bringing.
Why is this true - we should say ממה נפשך, on the tzad that he is chayev it is fit for reading, on the tzad that he is patur he has no obligation to bring at all? It seems that the rashbam holds that the concept of being fit for reading is on the "gavra". Meaning, that there is a tzad that the fruits require a kri'ah, and the "gavra" is unfit for a kri'ah since he can't say sheker, so this should exempt him from bringing altogether.

Thursday, November 05, 2009

Baba Basra 77a - Transfering Ownership of a Contract

In the gemara, there are 2 different girsa'os in what ameimar says. The Rashbam is go'res that ameimar paskens that debts can be sold by giving them over (which tosafos 76a understands to be a supercharged meshicha, meaning that it requires both meshicah and handing over the contract by a da'as acheres makneh, unlike mesira by large animals which is a lower level kinyan than meshicha [according to R"I, but R"T holds mesira is better than meshicha]). Based on the girsa of the Rashbam, when the gemara offers the logic for ameimar: אותיות מילי נינהו ומילי במילי לא מיקנין, it is a justification for mesira working without writing a separate contract. The Rashbam explains that a contract is just words, "mili", and a contract cannot be used to acquire a contract, therefore the effective kinyan should be mesira alone. Tosafos on the other hand is go'reis in ameimar that mesira is insufficient and that there also must be a second contract written on the first. Tosafos goes lishitasam in explaining the sevara of the gemara that "mili" can't be used to acquire "mili", means that just the mesira of the debt contract is nothing more than mili, therefore another contract must be written on the first.
Tosafos 77b asks that the gemara tries to prove that mili can be acquired with mili from the case where a person acquires a field and automatically acquires the pre-written shtar of the field with it. What is the proof? In that case the buyers name is actually written in the contract, therefore he acquires the contract with the field, but how would this prove that when the buyers name isn't written in the contract he should also acquire the contract with just a mesira? It seems that this question is tosafos li'shitasam who understand that the mesira of the shtar is called mili, therefore they can ask that we can't compare a case where the buyer is named in the contract to a case where he isn't named. But according to the rashbam where the whole issue of mili is that a shtar can only be acquired by mesira, it is fair for the gemara to ask from this case where he is able to acquire the contract without a mesira, which avoids the question of tosafos.
Now, according to those who require kesiva and mesira, what is the rationale? Why is mesira alone not enough, and what does a second shtar add? The Nemukei Yosef quotes the rashba who says that one must first do the mesira of the shtar and only afterward would they write a second shtar. The rationale of the rashba is: משום דשעבוד לבדו אינו נקנה קודם שיזכה בשטר החוב כיון דהשבעוב לא מהניא לגוף הנייר. The Rashba seems to understand that the mesira is a kinyan on the paper of the shtar, and the second contract is a kinyan on the shi'bud to collect from the borrower, therefore the kinyan on the paper must come first because without that you can't transfer the shi'bud. The Rashba seems to hold that the problem with mesira alone is that it is only a kinyan on the paper, the problem with shtar alone is that paper can't be acquired with a shtar (but the shi'bud can), therefore we need both so that the buyer will own the paper and the shi'bud. However, it seems to me that the Rashbam understands differently. The rashbam (bottom 76a) seems to hold that if we only have mesira alone, the borrower can claim that the buyer only purchased the paper and nothing else. Based on his approach, the shtar doesn't act as a ma'aseh kinyan on the shi'bud, rather it is a giluy (reveals) that the ma'aseh kinyan of the mesira was not just for the paper, but rather for the actual shi'bud. In other words, the Rashba and Rashbam argue whether the "kesiva" of the second contract is an independent ma'aseh kinyan to acquire the shi'bud (rashba) or is not a ma'aseh kinyan at all, it is just a giluy that the ma'aseh kinyan of mesira was for the purpose of the shi'bud and not just the paper (rashbam).

Wednesday, November 04, 2009

Baba Basra 76b - Selling Contracts

There are two basic approaches when it comes to selling contracts. Tosafos writes in many places that the entire concept of selling or purchasing the right to collect, is only d'rabonon, because on a torah level one can only sell something that is tangible. With this Tosafos explains why the lender even after selling the contract, retains the ability to be mochel the contract. Since the lender remains the "owner" on a torah level, he has the ability to be mochel the money that he is owed. The Ran, Ritva and Rosh in kesubos all quote Rabbeinu Tam who holds that the ability to transfer the ownership of the contract is really d'oraysa. The rationale as to why the lender can still be mochel the contract is that every contract has 2 shi'budim: 1. a lean on the borrower himself. 2. a lean on the property of the borrower. The lender only has the ability to sell and transfer ownership of #2, the lean he has on the borrowers property, which will enable someone else to collect from it. But, the lender cannot transfer the lean on the borrower himself. Since the lender retains the lean on the borrower himself, he can be mochel that lean, thereby undermining the right of the buyer to collect from the borrowers property. The Shach (c.m. 66:1) has a very long discussion where he cites many opinions who hold like tosafos that mechiras shtaros is only d'rabonon, but ultimately paskens that it is d'oraysa (he has an elaborate discussion arguing that the shita of the Ri"f is that it is d'oraysa).
Tosafos 66b is troubled that according to their opinion that mechiras shtaros is only d'rabonon, why do we need a pasuk to exclude shtaros from o'na'ah. The entire concept of ona'ah only exists when one sells a contract, and the whole concept of selling isn't d'oraysa? Tosafos answers that we need the pasuk for a case where the lender lost the contract, and the finder overcharges when he sells it back to the lender. The ketzos 66:1 struggles with trying to understand what tosafos means. If the torah doesn't recognize the ability to transfer ownership of contracts, then the lender will always legally be the one who has the right to collect with the contract. So, how can the finder actually "sell" the contract back to the lender, the debt of the contract always belongs to the lender, not the finder. The ketzos explains that we are speaking about a case where the lender was meya'esh on the contract. Through the yi'ush of the lender, the finder is zocheh in the ability to collect with this contract which he then sells back to the lender (and overcharges - the pasuk excludes this case from ona'ah). Why does yi'ush work to entitle the finder to collect using this contract, whereas selling the contract doesn't work to allow the buyer to collect? The ketzos explains based on Tosafos that the inability to sell a contract stems from the fact that the money that is owed is not in the reshus of the seller (lender), and one cannot sell something that is not in their reshus. However, yi'ush works by lost objects that aren't in the owners reshus, therefore yi'ush works to remove the rights of the lender and allows the finder to be the new "owner" of the contract.
The approach of the ketzos is a big chiddush. Simply speaking, Tosafos holds that the lender who is the holder of the contract has no ability to transfer his ownership to anyone else. If the ketzos is correct that he can be me'ya'esh on the contract enabling the finder to collect with it, even when he sells the contract we should interpret the sale as a yi'ush (since he recognizes that he won't ever be able to collect with it) which enables the buyer to now own the rights of collection? The nesivos disagrees with the ketzos. Although one can be meya'esh from something not in his possession, the Nesivos argues that the finder would not become the new "owner", rather the borrower would own it by not having to pay. Therefore, the Nesivos explains that Tosafos holds that the lender has the ability to sell the paper of the contract to a buyer who will then be able to decide whether to sell it to back to the lender, or sell it to the borrower so that the lender cannot legally collect from him. Therefore, if the lender looses the contract and is me'yaesh, the finder is zocheh in the paper of the contract and now has the ability to sell it either to the lender or to the borrower. This type of sale would be d'oraysa, and therefore yi'ush would also work m'doraysa, therefore we need a pasuk to exclude it from ona'ah.