Wednesday, September 30, 2009

Baba Basra 41b - Chazaka with a Claim

The gemara says that if Reuven ate from the land for 3 years, ideally he must have a claim that he purchased it 3 years earlier from Shimon who is being identified as the owner (mara kama). But, if Shimon is not clearly identified as the owner, rather levi is claiming to be the owner, the fact that reuven purchased it from shimon will not help in his claim against levi. Therefore, the gemara says that Reuven must do one of two things:
1. Provide proof that shimon lived there for some time, even one day. This will establish Shimon to some small degree as an owner, so that when reuven claims that he purchased it from shimon it is a chazaka with a claim. The Ketzos (146:9) points out that even if reuven has a contract that he purchased it from shimon, the contract itself is useless unless reuven can establish shimon as an owner through witnesses who was able to sell him the field (which is against the mahari"t who holds that when reuven has a contract, he need not establish shimon as an owner).
2. Reuven must make a claim that he purchased from shimon and that he knows for a fact that shimon purchased it from levi (such as claiming that it was sold in his presence). The gemara seems to understand that reuven is only believed because he has a migu. Meaning, that since he could have claimed he bought the field directly from levi, he is believed to say he bought it from shimon who he knows bought it from levi. I was very troubled why reuven needs a migu at all. The very fact that he claims that he bought it from shimon who he knows bought it from levi should be a perfectly legitimate claim without the need for a migu?
I found that the ketzos (146:12) asks even stronger that this shouldn't even qualify as a migu, because it is a migu l'mafreia? The ketzos explains that in truth no migu is needed. Reuven's claim that he bought it from shimon who he knows bought it from levi is itself a perfect claim. The term "migu" in the gemara means "just like", it is not a "mah li lishaker". The ketzos is medayek from the rashbam on 31a that the gemara doesn't really mean a migu because the claim is itself a fine claim. However, Tosafos 30 holds that reuven is only believed through an actual migu. The Steipler disagrees with the ketzos and holds that without proof that shimon lived there for a day, their is a major rei'usa in the claim of reuven. Therefore, it is only through a migu that reuven can restore his claim to being a valid claim.

Tuesday, September 29, 2009

Baba Basra 40b - Moda'ah on Gett and Matana

The gemara says that one is able to make a moda'ah on a gett and a gift by notifying witnesses in advance that he does not want the gett or gift to go into effect. The Rashbam writes clearly that the moda'ah doesn't really accomplish anything more than notifying the witnesses that he is being forced into this transaction. The moda'ah itself doesn't prevent the gett or kinyan from taking effect, rather it is the o'nes, the fact that he is not writing the gett of his own free will that is really mevatel the gett. The purpose of the moda'ah is just to let witnesses in on the fact the he is being coerced into giving the gett. Therefore if one would give a moda'ah on a gett that he is merely trying to tease his wife, and then writes her a gett, the rashbam holds that the gett would be binding since there wasn't any o'nes. The reason why the moda'ah itself cannot nullify the gett, the rashbam explains - אנן סהדי דגמר בלבו בשעת מעעשה לעשותו גט גמור. Meaning, just as we say that if one is explicitly mevatel earlier moda'as, the later statement is binding. Here too, we consider the action of giving the gett without duress, to be a bitul of the earlier moda'ah.
The Rosh disagrees with the rashbam and holds that one may give a moda'ah even without an o'nes. Furthermore, the Rosh says that if one gave a moda'ah and at the time expressed a particular reason for his moda'ah, which we later found out to be false, the moda'ah would still be effective in nullifying the gett or matana. According to the Rosh, a moda'ah is powerful by itself to be mevatel the gett, even in the absence of o'nes.
The point of argument between the Rashbam and Rosh is not about the power of a moda'ah, in the absence of an o'nes. All would seem to agree that even in the absence of o'nes the moda'ah technically has the ability to be mevatel the gett. The machlokes seems to be whether we consider the motions of going through a gett to be a bitul of his original moda'ah. The Rashbam holds that the motions of giving a gett is a bitul to the moda'ah, whereas the Rosh holds that to be mevatel the moda'ah one must do so explicitly. Based on this, in a case where one did not follow up the moda'ah with an action of giving the gett, rather the gett was written and delivered to her by an agent that he initially appointed (and the ba'al was never mevatel the shelichus) - If the ba'al initially gave a moda'ah on the gett that he or his sheliach would write and give, even in the absence of an o'nes, the gett would be void even according to the rashbam. The rationale would be that in this case the ba'al never did the action of writing and giving the gett himself to serve as a bitul of the moda'ah, therefore the original moda'ah retains the power to be mevatel the gett.

Baba Basra 39b - Loshon Ho'rah in the presence of 3

The Chofetz Chaim dedicates an entire chapter (klal 3) to discuss the various interpretations of Rabab Bar Rav Huna who says - כל מילתא דמתאמרא באפי תלתא לית בה משום לישנא בישא
Rashbam understands that he is discussing a case where Reuven violated the issur of loshon horah by saying something negative in the presence of 3 people about Shimon. It would then be permitted for these people to repeat to Shimon what Reuven said about them, since it was said in the presence of 3, it is assumed that Shimon will find out anyway. The difficulty with this approach is that it seems somewhat circular - the 3 people are allowed to repeat the rechilus to shimon because they will repeat the rechilus to him anyway so he is bound to find out. Therefore, the chofetz chaim writes (2:5) that if one of the 3 is a yarei Hashem and is not likely to repeat the loshon horah by saying rechilus to shimon, it would be forbidden for any of the 3 to repeat it because it is as if it wasn't said in the presence of 3. The Rambam seems to take a similar approach but rather than explaining it based on rechilus he simply says that the 3 people who heard the loshon horah are permitted to repeat it to others since they are bound to find out anyway. But the Rambam stipulates that when one of the 3 repeat over the loshon hora, they cannot intend to degrade the person they are speaking about or make it more revealed (for example, if it a local group knew about it, it would be forbidden to publish in the papers for the purpose of spreading the news to others).
Tosafos has an entirely different approach where he completely avoids the heter of the rashbam and rambam. The gemara is speaking of an avak loshon hora which can be interpreted both for good and for bad. The idea of telling it over in front of 3 people is a litmus test whether it is actually loshon horah. If the teller is not embarrassed to say it over in front of 3 people which will likely lead to the one being spoken about hearing that he was spoken about, it is not loshon hora. But if the speaker would be afraid to tell it over to 3 people out of fear that the person being spoken about will find out, it is loshon horah (the chofetz chaim proves that tosafos cannot be matir outright loshon hora even if told to 3).
Rabbeinu Yona (shaarei teshuva 228) has an alternate approach where he explains the case to be when the loshon horah is being spoken about a person who there isn't any real issur to speak about - see there.
According to all the approaches, the connection to macha'ah is very simply that we find by loshon horah an assumption that word travels when told in the presence of 3, therefore a macha'ah must be done in the presence of 3. But, as the Rashbam points out there is no violation of loshon horah at all to spread a macha'ah because it is being done for a constructive purpose, so that the machzik holds on to his contract to prove that the field belongs to him.

