Monday, August 31, 2009

Baba Basra 12b - Kofin on Midas S'dom

The concept of זה נהנה וזה לא חסר which is considered midas s'dom so we force the person who has nothing to lose to forgo his claim, seems to be d'oraysa. Although we don't really have explicit pesukim in the Torah forbidding specific bad middos, we can prove from Tosafos that it is assumed to be d'oraysa. Tosafos asks why we need a pasuk to say that a b'chor is entitled to both his portions next to each other, rather than dispersed among the fields of the other brothers - even without a pasuk we should give the b'chor to adjacent portions based on כופין על מדת סדום. From the fact that Tosafos assumes that this concept would render a pasuk irrelevant, it is clear that Tosafos assumes that it is a d'oraysa concept. Even according to the second answer of Tosafos in the name of Ritzvah that: הא דאמר רבה כופין, לא מדין תורה קאמר דבדין היה יכול למחות שכנגדו. The Ritzvah is not undermining the entire concept of כופין על מדת סדום from being a d'oraysa. Rather he is saying that since the direction of the field does make a difference, it is not truly a case of זה נהנה וזה לא חסר, and therefore using the midas s'dom argument you cannot force the other brothers to provide the b'chor both portions next to each other. Only because we have a pasuk that entitles the b'chor to both portions next to each other can he actually demand that. But surely the Ritzvah would agree that when it is in fact a case of זה נהנה וזה לא חסר, it would be m'doraysa to insist that the one who has nothing to lose forgo.

Baba Basra 10b - Accepting Donations from Non-Jews

The gemara says that when non-jews gives tzedaka it serves as an atonement for them. Because it serves as an atonement, R' Ami refused to accept tzedaka from Ifra Hurmiz. Even Rava only accepted it because of shalom malchus, but otherwise would not have accepted it based on the pasuk - ביבש קצירה תשברנה which means that the goyim won't be destroyed until their zechuyos dry up, therefore we don't give them opportunities for zechuyos. However, the gemara says that if we were to use the funds to support non-jewish causes (which rashi explains that we support anyway for darkei shalom), it would not give them any special merit. It is only if we use the funds to support Jews that it is considered a zechus for them (but when it must be accepted for shalom malchus and it is ear marked for Jews, it is assur to use it for goyim as rashi explains because of geneivas da'as of the giver).
Tosafos 8a (d.h. yasiv) points out that the gemara in eruchin 6b implies that we would accept donations to shuls that come from goyim, why? Tosafos explains that donations to shuls are considered like korbanos and we do accept korbanos from goyim. The hagahos ashri raises the question, why is it that we don't accept tzedaka from goyim, but we do accept donation to shuls (and to the beis hamikdash) from them? The Hagahos Ashri answers that nedarim and nedavos that they are offering to the beis hamikdash are not for the purpose of atonement, that is why we can accept it from them.
What does the hagahos ashri mean that nedarim and nedavos are not meant for the purpose of kapara? What do the accomplish for the goyim aside from kapara? Furthermore, the gemara says in succah 55b that the goyim destroyed the beis hamikdash, not realizing what they will be losing. When we had the mikdash, the miz'beiach served as a kappara for them, but now they have nothing to atone for them. The gemara in Succah clearly implies that the purpose for their korbanos were to be a kappara, which contradicts the hagahos ashri?
The distinction of the Hagahos Ashri is found in the Shach and Taz (y.d. 254:4) to explain the Rama who says that we do accept donations to shuls from goyim, but don't accept tzedaka from them (unless the money was air marked for tzedaka and must be accepted for shalom malchus). Perhaps the gemara in succah is not referring to the nedarim and nedavos that the goyim bring, rather the beis hamikdash in general served as a kapara for the entire world, including the goyim. But the nedarim and nedavos, and donations to shuls that we accept to goyim is because it allows them to have a share in our tefillos, but won't serve as a kappara to prevent them from being destroyed for aveiros that they have committed. Tzedaka to the poor which would serve as a kapparah for aveiros that they have committed, we refuse to accept from them unless we have no choice (such as shalom malchus).
The Chochmas Adam (146:3) explains this idea a bit further:
ואם מנדבין דבר לבית הכנסת מקבלים מהם דהוי כמו קרבן ומקבלין נדרים ונדבות מעכו"ם, משא"כ צדקה דהוי כקרבן הבא על חטא דכתיב "חטאיך בצדקה פרוק" וקרבנות אלו אין מקבלים מן העכו"ם
Tzedaka to the poor is tantamount to a korban chatas which we don't accept from goyim because we don't give them opportunity for kappara, but donation offerings we do accept from them so we can also accept gifts to shuls.
It would seem that the issur of ביבש קצירה תשברנה which forbids accepting tzedaka from them only applies to tzedaka to the poor, but donations to yeshivos and donations for gemilas chessed which doesn't go to the poor would be like nedarim and nedavos and donations to shuls that we can accept from them. But perhaps when it comes to talmud torah, since the donation buys them a share in the torah, we should not provide them with that opportunity either?

