Thursday, December 31, 2009

Baba Basra 133b - Writing Children Out of the Will

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

Wednesday, December 30, 2009

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

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

Monday, December 28, 2009

Baba Basra 130a - Following Piskei Halacha

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

Saturday, December 26, 2009

Baba Basra 128a - Pesulei Eidus

An Overview of Halachos of p'sulei eidus

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

Tuesday, December 22, 2009

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

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

Monday, December 21, 2009

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

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

Friday, December 18, 2009

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

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

Thursday, December 17, 2009

Baba Basra 119a - Tzlafchad the Mekoshesh

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

Wednesday, December 16, 2009

Baba Basra 118a - Complaining for More Land

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

Monday, December 14, 2009

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

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

Thursday, December 10, 2009

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

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

Tuesday, December 08, 2009

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

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

Monday, December 07, 2009

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

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

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

Thursday, December 03, 2009

Baba Basra 105a - Grabbing After the Safeik

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