Sanhedrin 14a - Restoring Semicha

The gemara quotes a story with R. Yehuda Ben Baba who was concerned that the mesorah for semicha would be lost. He risked his life to ordain 5 or 6 of the greatest Talmidei Chachamim of the generation. His motivation was that without the mesorah for semicha - בטלו דיני קנסות מישראל . In the absence of the tradition of semicha there wouldn't be any ability to judge on penalty cases. The gemara implies that if the tradition would have have been lost, it cannot be restored. This gemara doesn't fit well with the Rambam (Sanhedrin 4:11) and in his commentary to the Mishna, who provides an innovative approach to restoring semicha even after it has been lost. The Rambam writes:

נראין לי הדברים שאם הסכימו כל החכמים שבא"י למנות דיינים ולסמוך אותם הרי אלו סמוכים ויש להם לדון דיני קנסות וכו' א"כ למה היו החכמים מצטערין על הסמיכה כדי שלא יבטלו דיני קנסות מישראל? לפי שישראל מפוזרין ואי אפשר שיסכימו כולן

The Rambam himself struggles with the fact that the gemara implies that semicha, if lost, cannot be restored. The Rambam is forced to explain that since the Jews were so scattered, it would be very difficult to use his innovative system of restoring semicha, and that is why R. Yehuda Ben Bava risked his life for it to be maintained.

In his commentary on Mishna, the rambam proves that there has to be an ability to restore semicha, because the navi testifies ואשיבה שופטיך כבראשונה, ויועציך כבתחלה and this must take place prior to the arrival of mashiach. Therefore, the consent of chachmei E.Y. would surely be enough to restore the semicha.

The rationale for the Rambam is explained very nicely in the Aruch HaShulchan (3:15). The primary reason to require a tradition for semicha is to ensure that the receiver is worthy. Therefore, when the chachamim of E.Y. agree on a candidate for semicha, he would certainly be worthy and now have the power to ordain others.

This Radvaz mentions the great debate that took place in his generation with the Mahari Bei Rav, and mahara"l ibn chaviv. The chachamim of tzefat wanted to restore semicha and ordain the mahari bei rav, based on the Rambam. Their intention was to fulfill the din of giving malkus to those who are chayav kareis and coming to do teshuva, to remove their punishment of kareis. The Radvaz comments that the chachmei tzefat failed in their attempt (and that they even consulted him while he was living in Egypt, but he didn't support this), which seems very different that the kiryas sefer's statement - והיום כמו עשרה שנים בשנת הרח"ץ הסכימו רוב חכמי ישראל שבא"י לסמוך לגדול בדורו מוה"ר יעקב בירב ז"ל והוא סמך קצת מתלמידיו המובהקים יבורכו מפי עליון להחזיר העטרה ליושנה אמן. Nonetheless, history shows that no one took the semicha seriously enough for it to continue to future generations.

The Radvaz points out that the flaw of the chachmei tzefat was: 1. The Rambam concludes - והדבר צריך הכרע so how can that be ignored. 2. The Rambam says that because the jews were so scattered, it would be difficult to restore semicha. This implies that they must all be brought together as one group to decide on the issue, and it cannot be done with written letters from around E.Y. 3. The person receiving semicha must be fit to pasken in ALL areas of Torah and he claims - ורחוק בעיני שיש בדור הזה מי שראוי להורות בכל התורה כולה.

Regarding the Rambam's proof in pirush hamishna that dayanim must be restored before mashiach arrives, the radvaz rejects because perhaps they will be give semicha by Eliyahu HaNavi.

The Maharal Ibn Chaviv devotes and entire kunteros to this subject, which he presented to the chachamim of Tzefat as a rejection of their initiative. He claims that when the Rambam writes that "all" chachamim of E.Y. must agree, he doesn't mean to say that a democratic majority is also sufficient. Furthermore, since the entire objective is to free those who want to do teshuva from kareis by giving them lashes, their goal won't be acheived. Malkus cannot be given in the absence of witnesses, and even if it were given, it wouldn't qualify as malkus to exempt from kareis unless there are witnesses. He also writes that the Ramban who says that kiddush hachodesh will not be restored until moshiach comes, clearly disagrees with the Rambam's ability to restore semicha.