Sunday, August 30, 2009

Baba Basra 9a - Tza'arah D'gufa vs. Kavod HaBriyos

The gemara says that the logic to provide food to a poor person without looking into his need, whereas before providing clothing you're entitled to look into him, is that starvation entails physical pain and is more necessary than being without clothing. R' Elchonon (kovetz shiurim 49) observes that this opinion seems to hold that the suffering one incurs from starvation is more severe than the embarrassment of not having clothing. Being that we have a general principal that kavod habriyos can push off issurim in the torah (as the gemara says in brachos 20a) so long as they are violated passively, physical pain and suffering should also push off mitzvos. Yet, the only mitzvah where we find an exemption for one who is in pain is the mitzvah of succah where we pasken that a mitzta'er is exempt from succah - Why don't we exempt a mitzta'er from all mitzvos based on the logic that it is worse than kavod habriyos?
R' Elchonon answers that the aspect of kavod habriyos that pushes off issurim, is not the kavod habriyos of the individual. The proof to this is that burying a meis mitzvah is also considered kavod habriyos, even though he feels no embarrassment. Clearly, the kavod habriyos is a general kavod habriyos of those who are alive. Leaving the dead withou burial is a lack of kavod habriyos for the living. Therefore, when it comes to tzedaka distribution we aren't focused on others, we are only focused on the individual himself who needs food or clothing. For the individual ani himself, the gemara holds that according to one opinion it is worse to be without food than without clothing because the pain of starvation is greater.
A strong support for R' Elchonon's approach that kavod habriyos is really not for the deceased, but rather a more general type kavod is from parshas ki teitzei where it says that one may not leave a person hanging over night כי קללת אלקים תלוי. Although we may not be concerned with the kavod of those who were killed by beis din, we are concerned with Hashem's kavod. Since human beings were created b'tzelem elokim, it is degrading to Hashem to leave one who has His appearance hanging over night. Furthermore, since this concept of not leaving them hanging over night applies to all human beings, not only Jews (as the ramban implies), we can argue that the general concern for kavod habriyos would apply to goyim as well.

Thursday, August 27, 2009

Baba Basra 8b - Forcing for Tzedaka

Tosafos raises the question how rava was able to force r' nasan to give tzedaka, this seems to break the rule that we don't force for a mitzvah aseh when the reward is written explicitly in the torah? Tosafos offer 3 answers. 1. He didn't really forced, just coerced with strong words. 2. The community accepted upon themselves that he would force them to give tzedaka. This implies that the din torah doesn't obligate the beis din to force for מצות עשה שמתן שכרה בצדה, but there isn't any issur in doing so, therefore the community is entitled to accept this upon themselves. 3. In addition to the aseh, there is also a l'av so the forcing was for the l'av (R"I). 4. Although Beis din isn't obligated to the point where they are punished for being lax in this area, they still maintain the right and ability to force if they choose to (Ritzva"h).
R' Elchonon (kovetz shiurim 48) asks on the third answer of Tosafos that by tzedaka we apply the principal of osek b'mitzvah patur min hamitzvah, as we see from the exemption of peruta d'rav yosef in perek eilu metzius. Since the concept of osek b'mitzvah only works to exempt from a positive mitzvah, but not from an issur, how can we apply this to tzedaka where there is a l'av? In my sefer nasiach b'chukecha (page 57) I quoted the Beis Yakov (nesivos on kesubos 49b) who asks this question. Both the beis yakov and r' elchonon answer by using the ramban in kiddushin 34a who says that sometimes a l'av is not independent and is only there to support the aseh. Therefore, in the context of עוסק במצוה פטור מן המצוה we regard tzedaka as an aseh so that one who is osek in another mitzvah is exempt from tzedaka [Alternatively, R' Elchonon says that עוסק במצוה פטור מן המצוה may apply to any mitzvah that is lost passively בשב ואל תעשה even if it is a l'av, which would explain how it applies to tzedaka].
I quoted from R' Zalman Nechemiah Goldberg Shlit"a, who asks that if tzedaka is indeed regarded as an aseh based on the ramban that the l'av is merely there to support the aseh, why does tosafos say that we would force for tzedaka due to the l'av - the l'av is not independent, it is just a support for the aseh? Rav Zalman Nechemia explains that in the context of עוסק במצוה פטור מן המצוה, the person who is osek b'mitzvah and exempt from the aseh of tzedaka is automatically exempt from the l'av which is only there to support the aseh. But in our context where he is obligated in the aseh, just that we have a rule not to force for an aseh that has the reward written next to it, the fact that there is a l'av that is also violated entitles beis din to force him so that he won't be in violation of the l'av.

Tuesday, August 25, 2009

Baba Basra 6b - Chazaka on a Sukkah

The gemara says that generally if a person builds a succah type structure which infringes on his friends property, their is a grace period of 30 days in which the owner graciously permits the machzik to use the area and doesn't have to protest. But, after that grace period has passed, if the owner doesn't protest, the machzik will have a chazaka to be able to claim that he purchased the rights of use. But, if the succah is built for succos, then immediately after the 7 days of succos passes, the lack of the owners protest enables the builder to claim that he purchased the right to leave it there permanently (this is according to rashi, but the hagahos ashri cites other opinions that it is 7 days in addition to the 30 days).
Tosafos points out that in truth the builder doesn't have a chazaka after 7 days, he only has a chazaka after 8 days since on the 8th day which is shemini atzeres it wasn't possible to remove the succah. The Ya'avetz asks what compels Tosafos to say that he will not have a chazaka until the eighth day is over. Perhaps we assume that the owner would have allowed him to use the space for the mitzvah, but as soon as the mitzvah ends the owner is expected to protest. The fact that the owner fails to protest would not enable the builder to claim that he has acquired permanent rights to this area?
It would seem that Tosafos holds that although the owner can make a macha'ah to protest the succah immediately after the 7 days pass, even before the 8th day ends, he is not expected to do so. Why? Because he is well aware that his protest is futile. The owner can claim that for the duration of succos he allowed the machzik to fulfill his mitzvah; on day 8 he also did not protest because he knew that his protest would be in vain since the machzik could not remove the succah until after succos. Therefore, Tosafos holds that the owner has the right to protest through day 8. From this we can learn that even after one has been machzik for enough time to create a chazaka, it is only effective if by the owner protesting he could have forced the machzik to leave. But in a situation where the owner could not have forced the machzik to leave, such as when the chazaka concludes on a shabbos or yom tov, the owner is not expected to protest and is given an extra day to voice his protest.

