Friday, July 31, 2009

Baba Metzia 98b - Shliach of the Borrower

The mishna says that if the lender sends his animal in the hands of his messenger or son, if the borrower didn't tell him to send it in the hands of that person, the borrower isn't responsible until he actually receives it. But if the borrower told the lender to send it in the hands of the lender's son or messenger, as soon as it leaves the reshus of the lender, the borrower assumes full responsibility for it. Clearly, the mishna considers even the "shliach" of the lender, who the borrower never even spoke to, to be a shliach of the borrower so that the borrower assumes responsibility as soon as it leaves the jurisdiction of the lender. Through what mechanism does this "shliach" of the lender, turn into the shliach of the borrower? The Ritva suggests 2 possibilities: 1. Although normally that concept of זכין לאדם שלא בפניו only applies to a zechus, not a chov. Here, where the borrower says to send it, he is agreeing to assume responsibility immediately. Therefore, we would say חבין לאדם שלא בפניו מדעתו - meaning that with the consent of the individual we can allow zechiya even for something which is a chov. 2. It is working using a similar concept as "omer imru" (6th perek of gittin - the ritva himself doesn't make the connection but this is how i understand what he means). Reuven can tell Shimon to tell Levi to serve as Reuven's agent, therefore the borrower tells the lender to have the "shliach" serve as the shliach of the borrower.
The gemara discusses how the non-jewish eved of the lender can serve as the shliach of the borrower. Tosafos raises a question based on the gemara 96a that a slave can fill his master's shoes to consider it a case of שאלה בבעלים, so when the lender sends his eved we should exempt the sho'el due to שאלה בבעלים. Tosafos (and Ritva) explain that the case on 96a where the gemara discusses whether a shliach of the lender and the slave of the lender qualify as שאלה בבעלים, is only when the initial agreement is that the lender himself should work for the borrower, but decides to send his agent or eved in his place. But, if the initial agreement between the borrower and sender is to send the animal in the hand of the eved, it is not שאלה בבעלים, rather it is like borrowing 2 cows (cow + eved). The Ritva is bothered according to the second approach, under what circumstances would we consider the eved to be working for the sender and therefore creating a case of שאלה בבעלים to exempt the borrower, and when do we consider him a shliach of the borrower? The Ritva says that if the lender forces his eved to go, against the will of the eved, he is clearly working for the owner (who is accepting an obligation to work for the borrower) thereby creating a case of שאלה בבעלים. The eved can't be working for the borrower against his will, because the borrower doesn't have the power to force the eved of the lender to work. But, if the eved is given a choice, and on his own agrees to the masters request (when the master says that the borrower asked me to ask you to bring him the cow), the eved becomes an agent of the borrower to make the borrower responsible immediately and it is not שאלה בבעלים.

Tuesday, July 28, 2009

Baba Metzia 95b - Shei'la B'bailim

Rav Hamnuna holds that the exemption of borrowing an animal with it's owner only applies to a case where the owner is borrowed to work in the same melacha as the animal, AND that the owner was there at the time that the accident occurred. This approach in שאלה בבעלים is certainly the most rationale, because the reason for the exemption is that since the owner was there at the time of the accident doing the same work, he should have watched his own animal. This is the approach of the GR"A in aderes eliyahu to explain the concept of שאלה בבעלים. However, the meshech chochma (mishpatim 22:3) points out that this approach doesn't at all work with what we pasken, rejecting rav hamnuna entirely. We hold that שאלה בבעלים is completely dependent on the time that the object was borrowed the owner must have already been working for the borrower (or at least begin immediately), AND it makes no difference if the owner is working with the object that has been borrowed or in something else. What then is the rationale behind this halacha?
The meshech chochma suggests that the rationale is based on a gemara in megillah 26b that says the kedusha of a shul would go away, not only through a sale but even if it is given as a gift because: דאי לא דהוה ליה הנאה מיניה לא הוי יהיב ליה והוי מתנה כזביניה. Here too, it is not common to do such a huge favor for the borrower to lend him an object and work for him at the same time. Therefore, we assume that the owner is only lending and working in exchange for something that he received. Since the owner received something in exchange, the borrower is no longer a borrower but has been downgraded to a renter who is exempt for o'nes.
This approach doesn't explain those who hold that negligence is also patur, and also doesn't explain why he is patur for theft according to those who hold a renter is normally chayev for theft (like a shomer sachar). Perhaps we will have to assume a "lo p'lug" to explain those opinions.
With this we can somewhat explain the gemara's question 96a whether שאלה בבעלים applies when the owner sends his messenger rather than going himself. Does the sending of a messenger also indicate that the owner must have received something significant in return for lending and supplying a worker, or do we only assume that when he himself goes. However, if this is in fact the question of the gemara, it shouldn't really be dependent on the halacha of שלוחו של אדם כמותו anywhere else, it should be an isolated question regarding the assumption in this specific situation. Yet, the gemara compares it to the general din of שלוחו של אדם כמותו by hafaras nedarim.