Thursday, September 24, 2009

Baba Basra 35a - Shuda D'dayni

Rav and Shmuel argue in a case where 2 people are holding contracts that they were gifted a particular piece of land, and both contracts contain the same date. Rav holds that they divide the land, whereas Shmuel holds "shuda d'dayni"- the dayan decides who gets it. Tosafos explains that if we were speaking about the type of contract that would go into effect at the moment the day ends, such as a shtar of shi'bud, so that both of them have equal rights to the land, even Shmuel would agree that it is divided. Similarly, Tosafos explains that according to R' Meir who says that witnesses who sign the contract make it go into effect, so that the contract would only go into effect at the moment the day ends, even Shmuel would agree that it is divided equally. Basically, Shmuel would only hold his position of "shuda d'dayni" when: 1. we are speaking about a shtar matana that goes into effect when it is received, and 2. according to R' Eliezer that eidei mesirah make the kinyan so that Reuven deserves the property if he received his contract earlier on that day, and Shimon deserves it if he received his contract earlier on that day.
The Rashbam disagrees with Tosafos and holds that even though the contract will only go into effect at the moment the day ends, so that they both have an equal claim on the property, Shmuel will still say "shuda d'dayni", rather than say to divide.
It seems that the Rashbam and Tosafos go li'shitasam:
Tosafos and the Rashbam argue about the definition of "shuda d'dayni". Rashbam says that the dayan has to give it his best guess to try to figure out who really deserves it in din (such as who is the closer friend that the giver would have more likely gifted it to). Tosafos holds that shuda is literally the dayan doing whatever he wants. Tosafos holds that the dayan has such liberty in his decission that Tosafos entertains the possibility that the dayan can receive payment for deciding this case, since anyway he can do what he wants (just that if he accepts payment he forfeits his status as a dayan). The Rosh explains that Tosafos position is supported by the Rabbeinu Chananel that Tosafos quotes that only an "expert dayan" has the power of shuda. Based on the Rashbam's approach, Rav sheishes, although not an "expert dayan" should have been able to decide who rightfully deserves it, but since it is completely in the hands of the dayan to do whatever he wants, he requires the authority of an "expert dayan".
In short, Tosafos holds that shuda is not even an attempt at justice. Therefore, whenever their is a possibility of justice, we would choose that over shuda. In any case where the contract goes into effect at the moment the day ends (either a shtar shi'bud, or any contract according to R' Meir), they both have an equal claim to the property, so it is better to divide. That is why Tosafos holds that shuda is only a possibility when one of the two deserve it because one contract went into effect before the other so that dividing is not justice, so we allow the dayan to choose who he wants to give it to. But, according to the Rashbam that shuda is an attempt at justice, it applies even to a type of contract that goes into effect at the moment the day ends so that they both have an equal claim on the property since their contracts went into effect simultaneously. Certainly dividing would be a just option, but being that shuda is an attempt at justice also, the rashbam holds that according to shmuel we assume that shuda will have a better chance at achieving justice than dividing.

Wednesday, September 23, 2009

Baba Basra 34a - Nascha D'rabi Abba

In a situation where 2 witnesses would require someone to pay, one witness would require him to swear, but he is not completely denying the testimony of the witness and therefore cannot make the shavua that is incumbent upon him, we apply the concept of מתוך שאינו יכול לישבע משלם. Therefore, when an individual witness testifies that Reuven grabbed something from Shimon, we assume that it belongs to Reuven since he was holding on to it. Had Shimon been willing to swear that he didn't grab it from Reuven, we would believe him against the eid echad. But, since Shimon admits to grabbing it, but is claiming that it rightfully belongs to him, he is unable to make the shavua demanded of him, and therefore must return the item.
Tosafos asks that if Shimon would deny that he grabbed it and make a shavua, he would be believed. Why don't we believe Shimon to say that he grabbed it and swear that it belongs to him, migu that he could say that he never grabbed it? If he would not make a shavua that it belongs to him, it would not be a valid migu since he prefers to use the claim that would obviate him from a shavua. But since he is now making a shavua that it belongs to him, it should be a valid migu (assuming that he can use a migu even if the migu claim would require a shavua d'oraysa)? Tosafos explains that this is exactly the point of argument between rav v'shmuel, against R' Abba. Rav and Shmuel (shavuos 47a) hold that since he has a migu, we don't require him to return the item. But R' Abba holds that even though he has a migu, we require him to either swear to contradict the witness by saying that he didn't grab it, or pay - no other options. Tosafos doesn't clearly speak out the nekuda of machlokes between Rav v'shmuel and R' Abba.
It seems that the point of machlokes is whether an eid echad is mechayev Shimon to support his claim with a shavua, or is mechayev to pay with an option to exempt himself using a shavua. According to Rav and Shmuel an eid echad is mechayev a shavua - meaning, that he is mechayev Shimon to support his claim with a shavua. By Shimon swearing that it is his, and using a migu that he could have sworn that he didn't grab it, he is in essence using a shavua to support his claim. But, R' Abba holds that an eid echad is not mechayev him to just support his claim with a shavua. The fact that Shimon can prove he is correct by swearing it is his in conjunction with a migu, isn't sufficient. The eid echad is mechayev Shimon to pay with the only option out of paying being a shavua to contradict the eid echad. Shimon's only option out of paying is by making a shavua to contradict the testimony of the eid echad by swearing that he didn't grab it. Since Shimon admits to grabbing it and cannot make this claim, we resort to the default that he must pay.