Baba Basra 5b - Zerizin before the z'man of the mitzvah

In my sefer nasiach b'chukecha (page 3), I mentioned that Tosafos in Baba Basra implies that zerizin applies even before the z'man of the mitzvah comes, which seems to contradict other places where the concept of zerizin seems to only apply once the obligation of the mitzvah exists. See also page 103 for a discussion of when zerizin applies.
I see now that i was mechaven to R' Elchonon (kovetz shiurim 28) who asks this question. How can Tosafos suggest that one would pay early by pidyon ha'ben to avoid a tirda even though no specific person can claim the money from him due to zerizin makdimin, there is no obligation at all before 30 days, and it is not even possible to fulfill the mitzvah within 30 days? If for example the money would not be in the hands of the kohen at the end of the 30 days, the pidyon won't take effect, so why should we assume that a person would pay early? Why should zerizin apply prior to the time of the mitzvah?
Perhaps Tosafos holds that although zerizin wouldn't make sense by pidyon haben within 30 days, it would apply immediately at the conclusion of 30 days. Meaning, the din zerizin doesn't require paying 5 selah within 30 days, but it would require making sure that as soon as the z'man mitzvah comes, it has already been taken care of. By most mitzvos where the ma'aseh hamitzvah is THE mitzvah, it is impossible to set it up early so the zerizin wouldn't apply at all until the z'man mitzvah arrives, but by pidyon we find that if it was paid within 30 days and is still around at the end of the 30 days, the pidyon takes effect. Therefore, Tosafos may hold that the din zerizin would require of him paying within 30 days so that as soon as the z'man comes the child is automatically redeemed at the earliest possible moment. This concern would create a tirda within 30 days to pay. However, the minhag is clearly not like tosafos because we don't find practically that anyone pays the pidyon haben within the 30 days. The proof against tosafos is the gemara in pesachim 4a by avrohom where he got up early in the morning but didn't travel the night before. Although he could have made the preparations by travelling the night before to enable himself to do the mitzvah as early as possible, Avrohom held that the din zerizin didn't require him to do that (see what i wrote in nasiach b'chukecha page 103 regarding the issue of zerizin the night before).

Sunday, August 23, 2009

Baba Basra 3b - Destroying A Shul

The gemara says that one cannot destory a shul until the replacement is rebuilt. The gemara quotes 2 reasons for this issur: 1. Negligence - maybe an o'nes will occur (rashi) that prevents the building of the new shul. 2. No place to daven - in the meantime there won't be anywhere to daven. The Shulchan Aruch (152) paskens like the first reason, therefore it would be assur even if there were another place to daven. But, the m.b. (5) says that when there is another shul in town that can fit the entire tzibur, the taz is matir, but the magen avrohom is machmir. The biur halacha explains that one can rely on the taz since we are only dealing with an issur d'rabonon, and many rishonim are matir even according to the first reason when there is an established shul to daven in, not just a place to daven (tosafos). Based on this, a shul has a heter to close in order to rebuild so long as there are other shuls in the community that can hold all the members of the one that is rebuilding.
The gemara says that the entire issur only applies when the shul is in good condition, but if it starting to rot and therefore not functional in it's present state, one can destroy it to build another. The gemara says that the only heter that hurdos had to rebuild the beis hamikdash (based on baba ben buta's advice), was that it was starting to rot. The m.b. (2) proves from here that even if the intent is to make a much nicer shul, it is assur so long as the first one is still functional. However, the Taz (quoted in m.b. 9) is liberal about the definition of "rotting". The Taz holds that when the first shul is too far from where the community lives such as outside the wall of the city - אין לך תיוהא גדולה מזו, and it can be rebuilt in a more appropriate location. Similarly, Tosafos explains that a summer shul in winter or visa versa, can qualify as "tiyuha" and allow one to rebuild.
It is important to note that the entire sugya of destroying a shul, is only considered an issur d'rabonon because it is being done for constructive purposes i.e. to rebuild another in it's place or elsewhere. BUT, when the shul is being destroyed for a destructive purpose, it is an issur d'oraysa, at the m.b. (11) points out - לא תעשון כן לה' אלקיכם. The biur halacha explains that this not only applies to items that are attached to the ground, but even destroying movable items such as the bima and amud are an issur d'oraysa. The maharam padawa is matir that the removal of the tangible items from the shul is not a violation of this issur, since it is not destroying the actual structure (unlike the removal of bricks).

