Sunday, January 31, 2010

Baba Basra 164b - Avak Loshon Ho'rah

The gemara tells of two stories where R. Shimon (son of Rebbi) was sitting by his father and a contract was presented to them. In the first story, Rebbi was unhappy with the way the contract was written. R. Shimon realized that Rebbi thought that he wrote it, so he responded that R. Yehuda wrote it. The gemara considers this actual loshon ho'rah. The Rashbam explains - לא היה לך להטיל אשמה עליו, היה לך לומר איני כתבתיו. This implies that since R. Shimon had some other way of removing the guilt from himself, it is loshon horah to convict someone else. But had R. Shimon not been able to convince his father that it wasn't he who wrote it, unless he were to mention the name of someone else, he would be allowed to do so. The rationale would be that one is entitled to protect his reputation, even at the expense of loshon horah on another, if he has no other way to convince others of his innocence.
In the second story, Rebbi was impressed with the writing of the contract. R. Shimon saw that his father thought he had written it, to which he responded that R. Yehuda wrote it. The gemara considers this not to be actual loshon hora, but to be avak loshon horah. Why? The gemara explains - שמתוך טובתו בא לידי רעתו. The Rashbam explains that לידי רעתו means לידי גנותו. By R. Shimon praising R. Yehuda he would also come to mention the גנות in him - מתוך שמרבין בשבחו מזכירין שם גנות שבו. We can make a subtle diyuk from the Rashbam that he seems to understand that the issur of avak loshon hora is that the speaker will be led to say actual loshon horah. From the Rashbam we don't necessarily see that if by telling something positive it will lead someone else to say something negative, that the positive statement would also qualify as avak loshon horah. However, the Rambam (Dei'os 7:4) clearly writes that the issur of avak loshon hora is that it will lead others to tell loshon horah. Even if the speaker will not be led by his words to tell of his faults, it may lead other to do so (see chofetz chaim, be'er mayim chaim 9:1, who explains that opinion of the Rambam to be an issur of leading others to loshon horah). Perhaps the nafka mina would be if one would publish praises of someone knowing that it is likely to cause the readers to point out his faults, according to the Rambam the writer would be in violation of avak loshon hora, but according to the Rashbam it would be permitted.
The chofetz chaim (hagaha 9:1) asks, why isn't every case of avak loshon hora an issur of lifnei iver since it is a stumbling block that leads others to doing an issur? He explains that lifnei iver may only apply when it is very likely to lead to the person doing an issur, but avak loshon hora would apply even if it is unlikely that the listeners would be led to speak badly about the person, since it is at least remotely possible. However, the chofetz chaim is bothered that the language of the Ramabam and Rabbeinu Yona implies that even if you directly lead someone to speaking loshon hora it would only constitute a violation of avak loshon hora, not lifnei iver? The chofetz chaim explains that the answer CANNOT be that lifnei iver only applies when the person couldn't have done it without you, but here he could have spoken loshon horah without you, but would not have. This answer doesn't hold because any time the person would not have done an aveira without you, even though they could have, would still qualify as תרי עברי דנהרא and be a d'oraysa issur of lifnei iver (see here). The Chofetz Chaim answers that in a situation where it is likely that they would have spoken bad about the person even without you speaking positive about him, nevertheless, since the positive talk may lead them to speak badly, it qualifies as avak loshon horah.
It seems that the question of the chofetz chaim only applies according to the Rambam and Rabbeinu Yona's definition of avak loshon hora, that it will cause others to speak badly. But, according to Rashbam that it is an issue of the speaker himself moving from positive to negative speech, it has nothing at all to do with lifnei iver.

Thursday, January 28, 2010

Baba Basra 162a - Last Line of Contract

R. Yochanan says that there is a requirement to repeat a phrase of the contract in the last line, rather than right a new clause that doesn't appear earlier in the contract. The reason that nothing new can be written in the last line is because chazal instituted that any clause written in the last line of the contract is ignored. The rationale is that sometimes witnesses will leave a line between the end of the contract and the start of their signatures. There is a concern that the holder of the document will insert a clause that benefits him in that last line, therefore we have a rule that nothing can be learned from the last line.
There seems to be a machlokes between tosafos and the rashbam whether this is an actual takana that the contract should be summed up in the last line, or whether it is just a halacha that anything new written in the last line is disregarded. Rashbam seems to understand that we don't require the a the contract to be summed up in the last line, just that we will ignore anything new that is introduced in the last line. However, Tosafos (161a d.h. v'neichush, and v'tzarich) implies that since we institute the the contract must be summed up in the last line, if that is not done we invalidate the entire contract since it is prone to lead to forgery.
Both the Rashbam and Tosafos point out that the custom of writing שריר וקיים was only done for a shtar mekushar, not for a standard contract because that would have indicated an end to the contract and chazal would not have to institute the rule of not learning anything new from the last line of the contract. However, nowadays when we right שריר וקיים, Tosafos quotes from Rabbeinu Tam that even vital and new information can be written in the last line of the contract.
Practically, when we write gittin, we write ודן די יהוי ליכי מינאי ספר תרוכין ואגרת שבוקין וגט פטורין in the second to last line, and write כדת משה וישראל in the very last line. However, Tosafos points out that since כדת משה וישראל in a gett is equivalent to שריר וקיים of other contracts, one can technically write the entire statment of ודן די יהוי ליכי....כדת משה וישראל in the last line. But, Tosafos writes that after Rabbeinu Tam died they found in his writings that we are careful not to write anything important in the last line, therefore the statement of ודן די יהוי ליכי מינאי ספר תרוכין which is integral to the gett (dependent on the sugya of yadayim mochichos), cannot be written in the last line (because that is all part of the to'ref of the gett), only the words ואגרת שבוקין וגט פטורין כדת משה וישראל, which are repetitive can be written in the last line.
Although Tosafos ultimately holds like the original version of Rabbeinu Tam that we can learn from the last line since we write כדת משה וישראל, the Shulchan Aruch (e.h. 126:18) writes that לכתחלה the last line shouldn't contain anything more than כדת משה וישראל, so if the last line contained any part of the statement ודן די יהוי ליכי מינאי ספר תרוכין it would invalidate the gett. The Beis Shmuel (27) points out that the shulchan aruch seems to be more machmir than Tosafos, that לכתחלה we don't even allow ואגרת שבוקין וגט פטורין to be written in the last line, but bidieved we can even allow ודן די יהוי..ספר תרוכין to be on the last line since we write כדת משה וישראל.