Tuesday, September 22, 2009

Baba Basra 33a - Paying Ba'al Chov is a Mitzvah

Abaye paskened that Rava Bar Sharshum wasn't able to hold on to the property of orphans and use it as collection, rather he must wait till they grow up and take them to court. The gemara 174a has a machlokes as to why we don't collect from yesomim. Rav Papa holds that the chiyuv to pay a debt is a mitzvah and yesomim aren't obligated in mitzvos. Rav Huna B'rei D'rav Yehoshua holds that we are concerned that the father already payed back the lender, and the yesomim are not aware of that so they can't make a claim to protect their assets. The Rashbam explains our sugya based on the opinion of Rav Papa. That is why they are not obligated to pay until they grow up and become obligated to do mitzvos. Why did Rava Bar Sharshum think that he was entitled to collect even before they become bar mitzvah? Perhaps the Rashbam will hold that since he was already holding on to the property, he has a right to collect from it even though they are not required to do mitzvos.
However, Tosafos explains that Rava Bar Sharshum must have held like Rav Huna Brei d'rav yehoshua that orphans aren't obligated to pay because we are concerned that maybe their father already payed. Rava Bar Sharshum knew about himself that he did not yet collect the debt, therefore he thought he would be allowed to collect from this property. But according to Rav Papa that yesomim aren't obligated to do mitzvos, their is no rationale that Rava Bar Sharshum should be able to collect while they are still ketanim.
Tosafos seems to hold that יתמי לאו בני מיעבד מצוה נינהו, not only exempts the orphans from paying, but creates an issur on the lender and forbids him to collect even from property that is already under his control. Tosafos understands that since they are exempt from doing the mitzvah, it is as if they don't owe the money at all, so the lender cannot collect from them. But, perhaps the rashbam will hold that the concept of יתמי לאו בני מיעבד מצוה נינהו just means that beis din cannot obligate them to pay, since they are not metzuveh to pay. But, since they technically owe the money it would be perfectly fine for Rava Bar Sharshum to collect from property that is already in his possesion since beis din will not have to force the yesomim to do anything.
Furthermore, Tosafos who explains that Rava Bar Sharshum thought he can use the property to collect because he doesn't hold like Rav Papa. Tosafos seems to hold that according to R' Huna Brei drav Yehoshua who argues on Rav Papa, yesomim are בני מיעבד מצוה and therefore obligated to pay their debts. The Rashbam 174a explains this to be their point of argument, that according to R' huna brei d'rav yehoshua they are obligated to do mitzvos. Based on this, the machlokes between R' Papa and R' Huna seems to be whether we view the obligation to pay a debt as a mitzvah which results in an issur, or an issur that is independent of the mitzvah. R' Papa holds that the issur is a result of the obligation to pay, therefore yesomim who aren't obligated to pay, are not in violation of using someone elses property when they don't pay (so beis din doesn't have to separate them from doing an issur). But R' Huna brei d'rav yehoshua holds that aside from the mitzvah which they are exempt from, their is an issur to use the property that they owe to someone else and beis din is obligated to separate them from issur so they cannot allow them to retaing the property, so we force them to pay (if not for the concern that the father had already payed).

Baba Basra 32a - Two against Two - Following Chazaka

The gemara says that when 2 eidim testify that someone is kohen, and another 2 eidim contradict them by saying that he is a chalal (born from a gerusha and therefore not a kohen), we follow chazaka. Therefore, if his father was accepted as a kohen, we assume he is also a kohen. Tosafos points out that Rashi in kiddushin holds that we don't use the chazaka of a parent for a child, but Tosafos disagrees and holds that the chazaka of the parent will work for the child, but m'drabonon we are machmir not to follow any chazaka.
However, the application of following chazaka here seems strange. Both groups of eidim admit that the father of this person is a kohen, the only point of contradiction is whether the son is a chalal. How does the chazaka of the father help resolve this question. Both witnesses agree with the fact that the father is a kohen, yet one group claims that the son isn't a kohen since his father married a gerusha. How can chazaka resolve this dispute?
This gemara sheds some insight into what chazaka does. Chazaka is a "hanhaga", meaning it is a way of behaving, rather than a "hachra'ah", meaning a determination of the halacha. From a perspective of trying to determine whether or not he is a kohen, the chazaka doesn't add any new information or rationale to assume that he is indeed a kohen. But, in the absence of any witnesses we would have said that since his father is a kohen, we entitle him to all the privileges of being a kohen. Meaning, we use the chazaka of the father not to determine that he is in fact a kohen, but to allow him to continue acting as a kohen. Therefore, when we have 2 contradictory sets of witnesses, they cancel each other out and we rely on the chazaka that the father was a kohen to allow the son to also behave like a kohen.

Friday, September 18, 2009

Baba Basra 29a - Chazaka: Day and Night

Tosafos explains that when the gemara says that store owners in mechuza who are only in the store by day, not at night, can make a chazaka, means that after they spend 6 years in the store to make up the time of the missing nights in the first 3 years, they have a chazaka. Tosafos equates this with the gemara that says that a field that is left barren every other year, requires 6 years to make a chazaka. Being that the stores in mechuza are no different than the fields that are worked every other year, Tosafos is bothered what is the chiddush of the stores in mechuza? Tosafos answers that since there are many stores that are set up in peoples homes so that they are in fact there both day and night, one may have thought that it is not possible to have a chazaka by just being there by day only. The gemara is mechadesh that after 6 years their would be a chazaka. But, by an olive press and fields that no one ever uses at night, Tosafos admits that 3 years is sufficient to create a chazaka. The requirement of making up the nights only applies to areas that some people use both by day and by night.
However, the Rashbam seems to disagree with Tosafos. In the context of the field that is left barren every other year, the Rashbam writes that the barren year does not count toward the years of chazaka and must be made up. But in the context of the stores of mechuza, the rashbam writes that even without living there at night, it is a fine chazaka since these stores are only meant to be used by day. What is the difference? In the case of the barren field also we are speaking about a place where it is normal to leave every year barren, so what is the difference?
The simplest distinction is that when he is there for all 3 years just that he is missing some time within the year, he doesn't need to make it up, but if he is missing the entire year then he must make it up.
But, perhaps we can offer a different distinction. In the case of the field that is left barren, the fact that it is normal in that place to leave the fields barren only compensates for the claim of לא אחזיק כדמחזקי אינשי. This is very meduyak in the Rashbam that the fact that it is normal to leave it empty is considered - כדמחזקי אינשי, and therefore isn't regarded as a hefsek in his chazaka. However, the field is able to be used every single year. It may not produce as much if used every year, but since it can be used every year, the machzik is expected to be there every year. When the owner notices that no one is there for the middle year, he assumes that no one is trying to make a chazaka and has no reason to protest - so there isn't a chazaka until 6 years pass. But, in the case of the stores where it is normal to be used by day, not at night, the time of night does not need to be made up because the machzik is not expected to be there at night. Based on this distinction, it doesn't matter whether the time that is missing is short (such as a night) or long (such as a year), the real difference is only whether the machzik is expected to be there during that time so that when the owner claims that he didn't protest because he noticed that the machzik was absent, he has a valid ta'nah.