The Ya'avetz suggests that the reason that the semicha that R. Akiva gave to R. Meir wasn't accepted, had nothing to do with his age. Rather, the peshat may be that since the beis hamikdash was already destroyed, the power of an individual to issue semicha without consulting all rabbanei E.Y. was lost. This would support the position of the maharal ibn chaviv, because if R. Akiva who had semicha couldn't pass it on without all chachmei E.Y., it certainly can't be recreated without all chachmei E.Y. and even a single Rav can prevent it from going through. The difficulty with the peshat of the ya'avetz is that it isn't clear why the semicha of R. Yehuda Ben bava was more accepted, unless we assume that the 5 zekainim that he gave semicha to were all the chachamim of E.Y.

Sanhedrin 12b - Being Me'aber the Year for Tu'mah

The gemara discusses whether the beis din is allowed to add an extra month to avoid the issue of korban pesach having to be brought in tu'mah. The gemara concludes that according to R. Yehuda who says that tu'mah is הותרה בצבור, even if they attempted to make a leap year, it wouldn't be binding. The rationale is explained by Rashi, that since it is completely hu'trah, and is therefore unnecessary, it is tantamount to being me'aber the year for no reason at all. It is clear from the gemara that the opinons who hold that it would be binding, would have to hold that tu'mah is דחויה בצבור, which means as rashi explains - בקושי הותרה וכו' וכל כמה דאפשר להדורי לעשותו בטהרה מהדרין. The difficulty is with the conclusion of the gemara that R. Shimon and the Tana Kamma seem to both hold that the addition of an extra month is binding, but argue whether it is li'chatchila, or just bi'dieved. R. Shimon's opinion is very understandable. He holds that since tu'mah is only di'chuya, not hu'tra, we try to avoid it and create a leap year to avoid it. But what is the peshat in the opinion of the Tana Kama? Since he also agrees that tu'mah is di'chuya, rather than hu'tra, which is evident from the fact that he holds it is binding (because if it were hu'tra, it would be considered completely unnecessary, therefore not binding), why would he hold that they can't do it li'chatchila?

Sanhedrin 11b - Deciding on Leap Years in Chutz La'aretz

The Braisa says that עיבור שנה can only be done in Yehuda, and if it were done in Galil it is a machlokes whether it would even be binding. The gemara learns it out of a pasuk לשכנו תדרשו ובאת שמה - כל דרישה שאתה דורש לא יהיו אלא בשכנו של מקום. Rashi seems to understand that the requirement is to do it specifically in Yerushalayim, and adds that it must be the beis din that is established in yerushalayim, referring to the Sanhedrin. However, Tosafos seems to contrast the gemara with being me'aber the year in chutz la'aretz, implying that all we require is that it take place in Eretz Yisroel, but not necessarily Yerushalyim. The Rambam (Kiddush HaChodesh 1:8) also writes that being me'aber the year and kiddush HaChodesh must take place in Eretz Yisroel, but doesn't mention Yerushalayim.

Regarding the particular aspect that must take place in E.Y. or Yerushalayim, Tosafos seems to understand that it is the actual sanctification and declaration, but the calculation may be done even in Chutz la'aretz. However, the Minchas Chinuch (4) understands from the Rambam that even the calculation must take place in E.Y., and cannot be done in chutz la'aretz.

Tosafos quotes from the gemara in Brachos that if the gadol hador is in chutz la'aretz, the requirement of the kiddush to be done by the gadol hador trumps the requirement of it being done in E.Y. However, the Minchas Chinuch raises a question, what if the gadol hador is in E.Y. but it is not feasible to do the ibur in E.Y., can it be done in chutz la'aretz? He quotes from our Tosafos who cite the Yerushalmi that if the ibur cannot be done in E.Y. it can be done in chutz la'aretz, just as we find that Yirmiyahu and Yechezkel and Baruch ben Naria were me'aber in chutz la'aretz. But, the Minchas Chinuch challenges the proof of Tosafos. Although we find that the nevi'im were me'aber in chutz la'aretz, that is because the mitzvah of ibur in E.Y. is only during a time period when E.Y. retains its kedusha, but during the galus when the kedusha rishona was lost, they can be me'aber even in chutz la'aretz. Therefore, the fact that the nevi'im were me'aber in chutz la'aretz doesn't prove that any o'nes in E.Y. entitles the ibur to take place in chutz la'aretz, because that is only during the time of the galus when E.Y. lost its kedusha. The minchas chinuch proves his point from the gemara in megilla 14a which says that we only say hallel on a miracle that took place in E.Y., which only applies when E.Y. is chosen, to the exclusion of the exodus from Mitzrayim which was prior to E.Y. being chosen. Based on this, the minchas chinuch concludes that nowadays when we say that the קדושה שניה קדשה לשעתה וקדשה לעתיד לבא, even if there is an o'nes that prevents kiddush in E.Y., it cannot take place in chutz la'aretz.