Monday, July 27, 2009

Baba Metzia 94a - Stipulating agains the Torah

The gemara says that a shomer may stipulate to have a lower level of responsibility because מעיקרא לא שעבד נפשיה, meaning that his original acceptance of responsibility was never for more than he accepted. Tosafos in Kesubos 56b asks that this seems to undermine the entire concept of stipulating against the torah. Why can't we say the same thing for one who marries on the condition to be exempt from feeding and clothing her is also מעיקרא לא שעבד נפשיה so he should be able to make such a condition? Tosafos gives 2 answers: 1. Since the Torah doesn't only list one type of shomer but rather 4 types of shomer, we understand that the intent of the torah is to allow anyone to accept responsibility like any of these 4 shomrim. But by marriage where the torah doesn't offer different types and packages, it is only binding if done in accordance with the package that is recognized by the torah which includes she'er k'sus and o'nah. 2. Since the Torah obligates a borrower more due to the fact that "all the benefit is his" and a paid watchman is more obligated than a free watchman because he is being payed, indicates that each shomer has the right to accept upon himself whatever level of responsibility that they feel they are being compensated for. Meaning, the ultimate responsibility of a shomer is a direct result of what he had originally accepted upon himself, therefore it is in his control to limit what he accepts upon himself.
Perhaps there is a distinction between the 2 answers of tosafos as to whether a shomer sachar can stipulate to be chayev on aveida but patur on geneiva. Based on the first approach we may only allow one to stipulate to be like one of the categories of shemira that is already recognized by the torah, but based on the second approach one should be able to create their own category.
Rashi seems to answer the question of tosafos very simply. Some interpret rashi that the reason by kiddushin one cannot stipulate against the torah is because the moment he says "הרי את מקודשת לי" the kiddushin is fully binding and no longer in his control to stipulate על מנת שאין לך עלי. But this peshat in rashi is very difficult as Tosafos in kesubos asks, the stipulation must proceed the ma'aseh. If not for Tosafos, I would have understood rashi to mean that kiddushin is an entity. Meaning it is a "chalos" that is designed by the torah. In essence it is a imaginary concept that only exists based on the torah design. Therefore, to stipulate and change the design isn't possible and completely beyond one's control. But a shomer on the other hand is not a "chalos", it is merely a list of responsibilities, therefore prior to accepting those responsibilities one can choose which of them he is willing to accept and which of them he isn't willing to accept.

Sunday, July 26, 2009

Baba Metzia 92a - Po'el eating from his own or from "shamayim"

The gemara raises a question whether the heter of a worker to eat as he works is: משלו הוא אוכל או משל שמים הוא אוכל . Is he eating from his own which means it is like added benefits in addition to his salary that he has full rights over to give to someone else, or is he eating from shamayim which rashi explains to mean is like a gift of gemilas chessed that the employer is required to give him by the torah? The gemara has a long discussion and concludes that it is a machlokes.
There seems to be a dispute between rashi and tosafos in defining the tzad of משל שמים הוא אוכל. Rashi explains that he isn't entitled to it until it "reaches his hand" so that he can't stipulate that it should be given to his children. Rashi implies that if the worker himself would take the grapes and hand it to his son who is walking next to him (but not a worker), that would be permitted even according to this tzad. Tosafos disagrees with rashi (pointed out by GR"A) and says that the tzad of shamayim holds that he is only zocheh in it at the moment he places it into his mouth and therefore has no way to give it to his son.
On 92b, when the gemara quotes the mishna that one cannot stipulate with the employer that his child (katan) won't eat, and instead the employer should compensate for it in the salary. The reason that on the tzad of משל שמים הוא אוכל we fully understand why the father can't impose this stipulation on his child, rashi explains -
דאין לפועל קטן זכות אלא כשנותן לתוך פיו
This seems to contradict rashi on amud alef who says that even on the tzad of shamayim, the worker is zocheh as soon as it reaches his hand, even before he puts it in his mouth?
The answer is that Rashi holds that an adult worker in general has an ability to make a kinyan and therefore acquires the fruit that he is entitled to eat as soon as he picks it up (even on the tzad of mi'shel shamayim). But a child who doesn't have the ability to make a kinyan cannot be zocheh upon picking it up, and is only zocheh at the time he actually eats it. Therefore, the father cannot stipulate that the employer should increase the salary in exchange for the father giving up the childs right to eat, because the right to eat only exists when he is actually eating.

Friday, July 24, 2009

Baba Metzia 91a - Latzeis Yidai Shamayim

The gemara proves that even though we normally assume that one does not receive 2 punishment such as malkus and payment, or misah and payment, nevertheless there is a requirement to pay to be yotzei yidei shamayim. The gemara proves this from אתנן אסרה תורה ואפילו בא על אמו - rashi explains that from the fact that even though he is chayev misah for having relations with his mother, the torah still considers the payment to have status of "esnan", rather than just a gift, clealry indicates that he is obligated at least bidei shamayim to pay. Based on this the gemara holds that if one muzzles a borrowed ox when he works with it, even though he receives malkus, he is obligated bidei shamayim to pay the owner of the ox. Rashi says that since he is technically obligated to pay just that beis din can't force him to pay, if the owner of the animal grabs the payment, he is allowed to keep it.
Tosafos asks why Rava refused to accept the money being offered to him when stolen b'machteres - although the thief wasn't obligated to pay, there was still a responsibility on his part bidei shamayim to pay. Tosafos answers that Rava realized that the thief wasn't interested in being yotzei yidei shamayim and was only paying because the thought that he was obligated to pay. [We learn from tosafos that if someone is paying a debt thinking they owe it in din, but are really only obligated to pay bidei shamayim, it shouldn't be accepted by the receiver].
The Ketzos HaChoshen (28:1) points out that there seems to be a machlokes between rashi and tosafos. According to Rashi that when one is obligated to be yotzei yidei shamayim, even grabbing would be okay, certainly if the person gave him the money mistakenly thinking that he was obligated to pay, the receiver can keep it. If so, according to rashi even if rava realized that the person was only paying due to mistakenly thinking he is obligated to, Rava should have accepted the money - which is against Tosafos. The ketzos reconciles rashi and tosafos with the approach of the maharshal who makes a distinction between whether the person is being punished with the stricter punishment (grabbing wouldn't help) and a situation nowadays where he isn't receiving malkus due to the fact that beis din can't enforce it (so grabbing would help). But the rashash explains that "grabbing" does not give the grabber a right to keep it, just that beis din can't take it back from him. But just as the person who worked with the muzzled animal has a mitzvah bidei shamayim to pay, the person who would grab it from him would have a mitzvah to return the money. Therefore, rashi and Tosafos fit perfectly well with one another - rashi is correct that if the owner of the animal grabs it, beis din will let him keep it, but tosafos is also correct that the grabber should not keep it against the will of the violator.