Tuesday, September 15, 2009

Baba Basra 26b - Owning Land for Bikurim

In the gemara, Ulah says that a tree absorbs nourishment from the ground for a 16 amah radius around the tree (the gemara concludes that it is 16.5, and rashi points out that it is more like 16.6). Therefore, if reuven had a tree growing on his property within 16 amos of shimon's property, he is a gazlan and cannot bring bikurim. Rashi understands that these are 2 independent statements. First, he is a gazlan for nourishing his tree from shimon's property without permissions. Second, even if he has received permission from shimon he is exempt from bikurim because his fruits don't qualify as אשר תביא מארצך. However, Rashi 27a d.h. ha'koneh, when he explains that one who acquires 2 trees brings bikurim but doesn't read the parsha because he cannot make a declaration of פרי האדמה אשר נתתה לי. The gemara 81b explains that according to the Rabbonon, when someone purchases 2 trees it is a safeik whether he acquires land, so out of doubt he must bring bikurim, but cannot read the parsha because it is michzi k'shikra. Nonetheless, rashi holds that he is exempt from bikurim, but would be allowed to bring it if he would like (so long as he makes sure to be makdish it to avoid chulin in the azara, and to separate terumos and ma'asros, as the gemara explains 81b).
Rabbeinu Chananel cited in Tosafos holds that it is assur for him to bring bikurim due to the issur gezel - אני ה' שונא גזל בעולה. Rabbeinu Chananel understands that the statement of Ulah reads together, it is gezel and therefore he cannot bring bikurim.
The gemara says that the measurements of Ulah aren't precise, but he is machmir. Accroding to Rashi Ulah is being machmir by minimizing the measurement. Ulah comes to say a leniency that he is exempt from bikurim, but is machmir by limiting the leniency to a smaller measurement. But according to Rabbeinu Chananel, Ulah comes to say an issur that one is not allowed to bring bikurim. Therefore, by minimizing the measurement he is implying that if it is further than 16 amos, he is allowed to bring, which is not accurate because the tree receives nourishment for more than 16 amos. Tosafos is bothered by this question and explains that Ulah was only coming to say the halacha within 16, but not to imply that outside 16 amos one may bring bikurim.
Tosafos points out that the conclusion of the gemara 27b which allows him to bring bikurim because - על מנת כן הנחיל יהושע את הארץ, means something different in rashi than in Rabbeinu Chananel. According to Rabbeinu Chananel it simply means that Yehoshua stipulated these rights which avoids the issur gezel. But, according to Rashi we aren't dealing with the issur gezel, we are dealing with the fact that it is not ארצך. Therefore, rashi will have to say that the stipulation of Yehoshua was not merely to give permission, but to literally consider it to be the land of Reuven for this purpose. It would seem that the t'nai of yehoshua would even consider it to be his land to allow him to read the parsha of האדמה אשר נתתה לי, which is the opinion of the Rambam (but tosafos rid holds that the t'nai only helps to bring but not to read the parsha). Also, Rashi in his commentary on the line of the gemara when it mentions the t'nai of yehoshua is difficult. Rashi writes - התנה עמהם שלא יקפידו על כך. This approach of not being makpid which implies mechila would work for rabbeinu chananel, but it wouldn't be enough for rashi to be considered ארצך?

Monday, September 14, 2009

Baba Basra 26a - Cutting Down Fruit Trees

Rava Bar Rav Chanan (RBRC) had palm trees taht were causing damage to R' Yosef. When R' Yosef demanded that he cut them down, RBRC responded that he refuses to cut them down because it is forbidden to cut down a fruit tree as rav says, and is a bad "segula" as we see from r' chanina who attributed the death of his son on the premature cutting down of a fruit tree. The gemara seems to imply that even though the halacha actually requires the fruit tree to be cut down because it is causing damage to R' Yosef's vineyard, it would still be assur or at least a bad omen to cut down the tree.
However, Tosafos asks that we find in the mishna that when a tree causes damage, it should be cut down, so why was RBRC reluctant to cut it down? From the fact that Tosafos doesn't simply answer that even when the halacha permits and even requires it to be cut down, it is a bad omen and not recommended, implies that Tosafos holds that whenever the halacha permits the cutting of it, there isn't even a bad omen. The sakana issue only exists when the halacha doesn't permit it.
Tosafos answers that perhaps the mishna only permits the cutting down of non-fruit trees. Although the gemara in baba kama 92a implies that when the tree is causing damage it can be cut down, Tosafos says that may only be when the damage is excessive (it is weakening the vines so much that the flavor of the grapes is in the dates).
Based on Tosafos, we have to limit the heter that the Taz writes (y.d. 116) to cut down a fruit tree if you need the space for something more valuable, to a situation where it is a significant loss, not just a minor loss.
Another answer is offered by the Nimukei Yosef. In a situation where the tree is causing damage, there is no issur of ba'al tashchis or issue of sakana to cut it down. But, RBRC held that he wasn't obligated to cut it down, so that there would indeed be an issur of ba'al tashchis and a sakana to cut it down. He was telling R' Yosef that if he felt that the halacha requires it to be cut down then there wouldn't be an issur or sakana, so he should cut it down himself.