Wednesday, January 27, 2010

Baba Basra 160a - Gett Mekushar for Kohanim

The gemara says that the concept of a gett mekushar was instituted for a place where there were kohanim who were easily angered (not clear if the gemara is saying that this is the nature of kohanim, or just saying that in this place this was their nature) and would divorce their wives out of anger (Yad Rama points out that the takana was already in place in the time of Yirmiyahu since we the pesukim hint to the shtar mekushar). Since kohanim weren't able to remarry their divorced wives, the chachamim wanted to delay the gett proceedings so that their is time for their anger to subside, so they instituted the concept of a gett mekushar (and extended it to other contracts as well).
Clearly the implication is that when one would divorce out of anger, the gett would be binding. Tosafos 161a points out that the chachamim intentionally made the process complicated to delay so that kohanim will have to spend time figuring out what to do.
The Toras Chaim asks on the Tur cited by Rama (choshen mishpat 333:8) who writes in the context of mechila, that when one does something out of anger it is not binding? The Teshuvos Mahari"m Brisk siman # 38 (cited by Pischei Teshuva E.H. 134:43) answers that when one says something out of anger it isn't binding, but if he writes a gett which is a significant action, it is binding even if done out of anger. Secondly, even if it wouldn't be a gett to be matir her, it would at least be a rei'ach ha'gett (smell like a gett), which would forbid her to a kohen.
Practically, we never do a gett mekushar anymore, even for kohanim. Tosafos 160b made this observation and offers 3 approaches:
1. Since we lost the expertise of how to do a gett mekushar, it is better to just to a standard gett.
2. It was initially only instituted for a particular place where there were many kohanim and this presented a problem (as the gemara says - אתרא דכהני הוו).
3. Even the original institution wasn't an obligation on kohanim to do a gett mekushar, and was only instituted for their benefit so they don't lose their wives.
I heard from R. Nota Greenblatt that the entire necessity of the gett mekushar may have only been prior to the cherem of Rabbeinu Gershom who instituted that one cannot divorce his wife against her will. But, after R"G instituted that he needs her consent, and without that he is not able to divorce her, there is no longer a concern that he will divorce her out of his rage, because she will refuse to accept it. Perhaps Tosafos doesn't offer this approach because they knew that it was historically abolished prior to Rabbeinu Gershom.

Tuesday, January 26, 2010

Baba Basra 159a - Witnesses in Contracts who become Passul

The Shulchan Aruch (C.M. 36:34-35) points out that if a person is signed in a contract and later becomes passul for eidus, there is a distinction between becoming passul as a gazlan or becoming passul as a relative. If Reuven is signed in a contract and later becomes a gazlan, he can no longer confirm his own signature since he is no longer kasher for eidus, but others can confirm his signature. However, the two witnesses who are confirming his signature must know that he signed prior to becoming a gazlan because otherwise we are concerned that the contract was forged and only signed after he was already passul. The source of this is Tosafos in our sugya who explains the requirement of כגון שהוחזק כזת ידו בבית דין to mean that the beis din has to know that he signed the contract before becoming a gazlan (not a henpek, which is a kiyum written beneath the signatures as the Rashbam explains). But, if reuven signs a contract as a witness and later becomes a relative of the person who he signed for (such as becoming a son in law by marrying his daughter), he cannot confirm his own signature as a relative. However, if there are two witnesses who can confirm his signature, they don't have to know that he signed prior to becoming a relative, because we are not concerned that he forged the contract or signed b'issur. The source of this distinction is clear in the gemara which says that for becoming a relative the contract is valid אע"פ שלא הוחזק כתב ידו בבית דין. The gemara explains that since the p'sul of a relative isn't a concern of lying, rather a geziras hakasuv, there is no concern that the contract was forged.
What about if a witness who signed in a contract later becomes no'geiah, meaning that they have monetary gain by the contract. Must the witnesses who are confirming his signature be sure that the contract was signed prior to him becoming a no'geiah? Are we concerned that a no'geiah would forge the contract just as a gazlan would, or is he more similar to a relative where we don't have such a concern? The Pischei Teshuva (46:11) quotes from Teshuvos Na'os Desheh that this is explicit in our gemara. The gemara speaks of a case where Reuven signed in a shtar on something that later falls to him as inheritance so that he becomes a no'geiah. The gemara insists that when witnesses confirm his signature that it be הוחזק כתב ידו בבית דין. Since a no'geiah is also a concern of being me'shaker, we consider him like a gazlan who would forge the contract and therefore require that they know he signed it before becoming a no'geiah.
Based on this approach that a no'geiah is a concern of being me'shaker like a gazlan, the gemara is difficult. How can the gemara prove that the p'sul of a relative is a gezeiras hakasuv - דאי לא תימא הכי משה ואהרן לחותנם משום דלא מהימני הוא - meaning that by moshe and aharon there is certainly no concern of being me'shaker, so it must be a gezeiras hakasuv. Since no'geiah b'eidus is a concern of being me'shaker rather than a gezeiras hakasuv, it should come out that there is no p'sul of no'geiah by people like moshe and aharon since they would certainly not have a chashash me'shaker? If we assume that no'geiah would invalidate moshe and aharon because it is a gezeiras hakasuv to treat them as if they would lie (even though we aren't really concerned that they would lie), we can say the same thing for the p'sul of being a relative and require the eidim who confirm the signature of a relative to know that he signed the contract prior to becoming a relative? B'kitzur, since no'geiah is a concern that he is not telling the truth, this p'sul shouldn't apply to people who we know are honest such as moshe and aharon?

