Sunday, November 29, 2009

Baba Basra 101b - Mitzvah to Bury Fetus

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

Friday, November 27, 2009

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

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

Thursday, November 26, 2009

Baba Basra 99a - Direction of Keruvim

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

Wednesday, November 25, 2009

Baba Basra 97a - Kiddush on Cooked wine

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

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

Tuesday, November 24, 2009

Baba Basra 96b - Grape Juice from Concentrate

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

Monday, November 23, 2009

Baba Basra 95b - Bracha on Spoiled Food

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

Sunday, November 22, 2009

Baba Basra 94b - Passul Witnesses

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

Thursday, November 19, 2009

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

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

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

Tuesday, November 17, 2009

Baba Basra 88b - Teshuva for Inaccurate Weights and Measures

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

Monday, November 16, 2009

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

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

Wednesday, November 11, 2009

Baba Basra 84a - Gan Eden on the East

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

Tuesday, November 10, 2009

Baba Basra 81a - Ger in the Mitzvah of Bikurim

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

Monday, November 09, 2009

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

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

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

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

Thursday, November 05, 2009

Baba Basra 77a - Transfering Ownership of a Contract

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

Wednesday, November 04, 2009

Baba Basra 76b - Selling Contracts

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

Tuesday, November 03, 2009

Baba Basra 74 - Aggados and Birkas Hatorah

One of the issues that arose in the course of learning these aggados is whether one is able to make a birchas hatorah on reading and translating even without understanding the code. In most aggadata we are able to draw a message or a point which without question would qualify as limud ha'torah and warrant a birchas hatorah, even if we don't fully understand the message. However, particularly in the stories of Rabba Bar Bar Chana, where each parable is nothing more than a metaphor and has no "pashut pehsat", it is fair to wonder whether reading and translating would warrant a birkas ha'torah. Surely, to learn the gemara with the maharsha or the gr"a it would be serious limud ha'torah, but what about merely reading and translating the words? Similarly, when one would learn the refuah gemaras in the 7th perek of gittin, on which r' akiva eiger in hilchos aveilus has pointed out no longer apply, would they warrant a birchas hatorah?
The entire question is based on the assumption that if one were to read chezkas habatim or any other gemara, without having any understanding what the gemara is saying, would not qualify as limud and would not require a birkas hatorah. I always assumed that we follow the shulchan aruch of the gra"z who writes (hilchos talmud torah 2:12-13):
אך אם מוציא בשפתיו אע"פ שאינו מבין אפילו פירוש המילות מפני שהוא עם הארץ הרי זה מקיים מצות "ולמדתם" ולפיכך כל עם הארץ מברך ברכת התורה בשחר לפני הפוסקים וכן כשעולה לספר תורה, במה דברים אמורים בתורה שבכתב אבל בתורה
שבעל פה אם אינו מבין הפירוש אינו נחשב לו לימוד כלל
Clearly, the ba'al hatanya holds that in torah sh'bal peh, one who does not understand isn't learning at all (although he writes afterward that he should still read through the material because in the world to come he will merit to understand all the torah that he read, but his mind couldn't grasp on this world).
The magen avrohom (50:2) seems to disagree and hold that we don't make any distinction between torah she'biksav and torah she'bal peh. One who doesn't understand is not considered to be learning at all.
But, R' Menachem Levin pointed out to me that the Maharil in the teshuvos (chadashos 45) may hold exactly the opposite of the magen avrohom. The context of the maharil is a justification for woman making birkas hatorah, even though we consider women learning to be "tiflus". The maharil argues: 1. The rambam says that tiflus is only in the oral torah, but not the written. 2. even in oral torah, it is tiflus to teach her, but if she learns herself she gets reward like an eino metzuveh v'oseh. 3. they have a mitzvah to learn mitzvos that pertain to them, as we see that even a goy receives reward for learning the mitzvos that pertain to him. 4. The Rabbonon were mesaken sections of torah that should be recites as a tefillah, such as seder korbanos, which women need to say and need to make birchas hatorah on. In the course of the final argument, the maharil writes:
ואם כן מחייבי נמי לסדר ענייני קרבנות, קראי, ושמא נמי מתניתין דאיזהו מקומן, ותפילות אין שייך דאינן מבינות, ומ"מ הוי כאילו הקריבו קרבן משום עקימת שפתים, דליגרוס איניש אע"ג דלא ידע מאי קאמר, ופשיטא דאיש חייב לברך אע"ג דאין מבין קריאתו וגרסתו
The maharil seems troubled by saying birchas hatorah on sections of korbanos that they don't understand, to which he responds that the reading itself demands a birchas hatorah, even without any understanding. However, it is not clear to me that these statements of the maharil are going on the oral torah. Perhaps the maharil agrees with the shulchan aruch ha'rav and holds that the written torah requires a birkas hatorah even without understanding, but not the oral torah.
In light of this, i think it is a fair question whether merely translating the stories of rabba bar bar chana qualifies as "understanding" torah she'bal peh and warrants a birchas hatorah, or not? The Rashbam at the start of the sugya refers to the stories as שיחת חולין של תלמידי חכמים, which may indicate that unless one spends time learning the meaning, it is no more than sichas chulin.