Thursday, July 23, 2009

Baba Metzia 90a - Amirah L'nachri

The gemara has a question whether the rabbinic prohibition of telling a goy to do an issur and/or benefiting from an issur done by a goy (which the gemara equates by citing the sirus case as a proof), applies only to shabbos since it is more severe (and also yom tov as tosafos points out because shabbos and yom tov are connected), or does it apply to other issurim as well. The maskana isn't clear from the gemara, but the nimukei yosef points out that since all the amoraim held that the sirus case was assur and they certainly don't all hold like r' chidka who says that sirus is assur for a goy, the halacha is that amira l'nachri is in fact assur by all issurim.
Rashi and Tosafos argue whether the gemara is speaking of a case where the jew tells the goy to thresh the grains of the jew or the goy. Rashi understands that the entire discussion in the gemara is where the jew tells the goy to do it for the goy's benefit, something the jew gets no benefit from. This would imply that if the jew tells the goy to do it for the jews benefit, it would surely be assur. According to Rashi the gemara would be making a slight jump by equating the amira l'nachri by muzzling to the interest that the jew has in benefiting from the goy doing sirus (even without the jew saying anything). Tosafos disagrees with rashi and says that it would be permitted for the jew to tell a goy to do it for the goy's benefit. It is only assur for the jew to tell the goy since the jew will be benefiting. According to this approach there is a clearer connection between the case of amira l'nachri by muzzling and the benefit the jew gets by sirus, since even the case of amira l'nachri is for the jew's benefit.
Tosafos assumes that all would agree that it is permitted to tell a goy to eat something not kosher. Tosafos asks that according to Rashi that a jew may not tell a goy to thresh the goy's produce with a muzzled animal, why is it permitted to tell a goy to eat non-kosher? Tosafos explains that the jew telling the goy to do it is tantamount to the jew doing that action. Therefore, telling the goy to eat neveila is like the jew doing the action of feeding the goy neveila which is perfeclty permissible. But to tell the goy to do melacha on shabbos or to thresh with a muzzled animal is tantamount to the jew doing that action which is assur.
R' Yosef Engel (lekach tov 1:8) uses this tosafos to prove the ketzos hachoshen who says that shlichus doesn't work by mitzvos because when reuven is a shliach of shimon and puts on tefillin for him, we don't view it as if tefillin is being put on shimon's arm, rather it is like shimon is doing the action of wrapping tefillin on reuven's arm. This is exactly the sevara of Tosafos. Tosafos holds that amira l'nachri is assur because we are machmir to consider the goy to be the shliach of the jew and therefore the action is attributed to the jew. But, when the jew tells the goy to eat neveila, it is not as if the jew ate neveila, rather it is as if he fed neveila to the goy.
The Nimukei Yosef answers tosafos question by making a distinction whether the goy is using the jew's object or his own object. It would be permitted to tell a goy to eat his own treif food, but not to tell him to eat your treif food. According to the nimukei yosef the issur of amira l'nachri is because the jew has involvement with the action of issur being done by the goy. If the jew has not involvement because his object is not being used and he is not benefiting, it is permitted.

Wednesday, July 22, 2009

Baba Metzia 88b - Mitzva To Save the Whales

The gemara suggests a kal v'chomer that would result in their being a mitzvah of tzedaka - מצוה להחיותו on animals. Although one may have a mitzvah to feed his own animals, the gemara concludes that there is surely no mitzvah to support the animal (when it is no longer profitable), and certainly one is not obligated to support animals that are not his. The Tosafos HaRosh asks in the name of Rabbeinu Meir, what is the hava amina. There should be an obvious pircha to the kal v'chomer, from the fact that one is not allowed to schecht people, but may schecht animals - this obviously shows that there isn't any mitzvah l'hachayoso on animals. The Tosafos HaRosh responds to this question by saying that the hava amina to make a kal v'chomer would be by animals that one is not allowed to schecht such as a bechor that is mixed with a shor haniskal.
Aside from the actual question of the Tosafos HaRosh, the entire hava amina that one would be obligated to support animals and help them survive seems a little strange. Especially since in the end the mitzvah l'hachayoso only applies to a jew and not a goy.
The Biur Halacha (330:2) writes that one is obligated to help a ger toshav woman give birth because on a ger toshav there is a mitzvah l'hachayoso. He entertains the possibility that the jew can even violate issurei d'rabonon to help the ger toshav give birth because when there is a mitzvah l'hachayoso the rabbonon weren't gozer. Based on this application of the mitzvah l'hachayoso, the mitzvah goes beyond tzedaka, it compels one to actually take care of others and help them through physically challenging circumstances.