Baba Basra 2b - Monetary liability for Kelaim

The gemara quotes from braisa that if one fails to fence their vineyard thereby causing the adjacent produce owned by someone else to become assur as kelayim, the owner of the vineyard is responsible to pay for the damage. Tosafos questions, why is the owner of the vineyard liable to pay, it should qualify as a hezek sh'eino nikar - an unrecognizable damage, which is not considered a damage? Tosafos answers that even if the damage isn't recognizable in the object, so long as the context of the situation looks like a damage i.e. the vines growing near the produce without a fence separating, it is considered a hezek that is nikar and the owner is liable. Tosfaos asks, if this is considered "nikar", why do we considered it to be an unrecognizable damage when one takes a sheretz and places it on his friends taharos, there too the context of the situation should qualify as a hezek nikar? Tosafos answers that since tu'mah requires not only contact between the sheretz and the taharos, but also requires hechsher (fruits to become moist willingly to be susceptible to tu'mah), that aspect is still not recognizable and therefore qualifies as a hezek sh'eino nikar.
The question is, Tosafos just got finished saying that kelayim is not merely a situational issur of mixing produce and grapes. Kelayim is only created if the owner "wants it". Based on this, Tosafos explains that so long as the owner is doing whatever possible to build a fence, even though the kelayim grew .5% prior to the fence being erected, it is not considered a kelayim violation. Since kelayim also has it's own set of prerequisites to be assur - only if the owner fails to put in the effort of building the fence, which is not necessarily recognizable, we should consider kelayim a hezek sh'eino nikar, just as we consider tu'mah a hezek sh'eino nikar (due to the lack of recognition that it became huchshar l'kabel tu'mah)?
Tosafos apparently holds that by kelayim the issur is a metzius of growth. We don't require the consent of the owner to create the issur, just that if the owner makes an effort to build a fence and shows that he doesn't want the kelayim, the issur can be avoided. Tu'mah requires a positive act of hecsher to create the status of tu'mah, therefore it is considered eino nikar, but kelayim doesn't require a positive act to be assur (rather, a positive act to repair the fence will prevent the issur).

Wednesday, August 19, 2009

Baba Metzia 117a - Attic Owner Living in House

The mishna describes a situation where reuven and shimon share a house, reuven lives on the lower floor and shimon lives on the upper floor. If the house falls down and reuven refuses to contribute toward reconstructing the ground floor, so that shimon cannot rebuild the upper floor, the tana kama says that shimon can rebuild the ground floor and live there until reuven compensates him for the expense. Rav Yehuda argues - אף זה דר בתוך של חבירו צריך להעלות לו שכר, and holds that shimon can rebuild the entire house and then live in the upper floor (according to tosafos) not allowing reuven into the ground floor until he compensates him for the expense.
Rashi explains that R' Yehuda doesn't allow shimon to live in the ground floor because it is considered ribbis. Meaning, we view it as if shimon lent money to reuven by reconstructing his house. Eventually, reuven will compensate shimon for expenses, so if shimon also benefits by being able to live in reuven's house he is essentially taking ribbis from reuven. Tosafos disagrees because this is not at all considered a loan from reuven to shimon. Tosafos holds that if a fire were to break out in the lower house, it would be shimon's loss, not reuven's. However, R' Shlomo Villna in the cheshek shlomo cites from baba kama 20b that the house is in fact the responsibility of reuven, so that reuven would suffer a loss if the house were to burn down. Based on this, when shimon rebuilds the house for reuven it should be viewed as a loan, so that when shimon would receive compensation in addition to living there it should be a ribbis violation. Why then does the tana kama allow shimon to just rebuild the ground floor and live there until reuven fully compensates him?
The Cheshek Shlomo holds that the opiniono of the tana kama in the mishna is a strong proof to the Rif in teshuvos cited by ba'al ha'terumos that any loan that is given as a benefit to the lender rather than the borrower is not considered a loan in the context of ribbis violations. Even though it is technically a loan and reuven would suffer the loss in case of fire, reuven is not interested in borrowing, rather shimon was interested in lending - there wouldn't be any ribbis violation with this type of loan. He then concludes that the gr"a in shulchan aruch 166 actually cites our mishna as the source of the rif's opinion.

Tuesday, August 18, 2009

Baba Metzia 116b - Splitting the sticks and stones

The Mishna says that when the collapsed house belonged to reuven and the collapsed attic belonged to shimon, we have to do our best to determine whether who most likely deserves the whole bricks and who deserves the broken bricks. Rashi in the Mishna explains that if the house collapsed due to a faulty foundation so that the bottom brick broke and the upper bricks came down on top of them, we can assume that the broken bricks belong to reuven who lived on the bottom, and the whole bricks belong to shimon who lived on the top. But if the wall of the house fell like a stick, so that the upper bricks came crashing down, we can assume that the broken bricks are from shimon's attic, whereas the whole bricks belong to reuven. However, Rashi in the gemara (d.h. reisha) explains differently than he does in the mishna. Rashi in the gemara says that if the foundation gives way, the upper bricks belong to shimon who lives on the top (regardless of whether they are broken or whole). It comes out that when the foundation gives way, rashi in the mishna implies that reuven who lives on the bottom would get the broken stones, whereas rashi in the gemara implies that he would get the lower stones even if they are whole?