The Minchas Chinuch concludes that this is all assuming that the kedusha relevant to being mekadesh and me'aber in E.Y. is kedusha for Teruma and Ma'aser, but since we learn this din from the pasuk of לשכנו תדרשו and כי מציון תצא תורה as Tosafos points out, it is really dependent on kedusha of Yerushalayim and the Beis Hamikdash where the kedusha was associated with the shechina rather than kedusha of the land, and the kedusha of the shechina was not lost in the galus bavel (Rambam Beis HaBechira 6:14-15). Since we see that even in the time where Yerushalayim had its kedusha, the nevi'im were mekadesh in chutz la'aretz, it is clear that whenever there is an o'nes that prevents kiddush or ibur in E.Y., it can be done in chutz la'aretz.

Sanhedrin 9b - Believing a Witness Partially

The Rosh in Makos (1:13) quotes the Ra'avad who asks, why does the gemara say that a witness who is a relative of the areiv cannot testify on a loan. We should use the concept of פלגינן דיבורא and believe the witness for the borrower, but not for the areiv? The Ra'avad explains that any witness who is a relative is subject to the rule of עדות שבטלה מקצתה בטלה כולה and we don't apply the concept of פלגינן דיבורא. It is only when a person testifies about himself where we say that since he is relative to himself and doesn't qualify as a witness at all, we believe him only about the other person. Without qualifying as a witness, we can't apply the rule of עדות שבטלה מקצתה בטלה כולה. With this the Ra'avad explains the hava amina that we shouldn't say palginan dibura when testifying about his wife committing adultery, and concludes that we do believe the husband to testify about the adulterer. The gemara thought that the relationship between a husband and wife isn't strong enough to give her the status of "himself", therefore he would qualify as an invalid witness as he would when he testifies about all other relative, invalidating the entire testimony. The gemara concludes that since we view אשתו כגופו, it is literally as if he were testifying about himself and not a witness at all, so we are entitled to apply the concept of palginan dibura. This approach is very different than Rashi's peshat in the gemara 10a who explains the hava amina that rather than invalidating his testimony on the adulterer, we validate his testimony even regarding the wife. Rashi understands that we knew all along that we accept his testimony on the adulterer and the whole discussion is whether we kill the wife also. Tosafos also explains like rashi.

Sanhedrin 5b - Paskening an Outrageous P'sak

The gemara says that R. Chiya refused to give Rav semicha to paskin on Bechoros because Rav was to much of an expert and would likely permit things that would lead people to compare other blemishes to it, and permit what should be forbidden. The Shulchan Aruch Y.D. 242:10 writes that it is forbidden for a Posek to paskan a p'sak that is תמוה, strange, to the public in a way where it would seem to everyone that he was matir an issur. Gr"a cites our gemara as the source of this ruling, as does the shach (17) from hagahos maymonies. The Shiyurei Bracha printed on the margin discusses whether the nature of this prohibition is that the people will suspect the chacham of making a mistake, or mislead them to make a mistake. He proves from the source being our gemara that the concern is not just a chashad, but that it will lead the public to make a mistake.

In R. Moshe's teshuvos on the topic of artificial insemination (printed in the dibros moshe on kesubos), he was strongly challenged by dayan breish (chelkas yakov) [who he is buried right next to on har menuchos], about this p'sak. One of the challenges was that even if true, it is a p'sak that is strange to the public and shouldn't have been given. R. Moshe responds that the issue of paskening something strange is only when it can potentially lead the rabim to make a mistake and be matir something that should be assur, as in the case of rav regarding being matir bechoros. But, in this case where there is no possibility of leading the public to make a mistake, the din doesn't apply. R. Moshe then goes on to say one of the most classic logical arguments:

וגם לבד זה, הא לא שייך כלל דבר תמוה בזה, דכי עד עתה היה מנהג אצל מורי הוראה לאסור, שהרי רק עתה מעת שנתחדש ענין זה התחילו לדון ע"ז שודאי רשאי מי שסובר שהוא מותר להתיר, ואין להחשיב מה שישנם מורי הוראה אחרים הוסברים לאיסור לדבר תמוה להתיר, שהרי גם אלו הסוברין לאסור יודעין ומבינים גם צד ההיתר ואין להיות להם תימה כשישמעו שיש סוברין להיתר, ואם אין מבינים כלל צד ההיתר אינם מורי הוראה בדבר הזה ואין לחוש להם כלל כי יש להם לעיין בדבר ויראו צד ההיתר ששוב לא יהיה דבר תמוה

Basically, he argues that it is not considered "strange" since even those who hold it is assur certainly see the tzad to be matir, because if they don't see the tzad heter at all, they wouldn't qualify as morei hora'ah and we don't have to be concerned with their opinions at all.