Tuesday, July 21, 2009

Baba Metzia 88a - Exemption from Ma'aser on bought produce

There is a fundamental machlokes Rabbeinu Tam and Rivam quoted by tosafos regarding the exemption from ma'aser on produce that Reuven sold to Shimon.
Rabbeinu Tam holds that if Revuen processed the produce prior to selling and it became obligated in ma'aser and assumes a status of tevel, by selling it to Shimon the tevel status goes away and it is exempt once again. But if Reuven never processed it, when shimon does the processing he will be obligated in ma'aser m'doraysa becasue it is considered his own produce.
Rivam says exactly the opposite. If Reuven processed the produce prior to selling it, since it has become obligated in ma'aser and assumes a status of tevel, this status can not be removed. Therefore, when he sells it to Shimon, Shimon will have a Torah obligation to take ma'aser. But if reuven sold it to shimon prior to processing it and it was processed in the home of shimon, then it is patur from ma'aser.
When the produce was grown by a goy (assuming his kinyan in EY won't remove the chiyuv), the gemara says in bechoros 11b that if the goy processed them and then sold them to a jew, they are exempt from ma'aser, but if the jew processed them they are chayev. Rabbeinu Tam holds that if the produce was processed by the original farmer, it makes no difference if he were a jew or goy, the buyer (shimon) would be patur. But, if they weren't processed by the original farmer, the buyer would be chayev. The Rivam holds that when the original farmer was a goy, the halacha is exactly the opposite from when the original farmer would be a jew. A goy farmer who processes and sells would be patur since it was processed by the goy and remain patur even after it is sold. But if the goy farmer didn't process it, it is not considered his at all so that when he sells it to the jew and the jew processes it, it is chayev.
The greates difficulty with Rabbeinu Tam is that produce that is tevel can be sold and revert back to being exempt from ma'aser (and then if sold back to reuven would revert back to being chayev in ma'aser!). The greatest difficulty in the Rivam is that produce of a goy is not considered to be his unless he processed it, so that if sold to a jew, it is as if the jew grew it himself and is chayev in ma'aser.
Another hybrid approach (i think it is R' Chaim's approach in shitas ha'rambam) is that it is not dependent on who processed it, but rather what the intent was when it was processed. If Reuven processed it for personal use and it becomes chayev, nothing can remove that status of tevel (like Rivam). If Reuven did not process it rather he sold it to shimon who processed it then it is also chayev (like Rabbeinu Tam). Only if Reueven processed it with the intent of selling it to shimon, it will be patur.

Monday, July 20, 2009

Baba Metzia 87b - Bracha on sucking a fruit

The gemara learns from a pasuk that a worker is allowed to eat the grapes the he is working with, but he is not allowed to suck out the juice. The gemara somehow understands that the term "v'achalta" comes to exclude sucking. How? Tosafos implies that it is darshened from the term "v'achlta" being translated as eating to the exclusion of drinking (Rashash points out that when he works in drink, he may drink, but when he works in food he can only eat but not drink). Sucking out the juice is drinking, and therefore not permitted. But, Rashi understands the drasha is from the fact that he must consume the entire fruit and not throw away the skin (which would cause an unnecessary loss to the ba'al habayis). An obvious difference between rashi and tosafos would be whether it is permitted to suck the juice and then eat the chartzanim that remain. According to rashi it should be permitted since he is consuming the entire fruit without any waste, but according to tosafos since he is doing an act of drinking rather than eating it should be forbidden.
Another difference between rashi and tosafos that is pointed out by the rashash is what bracha to make on the sucking of a grape (when you won't be eating the entire grape). On fruit juice the bracha is shehakol (as we make on OJ, although that is debatable nowadays where the oranges are grown for the purpose of juice), but on the actual fruit the bracha is shehakol. If we consider the sucking to be drinking, it is equivalent to drinking the juice so the bracha should be shehakol (tosafos), but if we consider it to be eating it should be ha'eitz (rashi). The Rashash points out a gemara in krisus that seems to categorize the milk of a nursing mother as "food" rather than drink (because it needs hechsher to be mekabel tu'mah) - this implies that we consider the sucking of a liquid to be "eating" rather than drinking (not like tosafos) and therefore the Rashash paskens that the bracha would be ha'eitz.

Sunday, July 19, 2009

Baba Metzia 86a - Closing of Mishna and Closing of Gemara

The gemara says that Rebbi and R' Nasan were the end of the mishna era, and Rav Ashi and Ravina were the end of "hora'ah". Rashi explains that Rebbi was responsible for organizing the mishna but this is not to say that the mishna was closed so that no additions can be made after Rebbi. Rashi clearly acknowledges that ואחריהם לא יוסיפו אלא מעט - implying that there were bits and pieces added later. Similarly, when the gemara says that R' Ashi and Ravina were the end of the "hora'ah" period, rashi doesn't say that they had the final word and no later authority can argue on them. Rather, rashi says that they too were involved in organizing the Talmud as we know it, making sure the statements that were made fall under the mishna on which they belong. Rashi doesn't even mention the idea that no one can argue on the conclusions of Ravina and R' Ashi.
The one who addresses the issue is the Kesef Mishna (mamrim 2:1). After the Rambam writes that when a Beis Din HaGadol interprets a din, a later beis din has the authority to disagree and darshen the way they see it (which is not the case by a gezeira of an earlies beis din). Based on this the kesef mishna asks, why is it that amora'im don't argue on tana'im, and why is it that the generation after the amora'im don't argue on them? The kesef mishna answers:
ואפשר לומר שביום חתימת המשנה קיימו וקבלו שדורות האחרונים לא יחלוקו על הראשונים, וכן עשו גם בחתימת התלמוד שמיום שנחתם לא ניתן להם רשות לשום אדם לחלוק עליהם
He explains that the generation following the close of the Talmud had accepted upon themselves not to argue. The kesef mishna doesn't mention our gemara רב אשי ורבינא סוף הוראה, because he considers it irrllevant to the issue - it doesn't explain why the later generation can't argue. Therefore, the kesef mishna makes an assumption that it was just accepted that no one would argue on the gemara after it was sealed.
The question still remains, what makes this binding? What if someone would argue on the gemara - we would surely call him a heretic, but why?
R' Elchonon Wasserman (kuntros divrei sofrim 2:6) explains that the closing of the mishna was done with a gathering of all chachmei yisroel who have the power of a beis din hagadol to prevent anyone from arguing. He argues that the same was done by the closing of the Talmud. Therefore, an individual must be submissive to a beis din hagadol and cannot argue, so that every individual is bound to the mishna and talmud. It is true that the beis din hagadol who closed the talmud could have argued on the mishna, but they didn't.
The Rambam (end of hakdama to mishneh torah) seems to say it a little differently:
נמצא רבינא ורב אשי וחביריהם סוף גדולי חכמי ישראל המעתיקים תורה שבע"פ וכו' ואחר ב"ד של רב אשי שחיבר התלמוד בימי בנו וגמרו, נתפזרו ישראל בכל הארצות פיזור יתר וכו' אבל כל הדברים שבתלמוד הבבלי חייבן כל בית ישראל ללכת בהם וכופין כל עיר ועיר וכל מדינה ומדינה לנהוג בכל המנהגות שנהגו חכמים שבתלמוד ולגזור גזירותם וללכת בתקנותם, הואיל וכל אותן הדברים שבתלמוד הסכימו עליהם כל ישראל, ואותן החכמים שהתקינו או שגזרו וכו' הם כל חכמי ישראל או רובן והם ששמעו הקבלה בעיקרי התורה כולה איש מפי איש עד משה
The Rambam doesn't say that the closing of a talmud was a formal beis din hagadol decision that no later person can argue on. The rambam implies that since the chachmei hatalmud had a clear tradition, and after the sealing of the talmud the jews were dispersed in the galus so that the tradition was lost, one who would argue on the talmud would inevitably be wrong. It is assur to argue on the talmud because no one after the talmud had a tradition strong enough to measure up to the tradition of the chachmei hatalmud.