Monday, August 17, 2009

Baba Metzia 115a - La'av Hanitak L'aseh

The gemara has a principal that one does not receive lashes for a la'av that can be fixed up through the performance of an aseh. Tosafos understands the mishna to be saying that one would receive malkus for taking a mill as a mashkon, since the mill contains 2 components, which are considered separate and independent parts regarding the violation. Tosafos asks, Why should one receive malkus at all since the rationale behind the prohibition is that these are ochel nefesh type items (meaning they are needed for his livelihood), so can potentially be fixed by returning them so that there should not be malkus associated with this violation at all? The proof that Tosafos cites for this being a לאו שניתק לעשה that one doesn't receive malkus for is the story quoted on 116a where a person took a shechita knife as collateral and Abaye commanded him to return it. Tosafos at first understands that the only rationale for returning the item would be that it is a לאו שניתק לעשה. Ultimately Tosafos concludes that it is not a לאו שניתק לעשה and the only reason that Abaye demanded that it be returned is that the lender didn't realize when he took it that it was assur, so that he was never ko'neh it as a mashkon, and therefore it had to be returned.
Regarding taking ochel nefesh type items as a mashkon, there is a machlokes rishonim. Tosafos 113 d.h. v'es, holds that any item that is needed for livelihood, may not be taken at all as collateral. However, the Maharsha quotes many rishonim who disagree with Tosafos and hold that it may be taken as collateral but must be returned when the borrower needs them to use for his livelihood. See also Hagahos HaGra on tosafos who quotes that the Ramban and Rashba hold that it may be taken but must be returned when needed, whereas the Ramabm agrees with Tosafos that it may not be taken at all. Now, the entire assumption of Tosafos that the reason abaye must have insisted on returning the ochel nefesh collateral was because it is a לאו שניתק לעשה, it lishatasam. Had Tosafos held like the Ramban and Rashba there would be no proof at all from the story of Abaye because abaye was merely telling the person that the standard rules of this type of mashkon is that it must be returned when the borrower needs it.
Tosafos also assumes that if we would say כל מילתא דעביד רחמנא אי עביד לא מהני then it would make sense that Abaye would demand returning the mashkon, since he wasn't allowed to take it, the taking was ineffective. There is a big discussion in achronim (chavos da'as and R' akiva eiger in hilchos shechita) whether אי עביד לא מהני applies when the issur won't be fixed. Meaning that אי עביד לא מהני may only apply when we say that by not taking effect the issur will not have been violated. Based on that principal, it is a big chiddush for tosafos to assume that אי עביד לא מהני would apply here. Even if the kinyan doesn't take effect, there is certainly some issur violated by taking an item of the borrower that should not be taken - if not for the issur of לא תחבול there would be an issur לא תגזול. Yet, Tosafos assumes that since אי עביד לא מהני would help avoid לא תחבול, even though it will cause לא תגזול, we can still apply this principal to prevent the lender form acquiring the collateral.

Sunday, August 16, 2009

Baba Metzia 114b - Techiyas Hameisim and Pikuach Nefesh

In the story with Eliyahu Hanavi, he justified being in the cemetery even though he was a kohen (as rashi explains that he was pinchas, but tosafos questions whether he was truly a kohen or just pushing off the sho'el). Eliyahu's justification was that non-jews aren't metamei b'ohel (Tosasfos holds that we don't pasken like this, rather we pasken that they are metamei b'ohel - shulchan aruch y.d. 372:2 paskens that "it is proper to be careful and not go over a gentile grave", rama says that some are meikil but it is good to be machmir).
Tosafos asks: How was Eliyahu allowed to enter the ohel of the child of the widow since he was a kohen it should be forbidden for him to be metamei? Tosafos answers:
ויש לומר שהיה ברור לו שיחייהו לכך היה מותר משום פיקוח נפש
Tosafos holds that Eliyahu's heter was based on pikuach nefesh. But why does Tosafos need to say that Eliyahu was "certain" that he would resucitate the child, since even a safeik of pikuach nefesh also overrides all issurim in the torah?
I once wrote an article where i used this tosafos to make what i believe is a very significant point. The gemara in Yoma 84 discusses the source that pikuach nefesh pushes off issurim. One of the sources that the gemara uses is חלל שבת אחת כדי שישמרו שבתות הרבה, that it is worth sacrificing one shabbos for many. But, the gemara ultimately concludes that the heter is based on וחי בהם ולא שימות בהם. The gemara prefers this source because it serves as a source that even safeik pikuach nefesh over rides shabbos, but all the other sources only justify definite pikuach nefesh. It seems to me that there is a limitation on the source of וחי בהם ולא שימות בהם, in that it only allows one to preserve life, but to resucitate one who is already dead may not qualify as pikuach nefesh and one would not be entitled to violate an issur in an attempt to restore life. Our Tosafos who cites the rationale of pikuach nefesh to justify how Eliyahu was able to enter an ohel ha'meis to resucitate the child, must be relying on the drasha of חלל שבת אחת כדי שישמרו שבתות הרבה, meaning that for the net gain of this child keeping many mitzvos in the future (as the biur halacha explains in hilchos shabbos that this concept can be generalized outside the realm of shabbos), Eliyahu was justified in violating the issur of tu'mah. Since the concept of this heter is that there will be a net gain in shemiras hamitzvos, there is no reason to make and distinction between preserving a life and restoring a life - based on this Tosafos can cite pikuach nefesh as the source. But, as the gemara in Yoma says, this source only justifies definite pikuach nefesh, it doesn't justify safeik pikuach nefesh. That is why Tosafos is very meduyak - שהיה ברור לו שיחייהו - that Eliyahu was confident that he would succeed in resucitating the child, because if it were only safeik pikuach nefesh he would not be allowed to violate the issur tu'mah.
It seems to me that this may also be the machlokes brought by the Ran in Yoma (3b b'dapei HaRif) who cites a machlokes whether one is allowed to be mechalel shabbos for a fetus when it won't be pikuach nefesh for the mother(although the Ran's medical opinion is that this is not possible). The opinion who allows one to be mechalel shabbos for a fetus has to deal the the gemara in nidah that doesn't consider it to be a full life (such as one who aborts isn't chayev misah). The Ran quotes that in respect to mitzvos however we say that one can be mechalel shabbos to save it, because it may lead to keeping many mitzvos in the future. Others disagree and say that one can only be mechalel shabbos when the mothers life is at risk. It seems that all agree that the concept of וחי בהם ולא שימות בהם doesn't apply yet since the fetus is not a full life. But since there is potential for mitzvos, the rationale of חלל שבת אחת כדי שישמרו שבתות הרבה would indeed apply. The two opinions in the Ran disagree as to whether we rely on the חלל שבת אחת כדי שישמרו שבתות הרבה even when וחי בהם ולא שימות בהם doesn't apply [Although the Ran says that it is permitted to save the fetus because it MAY come to keeping mitzvos, he may only permit in a case where the attempt to save the fetus will definitely save the fetus just that we don't know if the fetus will be keeping mitzvos. But for a safeik pikuach nefesh, meaning a safeik as to whether the fetus is in danger or a safeik whether the efforts will help, doesn't warrant chilul shabbos. However, it is more likely that the Ran disagrees with Tosafos and holds that we combine the sevara of וחי בהם ולא שימות בהם and the sevara of חלל שבת אחת כדי שישמרו שבתות הרבה to be matir even a safeik when the fetus isn't yet a full life).

