Baba Kama 36b - Pledging Money that is not in one's possesion

The gemara says that when one is owed money as compensation for embarrassment, and they declared that the money should be given to tzedaka, their word is binding. Why? Because the beis din serves that the "hand" of the poor, and were already zocheh it for the poor. Tosafos asks, why not say that even if beis din would not be zocheh for them, it would anyway have to be given to the aniyim because it is as if he made a vow to give tzedaka? Tosafos answers that since when he said that it should be given to aniyim, it wasn't yet in his hands, it is not binding as a neder to tzedaka. But if he would say "when i get the money, i will give it to tzedaka", Tosaofos says that he would be obligated to fulfill his neder. Tosafos then quotes Rabbeinu Chananel who seems to assume that even if he would say "it should be to tzedaka", it would be a binding neder, but he would still be able to borrow the money for the time being. But, Rav Yosef says that he was already zo'cheh for the aniyim through ma'amad shelashtan.

Both answers of Tosafos are paskened in Shulchan Aruch (Y.D. 258:8). If one is owed a debt and sya that it should be for tzedaka, it is not a binding neder, but if he says that when he collects it, he will give it to tzedaka, then it is a binding neder. BUT if the money is in the hand of the ga'bai tzedaka, or if he says it in the presence of the gabai and the ba'al chov where ma'amad shelashtan goes into effect, the gabai acquires it for the aniyim.

The Shach (18) questions why Tosafos couldn't answer simply - If it were binding as a neder, one could be matir neder and uproot the chiyuv, but since it is binding as zechiya, he can't uproot the neder? The Shach proves from here that anytime one pledges money that is in someone else's hands, he cannot be matir his neder since they will automatically be zo'cheh for the aniyim. Hataras Nedarim will only work on money that is in the hands of the pledger, but not on money that is in the hands of someone else.

Can someone retract on a pledge to a tzedaka, based on the pe'sach of "if i would have known that the market would crash, i would never have pledged so much"? Based on the shach, if the money pledged was in his own hands (or in the hands of someone who cannot be zo'cheh for aniyim i.e. goyim), he can retract. But, if it is in the hands of another jew, who can be zo'cheh for aniyim, he cannot retract.

Baba Kama 33a - Calculating half damages of Tam

The Rosh understands from rashi that the calculation of "chatzi nezek" in case where a Tam and Mu'ad damage each other, is to consider the difference to be the damage and pay half of the difference. For example, if the damage of the tam to the mu'ad is $200, and the damage of the mu'ad to the tam is $150, since the net damage to the mu'ad is $50, the tam pays half of that which is $25. Or for example, if the damage of the tam to the mu'ad is $200, and the damage of the mu'ad to the tam is $50, the difference is $150, of which the tam pays only half which is $75. The Rosh is medayek from Tosafos who considers the entire mishna (except for the opinion of R' Akiva) to be superfluous, that they assume we calculate so that the tam will only be liable for half the damage that it caused. Therefore, in the first example we divide the $200 in half so that the liability of the tam for the mu'ad is only $100, and the liability of the mu'ad to the tam is $150 so that the mu'ad has to pay the tam. Also, in the second case the liability on tam for mu'ad is $100, and mu'ad for tam is $50 so the tam will only have to pay $50. See the nimukei yosef brings different possibilities of how to calculate.

Tosafos seems to be correct. Since a tam only pays half, we should consider the damage the tam did to the mu'ad to be half of what it actually is, and only then calculate the difference in damage. Why does rashi consider the damage to be the difference?

It seems that there is a fundamental question in the concept of chatzi nezek for a tam. Is chatzi nezek a din in how we view the damage (i.e. half of what it was), or is it a din in the payment (it is always reduced by half)? Tosafos holds that chazi nezek is a din in the damage, that we value the damage as half of what it actually was. Therefore, when a Tam causes $200 worth of damage, we view it as it only damaged $100 worth. But rashi understands that the damage is viewed in full, but regarding the payment, a Tam only pays half of what he owes. Therefore, we figure out the net damage that the tam owes the mu'ad and then divide it in half.

Baba Kama 32a - Hitting one's wife

This may be obvious, but....

The Hagahos Ashri writes on our sugya that one is not allowed to hit is wife and is chayev for any damages for injuring her. If he continues to hit and embarass her in public, we force him to divorce her and she is entitled to kesubah. The Yam Shel Shlomo (21) elaborates on the severity of the issur. He explains that if one is responsible for unintentional injury that she incurs through tashmish hamitah, certainly when he intentionally hits her. He also quotes in the name of the Maharam:

ואין זה דרך בני עמינו להכות נשותיהם כמנהג הגוים, חלילה לכל בן ברית מעשות כדבר זה, ואם היה בא לפנינו דין זה שאשה קובלת על בעלה שמכה אותה היינו מחמירים עליו מאילו היה מכה את אחר

Baba Kama 29b - Acquiring a "Bor" without a real kinyan

In the gemara R' Ashi explains that although typically one would need to raise an object 3 tefachim off the ground (to break the din of lavud) in order to make a kinyan on it, one can acquire an object in reshus harabim to be considered his and be chayev for damages even without lifting it 3 tefachim. However, this is only if one intends to acquire it, but if one does not intend to acquire it they will be exempt since they did not place the object there to begin with, but rather it was there from before. The question is what type of kinyan can be made by lifting the object less than 3 tefachim and having intent to acquire it?