Friday, July 17, 2009

Baba Metzia 84a - Sitting at the gates of the mikva

The gemara says that R' Yochanan would sit at the gates of the mikva so that the women would see him prior to being with their husbands, which would somehow cause them to have beautiful children who are talmidei chachamim. The Maharsha explains that we see from the story with yakov and the spotted sheep that what one sees prior to engaging in relations has an impact on the offspring. The Rabbonon asked him why he is not concerned about ayin ha'ra. He answered that he comes from the family of yosef so ayin hora won't effect him.
Tosafos asks from a gemara in pesachim that says one who meets a woman on the way up from tevila, if he has relations first "ruach zenunim" will take over him, and if she has relations first it will take over her. Why was R' Yochanan not concerned about this? Tosafos answers either that it only applies to suddenly meeting someone bur R' Yochanan sat their permanently, or it only applies if she has not yet gotten dressed. The Ritva answers that it doesn't apply because R' Yochanan had complete control of his yetzer hora so the woman to him were like "white ducks".
The ritva didn't make this term up. The gemara in Brachos 20a tells of both R' Gidal and R' Yochanan who would sit at the gates of the mikva as women came up. The talmidim asked R' Gidal why he isn't afraid of the yetzer ho'rah, to which he responded that the women in his eyes are like "white ducks". The talmidim asked R' Yochanan why he isn't afraid of ayin hora and he responded as in our gemara that he descends from yosef.
It seems that Tosafos didn't want to answer the "white duck" answer to push off the gemara in pesachim, because the gemara never said that about R' Yochanan. But this really begs the question why did the talmidim not ask R' Yochanan whether he is concerned about yetzer ho'ra and not ask R' Gidal about ayin hora? The answer is pashut. The gemara says that R' Gidal's purpose was to instruct them how to be tovel which implies that he was present at the time of tevila when they are not clothed so their is a concern of yetzer ho'rah, but R' Yochanan's purpose was to expose them to his beauty so he sat further up and only had to be concerned for ayin ho'ra (since the primary purpose was for them to focus on his beauty).
The Rama at the end of y.d. 198 writes that a woman should hide her tevila night and also should not be "pogei'ah" a non-kosher animal or a goy, as the first thing she comes across on the way up from her tevila. The sidrei tahara quotes the sha'arei dura that because of this the minhag is that she is "po'geiah" the mikva lady first. But he has a discussion (based on ma'adanei melech) whether the girsa is "pogei'ah" or "no'geiah" - Pogei'ah would imply that the mikva lady must take a step to greet her, but No'geiah implies that she should touch her. So the ma'danei melech says that she should do both. But, the sha'arei dura writes that R' yochanan's purpose of sitting by the mikva was to make sure that the women were "po'geiah" him first, rather than an non-kosher animal or a goy. From this the sidrei tahara deduces that neither translation is correct because R' Yochanan would not greet a woman, and certainly not touch a woman - therefore the requirement of "po'geiah" is only that the woman who was tovel should see a jew before a goy or non-kosher animal.

Thursday, July 16, 2009

Baba Metzia 83a - 3 Types of Lifnim Mi'shuras HaDin

Tosafos 24b points out that the gemara uses 3 different approaches when dealing with the concept of lifnim mishuras hadin (lmh"d).
A. On 30b the gemara quotes the pasuk of
והודעת להם את הדרך אשר ילכו בה ואת המעשה אשר יעשון: אשר יעשון זו לפנים משורת הדין
B. On 24b the gemara doesn't quote any pasuk.
C. In our gemara the gemara quotes the pasuk of למען תלך בדרך טובים.
Tosafos explains that the pasuk in the torah of אשר יעשון which is the strongest requirement of lifnim mishuras hadin, applies to a situation where everyone else is obligated but this individual is patur such as a zaken v'eino l'fi k'vodo for hashavas aveida. He is required based on this pasuk to be machmir on himself and behave the way others are required to do. But, in a situation where everyone is patur, but it is not a real loss, the obligation is not as severe so the gemara doesn't quote that pasuk (but the rosh quotes the pasuk even in this context). Finally, there is our gemara where there is a significant loss to forgo on the damage and pay the wages, therefore the gemara has to find a source that for tzadikim of Raba bar bar Chana's stature he should be machmir even under those circumstances based on the pasuk in mishlei of למען תלך בדרך טובים.
Even in our gemara the GR"A in his commentary on Mishlei (2:20) points out that he had to return the shirt that he took as compensation for their damaging his barrel based on the pasuk of למען תלך בדרך טובים, but when Rav instructed him that in addition he should pay them their wages he quotes the end of the pasuk וארחות צדיקים תשמור. The Gr"a explains that "tovim" refer to one who does good for others who are undeserving but doesn't give of his own to them. "Tzadikim" refer to people who generously give of their own to undeserving others. Therefore, when Rav told Raba bar bar chana to be mochel on the damage and return the shirt he cited the pasuk of למען תלך בדרך טובי, but when Rav requested even more of him such as paying their wages he quotes the pasuk of וארחות צדיקים תשמור because that is beyond the requirement of tovim - it is something that is only expected of true tzadikim.
B'kitzur there are 4 levels of lifnim mi'shuras hadin.
1. אשר יעשון which applies when others in this situation are chayev.
2. lifnim mishuras hadin when everyone is patur but it is not a major loss to be machmir (which is also a ma'aleh for regular people but not demanded by the pasuk).
3. למען תלך בדרך טובים which applies only to "tovim" because there is a loss.
4. וארחות צדיקים תשמור which applies only to tzadikim who literally give generously of their own to others who are undeserving.