Friday, August 14, 2009

Baba Metzia 112a - Paying Babysitters Ontime

The mishna says that for any worker who is hired by the hour, one only has the remainder of that time period to pay. If one would hire a babysitter for a few hours at night, the money must be payed before morning, otherwise the employer would be in violation of לא תלין פעולת שכיר אתך עד בקר. It is true that if one doesn't have money, he is not in violation of this issur, but it is hard to justify that a 5 minute trip to the closest ATM machine is considered not having money [even if the employer has the option of collecting a debt that is due, the shulchan aruch considers as if he has money, and would be in violation for not paying his worker. The chofetz chaim (ahavas chesed 1:9: footnote 21) is mesupak even if one is capable of borrowing he may be obligated to do so in order to pay his worker, but even if he isn't obligated he should borrow to be mechayev himself and enable himelf to fulfill the mitzvas aseh of b'yomo ti'tein s'charo]. Therefore, it is important to realize that this can be a d'oraysa violation.
Even if the babysitter isn't tovei'ah the money - often young girls are embarrassed to ask for their payment, there would still be a violation. Although the gemara says that the issur only applies if the worker asks for payment, the chofetz chaim (ahavas chesed 1:9:footnote 29) explains that since the limud is from אתך - לדעתך ולא מדעתו, meaning by the worker not making a claim he is indicating that he agrees to the delay. This only applies to a case where the worker is not claiming because he is agreeing to a delay, but if the worker is just embarrassed to ask, it is not considered to be m'da'ato and therefore the employer is in violation of this issur. Furthermore, the chofetz chaim cites the sha'ar mishpat that when the worker doesn't claim the employer avoids the la'v but is still in violation of an issur.
Even if the babysitter is less than Bar/Bat mitzvah, the chofetz chayim (ahavas chesed 1:9:footnote 16) proves that there is an issur even by a child. From the fact that the Rambam writes that a worker who is a child can swear to collect his payment during the time that the should be payed, which implies that after the time passes, the employer has the upper hand, as the gemara 113a explains. The Rambam implies that the employer has the upper hand even by a child. Since this is based on the chazaka that the ba'al habayis would not be in violation of בל תלין, we see that there is a violation of ba'al talin even to withhold the payment of a child. The chofetz chaim points out that one may not even delay the payment of a child worker, and certainly if he would promise to pay something (even as little as a candy) and not follow through, it would be a d'oraysa violation. I am not sure if this same prohibition would apply to one's own child. If one would tell their son or daughter that they will pay them for a chore by taking them for ice cream, would they be obligated to keep their commitment that same day? In a case where it is understood that they won't be going for ice cream that day (such as when they had fleishigs for dinner), it is similar to the gemara 111a where the expectation of waiting for the market day, will enable the employer to avoid the issur, so too here the parent would avoid the issur. But what if it is possible to go for ice cream that day just that the parent is too tired (happens to all of us!) - is there an issur d'oraysa?

Wednesday, August 12, 2009

baba metzia 110b - hiring a worker through an agent

The gemara says that if one uses a shliach to hire a worker, the employer would not be in violation of b'al tin for not paying the worker on time. Furthermore, the gemara cites amoraim who would davkahire workers through an agent to avoid the issur just in case they would not be available to pay when the time came (tosafos) [why doesn't tosafos say just in case they forgot to pay? This implies that forgetting to pay would not be a severe issur that would warrant such a precaution].
The rashash asks why don't we say shlucho shel adam k'moso, as we always do to b mechayev the employer. the rshash explains that ein shliach l'dvar aveira doesn't apply since the ma'aseh aveira is not violatd by hiring the worker, rather it is violated by the employer himself when he fails to pay. just as one who has relations with the mother of a woman he was mekadesh through a shliach is chayev and we don't apply the concept of ein shliach l'dvar aveira just because it was set up through a shliach.
i think that the rashash is muchrach according to tosafos in kiddushin by me'illa - 42b (?) - who says that when shliach is shogeg we say yeish shliach l'dvar aveira because the sevara of divrei harav vdivrei hatalmid doesnt apply. here too it certainly doesnt apply since the shliach doesnt expect the employer to delay payment.
Rashi seems to understand that it is almost a gezeiras hakasuv that the worker is not called a 'sachir' of an employer unless he hired the worker himself.