Sanhedrin 5a - Permission From Authorities

The gemara says that either 3 regular people or a mumcheh l'rabim can judge and impose their ruling on the litigants. Both R. Nachman and R. Chiya considered themselves worthy of judging alone. However, the gemara questions the criteria for judging alone. Is it sufficient to just be "gamir v'savir", or must one also get permission from the reish galusa. The gemara concludes that one can serve as an individual judge without permission from the reish galusa, but the permission helps to exempt the judge if he messes up in his ruling.

It is not clear from the gemara what the status is when one has permission from the reish galusa, but no other qualifications. The Rambam (recorded by Nimukei Yosef) writes in Hilchos Sanhedrin (perek 4) that one who is not fit to judge because he doesn't know, even if he is appointed by the reish galusa or even if he appointed by a beis din, the permission he is given is worthless. The Rambam compares this to one who sanctifies an animal with a mum as a korban, obviously this type of sanctification is completely disregarded. This doesn't seem to fit with the Rosh (2) who writes that the statement of Rav and Shmuel that one who wants to be exempt from mess ups should seek permission from the reish galusa, implies that even an individual who is not a mumche (expert - r. sharira goan in a teshuva quoted by rosh and nimukei yosef seem to understand that it is a language of experience - ועיקר לשון מומחה - מנוסה כדתניא יוצאין בקביע מומחה ומפרש בגמ' היינו דאיתמחי קמיע). The Shulchan Aruch (c.m. 3:4) quotes the Rambam that permission without being gamir v'savir doesn't help. The Rama writes that permission from a secular government nowadays doesn't even help for anyone, unless the k'hal accepts them. But then the Rama quotes those who say that if he is gamir v'savir, the permission of the non-jewish government will help even nowadays because that is included in their mitzvah of dinim to set up courts and judge.

Sanhedrin 5a - Minimum Amount of Judges

The gemara quotes a braisa that says that monetary issues must be judged with 3, but a mumcha l'rabim (expert) can judge alone. Both R. Nachman and R. Chiya considered themselves worthy of judging alone. Rashi holds that this braisa is proof to R. Acha Brei d'rav ika on 3a who learns from the pasuk בצדק תשפוט עמיתך that m'doraysa one judge is sufficient. The gemara holds that the statement of Shmuel quoted on 3a who says that 2 judges can judge, just that they are considered chatzuf is based on R. Acha. Tosafos points out that the braisa would then be a contradiction to the opinion of R. Avahu 2b who says that 2 judges are worthless because m'doraysa we require 3 judges. Tosafos explains that even R. Avahu can agree with the braisa that one judge works because even if m'doraysa we require 3 experts (which is the opinion of R. Avahu), the Rabbonon allow for a mumcheh l'rabim to judge alone.

Regarding the forcing of the litigants to appear before the court, Tosafos 5a d.h. dan, explains that the 3 hedyotos, or yachid mumcheh l'rabim can force the litigants to appear before them, because in a case where the litigants accept him, he wouldn't need to be a mumcheh l'rabim. However, Tosafos explains that if the litigant is willing to go to court just that he wants a say about who the judge will be, we allow each one to pick a judge and agree on a third. But, if he is not willing to go to any beis din in the city, any beis din can force him to appear before them. This is paskened in Shulchan Aruch (c.m. 3:1) that the defendant has the right to pick a judge and agree on a third, but if he refuses all courts in the city of the claimant, he can be forced to appear before them. The Rama adds that the right of the defendant to pick a judge only applies when there is no established beis din in the city, but if there is an established beis din, they can force the defendant to appear before them. Ketzos HaChoshen (3:1) explains based on tosafos 2b that even if an individual who is not a mumche can judge alone, he cannot force them to appear before him unless he is a mumcheh.

R. Akiva Eiger (on shulchan aruch 3:1) quotes 2 interesting points: 1. If the minhag in a certain place is to follow a system of law designed by the merchants, one can use that system to make a claim against the other and the defendant cannot insist on being judged according to din torah. In these type of situations we apply the rule of minhag overriding the halacha. 2. If the defendant was acquitted in one court, the claimant cannot summon him to court again, and it is forbidden for the beis din to even hear the claim. Furthermore, the defendant is believed to say that he has already been acquitted by another court, unless the claimant can provide witnesses that he is lying.