Wednesday, July 15, 2009

Baba Metzia 82b - Osek B'mitzvah for personal benefit

In my sefer, Nasiach B'chukecha (pg. 61) I quoted the Mishna Berura (38:24) who quotes the magen avraham that when one is doing a mitzvah and also profiting such as tefillin merchants, they are only considered osek b'mitzvah to be exempt from another mitzvah when their primary intent is the mitzvah. The Magen Avraham is medayek from rashi in succah 26a that if their primary intent is for profit, they don't have the status of osek b'mitzvah to exempt them from another mitzvah. The Biur Halacha asks on this from our sugya. The gemara concludes that although a lender who takes a mashkon is technically a shomer sachar on the mashkon based on the same din of shomer aveida - namely, he is involved in a mitzvah and therefore exempt from giving tzedaka. But, when he takes the mashkon for his personal use (and will deduct some amount from the loan to avoid the ribbis problem, as rashi writes), we have a machlokes r' eliezer and r' akiva. R' Eliezer holds that since his intent is really for personal benefit, he is not considered to be doing a mitzvah and therefore doesn't become a shomer sachar on the mashkon. We pasken like R' Akiva that he is considered to be doing a mitzvah and therefore does become a shomer sachar on the mashkon. The biur halacha points out that this seems to imply that even if one's primary intent is for profit, he is considered to be doing a mitzvah and therefore becomes a shomer sachar, which is against the magen avraham? The Biur Halacha pushes off the question by saying that the case must be where his primary intent is not for personal benefit, rather to do a mitzvah of lending and that is why r' akiva still considers him to be osek b'mitzvah.
The approach of the biur halacha doesn't fit well with rashi. Rashi explains that when the lender takes a mashkon to use for personal benefit, R' akiva holds that he is doing a mitzvah and therefore a shomer sachar - ור"ע סבר אפילו הכי איכא מצוה. Rashi doesn't say that his primary intent is to do a mitzvah, rather rashi says that even though להנאתו מתכוין as the gemara says, nonetheless it is an act of a mitzvah to consider him osek b'mitzvah. Rashi implies that R' akiva doesn't disagree with r' eliezer about the premise of his primary intent being for personal benefit, just that he holds that even so since he is doing a mitzvah he is considered osek b'mitzvah to be exempt from tzedaka and turn into a shomer sachar. This seems pretty clearly against the approach of the biur halacha.
In the hosafos to my sefer I attempted to answer this question.
Click here - page 5-6 and the end of #13.

Tuesday, July 14, 2009

Baba Metzia 82a - S'char mitzvah turns the lender into a shomer sachar on the mashkon

כתב הר"ן בסוכה כה ע"א ובאמת כ"כ כל הראשונים, שלא שייך לפטור שומר אבידה אלא בשעה שהוא טורח באבדה דאטו מי שיש לו ציצית בבגדו ותפילין בראשו מי מפטר משאר מצות. אמנם מדברי הנמוק"י בב"מ פב ע"א (נא ע"א בדפי הרי"ף) לא משמע כן. בגמ' שם קאמר שהמלוה על המשכון הוי שומר שכר מפני שהמלוה מצוה קעביד וממילא הוא כש"ש על משכונו של הלוה. והקשה הנמוק"י דנהי דעביד מצוה בשעת ההלואה מ"מ לא דמי לשומר אבדה שעושה המצוה כל זמן השמירה. וכתב הנמוק"י בשם הראב"ד וז"ל ופריק ז"ל דה"נ הוי ש"ש כל שעתא מפני שממתין לו ואינו מוכר המשכון ליפרע ממנו, וע"ז כתב הרשב"א ז"ל למדנו מדברי הרב דבר זה שהוא פטור מפרוטה לעני כל זמן המשך המשכון בידו, ומ"מ לעיקר הקושיא נ"ל דאינה, דכיון דבשעת נתינת ממון נשכר פרוטה דרב יוסף נמצא שהוא ש"ש עליו לעולם וזה נ"ל פשוט עכ"ל. הרי לדעת הרשב"א ניחא דבאמת אינו פטור מלתת ריפתא לעניא רק בשעת הלואה שהוא עוסק בנתינת המעות, וזה מועיל להחשיבו ש"ש לעולם. אבל לפמש"כ הראב"ד שהוא פטור מפרוטה לעני כל זמן משך המשכון בידו מפני שעוסק במצוה במה שאינו מוכרו, תמוה מאוד, שזה נגד כל הראשונים שכתבו בתמיה דאטו מי שיש לו ציצית בבגדו ותפילין בראשו וכו', דלא הוי כעוסק במצוה להיות פטור מן המצוה רק בשעה שהוא טורח ומתעסק במצוה ראשונה. ונראה דצ"ל בכוונת הראב"ד דודאי אינו פטור מלתת פרוטה לעני כל זמן שהמשכון נשאר ברשותו, אלא כוונתו הוא דכיון שהוא עושה מצוה במה שממתין לו ואינו מוכרו, נמצא דכל זמן שמטפל במשכונו של לוה וטורח במשכונו הוא עוסק במצוה במה שמטפל בו ואינו מוכרו, ומש"ה כל זמן שמטפל וטורח בה הוא פטור מלתת פרוטה לעני. אבל בזמן שאינו מטפל בה מודה הראב"ד דלא מקרי עוסק במצוה להיות פטור מלתת פרוטה לעני