Monday, August 10, 2009

baba metzia 108b - doing what is straight and good

rashi holds that v'asisa hayashar v'hatov is the buyers obligation, not the seller. based on this rashi explains that there is no valid complaint against one who sellsto a goy since a goy is not required in v'asisa hayashar v'hatov. but rashi struggles with trying to understand the gemara that says a talmid chochom comes before a neighbor. if it would be a mitzvah of v'asisa hayashar v'hatov on the seller it is possible that his mitzah to honor a talmid chochom would take priority over v'asisa hayashar v'hatov. but sincecit is a mitzvah on the buyer, it doesn't make sense to prioritize talmid chochom because he is just as chayev in v'asisa hayashar v'hatov as anyone else. therefore rashi and tosfos explain the gemra to be where v'asisa hayashar v'hatov because both r neighbors or both aren't neighbors, and the whole discussion is an issue of prioritizing which is indeed incumbent on the seller and therefore makes sense for a talmid chochom to get priority.

Friday, August 07, 2009

Baba Metzia 106a - Davening with Wrong Intentions

The gemara says that when the sharecropper deviates and plants barley when he was supposed to plant wheat, it is considered to be the loss of the sharecropper, because the owner can claim (as rashi explains) that he was davening for success for wheat, not for barley. Rashi is very meduyak - ואני לא בקשתי מן השמים בתחילת השנה שיצליחני בשעורים אלא בחטין
The focus on the "beginning of the year" is that even though the land owner realizes that the sharecropper planted barley rather than wheat and from the time of planting he was davening for barley, he can still claim before the planting season he has already been davening to Hashem for success in wheat, not barley and perhaps that is the tefillah that would have been listened to.
This idea that the tefillah will only work for what you are davening for explicitly and not merely what you are intending for is found in rashi in chumach (parshas chukas 21:1) - וישמע הכנעני מלך ערד, where rashi explains that they were amaleikim dressed as Cananim so that the Jews should daven that they should defeat Canan when in fact they were fighting with amaleik so their tefillah would be useless. The Mesech Chochma makes the connection to our gemara. He explains that even though they would have surely davened against amaleik had they known that it was amaleik, tefillah doesn't work when you are davening for the wrong thing. If not for our gemara it could be that the cheshbon of the amaleikim was wrong and the tefillah does in fact work, but from our gemara we see that their cheshbon was actually correct.
We learn from here that when we daven, although it is important to make the tefillah specific (as we see from chazal in the way the instituted the shemoneh esrei asking for specific requests, not just "all good things" - this is also clear from tosafo d.h. l'nisah, that if one davens very generally for success, it is not a strong tefillah so Hashem is less likely to listen and he therefore has no claim, but when he davens for something specific Hashem is more likely to listen and therefore he has a claim), we should leave our tefillos open enough so that if we are mistaken about certain facts, the tefillah will still be applicable, rather than limiting the tefillah based on facts that will be realized to be wrong rendering the entire tefillah futile.

Tuesday, August 04, 2009

Baba Metzia 102a - Shiluach HaKan

The gemara discusses some of the parameters of the mitzvah of shiluach hakan. It is clear from the pesukim that if one would take the eggs and the mother, he would be in violation of a la'v and an a'seh - לא תקח האם על הבנים, שלח תשלח. If one would take only the mother, and leave the eggs behind - depends on the definition of על in the pasuk - is it like עם so that the torah is only saying that you can't take both, or is it an issur to take the mother while it is on the child? Rashi in chumash says that the pasuk means to say לא תקח האם בעודה על בניה, clearly holding that one will violate the issur even by taking the mother bird alone. The chacham tzvi (83) disagrees with rashi and holds that there is no l'av for taking the mother alone because the pasuk just forbids taking the mother "with" the children. The minchas chinuch (545) proves that rashi is correct from the gemara in chulin 141a that tries to find a case where there would be an aseh without the l'av. The only case the gemara was able to come up with is when you take the mother with the intent of sending it away, and then decide not to. From the fact that the gemara didn't say the simplest of cases such as where you only took the mother and left the children, implies that there is in fact a l'av even for just taking the mother.
When one takes only the children and leaves the mother there is definitely no l'av, but the gemara seems to learn out from the pasuk of שלח תשלח את האם, והדר, את הבנים תקח לך, that there is an issur d'oraysa (issur that develops from an aseh) to take the children in the presence of the mother. The minchas chinuch quotes the rambam (mechira 23:11) who implies that it is only a "gezeiras chachamim", but not an issur d'oraysa to take the children and leave the mother. The minchas chinuch asks that the doesn't understand where the rambam gets this idea from that it is only an issur d'rabonon? However, the strength of the question of the minchas chinuch is that the simple reading of the gemara implies that it is d'oraysa (as the shita mikubetzes writes explicitly), but fails to bring any proof from the gemara itself. It seems to me that the gemara itself strongly implies that it is d'oraysa, because the gemara asks, what is the case where there would only be gezel d'rabonon for taking the eggs - if he sent away the mother, the chatzer acquires the eggs and it would be gezel d'oraysa, and if he didn't send away the mother הא בעי שלוחה - he needs to send it away. Rashi explains that there is a chiyuv to send away the mother, why is it only a problem of gezel d'rabonon. Now, if the chiyuv of sending away the mother rather than taking the eggs is only d'rabonon, what is the question of the gemara - mabye the gemara prefers to say the issur gezel d'rabonon rather than the issur of taking the mother which is d'rabonon. It must be that it is a mitzvah d'oraysa to take the children without sending away the mother -then the question would be why do we consider taking the children to only be gezel d'rabonon, it is a d'oraysa violation of a לאו הבאה מכלל עשה. This proves that it is an issur d'oraysa like the minchas chinuch assumes, not just d'rabonon.