Sunday, September 13, 2009

Baba Basra 25b - Direction for Davening

Rav Chanina said to Rav Ashi that the people of Bavel who are north of eretz yisroel (i assume it means more north than east but really north east), should daven to the south. This is based on the premise that the direction of tefillah should be toward eretz yisroel. Tosafos 25a explains that this opinion is consistent with the braisa in brachos 30a that says that one should face toward yerushalaim. However, in the gemara 25a, Rav sheisheis told his assistant that he should allow him to daven in any direction except toward east. Any direction is technically find because he followed the opinions that the shechina is in all directions, even in the east, but since idolaters pray toward the east (because they worshipped the sun that rises in the east), he made a special effort not to daven in that direction.
Most Jews out of eretz yisroel live west of eretz yisroel (some of us further west than others). Based on the first approach of davening toward eretz yisroel and yerushalaim, we should be facing east (or perhaps whichever direction would be the quickest line drawn to eretz yisroel, which in california would be more north than east - but that is not the minhag). But, based on the concern of idol worshipers we should refrain from davening to the east, as rav sheishes was careful not to do. R' Moshe (dibros, heara 44) explains that in the time of rav sheishes there were many idol worshipers who would pray to the east. Therefore, even those who live west of yerushalayim and should be praying to the east, would not. But nowadays we daven to the east because we are west of E.Y. and there no longer exists idol worshipers who pray in that direction.
Being that there are now a large # of muslims (yms"m) who live west of mecca and therefore pray to the east, perhaps we should reconsider the sensitivity of rav sheishes and no longer daven to the east???

Thursday, September 10, 2009

Baba Basra 22a - Chazaka for Damages

The gemara implies that if one has a chazaka to damage, such as in the case where people had a chazaka to let blood under the trees of rav yosef even though the blood attracted birds which damaged his dates, the chazaka gives them rights to continue. Although the gemara responds that there is no chazaka for damages, the gemara qualifies this to significant damages such as smoke and a bathroom that have a strong stench. Even for minor damages the gemara says that the chazaka won't work if the nizuk is very sensitive, but assuming he is not hypersensitive, a chazka works for small damages.
Tosafos in the name of the Rivam explains that for a chazka for minor damages: 1. No claim is necessary. The reason why the mazik assumes rights through a chazaka is because we assume that the nizuk is mochel on the damage. 2. A chazaka of 3 years is necessary to to prove that the nizuk was mochel. However, Tosafos disagrees and holds that the chazaka must have a claim that mazik actually purchased rights from the nizuk. But, Tosafos implies that they agree with the Rivam that a chazaka on what you are actually machzik such as in this case where they have a chazaka to blood let under the tree, they don't need to claim that they purchased the rights from r' yosef, they can simply claim that after 3 years he was mochel. But when they are trying to expand their chazaka to something beyond what they were doing until now (such as the gemara on 6a where they were trying to put larger beams after making a chazaka for smaller ones), they need to have a valid claim that they purchased it. It comes out that whether or not the mazik needs a ta'ana (claim of purchase) depends on whether he is trying to expand beyond what he was machzik, but regardless he would need a 3 year chazaka.
The rashash points out that Tosafos 6b quotes the rashbam that all the chazakos that were being spoken about in that sugya do not require 3 years, rather the chazaka is achieved immediately. This seems to contradict our Tosafos. The Rashash explains that when the chazaka has a valid claim of purchase, it works immediately, but if the chazaka doesn't have any claim it would require 3 years to substantiate that the nizuk was mochel. This would fit with the haga'ah in rashi 6a who says that 3 years aren't needed, but there must be a claim of purchase. But the haga'ah in rashi implies that without a claim of purchase, even 3 years wouldn't help. Whereas, Tosafos would hold that either 3 years OR a claim of purchase is sufficient.
See also Rashi 7a that a chazaka of use requires 3 years. See rashi 22a that a chazaka for windows requires 3 years. See rashbam 41a and 50b where he seems to hold that one day is enough, as tosafos quotes from rashbam on 6b. But, rashbam on 57a implies that you need 3 years. This can be reconciled based on the approach of the rashash in tosafos that 3 years is needed when there is no claim, but with a claim of purchase 3 years isn't necessary.
The concept of a chazaka without a claim of purchase would seemingly be working through mechila as tosafos holds. But, the ketzos 155:16 points out that if that were true the nizuk should be able to change his mind and not be mochel from here on in. The ketzos understands that it is based on an understanding of neighbors that they can be machzik on one another and it will be binding for the future.

Wednesday, September 09, 2009

Baba Basra 21a - Zeicher or Zecher

The gemara proves that it is vital for a Rebbi to be medakdek when teaching students from the fact that the Rebbi of Yoav wasn't careful when teaching תמחה את זכר עמלק and misled yoav to read that the males of amalek must be destroyed, but not the females. The gemara says that when they asked the rebbi how he taught, the rebbi responded זכר, and they wanted to kill him. Tosafos explains that had the rebbi himself made a mistake by pronouncing it "zachar" with a kometz, he wouldn't have deserved to be killed. But since the rebbi claimed to have taught "zeicher", it means he was careless in being medakdek with his talmidim, so he deserved to be killed.
Alternatively, the maharsha says that really the mistake was made at the level of the rebbi of yoav who actually thought that it should be read "zachar" with a komatz. Why was he punished so severly for not knowing? The maharsha explains:
דלא הוה ליה לקבל על עצמו להיות מקרי דרדקי ומקרי מלאכת ה' רמיה שהרי הוא היה יודע בעצמו דלא הוה גמיר שפיר
A Rebbi must know before accepting to teach children that he is proficient and can teach flawlessly. For accepting a teaching job that he wasn't proficient to do, he was chayev misah.
The Poras Yosef offers a peshat in this gemara from where he proves that the correct reading is zeicher with a tzeirei, rather than zecher with a segol. In dikduk the vowel of tzerei is also called a "komatz kattan". The rebbi of yoav didn't pronounce the word, rather he explained that it should be read with a "komatz". The rebbi was careless in pointing out that it was a komatz kattan so that it should be pronounced "zeicher", not a real komatz which is pronounced "zachar" which led to the mistake of yoav. This proves that the correct reading is with a tzeirei, which is komatz kattan, not a segol. How? Because if the correct reading was with a segol the mistake could not have happened since a segol has no similarity with komatz to lead to a mistake. According to this approach the proper pronunciation is a tzeirei, but maharsha quotes rashba that it should be read with a segol.