Sanhedrin 3b - Following Rov by Monetary Issues

The gemara says that although the pesukim that require us to follow the majority of judges and ignore the minority are speaking by dinei nifashos (capital cases), monetary cases can be learned from a kal v'chomer that we follow the majority of judges and don't require a unanimous decision. Tosafos questions how this fits with Shmuel who holds that by monetary issues we don't follow the majority. Tosafos suggests that even Shmuel must agree that a more powerful rov is acceptable to follow even by monetary issues, and following the majority of judges would be considered a more powerful rov.

R. Elchonon Wasserman (kunteros divrei sofrim, chapter 5) quotes this question from Tosafos in Baba Kama. If Shmuel holds that we don't follow rov by monetary cases, why would he agree that we do follow the majority of judges and ignore the minority? Tosafos explains that we consider the minority opinion of the judges to be non-existent, therefore following the majority is not considered following a rov. This seems to be against Tosafos in Sanhedrin who holds that this would be indicative of following rov, although it may have limitations.

What does Tosafos in Baba Kama mean that the minority of judges are considered non-existent? R. Elchonon cites the gemara in baba metzia about the bas kol that went out siding with R. Elazar, but the Chachamim ignored it based on the principle of following the majority and they were the majority. R. Elchonon understands from this that the concept of following the majority applies even when it is clear through ruach hakodesh that they are wrong. However, when we follow the rov in the context of 9 kosher stores and one treif one, and we don't know which store the meat is from - we would obviously not rely on the rov if we were privy to a navi telling us that the meat that we have is actually from the treif store. Clearly, we see that when following the majority of opinions such as judges or rabim vs. yachid, we are entitled to follow them even though it is against what we know to be true. The din of "halacha k'rabim" is very different from the din "rov". The din of "halacha k'rabim" is not a clarification of the truth, rather a gezeiras hakasuv to follow the majority opinion regardless of the truth, but the din "rov" is just an assumption and only works when we don't know for a fact that the piece of meat is assur. Therefore, even Shmuel who doesn't follow rov in monetary cases, allows us to follow the majority of judges.

Baba Basra 175b - Shi'buda D'oraysa

The gemara has a discussion whether shi'bud is d'oraysa or only d'rabonon. The Rashbam quotes pesukim in the context of mashkon, implying that the discussion of shi'bud being d'oraysa or d'rabonon is even in regard to collecting from the borrower himself. Tosafos rejects this approach because even the opinion who holds that shi'bud is not d'oraysa, would hold that the shi'bud that gives the lender the right to collect from the borrower would certainly be d'oraysa. The entire discussion in the gemara is whether the right to collect from those who purchased property from the borrower is d'orasya, but all would agree that the borrower himself is obligated to pay whether he has money or not.

It is clear from Tosafos that the borrower himself is forced to pay with whatever he has, even against his will. It is not clear from Tosafos where this right comes from. If shi'bud is not d'oraysa, what halachic concept enables the lender to collect from the borrower even against his will?

The Ketzos (39:1, towards the end) quotes from the Ramban in our sugya that since the borrower has a mitzvah to repay a loan, we can force him to repay based on the din of כופין על מצות עשה. The Ramban understands that if we can physically force him to do a mitzvah, we can certainly confiscate property which is a lower level method of force - דכיון שכופין אותו לקיים למה יכופו אותו ע"י הכאה, טפי עדיף הכפיה בהורדת נכסים. Therefore, the right to collect from the borrower even against his will is not dependent on shi'bud being d'oraysa. With this the ketzos explains the Rambam (matnos aniyim 7) who says that if a person is not giving enough tzedaka we are confiscate property from him. The Ran cites the Rashba who disagrees. The Ran compromises and says that if he is here and refuses to give, we confiscate property, but if he is overseas we don't confiscate property. The Ketzos asks, what is the rationale behind this distinction? If we have a right to confiscate property we should do so even not in his presence? Based on the Ramban, it is understandable. The right to confiscate property is based on the din of "kofin" - forcing to fulfill a mitzvah. We can only force him to do a mitzvah in his presence, but if he isn't here we can't force him to do a mitzvah.