Sunday, January 24, 2010

Baba Basra 157a - Forcing Yesomim to Pay Debts

Tosafos explains that the concept of their being a mitzvah on inheritors to pay their fathers debts, depends on a few variables: a. whether the father left them property from which to collect. b. whether a debt without a contract is collectible from the yesomim. c. whether the yesomim inherited anything from their father.
1. If the father leaves over property on which there is a loan with a contract - the orphans have a mitzvah to pay and we force them in beis din to pay.
2. If the father doesn't leave over property - the orphans have a mitzvah to pay, but we don't force them to pay [Rashash points out that the shulchan aruch (107) paskens like the hagahos ashri that if the father doesn't leave over anything, they don't even have a mitzvah to pay at all].
3. If the father leaves them property on which their is a verbal loan, it depends: One opinion holds that a verbal loan is collected from orphans, so we force them to pay. But according to Rav and Shmuel that a verbal loan isn't collected from orphans, they have a mitzvah to pay but we don't force.
We discussed this issue in Kesubos, see here:
I suggested that the concept of forcing the yesomim to pay is under the rubric of forcing for positive mitzvos. This seems to be supported clearly by Tosafos who quotes this gemara not only for the reason that one must repay their own debt, but to justify why we force yesomim to pay their fathers debt (when it is a contractual debt and he leaves over property). The difficulty is, if we force for mitzvah aseh, why don't we force in all situations where they have a mitzvah to pay, even when he doesn't leave over property on which there is a shi'bud? See what I wrote in kesubos.

Friday, January 22, 2010

Baba Basra 156a - Being Machzik as a Gadol in Retrospect

R. Akiva Eiger (Teshuvos 7) discusses a sofer who had his son who was just about 16 assist him in the writing tefillin. Being that the son was never checked by witnesses to verify that he was physically an adult, R. Akiva Eiger wrote that the assumption of Rava in Nida 46 to assume he is an adult based on age would not work for a d'oraysa issue such as tefillin and Mezuzah.
However, R. Akiva Eiger writes that if they would check him today and find that he indeed has halachically reached physical maturity, all the tefillin that he wrote from when he was 13 would be kasher. The source of this ruling is Tosafos (d.h. bodkin) who writes at the end that if we would check a girl a few weeks or months after her 12th birthday and found simanim, even if beforehand she had accepted kiddushin from Reuven and then from Shimon, we are only concerend about the kiddushin of Reuven, not the kiddushin of Shimon. We don't have to be concerned that she got simanim in between the kiddushin of Reuven and Shimon, because "now she already reached gadlus, so we assume she was a gadola for a long time before". R. Akvia Eiger undertands that to mean that since now we know she is definitely a gadola, we can use the chazaka of Rava to tell us that he probably became a gadola from her 12the birthday. Therefore, this son of the sofer is also assumed to have been a gadol from his 13th birthday.
R. Akiva Eiger questions this pesak based on the Ramban that we mentioned yesterday who says that the story in b'nei berak is only if the boy died immediately after selling property, which implies that if he sold the property and then died 2 weeks later, even if we dig him up and find that he was a gadol when he died, we are concerned that he wasn't a gadol at the time of the sale (r. akiva eiger also points out that the rosh disagrees with the ramban). Clearly the Ramban holds that we don't say since he died as a gadol ,we are machzik him as a gadol from the moment he reached 13? But, R. Akiva Eiger explains that even the Ramban would agree in our case that we are machzik the son of the sofer as a gadol from when he was 13. The Ramban is only machmir in monetary issues, that we aren't entitled to take away money from the inheritors based on that assumption.

Thursday, January 21, 2010

Baba Basra 154a - How does simanim indidcate that he was an adult when he sold?

The gemara quotes a story in which there was a dispute between the inheritors and buyer whether they should dig up the deceased to see if he was an adult, which would verify that he had the right to sell (re: nivul hameis - see previous post). The assumption is that if they would find valid simanim, that would prove that he was an adult at the time that he sold. Why? Wouldn't it only prove that he was an adult at the time that he died, but perhaps at the time he sold he was still a kattan?
The Ketzos HaChoshen (235:5) quotes a machlokes rishonim. The Rosh in a teshuva (33) writes that if we would find that he is a gadol at the time that he died, we would be machzik him as a gadol from the time that he reached the age of gadlus (even the inheritors agree that he became 13 years old prior to the sale). But, the Ramban writes that we are speaking in a case where he died immediately after selling, therefore if he was a gadol at the time he died, he was a gadol at the time he sold.

Baba Basra 154b - Nivul HaMeis

The gemara says that the inheritors are not allowed to dig up the deceased in order to maintain the inheritance in their hands because it is a violation of nivul ha'meis. But, the buyers who claim that they purchased the property can demand that the meis be dug up in order to prove that they have purchased the property from a gadol. The gemara explains that their claim is: אנן זוזי יהבינן ליה, לינוול וליננול. The Rashbam explains that they have a right to claim that they aren't concerned with the embarrassment of the meis, and they are not obligated to be concerned because: שאינו קרובינו, והפסדנו מרובה. The Rashbam seems to hold that the concern for nivul ha'meis only applies either to a relative, or to others when they aren't suffering a loss, but buyers who are not relatives of the deceased and are suffering a loss have the right to demand that he be dug up. Where does the Rashbam get this notion that nivul ha'meis doesn't apply in a situation where there is a loss?
The gemara Sanhedrin 45a discusses whether a person is stoned in their clothing. The gemara concludes that all agree we try to fulfill ואהבת לרעך כמוך, but with clothes he will die slower, without clothes it will be more degrading. The machlokes is whether it is more ואהבת לרעך כמוך to kill him without pain, or to maintain his dignity. Based on this the issur of nivul ha'meis is a din in ואהבת לרעך כמוך. This is also the peshat in baba kama 51a where we raise the height of the place of sekilah to kill him quickly, but not too high so that he doesn't break up into limbs. Both the concern for raising it and the concern not to raise it too high are a requirement of ואהבת לרעך כמוך. Based on this, it seems that just as we have a rule in baba metzia חייך קודמין, meaning that ואהבת לרעך כמוך is only כמוך, but doesn't have to exceed himself, when it comes to the collection of a debt we don't obligate someone to suffer a monetary loss to fulfill the mitzvah of ואהבת לרעך כמוך. Therefore, the buyers are allowed to demand that the deceased be dug up to save themselves from a loss. The Rashbam is meduyak in his language that their demand is והפסדנו מרובה, meaning their loss exceeds the amount of nivul that he would suffer, which is really the hagdara of חייך קודמין. Meaning, if all things are equal or if I have more to lose, then we say חייך קודמין. But if the loss would be minimal and the nivul would be severe, there isn't any heter of חייך קודמין.
However, both the Rashbam and Tosafos seem to understand that relatives are obligated to suffer some level of loss to prevent nivul. Perhaps this is part of the din מבשרך אל תתעלם. Basically, the concept of מבשרך אל תתעלם places a greater demand of ואהבת לרעך כמוך on a relative than on a stranger.
This is all assuming that the hagdara of niuvl hameis isn't כי קללת אלקים תלוי, which would be a בין אדם למקום obligation for which there is not heter to save for a monetary loss (as we find in baba metzia - מי דחינן איסורא מקמי ממונא). Although the bizayon is because of קללת אלקים תלוי, the hagdara of the issur is considered to be bein adam l'chaveiro, for which we allow one to protect himself even at the expense of someone else.