Baba Basra 21a - Community Responsibility to Pay Yeshiva Deficit

The gemara says that originally only one who had a father to teach was able to learn because they darshened ולמדתם אותם את בניהם - ולמדתם אתם. Meaning, the father himself it obligated to teach his son, and no one else is obligated to teach the children of others. But, R' Yehoshua Ben Gamla made multiple takanos creating a Yeshiva system which was not just the responsibility of the parents to pay for, but became a community responsibility. The gemara tells us that the parameters of this takana was: 1. There should be a yeshiva for children to learn in every city so that even 6 and 7 year olds can attend and so that the kids don't need to travel far. 2. The members of the city are responsible to support it, and they are even responsible to allow it to occur in their courtyard despite the noise. 3. The teacher student ratio should be 1:25, no more that 25 kids per class.
The Shulchan Aruch of the Ba'al Hatanya (talmud torah 1:3) points out that based on the takana of r' yehoshua ben gamla the tuition responsibility should really be on the community, but the minhag became that parents pay for their child unless they cannot afford it. The responsibility of the shortfall falls equally on both those who have young children and those who don't. He explains that the custom nowadays for parents to pay for their own children doesn't undermine the takana, rather they are mochel their rights to demand community funds. But, those who cannot afford to pay, have a right to request and demand a community collection for this purpose. However, the Ba'al Hatanya points out:
אך אין לכופם אלא לשכור מלמד אחד לכ"ה תינוקות כבימיהם, וילמדם מקרא לבד, כל התנ"ך פעמים רבות כבימיהם וכו'ואם אותם שאין ידם משגת רוצים ללמד לבניהם משנה וגמרא שלא די במלמד אחד או אפילו שנים לכ"ה תינוקות, יפרעו המותר משלהם
The Ba'al Hatanya assumes that the takana of R' Yehoshua ben Gamla was only for tanach, but not for mishna and gemara. He deduces this from the language of the gemara - סך מקרי דרדקי which implies that they only taught mikrah. In the kuntros acharon he explains that since one is technically not allowed to charge for mishna and gemara, one can only charge for mikra as the gemara explains in nedarim 37 that the charge is for pisuk ta'amim or babysitting. Therefore, the entire takana was only to force the community to pay for what the melamed was allowed to charge for. Based on this, nowadays when they are teaching torah sh'bal peh, it is not the responsibility of the community to pay for it. Furthermore, the age of the child which would fall under the communal responsibility depends on the rationale for charging. According to the opinion who says that you can charge for pisuk ta'ami would require the community to pay even for older children, whereas the rationale of "sechar shemira" would only require the community to pay for children that are very young to still require babysitting. It seems to me that the gemara seems to contradict this, becasue the gemara assumes that 16 and 17 year olds were originally the only ones who took advantage of this takana, until it was extended to 6 and 7 year olds. This implies that even teenagers where included in the takana and are the communities responsibility.
B'kitzur, the community is not responsible to pay for the shortfall of the entire yeshiva. They are only required to pay for the shortfall based on the cost of teaching torah sh'biksav at a 1:25 teacher to student ratio. But, based on my understanding of the gemara, it will include even older grades, which is against the Shulchan Aruch HaGraz.


Tuesday, September 08, 2009

Baba Basra 20a - Using a Snow wall as a mechitzah to carry on Shabbos

The gemara doesn't address snow in the context of a mechitza, but it does address snow in the context of reducing the window that connects between 2 houses in the context of transferring tu'mah. The Tosefta says that snow doesn't reduce the size of the window to prevent the spread of tu'mah. Rashi and Tosafos both say that the concern is that they will melt. Both Rashi and Tosafos seem to be holding that since they are going to melt, even though it is freezing outside and they haven't yet melted, they don't serve as a separation. It does not sound like some sort of gezeira d'rabonon, rather on a d'oraysa level it doesn't prevent the spread of tu'mah even prior to actually melting.
Can we learn the halacha of mechitza from here? The tosefta says that a bird that rests in the window that you have no intention of removing can serve as a separation to prevent the spread of tu'mah. Tosafos asks, how does this fit with r' meir who holds that a live animal may not be used as a wall for succah or shabbos? Tosafos says that the rules for mechitza or more severe than for stopping the spread of tu'mah. The rule by tu'mah is that if you are mevatel it there, it prevents the spread of tu'mah but for shabbos it would not qualify as a mechitza. In truth, a live animal does qualify as a mechitzah for shabbos, it is just that the rabonon were concerned that it may escape or die and no longer be a valid mechitzah. But the rule that we can derive from tosafos is that the rules to be a mechitza on shabbos are different than the rules for blocking tu'mah. Tu'mah is dependent on bitul, whereas a mechitzah is not dependent on bitul. The idea of bitul is to establish a permanence - making the object part of the wall. A mechitza doesn't require this level of permanence. Therefore, snow which cannot serve to block tu'mah because it will melt, is missing the permanence needed to block tu'mah. But, this may not be an issue in the context of using snow as a wall. To serve a mechitzah the fact that it will melt doesn't invalidate it as a mechitza so long as at the moment it is a 10 tefach wall. Surely, if it is melting and likely will reduce to less than 10 tefachim it cannot serve as a wall, but so long as it retains a height of 10 tefachim and it is below freezing so that it will be maintained, it can be used as a wall.
Although it seems to me that in the dead of winter when it is freezing outside, snow can be used as a wall, i have to research to find out how the poskim deal with a snow mechitzah.

I Just found the Aruch Hashulchan (362:15) - this is what he says:

ויש להסתפק אם מועיל בימי החורף מחיצה של שלג וכפור וקרח, ונראה לכאורה דלא מהני מדאמרינן בב"ב כ ע"א דאינן ממעטין בחלון לענין פותח טפח המביא את הטומאה משום דכיון דנמוקים מאליהם לא ממעטים את הפותח טפח וכ"ש דאין שם מחיצה על זה וכמים בעלמא הם. אך, אין ראיה מזה דבסתימת פותח טפח צריך ביטול עולמית וכו' אבל מחיצות הא דיו לשעתו וכו' ולשעתו הוי השלג דבר של קיימא בחורף וכו' וקצת ראיה יש להביא דהוה מחיצה ממש"כ המרדכי בפרק כיסוי הדם בשם גאון דמכסין בשלג דכתיב "כי לשלג יאמר הוה ארץ" הרי דמדמי שלג לארץ וכו
B'kitzur the Aruch Hashulchan also leans to the side that it would qualify as a mechitza even though it can't be used to block tu'mah. But see Rabbeinu Gershom 20b where the gemara discusses the types of salt that can be used for a mechitzah on shabbos. Rabbeinu Gershom mentions the idea of bitul even in the context of mechitzah on shabbos implying that if it is not permanent (such as snow which will melt), it can't be used as a mechitza!