Baba Metzia 81a - Watch for me and I will watch for you

The gemara says that if 2 people made a deal, reuven agrees to watch shimon's car and shimon agrees to watch reuven's coat, it is considered shemira b'balim. Therefore if either the car or the coat gets damaged, neither one is responsible. However, Rashi explains that this only applies to the case of שמור לי ואשמור לך, but in a case where they are borrowing from one another i.e. reuven borrows shimon's car and shimon borrows reuven's coat, it is not considered shemira b'balim and each one is chayev for any o'nes that would happen to the item. The definition of שאלה בבעלים is that at the time when the borrower borrows, the lender is doing work for him. When the lender is watching his item that is considered the lender doing work for the borrower, but if the lender is borrowing an item he is not considered to be working for the borrower.
The rationale for this distinction is that there is a fundamental difference between a borrower and other types of shomrim. A borrower is chayev on o'nes because כל הנאה שלו, all the benefit is his. Whereas all other shomrim are not receiving all the benefit. Therefore, a shomer chinam is certainly working for the ba'al habayis. Even a shomer sachar and perhaps a renter are considered to be working for the ba'al habayis, jus that they are being compensated for their work. However, a borrower is not working for the ba'al habayis. Actually the opposite is true, the object of the ba'al habayis is working for the borrower. That is why any other shomer is considered to be working for the ba'al habayis to create an exemption of בעליו עמו במלאכתו if the ba'al habayis would have borrowed something from the shomer, but a borrower is not considered working for the ba'al habayis so there isn't any exemption of בעליו עמו.

Sunday, July 12, 2009

Baba Metzia 78b - Copyright Law: Stipulation in the sale

The gemara says that according to R' Meir, if one deviates from the intention of the ba'al habayis, he is considered to be a gazlan. The gemara ultimately proves this from the case where one gives a dinar to a poor person and tells him that he must use it to buy a particular item. If the "ani" would deviate from the intention of the ba'al habayis and use the money for a different item, it is considered stealing from the ba'al habayis. Clearly, R' Meir holds that one may make a stipulation in a sale or gift to limit the use of the item. The rabonon disagree with R' Meir (as is apparent from out mishna where the reisha is r' meir, but the seifa holds that you aren't chayev for merely deviating which is the opinion of the rabbonon). Since we pasken like the rabbonon, the halacha is that a seller cannot limit the use of the buyer in an item. Perhaps the Rabbonon would agree that if one stipulated with a proper t'nai (following the details of a proper t'nai such as kaful, hein kodem l'lav...), then the seller would be able to say that if the buyer uses it in such way that is against the will of the seller, the sale would retroactively be void. However, in the absence of a t'nai, a seller cannot in anyway limit the way that a buyer uses a particular item.
This concept sheds some light on copyright law. When dealing with the copyright law there are really 3 issues that have to be considered. This gemara sheds light on the first of those 3 issues. The 3 issues are: 1. Can the seller limit the buyers use of an item? 2. Even if the seller cannot limit the buyers use, if intellectual property can be "owned" by torah law, one can argue that the seller never sold the intellectual property rights to the buyer. Therefore, any abuse of the intellectual property rights would be an act of stealing by the buyer. But, it is hard to find a source in the gemara that the torah actually recognizes this type of ownership. 3. Even if the seller has no ability at all to limit the buyers use of an item, perhaps the dina d'malchusa has a right to limit the buyers use to allow the market to function normally. This would presumably only apply to copying with the intention of selling, but if one copies for personal use, it is hard to explain how the government has the power to forbid this.
Now, in regard to the first issue: Being that we pasken like the rabbonon, the seller doesn't have any ability to limit the buyers use of an item that he purchased. If a seller would sell a cup to a buyer and insist that the buyer use if for coffee not tea, the buyer isn't bound by this stipulation. Similarly, if the seller says that the buyer may listen to a CD but not copy it, the buyer should not be bound by this stipulation (unless it was done with a proper t'nai that would void the entire sale retroactively, which is surely not the common practice).

Friday, July 10, 2009

Baba Metzia 77b - Status of a Nizuk

The gemara says that if a buyer payes 200 toward a 1000 purchase, and then the seller backs out of the deal, the buyer has the upper hand. He has the right to choose whether he prefers his 200 back or whether he would like 200 worth of the sellers best property. The gemara explains that the buyer can demand 200 worth of the best property of the seller, even if that wasn't the property that he was trying to purchase. why? Because presumably the buyer didn't have the cash to purchase the large piece of property from the seller. Therefore, the buyer had to sell his smaller properties at discounted prices in order to get the money together to purchase the large piece of property from the seller. The selling at a loss is considered "damages" which labels the buyer as a nizuk and therefore entitles him to the "idiyus" of the mazik. Tosafos is bothered that if the buyer is really considered a nizuk because he had to sell his properties at a low price, he should be able to claim the amount of the difference (between the appraised price and actual sale price) from the mazik. Yet, we do not allow the buyer to collect any extra money from the mazik, he is only entitled to the amount that he paid to be returned, just that he can collect this amount from the seller's idiyus. Tosafos concludes that it is really a very loose connection to consider the seller a maik. Tosafos implies that m'doraysa he is really not entitled to idiyus, just that the rabbonon "compared him a little to a mazik" and entitled him to collect the amount he paid from the sellers idiyus.
Perhaps we can suggest another approach. Is the din that a nizuk collects idiyus part of his compensation for incurring damage, or is it a gezeiras hakasuv to penalize the mazik that whenever he pays for a damage he must do so from the best of his property? If we assume like the second approach that the mazik is penalized to pay from his idiyus, even when a mazik indirectly causes damage to a nizuk i.e. grama, he should be penalized to pay from his idiyus, just that there is a din that he is completely exempt from paying any damages for grama. Meaning, he is labeled as a mazik who should be paying idiyus, it just happens to be due to a technicality of grama he doesn't have anything to pay. However, in this scenario, although the seller is only a "goreim" of the actual damage incurred by the buyer, and on that amount he is exempt from paying at all, the seller still is labeled as a "mazik" therefore on the 200 that he is required to return he has to pay from his idiyus.