Wednesday, January 20, 2010

Baba Basra 153a - Shechiv Mei'ra: If he is healed is it an automatic retraction of the gift?

The gemara said many times that one who gives a mat'nas shechiv meira (either gives all their possessions or they mention that they are dying at the time of the gift), if they are "a'mad" and recover from their illness that can retract the gift. Is the retraction automatic, or must they explicitly retract?
Tosafos is bothered about the dispute in the gemara between the receiver of the gift and the inheritors, whether it was a matnas shechiv mei'rah which allows for retraction, or a matnas ba'ri that is fully binding. Even if the inheritors claim is correct that it was a matnas shechiv meira that allows for retraction, and even if he actually recovered from his original illness, who said that he retracted from the gift before dying? Tosafos explains that אם עמד חוזר means that as long as he recovers we assume that he retracted, even though we have no evidence that he actually retracted. In analyzing Tosafos, they aren't saying that recovering is a chazara, rather that when we don't know whether he actually retracted or not, we make an assumption that if he recovered that he retracted. If we would somehow know for sure that even though he recovered, he definitely didn't retract, the matana would be binding.
However, the Rambam (Hil. Zechiya 8:14) seems to hold that when he recovers the matana is automatically void because it was only meant to be given after he died:
שאומדן דעת הוא שלא נתן זה הכל אלא ונתכוון שלא יקנו כלום אלא לאחר מותו
The Rambam holds that the default is that the matana is not binding until he dies. The language of אם עמד חוזר isn't accurate because the default is that until he dies there is no gift at all. The gift only goes into effect when he dies. The Shulchan Aruch (C.M. 250:2) writes explicitly that the gift is automatically void - אם עמד ונתרפא לגמרי המתנה בטלה ממילא, by adding the word "me'meila" it implies clearly that he doesn't need to actually retract. This is very different from Tosafos who assumes that the default is that the gift is binding, just that he has the right to retract if he recovers. The GR"A (5) seems to point out that Tosafos doesn't agree with the Shulchan Aruch.
The Nesivos (250:2) raises a chakira whether a shechiv mei'rah who is still sick maintains the right to retract. Although the ketzos assumes that he isn't able to retract, the Nesivos points to the sm"a who indicates that even in his illness he has the right to retract. This should be dependent on the machlokes Rambam and Tosafos. If we assume that the matana is binding but he has a right to retract if he recovers, then until he recovers he doesn't have that right. But, if the gift was only meant to be binding at the time of his death (Rambam), until then he can retract even if he doesn't recover from the illness.
The Rashbam 146b seems to have a third approach. The Rashbam writes:
שנראין הדברים שמחמת מיתה נתן ועל מנת שאם לא ימות לא יתקיים המתנה
This implies that we view it as a gift that is given immediately but their is a condition that it is only effective if he dies. Therefore, the Rashbam will agree with the Rambam that if he recovers he doesn't actually have to retract, it happens automatically because the condition wasn't fulfilled. But, so long as he is still ill, the rashbam would agree with Tosafos that he doesn't have the right to retract.

Sunday, January 17, 2010

Baba Basra 149a - Rava with the Money of Issur Giyura

The gemara says that Rava was trying to get out of returning the money of Issur the ger, so that when he dies, Rava is able to acquire the money from hefker and therefore didn't want to give it to R' Mari (who was the biological, but not halachic son of Issur).
Some of the daf learners found Rava's actions to be not so typical for a person of his stature. I think that Tosafos here and in kiddushin shed some light on this issue.
The gemara in kiddushin says that when one borrows from a goy who later converts, sometimes returning the money to the biological (but not halachic) son of the ger is considered - רוח חכמים נוחה הימנו, meaning that chazal are happy with his actions, and sometimes it is not considered to be רוח חכמים נוחה הימנו. In a situation where the son was conceived prior to the father's conversion, but his birth was after the fathers conversion then it is recommended to return it, but if the birth was also prior to the conversion then the chachamim are completely indifferent as to whether or not it is returned (rashi). Rashi explains that when the birth was after the conversion of the father, he is easily confused with a halachic child of the father, therefore we return the money to him so as not to make people think that even to a halachic child the money doesn't have to be returned.
Tosafos points out that if we return the money to any child who was born after the father's conversion, Rava should have returned the money to Rav Mari, the biological son of Issur (who was born after his father's conversion)? Rabbeinu Tam answers that the idea of returning the money is to show hakaras ha'tov to the goy for lending you the money and he would surely want the money to be paid back to his son. But, in Rava's case, Issur wasn't doing him a favor because it wasn't a loan, rather it was a pikadon on which Rava was doing a favor for Issur so there was no reason to return the money. The difficulty with the distinction of Tosafos is that it shouldn't matter whether or not the child was born after the father's conversion, because even if he was born before the father would want the money to be paid back to his son? Why does the gemara seem to hold that even by a loan where there is an issue of hakaras ha'tov, it is only recommended to pay it back to a child who was born after the father's conversion?
Alternatively, Tosafos in kiddushin offers a completely different approach than Rashi. A child who is born after the father's conversion is easily confused with being a biological son of the father, which can cause confusion in the realm of yibum. Therefore, the chachamim suggest to avoid returning loans to him so that he will not be confused with a regular halachic son. According to this approach, it is very understandable why Rava didn't return the money. He wanted to make it clear that Rav Mari was not a halachic child of Issur. The difficulty with this peshat is that Rava expressed dismay - קא מגמרי טענתא לאינשי ומפסדי לי, which sounds like he wasn't concerned with confusion in Rav Mari's relationship to his biological father, but rather concerned over the loss of money?