Monday, August 03, 2009

Baba Metzia 102a - Mezuza as a shemira

I am copying and pasting a short piece from a kuntros i have on hilchos mezuza.
המקור שאין עיקר התכלית של המזוזה להיות שמירה לבית בעצם הוא ממש"כ הרמב"ם (פ"ה מהל' תפילין הל' ד') וז"ל אבל אלו שכותבין מבפנים שמות המלאכים או שמות קדושים או פסוק או חותמות הרי הן בכלל מי שאין לו חלק לעולם הבא, שאלו הטפשים לא די להם שבטלו המצוה אלא שעשו מצוה גדולה שהוא יחוד השם של הקב"ה ואהבתו ועבודתו כאילו הוא קמיע של הניית עצמן כמו שעלה על לבם הסכל שזהו דבר המהנה בהבלי העולם עכ"ל. והקשה הכס"מ מהגמ' בע"ז יא ע"א ממה שאמר אונקלוס הגר, וכתב בשם הרמ"ך דאונקלוס הוא דאמר להו לאחשובינהו לישראל, אבל לאו אמת היא. אכן, הכס"מ כתב שבגמ' מנחות לג ע"ב מבואר שהוא לשמירה מדקאמר שמניחו בטפח הסמוך לרה"ר כי היכי דתנטריה. וכן יש להוכיח מב"מ קב ע"א שלא יטלנה בידו ויוצא, ומעשה באחד שנטלה בידו ויצא וקבר אשתו ובניו, והטעם כדפרשו התוס' שם שהמזיקין באין לבית אשר שאין בו מזוזה, לכן כשנוטלה הוי כאילו מזיק אותן שידורו בבית. לכך כתב הכס"מ דאין הכי נמי שהמזוזה שומרת הבית כשהיא כתובה כתקנה, לא המלאכים הכתובים בה מבפנים, וגם אין הכוונה בעשייתה לשמור הבית אלא צריך שיכוין לקיים מצות הקב"ה וממילא נמשך שתשמור הבית עכ"ל. הרי סובר שתכלית המזוזה הוא למצותה אלא שממילא יש בה שמירה. אכן, משמע מהכס"מ שהשמירה הנובע ממזוזה שייך במזוזה טפי מבשאר מצות, אבל במהר"ץ חיות בב"מ קב ע"א השוה שמירת המזוזה לשמירה הבאה מהתורה "בשכבך תשמור עליך", וכן שאר מצות כדאיתא בסוטה כא ע"א דבעידנא דעסיק ביה אגוני ומצלי, משמע שאין שמירה יתירה במצות מזוזה מבשאר מצות התורה
והנה, נראה פשוט מכל הנ"ל דבמקום שהוא פטור ממזוזה לא שייך לקבוע מזוזה לשם שמירה בעלמא, דכיון דמצוה ליכא, שמירה נמי ליכא שהרי השמירה אינו תוצאה של מציאות המזוזה, אלא היא תוצאה ממצות מזוזה. לפיכך תמהני עמש"כ בספר דעת תורה ממהרש"ם בשם השבו"י (ח"ג ס' פ"ט) דאף במקום שהוא פטור ממזוזה יכול לעשותו לשימור ולא מקרי הדיוט. ואפשר שכוונתו למש"כ בס' רפ"ו הע' כ"ט דבמקום שיש ספקא דדינא משום פלוגתא דרבוותא אף במקום שהוא פטור מעיקר הדין, אפשר שיש מעלה דשמירה אליבא דאידך וכדאי להחמיר. מ"מ באופן דליכא קיום מצוה נראה שלא שייך שמירה, והראיה לזה מפרש"י במנחות לב ע"ב בד"ה היו, גבי בית מונבז המלך שעשו מזוזות בפונדקותיהן שהיו לנין בו ואין חייבין במזוזה, והטעם שעשו מזוזות פרש"י וז"ל ותולין אותן בפונדק במקל עד הבקר זכר למזוזה, שלא היו דרין לעולם דירת קבע אלא הולך היה מעיר לעיר במלכותו עכ"ל. הרי דחק רש"י לפרש הטעם שתלאו מזוזה משםום זכר בעלמא דשייך רק באנשים שלעולם לא היו דרין בדירת קבע, ומדלא פירש בפשיטות שהיו נוהגין לעשות כן לשמירה, משמע דבדליכא קיום מצוה ליכא שמירה בזה