Baba Basra 20a - Using a Metal Vessel to Block Tu'mah

In Nazir we discussed the issue of חרב הרי הוא כחלל and the different opinion mentioned in Tosafos there as to how strong the tu'mah is.
In our Tosafos (d.h. b'chavis) where tosafos asks that a metal kli aside from not being a valid chatzitza to block tu'mah, it should actually assist in the transfer of tu'mah because it becomes an avi avos hatu'ma like the deceased himself, and can turn the other items into an av ha'tumah. Tosafos understands that when we say חרב כחלל it is literally like the chalal and is metamei b'ohel. Rabbeinu Tam seems to assume this, which is li'shitaso with what tosafos quotes in his name in nazir. This is against the position of the ramban in chumash that חרב כחלל only applies to direct contact, not to being in the same ohel.
The Poras Yosef points out that according to the opinion of R' Chaim HaKohen in tosafos in nazir that a kohein isn't forbidden for tu'mah of חרב כחלל, there would still be a significance to the figs creating a chatzitzah between the houses despite the metal kli that assists the transfer of tu'mah. Despite the metal kli, the figs still serve as a chatzitza to make it permissible for a kohen to enter (because the חרב כחלל doesn't create an issur for kohanim), but without the chatzitza a kohen couldn't enter.

Sunday, September 06, 2009

Baba Basra 16b - Aveiros Before Matan Torah

The gemara says that one of the aveiros that eisav commited on the day that avrohom died is that he had relations with a girl who had eirusin but not ne'suin. Tosafos asks that the halachic status of eirusin didn't exist prior to matan torah, when marriage was achieved by consummating the marriage with the intent on staying together which is tantamount to our ne'suin. How can eisav be responsible for this aveira, since she was technically a woman who was still permitted to all? Tosafos answers that although they weren't commanded against taking a girl who was set aside and engaged to someone else, it is still disgusting to do. Meaning, the concept of an aveirah prior to matan torah was not so much about specific actions that are forbidden, since at the time there were a very limited number of specific actions that were forbidden. Rather, the concept of an aveira was not to do things that are considered repulsive.
Similarly we find that mitzvos prior to matan torah were not specific activities that we keep after the torah was given. Although the gemara in yoma tells us that Avrohom kept the entire torah, his claim to fame was not the keeping of the torah, rather the acts of kindness with others that is recognized as inherent good even without a formal mitzvah. The maharatz chiyus (chulin 16a) points out that the gemara attempts to learn out a specific halacha of shechita such as the requirement to use something that is detached from the ground, from the fact that Avrohom took a knife to the akeidah. The gemara pushes this off and says that the reason that Avrohom brought a knife was due to his zerizus and concern that he would not find a proper utensil with which to carry out Hashem's command. From this the maharatz chiyus points out that we can only learn from Avrohom characteristics that are inherently good such as zerizus, but cannot learn from his actions specific halachos since it was prior to matan torah (as rashi in avoda zara 3a writes, avrohom had the status of a ben no'ach). Although Avrohom may have kept the entire torah, we cannot tell from his actions that this would be a torah requirement. It is only once we know from elsewhere that the torah would demand or prohibit something can we then explain an action of Avrohom based on that.
In short, both in regard to aveiros and in regard to mitzvos, prior to matan torah there were very few specific commandments. Yet, things that are perceived as good such as the trait of zerizus is considered a mitzvah that we can learn from avrohom, and things that are perceived as bad such as taking a woman who is already set aside fro another is deemed an aveirah.

Thursday, September 03, 2009

Baba Basra 15a - Why Yechezkel didn't write Yechezkel

The gemara says that the אנשי כנסת הגדולה authored Yechezel, Trei Asar, Daniel and Megillas Esther. Rashi explains that a Navi cannot record his prophesy in writing while in chutz la'aretz, therefore yechzkel, daniel and esther who were all in chutz la'aretz couldn't write their own sefer. Perhaps we could have offered an alternate explanation for Daniel since rashi writes in megilla 14a based on the gemara in megilla 3a that Daniel wasn't a Navi. It is logical to assume that if the sefer is going to be written by an individual, he must be a navi (otherwise the anshei k'neses hagedola would write it together).
Tosafos asks that Yirmiyahu managed to write his own sefer even though some of his prophesy was in Egypt and we don't find that he ever returned to eretz yisroel? From this Tosafos proves that prophesy can be recorded in chutz la'aretz.
The Noda B'yehuda (tinyana o.c. 106) was asked that Rashi in Yirmiyahu 44 seems to hold that Yirmiyahu was thrown out of mitzrayim and returned to eretz yisroel. The N.B. points out that Rashi doesn't explicitly write that Baruch and Yirmiyahu returned to eretz yisroel, rather rashi says "they returned from there because they were exiled by nevuchadnetzar". This means that they were thrown out of mitzrayim and returned to bavel as it says in seder o'lam. I found that the chasam sofer makes a reference to rashi in koheles (12:6) who writes explicitly as the N.B. suggests:
ששניהם (ברוך בן נריה וירמיהו) גלו לבבל, ופסקו מלימודם בעוני הדרך, תחילה גלו למצרים שהגלם יוחנן בן קרח, וכשהחריב נבוכדנצר את מצרים הגלם לבבל
Not surprising, but the N.B. read into rashi in Yirmiyahu exactly what rashi writes explicitly in Koheles.
This is also explicit in rashi in megilla 16b d.h. shekol:
ובמדרש שהיה (עזרא) לומד תורה מפי ברוך בן נריה בבבל, וברוך לא עלה מבבל ומת שם בתוך השנים הללו, ודאמרן לעיל ברוך נתנבא בשנת שתים לדריוש בבבל היה מתנבא ושולח ספרים לירושלים
Rashi seems to indicate that Baruch had prophesy in bavel and sent copies of it to Yerushalayim where it was able to be incorporated into the tanach.
Based on this, Tosafos question returns -we see Yirmiyahu was able to record his prophesy in writing from Bavel, so why couldn't Yechezkel and Esther have written their own seforim?
The Ya'avetz says simply that so long as the primary prophesy was coming from eretz yisroel, there could be some additions from chutz la'aretz. Therefore, Yirmiyahu who primarily prophesized in E.Y. was able to finish off his sefer by himself in bavel, but Yechezkel and Esther who prophesized primarily in chutz la'aretz couldn't record their own seforim.