Thursday, January 14, 2010

Baba Basra 147b -Being Mochel a Chov After Selling (3 points)

The gemara quotes the famous statement of Shmuel that if reuven sells to shimon a shtar chov that says that levi owes him money, the sale is binding, but reuven has the right to be mochel the debt. There are 2 issues to discuss: 1. Why does Reuven have the right of mechilah even after selling it? 2. Does Reuven owe Shimon any compensation? 3. Does garmi require refund of the $ payed, or does it demand compensation for the value of the shtar?

1. The Ri"f and Tosaof hold that the entire concept of selling a shtar chov is only m'drabonon, but on a d'oraysa level Reuven remains the owner since he has no ability to actually sell the shtar. Why can't the shtar be sold on a torah level? Tosafos 77a (top) writes that since the property is not in the jurisdiction of Reuven, he has no ability to sell it, just as he has no ability to be makdish it. Tosafos seems to understand that there is no concept of selling the "right of collection", because it is not a tangible item. The only thing which can actually be sold is the property which is not yet owned by Reuven, therefore it is not a binding sale m'doraysa. R' Elchonon (B"B 513) points out that the difficulty with this approach is that our gemara says that through a matnas shehciv mei'rah the Reuven can transfer ownership to Shimon. But if the problem is that Reuven doesn't have the property and the "right of collection" isn't transferable, how can he transfer this through a matnas shechiv mei'rah? We must say that a shechiv mei'rah works like yerusha, where shimon steps into reuven's shoes, rather than transfering ownership like r' papa says on 148a.
An alternative approach as to why the seller retains the right of mechila is offered by the Ran in kesubos quoting Rabbeinu Tam but also seems to be the approach of the Rashbam here (although he doesn't use the lomdushe terms of shi'bud haguf and shi'bud nechasim, like the ran does). The only part of the debt that is transferable is the shi'bud or "right of collection" that Reuven has on Levi's property, but the shi'bud ha'guf that reuven has on levi cannot be sold to shimon. Since the shi'bud on the property is dependent on the shi'bud ha'guf which remains in the hands of reuven, he has the ability to be mochel.

2. The Rashbam writes that if Reuven is mochel, he must compensate Shimon by reimbursing the money he spent because of dina d'garmi, as if Reuven burned the shtaros that shimon had which would allow him to collect from levi. R' Elchonon (519) asks, when reuven burns the shtaros of shimon he is damaging him by destroying his evidence against levi, but is not impacting the actual rights of collection so he must compensate only as garmi for the damages of destroying the evidence. But when reuven is mochel he is actually exempting levi from having to pay at all, the damage is much more severe because he is not just taking away the evidence, but being maf'kiah the actual debt? R' Elchonon suggests that according to Rabbeinu Tam where he is being mochel what he actually owns i.e. shi'bud ha'guf, just that it is me'meila causing a loss of shimon's shi'bud nechasim, it makes sense that we consider it only garmi. But according to Tosafos that he is directly taking away from shimon the d'rabonon ownership of the debt, it should be regarded as an actual damage, not just garmi. Based on this, the Rashbam who seems to hold like Rabbeinu Tam, would be li'shitaso by equating this with burning the shtar of shimon.

3. R' Elchonon asks that according to Tosafos that garmi only requires Reuven to reimburse shimon what he payed, if reueven gave the shtar to shimon as a gift he shouldn't have to reimburse him at all. This makes sense if dina d'garmi is only rabbinic (tosafos 22b), but if it is d'oraysa then why shouldn't reuven have to reimburse shimon the true value of the shtar? I am not sure why R' Elchonon assumes that if reuven gave it as a gift, he wouldn't have to compensate shimon. It would seem more logical that he would have to compensate shimon the market value of the shtar which would normally be what shimon would pay for it, not the dollar amount of the contract. The major question is whether the dina d'garmi is mechayev Reuven to refund shimon what he spent because we consider him to have damaged shimon by taking that money from him (in which case he wouldn't have to compensate at all for a gift), or whether he has to compensate him by paying him the market value of what people would pay to buy this shtar from reuven?

Wednesday, January 13, 2010

Baba Basra 146b - Planning for Divorce

The Rashbam learns the story of the "totranis" (woman who can't smell) to be a case where she is already fully married, and he is testing to see if he should give her a gett. The gemara concludes that since his intention was to divorce her if he finds her to have this problem, he loses the rights to inherit her. From this the Rashbam paskens that any time a wife dies while they are seriously fighting and he has already decided to divorce her, the husband doesn't inherit her. Tosafos and the Rosh both reject this approach and learn the gemara to speak specifically about a case of an arusa, who as it is he has no rights to inherit her. The Rama (E.H. 90:5) paskens like the Rosh and Tosafos who reject the Rashbam, therefore if she is safeik divorced he doesn't inherit, but if she is still married even though he intends to divorce, he still inherits. The Pischei Teshuva (7) quotes from the chasam sofer that perhaps the Rashbam only applies when it is completely in his control to divorce her, so when he intends to divorce her, it is considered a done deal. But, nowadays where there is a cherem against divorcing her against her will, since she must consent, his desire to divorce her isn't sufficient to make him lose the inheritance.
Although we don't pasken like the Rashbam regarding inheritance, the Maharshal in Gittin (perek 2) writes that for aveilus we always follow the lenient opinion, therefore if a wife would die while they are in the middle of divorce negotiations, even before she receives a gett, the husband would not have to sit shivah for her. The maharshal writes that the chachmei Eretz Yisroel agreed, and the Pischei Teshuva quotes the Yeshuas Yacov where he relied l'ma'aseh on this maharshal. However, R' Shlomo Kluger points out that based on what we quoted from the Chasam Sofer that even the Rashbam only said his din in a case where you can divorce her against her will, it would not apply nowadays even to exempt the husband from sitting shivah.