What does the ketzos mean? Why does the concept of "kofin" only apply when he is present, even if he is overseas we should be able to confiscate property to force him to fulfill the mitzvah? It seems that the ketzos understands that when we force someone to do a mitzvah, it only makes sense if he will actually be making a decision to do the mitzvah. Even in his presence, one can argue that forcing him physically to make a decision to give tzedaka is understandable, but to confiscate property doesn't make sense because he is not doing anything. How can we force him to give, when he isn't giving at all, we are just taking? The answer is that when he sees us taking his property for tzedaka and realizes that he has no way out, we assume that he will make up his mind to "give", just as when he is physically forced. But, if he is overseas and completely unaware that he is "giving", that doesn't qualify as giving at all, rather we are "taking" and he would not be fulfilling any mitzvah. This is not dependent on the concept of mitzvos requiring kavana, it is far more fundamental. Even if mitzvos don't need kavana, it only qualifies as a mitzvah if the person has some involvement, either doing an action or making a decision. Confiscating property that he is unaware of would not be considered doing a mitzvah, therefore when he is overseas the beis din doesn't confiscate his property.

Baba Basra 174a - More about Areiv and Kablan

In the post yesterday I pointed to a machlokes between the ketzos and nesivos whether the obligation of an areiv is a result of the pleasure he receives by the lender willing to lend based on his acceptance of responsibility, or whether we view the lender to be serving as an agent of the areiv in the lending of the money.

It seems that this is actually the difference between an areiv and a kablan. The gemara 174a points out that language of "give" is indicative of kablan, whereas language of "lend" is indicative of an areiv. The Rashbam explains - תן לו: מסור הממון בידו ואני אפרענו לך, אין כאן לשון הלואה אלא שליחותיה דהאי דקאמר "תן לו" עביד מלוה. The Rashbam seems to understand that the shi'bud of a kablan is a result of shlichus (like the ketzos). Meaning, the the lender is serving as the agent of the kablan by lending the money, so that the lender can surely go to the person who commanded him and sent him, which is the kablan, to collect. Basically, in the set up of a kablan, the relationship seems to be between the kablan and the lender, where the lender serves as the shliach of the kablan in the loan. But, in the set up of an areiv the relationship is between the borrower and the areiv, where the areiv accepts the responsibility to cosign for him. Therefore, the shi'bud of the areiv is a result of the benefit that he gets as the gemara explains, not the lender serving as his shliach.

With this we can understand the gemara 173b that originally brought a proof to the shi'bud of an areiv from the pasuk by Yehuda, and then says that it wasn't a situation of areiv, rather a situation of kablan. The gemara means to say that Yehuda's relationship is with yakov, yehuda is the kablan and yakov is the giver (or lender), therefore it is more similar to kablan than to areiv. The gemara seems to hold that a kablan is not just a stronger areiv, because if that were the case then the ability to prove that kablanus works would imply that areiv certainly works, so what is the dichuy? The gemara seems to understand that the mechanics of how an areiv is obligated is completely different from the mechanics in how a kablan is obligated, that is why a kablan isn't a proof for an areiv. Basically, an areiv is bound as explained by the nesivos, whereas a kablan is bound as explained by the ketzos.

Baba Basra 173b - Status of an Areiv (cosigner)

There is a fundamental argument between the ketzos and nesivos (C.M. 129) to explain what binds an areiv to have to pay the debt, if the borrower defaults on the loan. The Ketzos understands from the Rashbam that the lender is considered an agent of the ערב, as if the areiv were lending money to the borrower but asking the lender to lay it out for him. Rashbam writes - ושליחותא דערב קא עביד מלוה, כאילו הוא (הערב) עצמו הלוה. According to this approach, the ketzos explains that an areiv can only be bound to pay the debt if he commands the lender to lend with a language that can be considered the appointment of a shliach. But, if the areiv would say "I will be an areiv for anyone who lends money to Reuven", it is similar to the language of "whoever gives food to Reuven will not lose", which is not considered a language of shlichus and is permitted even if Reuven is mudar hana'ah. Here too, it is not considered a language of shlichus and therefore the areiv would not be bound to pay the debt. However, the Nesivos argues that this cannot be the concept that binds an areiv to pay the debt. We find some tana'im who hold that even if one accepts to be an areiv after the money was lent, he can be misha'abed himself as an areiv. These opinion surely don't consider the obligation of the areiv to be because of shlichus, because the money wasn't lent by the lender as a shliach of the areiv. Even the opinions who say he cannot be an areiv after the money was lent is because - לא על אמונתו הלהו, but one who accepts to be an areiv at the time that the money is lent would be an areiv even if he doesn't use the language of shlichus. The Nesivos concludes that what binds an areiv is the fact that the lender is willing to lend based on his acceptance of responsibility. This is the simple understanding of the gemara - בההוא הנאה דקא מהימן ליה, גמר ומשתעבד נפשיה.