Wednesday, September 02, 2009

Baba Basra 14b - Sefer Torah in the Azarah

The gemara has a machlokes between R' Meir and R' Yehuda whether the sefer torah that was written by moshe was actually in the Aron with the luchos, or whether it was in the kodesh hakadashim on the side of the Aron. The gemara (14b) refers to this sefer torah as the ספר עזרה. Why would the sefer torah that is kept inside the kodesh hakadashim be called the sefer of the Azara - courtyard? Rashi is apparently bothered by this question and says that the sefer that Moshe Rabbeinu wrote was read from by the king during hakhel, and by the kohen gadol on yom kippur. Apparently rashi held that it was permitted to go into the kodesh hakadashim to take out the torah in order to read it.
Tosafos 14a asks why the gemara finds it necessary to leave some space in the Aron so that the sefer torah can be put in and removed easily, it was never removed since it is forbidden to enter the kodesh kadashim except on yom kippur, and we don't find any mention in the mishnayos of yom kippur that they would use this sefer torah? Tosafos clearly assumes not like rashi and holds that this sefer wasn't used, and is therefore troubled by why they had to leave space to get it in and out easily. Tosafos answers that although it was never used they would sometimes remove it in order to repair it (and one may enter the kodesh hakadashim in order to fix it, so too one may enter to fix the sefer torah). Also, between the destruction of mishkan shiloh and the second beis hamikdash, they would use the torah. The Rashash suggests that even rashi agrees with Tosafos that one may not enter the kodesh hakadashim to remove the sefer torah, but during the second mikdash when there wasn't any Aron it was used (that is why it is called the sefer azara - perhaps during that time it was actually kept in the azara).

Tuesday, September 01, 2009

Baba Basra 13a - Why the Pasuk of La'Sheves rather than Pru U'rvu?

Tosafos (d.h. shene'emar) asks why does the gemara choose to cite the pasuk of lasheves to justify the importance for the half-eved half-ben chorin, to be able to procreate, rather than the more well known verse in the Torah of P'ru U'rvu? My understanding of Tosafos answer in the name of the R"I is that the mitzvah of p'ru u'rvu is really a ma'aseh mitzvah like any other where we have exemptions for o'nes. Therefore, citing the pasuk of p'ru u'rvu wouldn't justify forcing the master to free the eved since at the present time the half-free side of the eved is exempt as an o'nes because he is incapable of performing the mitzvah. But by citing the verse of לא תהו בראה לשבת יצרה the gemara is pointing to the root and purpose of the mitzvah of p'ru u'rvu. The pasuk of La'Sheves Yi'tzara illustrates that the purpose of p'ru u'rvu is to occupy the world and therefore we don't follow the regular system that we do by other mitzv0s, because even if he is exempt due to o'nes the world will remain empty. Although the gemara means to use the pasuk in the torah as p'ru u'rvu as the source, it chooses to quote an alternate pasuk that would justify why p'ru u'rvu should apply even in a circumstance where he is an o'nes.
This approach is very meduyak in the language of Tosafos where the entire focus is on the pasuk chosen by the gemara, rather than using language that indicates that p'ru u'rvu isn't at all applicable since he is an o'nes. Tosafos language implies that p'ru u'rvu is truly the source that compels us to force the master to free the eved, but we cite the pasuk that explains why p'ru u'rvu should apply even to a circumstance of o'nes.
Furthermore, this approach would compliment, rather than contradict the Turei Even in Rosh Hashana 29a who asks that since one who does a mitzvah when they are exempt doesn't fulfill their obligation, how can the gemara in yevamos say that if one had children as a goy an then converts his whole family he automatically fulfills the mitzvah - the mitzvah was done when he was patur so he should have to do it again? Turei Even answers that since the purpose of p'ru u'rvu is to populate the world, we disregard when the act of the mitzvah was done so long as the world is being popluated as a result of his actions. If we were to understand Tosafos simply that only sheves applies but not p'ru u'rvu, then the Tosafos would be holding that p'ru u'rvu is a standard mitzvah like any other where o'nes is exempt and the ma'aseh mitzvah should have to be done when he is obligated in the mitzvah. But since we are explaining that according to Tosafos the entire mitzvah of p'ru u'rvu is for the purpose of l'sheves yitzara - populating the world, Tosafos is essentially a support for the Turei Even's chiddush that the time of the ma'aseh mitzvah is not rellevant.
This also explains how in the very next Tosafos they are able to ask that the mitzvah of p'ru u'rvu should push off the issur of marrying a kadeish. How can Tosafos cite the mitzvah of p'ru u'rvu moments after saying that it doesn't apply here since he is o'nes. Clearly, Tosafos never meant to say that it doesn't apply here, rather just that we wouldn't realize that it does apply here if not for the fact that we quoted the verse of l'sheves.
As a side note, there is a famous discussion whether an o'nes is exempt or actually obligated but unable to perform. Tosafos here seems to support the former. Tosafos explains that since the half ben chorin is an o'nes in his obligation of p'ru u'rvu, we wouldn't force the master to free him. Tosafos supports this claim from the fact that we don't force masters to free all regular avadim to enable them to keep mitzvos. Now, if o'nes is actually obligated but unable to perform, how can Tosafos prove their case from a standard eved who isn't even obligated at all in the mitzvos. Perhaps we don't free regular avadim because they aren't obligated but we would free this half eved since his free side is obligated just that he is an o'nes. Clearly, Tosafos holds that o'nes and not being obligated is exactly the same and can prove o'nes from the case of a regular eved.