Monday, November 02, 2009

Baba Basra 73b - Story of Frog (GR"A)

I attached a link, >CLICK HERE< to the commentary of the GR"A on the Aggados of Rabba bar bar Chana. I found it online at and deleted the parts that weren't pertinent (it begins on page 7) and serves as the basis for "the juggler and the king", by the rosh yeshiva of ner yisroel.

The story of the Frog:
Rabba Bar Bar Chana saw a frog that was the size of the city Hagrunya, which was 60 houses. A snake came and ate the frog. A raven came and ate the snake. The Raven then sat on a tree. Come see the strength of the tree. R' Papa Bar Shmuel commented that if he would not have been there, he would not have believed it.

GR"A explanation:
The Midrash says in Shemos, why were the Egyptians punished with frogs? Because they stopped the Jews from studying Torah, who resemble the frog that doesn't stop making noise day and night. A frog is symbolic of a talmid chacham who doesn't stop studying torah. Rabba tells that he saw a "frog" that was as large as a city of 60 houses, meaning that he was an expert in all 60 tractates - the entire shas. A snake came and swallowed the frog. The snake symbolizes the yetzer ha'rah. There are 2 types of yetzer ho'rah: One works on the land focusing on the "amei ha'aretz" and is called a "nachash", the other focuses on the sea, meaning on those who delve into the yam ha'talmud and is called a "tanin". The tanin came to swallow up the talmid chacham and disturb him from his studies. But then, a raven came and swallowed the snake. The raven refers to the talmid chacham who is mean to his children like a raven, being to preoccupied with torah study to provide sufficient parna'sah to his family (based on the gemara in kesubos). Generally the yetzer ho'rah will use the claim of parnasah to disturb the talmid chacham from his studies, therefore it is the one who can behave like a raven that has the ability to swallow the yetzer ho'rah. The gr"a points out that this is meduyak in rashi who writes that the raven is a mother bird. The nature of the mother raven is a polar opposite of other mothers, in that it shows little regard for it's young. That is why it refers to a talmid chacham who ignores his family and delves into torah study. The raven then sits on a tree. The tree symbolizes those who support talmidei chachamim. The "raven" has no parnasah, but Hashem will provide a "tree" for the raven to support him. Come see the strength of the tree. We find both by the brachos of Yakov and the brachos of Moshe that he mentions Zevulun, the supporter, before Yissoscher, the learner. Why? Because the supporter of Torah overcomes the yetzer ho'rah to use his wealth for luxuries on this world, and channels it toward supporting Torah. The one who supports the Talmid Chacham is in many ways greater than the Talmid Chacham because he overcomes his yetzer horah more than the talmid chacham himself. It is for this reason that the angel of Eisav who saw that he could not win out over Yakov, he hit Yakov in the leg. The leg symbolizes the support of the talmid chacham. When the yetzer horah fails with the talmidei chachamim, he sometimes is successful by attacking the supporter of Torah, so that he discontinues support. R' Papa bar Shmuel said that if he didn't see it he would believe it, because in Bavel there weren't any major supporters of Torah. It is only because he was in Eretz Yisroel did he merit to see such strong tree - this level of support for Torah.