The gemara says in kiddushin that if a woman says to a man, give money so my friend and I will be mikudeshes to you, the kiddushin is binding based on the din areiv. Just as an areiv doesn't receive money yet he binds himself as a result of the pleasure he receives by the lender willing to lend as a result of his acceptance of responsibility, so too the woman receives pleasure that will make her mikudeshes by the man willing to give money based on her word. If we assume like the ketzos that what binds an areiv is the concept of shlichus, how is the woman mikudeshes? We would consider the man to be serving as her agent to give the money to her friend, but how do we consider it as if she herself received the money? This would seem to be a proof to the nesivos that the ability of an areiv to be mi'shabed himself is the pleasure he receives in exchange by his command being followed, not the concept of shlichus.

This also seems to be clear from the gemara's original source - אנכי אערבנו מידי תבקשנו, which is when Yehuda accepted responsibility for Binyamin if he fails to return him back to Yakov. There is no concept of shlichus in that case, rather it was Yehuda willing to be mi'shabed himself as a result of the hana'ah he received from Yakov trusting him.

Baba Basra 172b - Writing מהיום in a Gett

The Shulchan Aruch (E.H. 127:7) writes that although a gett must contain a z'man, if it would say in the gett "היום", it would fulfill the requirement to write z'man. The Beis Shmuel (13) quotes the Shiltei Giborim that any gett which just has the term hayom without specifying the date, would require eidi mesirah who can verify that the date that the gett is being presented to the beis din is the date on which it was written. The Beis Shmuel asks that our gemara strongly implies that the Shiltei Giborim is wrong. The gemara draws a comparison between the ambiguity of the term "hayom" and the ambiguity of writing "you" instead of specifying the lender. The gemara suggests that if hayom would work to refer to the day that the gett is being presented to the beis din, then "you" should work to identify the holder of the contract to be the lender. The Beis Shmuel asks that if the shiltei giborim is correct and we demand that the eidei mesirah know that the gett was written today, there is no comparison at all between the term hayom in a gett and the term "you" in a shtar halva'ah? Just as a gett would need eidei mesirah to identify the day, the shtar should require eidei mesirah to identify the lender?

R. Shlomo Kluger (chochmas shlomo) explains that the Shiltei Giborim learned the gemara like Tosafos. In the hava amina, the gemara thought that the ability to write hayom in the gett works even according to R. Meir that a gett must have z'man. The rationale as to why it would work is that the term hayom refers to any day that the gett will be presented, similarly the term "you" refers to anyone who is holding the contract (even if he wasn't the lender). This is based on the assumption that the borrower can be misha'beid himself to someone even without borrowing from them, therefore he is able to be misha'beid himself to anyone holding the contract. Based on the hava amina there would certainly not be a need for eidei mesirah to verify that the gett was written today. But, then the gemara pushes this off by saying that the opinion who permits "hayom" in a gett (abba shaul) rather than a specific z'man, is only R. Elazar who allows for eidei mesirah, but according to R. Meir who requires z'man, hayom wouldn't work. Why? Because the term "hayom" doesn't mean any day that the contract is shown to beis din and therefore isn't the equivalent of a z'man, but rather means a specific day. According to this new definition of "hayom", the term "you" would also not refer to any holder of the contract, rather refer specifically to the lender. Therefore, according to the maskana the shiltei giborim would make sense in requiring the eidei mesirah to verify that the contract was written today. Ultimately, the gemara says that even by a shtar chov, the fact that we aren't concerned for it falling from the lender, allows us to assume that the holder of the contract is the lender and it is equivalent to having eidei mesirah verifying that the contract was written today.

Baba Basra 168a - Bring Along an Am HaAretz

I knew someone in yeshiva who would volunteer as to be the am ha'aretz for those who were busy learning. This leitzanus certainly provoked an obvious question:

How is the talmid chacham allowed to take an am haaretz along with him. If the reason that the talmid chacham isn't looking himself is due to an issur of histaklus, how can he bring along an am ha'aretz to sin for him?