Tuesday, January 12, 2010

Baba Basra 145b - Shevi'is Being Meshamet a post-dated check

The gemara says that shemita nullifies loans, but doesn't nullify shushbinus. Tosafos assumes that shushbinus is really the same as stipulating that the borrower doesn't have to pay back for 10 years, which the gemara in makos 3b quotes 2 versions as to whether shemitah nullifies it. There is a machlokes rishonim which version we pasken like. Tosafos, as well as the Rosh in makos hold that we pasken that shevi'is doesn't nullify such a loan. Why would we pasken like the more lenient approach? Tosafos says that this gemara supports the more lenient approach that there isn't any prohibition against collecting the loan after shevi'is, just as shushbinus can be collected after shevi'is.
The Rosh in Makos says that the rationale for the lenient p'sak is that shemitas kesafim nowadays is only d'rabonon and we have a rule that safeik d'rabonon l'kula, which entitles the lender to collect. The difficulty with the Rosh is, why do we view it from the perspective of the lender where it is a leniency that he may collect, we should look at it from the perspective of the borrower who is muchzak in the money and be lenient with him by exempting him from paying it back?
The Sha'ar HaMishpat in Choshen Mishpat suggests that the Rosh holds like the sefer yerei'im that shemita isn't an automatic annulment of the loan. Rather it is a mitzvah on the lender to say he is me'shamet, and that declaration annuls the loan. Therefore, it is not a monetary issue where in a case of safeik we are lenient on the muchzak by exempting him from paying, rather it is an issur issue where we are lenient on the lender from making the declaration so that the borrower must pay back. However, all rishonim reject the approach of the sefer yerei'im and hold that the loan is annulled automatically. Therefore, the Rosh must be holding that Shemitas kesafim is regarded as an issur v'heter issue, just that it impacts monetarily. We follow the rules of safeik l'kula, meaning that there is no issur on the lender to collect, and as a result allow him to collect the loan by forcing the borrower to pay.
What is the halacha if the borrower gives the lender a post dated check that is dated for after shemitah? Certainly according to the opinions that when the date of payment is for after shevi'is the lender would be able to cash the check after shevi'is passes because it is as if the lender stipulated that the loan is only due after shemitah. Furthermore, R' Moshe (c.m. 2:15) holds that if the borrower would give the lender a post dated check, dated for after shemittah, the lender would have the right to cash it even if a 10 year loan, would be nullified by shemitah. His rationale is that a post dated check is equivalent to paying back right away, even though it isn't regarded as money, since it is illegal for the borrower to bounce the check. Therefore, if the borrower gives the lender a post-dated check for after shemitah, even if he would bounce the check when the lender tries to cash it after shemitah, it would be as if a new loan was created by the bouncing of the check so the lender would be able to collect.

Monday, January 11, 2010

Baba Basra 144a - Talmid Chacham Like R' Safra

The mishna says that whenever one of the brothers does business causing the estate to appreciate, we assume that he is doing it for all the brothers unless he stipulates otherwise, or invests his own money to cause the appreciation (gemara). However, R' Safra invested and kept the profits for himself. The gemara justifies this by saying that R' Safra was a great person who would not leave his learning to do business for others, therefore even though he didn't explicitly state that he was expecting to keep all profits, it should have been understood that this was his intent.
The Rambam (Hil. Nachalos 9:5) paskens:
אחד מן האחין שלקח מעות ועשה בהן סחורה אם היה תלמיד חכם גדול שאינו מניח תורתו שעה אחת הרי השכר שלו, שאין זה מניח תורתו ומתעסק לאחיו
The Rambam holds that this halacha should apply today, so long as the brother is the type of person that the younger brothers should assume would only leave his Torah to profit for himself. However, the Nimukei Yosef writes that this halacha isn't applicable nowadays because we don't have people that are of the stature of R' Safra, therefore talmidei chachamim are no different than everyone else since they aren't that deeply involved in their Torah study. He supports this approach with the meforshim in brachos 16a who say that a chasan nowadays isn't exempt from she'ma since the level of kavana deteriorated, the chasan will not be different than others in terms of his ability to concentrate.
The application of the Nimukei Yosef is difficult to understand because this din is not dependent on the objective level of talmidei chachamim. This din is really dependent on the perception of the other brother. If the other brother perceive the one who invested the money to be one who never leaves his studies, then they should have assumed that the was doing it to profit only for himself despite the fact that he has not reached the level of R' Safra?