Wednesday, July 08, 2009

Baba Metzia 75b - Heterim for Ribbis

I apologize for slacking off in posting - I am in NY for my sisters chasuna so I have been distracted.
The Chochmas Adam writes that there was a custom in vilna to be meikel to lend with interest. Reuven wanted to borrow from shimon and pay interest. Even if Reuven had no assets he would approach shimon and be modeh that he has tangible movable assets that are worth 10k. Reuven agrees to sell these item to shimon for 8k that shimon will be paying for today. Shimon agrees to provide Reuven either with these items or with 8k plus 20% instead (which will still be less than the objects worht 10k that reuven would otherwise have to give to shimon). This type of set up is done so that reuven never becomes a borrower from shimon, rather he agrees to provide him with the merchandise that shimon purchased or with something to replace the merchandise, namely 8k + 20%. The main issue that the chochmas adam has with this heter is that the entire hoda'ah that reuven actually posseses these items is complete sheker and therefore cannot be used. However, in a case where reuven actually does have items that are worth 10k, he allows such a deal. The binas adam (5) tries to justify why the rabbonim are meikel to allow even the first type of deal through hoda'ah. He suggests that the ribbis in this case isn't d'oraysa, only d'rabonon and in a situation where people are pressed for parnassah there is room to be meikel with ribbis d'rabonon, but it is certainly not an ideal way to pay interest.

Friday, July 03, 2009

Baba Metzia 69b - Hiring someone to be an cosigner

Can you pay someone to be a cosigner on the loan?
There is a machlokes Taz (170:3) and nekudas hakesef whether one can hire someone to be an cosigner on a loan where the cosigner has full responsibility as much as the borrower himself (areiv shluf dotz). The Chochmas Adam in his sefer Binas Adam (sha'ar mishpat tzedek 2) points out that this discussion took place before the ritva on baba metzia was accessible. However, now that it is accessible the answer is resolved. Rava says that Reuven may pay Shimon to go convince Levi to lend money to Reuven because reuven is only paying shimon for s'char amira. The ritva asks why does the gemara need to be matir based on this rationale, it should be mutar anyway based on the other rationale that the gemara suggests that the torah only forbids ribbis that is paid directly from the borrower to the lender. The ritva answer that we are speaking about a case where Levi refuses to lend money to reuven, but is willing to lend it to shimon who then goes and lends it to reuven. Even though it turns out that technically shimon is the one who lends to reuven and therefore when reuven pays him it is ribbis that is paid from the borrower to the lender, it is nonetheless permitted since it is only s'char amira. The binas adam learns from the ritva that it is only is a situation where reuven doesn't request of shimon to be an areiv shluf dotz, rather shimon decides on his own to borrow from levi and lend it to reuven. But, if reuven would be paying shimon to be such a high level areiv, it is as if he were hiring shimon to borrow from levi and then lend to him which is an issur of paying ribbis since it is no longer just s'char amira.

Thursday, July 02, 2009

Baba Metzia 69a - An extra third of payment

There is a machlokes Rav and Shmuel how the investing partner must compensate the managing partner for the labor that is invested in the iska deal. Rav says that they can set a bar, until 33% profit they will split evenly, but beyond the 33% the managing partner can keep it all. Shmuel says that this doesn't work because profits may never reach 33%, so the investor must ensure at least some money that the managing partner will definitely receive as compensation for his work.
Tosafos asks, how can rav allow this, since the profits may not exceed 33% and Rav doesn't hold like R' Yehuda who is matir tzad echad b'ribis? Tosafos answers that it is very common for the profits to exceed 33% and is therefore permitted. Tosafos seems to be matir based on the fact that the violation of ribbis is only d'rabonon, and since there is a strong chance that it won't be a problem of ribbis it is permitted. Tosafos made a similar point on 68b by the eggs.
Why does Tosafos need this. The fact that there is a chance of profits exceeding 33% places a cash value on that chance. Why isn't the chance also valued as a definite amount that he manager would be receiving since it is in his control to sell that chance to someone else for real money? It should be similar to the gemara in makos where we deal with the zechus s'feiko and zechus s'feika by evaluating what someone would pay for that chance. Here too, someone would pay a real cash value for the chance of winning all profits that exceed 33%?

Wednesday, July 01, 2009

Baba Metzia 68b - Is Avak Ribbis an Issur on the Borrower to Pay?

The Mishneh L'Melech (hilchos malveh 4:2) quotes a Rashba who is medayek from our gemara that the issur of avak ribbis is only an issur d'rabonon on the lender, not on the borrower. The gemara says that R' Ilish would never have signed a contract of Iska that would consider him a borrower on half, because the work that he would be doing for the lender would be considered ribbis and "rav ilish would not feed issur to the lender". The implication is that the only issur on the borrower of avak ribbis is an issur lifnei iver that you are causing the lender to violate an issur d'rabonon of taking ribbis, but there isn't any specific issur d'rabonon on the borrower of avak ribbis. This is also paskened in the Rama (y.d. 160) who quotes this from the Rosh, that the borrower of avak ribbis is only in violation of lifnei iver.
The Chavos Da'as points out that perhaps there is a specific issur d'rabonon on the borrower to pay avak ribbis, but in this case r' ilish died before he actually paid it. Had R' Ilish stayed alive, perhaps he wouldn't have paid the avak ribbis because it is an issur. The gemara therefore can only make its point by saying that R' ilish wouldn't have entered into an agreement by signing a contract that would state an obligation to "feed issur to the lender" because this is also lifnei iver.