Rambam (Issurei Biah 21:3) writes that it is permitted to look (mistakel) at the face of a single girl to check if she is appropriate for him to marry. The Rambam concludes: ואין בזה צד איסור ולא עוד אלא ראוי לעשות כן (the rambam qualifies this heter that he cannot look derech z'nus).

Ra'avad writes on this Rambam - אמר אברהם, חכמים אמרו לידבר עם הארץ בהדיה, אלמא אין דרך ת"ח בכך

The Magid Mishna explains that the Ra'avad's question is not difficult to reconcile. A Talmid Chacham is allowed and even encouraged to look at his perspective spouse, but since he is not accustomed to looking at women, he may not notice if she is switched on him. Therefore, he should bring an am ha'aretz with him who will be able to assure him that she is the correct one. The Magid Mishna then proves his point by saying that if it were indeed prohibited to look, how can he have the am ha'aretz sin for him. Therefore, it must be that there isn't any issur in looking, just that he won't be certain that it is the same woman unless he brings an am ha'aretz with him.

The fundamental machlokes between the Rambam and the Ra'avad seems to be whether there is a chumra or at least midas chassidus not to look at the perspective kallah. Rambam holds that the gemara is merely addressing a practical concern that he may not notice if she is switched unless he brings along an am ha'aretz, but there is no advantage to have an am ha'aretz look at her rather than looking himself. The Ra'avad seems to hold that the premise of the gemara is that talmidei chachamim shouldn't be looking at women even when it is their perspective spouse, therefore it is recommended to bring along an am ha'aretz. Clearly, the Ra'avad would agree that this is no issur, because if it were an issur, it would be assur to bring along an am ha'aretz to do it. The talmid chacham could look at her himself to avoid the concern of her being switched with another, but since there is a midas chasiddus for the talmid chacham to avoid looking at her, he should bring an am ha'aretz to do what he would otherwise have to do himself.

Rabbeinu Gershom writes - משום דצורבא מרבנן לאו אורחיה למידק ולא להסתכל משום צניעות. This implies like the Ra'avad. According to the Rambam there is no halachic chumra in not looking, just that by the talmid chacham looking himself he won't accomplish his goal. The fact that Rabbeinu Gershom considers this a chumra and midas tznius for a TC not to look, indicates that he holds like the Ra'avad.

Baba Basra 165a - One Witness Signing and One Watching

The gemara has a discussion about the ability of two witnesses to combine and create a viable eidus to validate a contract when one witness is signed in a contract and the other is a live witness. Tosafos is not sure what exactly the live witness is testifying about. Tosafos suggest that the case is where the live witness does not see the loan, but sees the borrower delivering the contract to the lender. Tosafos explains - שהרי יש במסירת שטר זה שני עדי מסירה, שהעדם החתום הוא כעד מסירה דמוכיח שמסרו לו לוה למלוה שהוא לא היה חותם אלא בצווי של לוה, והעד שבעל פה מעיד שמסרו לוה למלוה. Tosafos holds that the witness who is signed in the document can actually work as an eid mesirah. The witness signs at the request of the borrower who is admitting to him that he will be mi'shubad to the lender by delivering this document. Therefore, it is as if we have two witnesses watching the delivery of the document from borrower to lender.

This concept that a witness signed in a document can function as an eid mesira, is the approach of the Ran in gittin (48 of the Rif). There is a big discussion how witnesses that sign in a document can function according to R. Eliezer who holds עדי מסירה כרתי, that the witnesses who watch the delivery make the gett or document go into effect. How can the signed witnesses, without eidei mesirah accomplish this? Ran explains - דר"א ס"ל דעדי מסירה בלחוד כרתי ועדי חתימה לא כרתי וכו' ומיהו מאי דמודה ר"א דעדי חתימה מהני, היינו משום דס"ל שהמסירה כורתת כל שיש בשעתה עדים, בין שהם מעידים על המסירה עצמה או על גוף הדבר וכו' דהוו להו עדי חתימה כעדי מסירה וכו' ובידוע שהבעל מסרה לה ונמצאו כאילו הן עצמן מעידים על המסירה. The Ran explains that we regard a witness signed in the document as if he is literally watching the delivery of the document, because the fact the the document is in the hands of the woman or the lender indicates that it was delivered by the husband or borrower.

It is interesting that Tosafos 3a in gittin has a different approach as to why and how eidei mesirah work according to R. Elazar. Tosafos holds that the eidei chasima imply that it was likely given in the presence of eidim, rather than serve themselves as eidei mesira. It seems that Tosafos in Baba Basra holds like the Ran, not like Tosafos in Gittin.