Wednesday, January 06, 2010

Baba Basra 139b - Mezonos for Daughters

The gemara mishna says that when a father dies, depending on how much assets he leaves behind, the sons may lose their inheritance to provide for the daughters mezonos. The basic rule is that when there are נכסים מרובין the sons inherit and the daughters are fed until they reach 12 and a half (bogeres), but when there are נכסים מועטין the daughters receive mezonos and the sons get nothing. The gemara quotes 2 opinions to define נכסים מרובין. Rav says that it is when there is enough to provide mezonos to both sons and daughters for 12 months, less than that is considered מועטין. But the Chachamim say that it is when there is enough to provide mezonos to both sons and daughters until they become the age of bogeres, less than that is מועטין. The gemara then asks on the chachamim, do we mean to say that if there is less than enough to provide mezonos until bogeres, the daughters just get everything (even more than their mezonos until they reach bogeres)? To which the gemara responds that they only get what they need for mezonos until bogeres, but the remainder will go to the sons.
The Ma'areh Kohen (r' betzalel hakohen, Rav of vilna) points out that the gemara didn't ask this question on Rav, only on the chachamim. This implies that according to Rav, when there are only מועטין, the daughters will actually get everything. The gemara isn't troubled by this since it is likely that even if they get everything (amount to supply mezonos to sons and daughters for just under 12 months), it is likely that they will still be getting less than the t'nai kesuba of נכסים מרובין which would likely entitle them to a lot more than 12 months of mezonos (depending on their ages). But, according to the chachamim when there is less than enough to provide mezonos to sons and daughters until they reach bogeres, it will come out that the daughters will be getting much more in when there are נכסים מועטין than the t'nai kesuba entitles them to when there are נכסים מרובין. Therefore, the gemara has to say that anything beyond what they need for mezonos will go to the sons.
The question that still remains is according to the chachamim, what is the difference whether their are נכסים מרובין or נכסים מועטין since in both scenarios the daughters will get all the mezonos they need until bogeres, and the sons will get the rest? It seems the only difference will be in the cases that the gemara discusses next, such as the price of food increases. When there are נכסים מרובין we allow the sons to inherit, so if the price of food gets more expensive afterward, the daughters lose out. But when there are נכסים מועטין, the daughters have a claim on everything to ensure that they get the amount of mezonos they need, and only the remainder is inherited by the sons. Therefore, even if food gets more expensive the sons will lose, not the daughters.

Tuesday, January 05, 2010

Baba Basra 138b - Concerned for Beis Din Making Mistakes

The gemara discusses whether or not we are concerned that a beis din will make a mistake. The type of mistake that the gemara is referring to is that a later beis din may make an assumption based on the ruling of a previous beis din. Therefore, we can't allow a beis din to do chalitzah without first checking in to make sure that he is the yaveim and she is the yevama, because a later beis din may marry her off assuming that the earlier beis din had already looked into it, when in actuality the halacha requires the later beis din who marries her off to look into it, not the earlier beis din. Even by that type of mistake, the gemara concludes that a beis din will not assume that eidim who signed a contract looked into the matter, rather the beis din themselves will look into it.
This gemara seems to undermine a halacha in Shulchan Aruch (c.m. 33:4). The Rama writes that 2 witnesses who are related but are technically kasher to testify together, shouldn't sign a contract together because we are afraid that the beis din who reviews the contract will not know the halacha and passul the contract based on their relationship to one another. The Gr"a on that halacha points to our gemara which says clearly that the only kind of mistake a beis din will make is to rely on an assumption that an earlier beis din looked into the people before doing a chalitzah, but we never are concerned that a beis din will make an outright mistake and not know the halacha of "sheini b'sheini" with 2 ba'al k'ishto being kasher?
It seems that the Rama will hold that although we wouldn't make a takana (such as demanding of the beis din doing a chalitzah to check into the yaveim and yevama) out of fear that a beis din will make an outright mistake, we are able to advise 2 witnesses who are distant relatives not to sign together because they are unnecessarily jeopardizing the lenders ability to collect with this contract on the slight chance that a beis din will make such a mistake.

Baba Basra 138a - Zachin She'lo B'fanav

The gemara says that if Reuven tries to give a gift to Shimon directly, and Shimon starts screaming that he doesn't want it, he doesn't acquire it against his will. The Rashbam explains:
לא קנה שאין מזכין לו לאדם בעל כרחו דחוב הוא לו דכתיב שונא מתנות יחיה
The Rashash points out that the Rashbam is difficult to understand. Why does he have to justify and give a rationale to explains Shimon's refusal to accept? Even if we had no understanding as to why Shimon would refuse the gift, his refusal would still prevent him from acquiring since a person cannot acquire against his will? I would suggest that the Rashbam is saying this in order to explain the next case where Reuven gifts it to Shimon through someone else being zocheh in it for Shimon. There too we say that if Shimon is screaming that he doesn't want it, then no one can be zocheh it for him. The Rashbam is bothered why don't we say "זכין לאדם שלא בפניו", and receiving a gift is a zechus. He answers that it is not an absolute zechus, rather just an assumed zechus. Therefore, if Shimon is quiet the assumption is that he want this person to be zocheh for him, but if he protests then he reveals to us that it is chov for him, and we cannot apply the concept of זכין לאדם שלא בפניו. The Rashbam would seem to hold that Shimon can't do a ma'aseh kinyan against his will, but if someone else is doing it for him, even if Shimon is protesting we should apply the concept of זכין לאדם שלא בפניו. That is why the Rashbam is compelled to say that by protesting he is revealing to us that it is not a zechus for him, rather a chov, so the concept doesn't apply. The difficulty with this approach is that if we assume that זכיה works through the mechanism of shlichus, which most rishonim (tosafos kesubos 11a) hold, even if it were an absolute zechus, Shimon should be able to prevent the person being zocheh from serving as his shliach by protesting. Even if we couldn't justify why it may be a chov for Shimon, he should be able to prevent the zocheh from being his shli'ach. Why then does the Rashbam have to say the sevara of שונא מתנות יחיה to explain why it may really be a chov for Shimon?
It is possible that the Rashbam is coming to explain that even in a case where Shimon wouldn't be there at the time that the person is zocheh it for him [although the rashbam writes explicitly that we are speaking about when someone else is zocheh in it for Shimon "בפניו", that is to explain the continuation of the gemara that makes this dependent on the machlokes tanna kama and rashbag], and we would assume that it is a zechus, but when shimon finds out he immediately starts to scream, he would retroactively not be zocheh because he revealed that it is a chov for him. The Ramban (quoted in magid mishna hilchos zechiya perek 4) says exactly this. Even something which is technically a zechus, but the receiver protests when he hears about it, he is not zocheh against his will.
The Machaneh Ephraim (Zechiya U'matana #6) explains that the logic of this Ramban would be that a gift is not an absolute zechus since some people don't want gifts, as the Rashbam writes - שונא מתנות יחיה. Clearly, the Machaneh Ephraim is using this Rashbam to explain why Shimon would even be able to protest after the person is zocheh in the gift for him (so long as it is as soon as Shimon finds out about it).
The Machaneh Ephraim then goes on to explain that this ability to protest only applies to something which has a tzad chov, but something which chazal decide is an absolute zechus, the receiver would have no ability to back out of when he finds out. He deduces this from the Ran in Kiddushin (2nd perek) that something which is a "zechus gamur" would be binding even if the receiver would protest when he finds out [he points out that Tosafos in kesubos 11a seems to contradict this and holds that one can protest even a zechus gamur].

Monday, January 04, 2010

Baba Basra 137b - Is an Esrog Owned by Partners Called "lachem"?

The gemara says that when brothers inherit an esrog from their father, they cannot use it for a mitzvah unless they are not makpid on one another so that it can belong to the one who is taking it for the mitzvah entirely. But, if they would remain partners in the esrog, it would not qualify as "lachem" and they cannot fulfill their mitzvah with it. The Rashbam explains that "lachem" requires that the person using it for the mitzvah have complete and total ownership over it, to the exclusion of an esrog which two people are partners in, that is only partially owned by the person using it. Based on this the Rashbam says that when the community purchases an esrog together and each member of the community is going to use the esrog on the first day of succos for his mitzvah, it is understood to be using the mechanics of a מתנה על מנת להחזיר so that at the time each of them uses it for the mitzvah, it is theirs entirely.
There is an interesting opinion of Rabbeinu Avigdor quoted in the teshuvos HaRosh, cited by the kapos temarim in succah 41a. He understands that the term "lachem" rather than "li'cha" would include even an esrog that their are multiple partners in, provided that the esrog was purchased jointly for the purpose of them fulfilling the mitzvah. The reason our gemara understands that the brothers couldn't use the esrog of tefusas habayis is because it wasn't purchased for the purpose of being used for the mitzvah. The kapos temarim struggles with trying to understand the distinction between an esrog purchased by partners for the mitzvah which can be used vs. an esrog purchased by partners for business which cannot be used. Rabbeinu Avigdor is not assuming that when purchased for the purpose of the mitzvah, there is an automatic מתנה על מנת להחזיר, rather he is holding that even though the person using it doesn't own it entirely, it would qualify as "la'chem".
In truth, this issue whether an esrog that is shared by two owner is considered "la'chem" seems to be a machlokes Rashi and Tosafos in succah 27b. Tosafos holds like the rashbam, but rashi implies that it would be "la'chem". The shulchan aruch (658:7-9) paskens like Tosafos. Although the Rama seems to make the distinction of Rabbeinu Avigdor, that if it was bought together for the purpose of mitzvah it qualifies as "la'chem", it is really just based on the assumption that they will then have in mind to give it to each other as a matana when it is time to be yotzei with it.
The minhag for many generations was to collect money from the entire tzibur to purchase one esrog for everyone. Although the intent of the ka'hal is that everyone should be able to be yotzei with this esrog, the m.b. (38) quotes from the Chayei Adam that anyone who can afford to contribute and refuses to contribute cannot be yotzei with it because the tzibur would not give over their portion to him.

Sunday, January 03, 2010

Baba Basra 136b - Kinyan Guf and Kinyan Peiros

We once again have the machlokes between R' Yochanan and Reish Lakish whether a kinyan peiros qualifies as a kinyan ha'guf. The gemara has 2 applications of this argument. One is that if a father gifts the guf of property to his son, retaining for himself the fruits for the duration of his lifetime, and the son would sell what he owns, if the father would out live the son then the question becomes whether the father's retention of peiros would entitle him to take the property back from the buyer. The second application is in the context of bikurim, whether one is able to read the parsha when they only have a kinyan peiros.
The Rashbam explains that according to Reish Lakish that kinyan peiros wouldn't entitle someone to read the parsha is because they couldn't say האדמה אשר נתתה לי, but they would be obligated to bring the fruits even m'doraysa because they are included in אשר תביא מארצך. Tosafos rejects the rashbam because if they aren't included in the pasuk of "nasata li", they shouldn't be included in "artzecha" either? Tosafos concludes that the entire obligation to bring the fruits according to this opinion is only rabbinic.
The Ketzos HaChoshen (257:3) answers a major question and with it explains the rashbam. The gemara in Yevamos says that unless we accept R' Yochanan that kinyan peiros is like kinyan haguf, no one would ever be able to read the parsha of bikurim unless they come from a chain of only sons (because if there are multiple sons, we view their inheritance as purchasing from one another so they only own kinyan peiros). How then can we hold like reish lakish? Tosafos in Yevamos raises this question and says that we only hold like reish lakish in the context of the father gifting property to the son because a father will be mochel to the son and leave over a very weak share of kinyan peiros, but in general we follow r' yochanan that a standard kinyan peiros would be like a kinyan haguf.
The ketzos offers another approach. Kinyan peiros can sometimes refer to a weak ownership but sometimes can refer to a standard ownership which expires with time. A kinyan l'zman is a very powerful kinyan peiros because the "owner" can do whatever he wants, even ruin the field, just that his ownership will expire, whereas a true kinyan peiros cannot ruin the field. One who owns a field until yovel is considered to have a "kinyan peiros", but it is a very strong kinyan peiros which would enable him to even read the bikurim because it is like a kinyan haguf until it expires. But, when one only has a kinyan peiros, they cannot read the parsha of bikurim.
The Rosh in a teshuva quotes Rabbeinu Avigdor who says that one who has a lulav for kinyan peiros, namely only to fulfill the mitzvah, cannot fulfill the mitzvah since it doesn't qualify as לכם. But if they have a matana al m'nas l'hachzir it is like a kinyan haguf that expires and they can fulfill their obligation with it. Therefore, one who has a kinyan haguf on a field that will expire such as a purchased field that will return with yovel, qualifies as אשר תביא מארצך because for the time being when he brings the bikurim he "owns" the land [similar to the requirement of לכם, which is fulfilled by a kinyan haguf that will expire]. But, the requirement for reading the parsha is האדמה אשר נתתה לי which means it is his forever, which is not the case, so he cannot read the parsha.
It seems based on the ketzos that the distinction between the two pesukim is that one can consider a land which he is now an owner but his ownership will expire, to be "your land" since it is not his. But, from the perspective of the giver, it is not a "land that Hashem gave me", because it was only given temporarily.