Rashi implies that since there is an opinion who holds that a hefker object can be acquired through "habata" - looking at it, although we reject this opinion, we see that it is easier to acquire a hefker object than it is to acquire an object that is owned by someone else. Therefore, although one may need a hagab'ah of 3 tefachim for a standard hagba'ah, it is not necessary for a hefker object.

Tosafos also mentions this approach. Tosafos also mentions the possibility that the shovel which is the vessel of the person shoveling, can acquire for him without a hagba'ah, when he has intent to acquire it. Also, when one picks something up with their hand, they acquire it even within 3 tefachim of the ground.

Perhaps we can offer another approach. The gemara is working with the assumption that one is chayev for being mafkir his bor - meaning, that even if one does not own the object they can be chayev for bor. Therefore, it is possible to suggest that although normally one would require a standard kinyan to acquire the zevel of hefker, that is only to make him a full fledged owner. Here where he is merely acquiring it to be chayev for it's damages, even lifting it a little with intent to acquire would make him responsible for the damages that it causes.

Baba Kama 28a - Hitting to prevent them from doing an aveira

The gemara tries to prove that one can take the law into their own hands by physically forcing their slave to leave their home after the time of his slavery has expired, even though there isn't any loss. R' Nachman Bar Yitzchok argues that even the opinion who says that normally one cannot take the law into his own hands would agree here because it is speaking about a case where he was married to a shifcha, who is now forbidden to him, so he has a right to stop him from doing an issur. Both Rabbeinu Chananel and the Rambam (Hil. Avadim 3:5) rule that the master would be patur for injuring the eved when he is throwing him out of the house, as the braisa seems to imply, that he is patur. But, it is very possible that it is assur l'chatchila to hit him and to cause him physical harm, even when trying to stop him from an issur. 

However, Rashi writes explicitly:

ורשאי להלקותו ולהפרישו, דהאי דינא לאו לנפשיה הוא

Rashi implies that one is allowed to physically stop someone from doing an issur, even if it will casue him harm. This is a tremendous chiddush. Although we know that beis din can force people to do mitzvos by hitting them, and presumably also stop them from doing issurim by beating them, where do we find that within the personal obligation of tochacha we would allow one to violate the issur of chovel b'chaveiro and hit his friend?

Baba Kama 26b - Forgetting the Rock in your lap

The gemara says that if one realized he had  stone in his lap and later forgot that it was there, and he stood up and hurt someone, he is exempt from having to pay damages because even though he realized it was there originally, since he forgot he is not considered negligent rather it is considered "shogeg". The Nimukei Yosef explains that at the time he placed the stone on his lap he was not negligent since he expected to be careful, and at the time he forgot he is not negligent because forgetting is an o'nes. Based on this the Nimukei Yosef writes in the name of Rama, that one who intentionally pushed off davening until the last hour of z'man tefillah, and then in the last hour forgot to daven, is an o'nes, so he can daven tashlumin to make up for it. However, the Nimukei Yosef writes that for tefillah one is required to be more careful because we find that chazal themselves prohibited certain activities so as not to push off davening because they were concerned that one may forget. Therefore, if one violates this by intentionally pushing it off and then forgetting they are considered negligent and cannot daven tashlumin. The Yam Shel Shlomo (35) disagrees and says that he can daven tashlumin, as the shulchan aruch paskens (108:8).

The machlokes between the Nimukei Yosef and Shulchan Aruch seems to be, when one intentionally violates a geder or s'yag set up by chazal to prevent one from forgetting to daven, is that called negligent or accident. The Nimukei Yosef seems to understand that the s'yag becomes like the mitzvah itself, where violating the s'yag is tantamount to intentionally violating the mitzvah. But the Shulchan Aruch and Yam Shel Shlomo understand that the s'yag does not become part of the mitzvah itself, so violating the s'yag is still not as severe as the violation of the actual mitzvah, and would qualify as an accident.

Baba Kama 25a - Dayo Lavo Min HaDin

The Rambam in his pirush hamishna explains that dayo is an accepted concept that everyone must agree with since it is learned from a pasuk and is d'oraysa. However, R' Tarfon and the Rabbonon argue about the application, whether we use "dayo" to destroy a kal v'chomer or just to limit a kal v'chomer. That is why the gemara cannot tolerate the possibility of there being a tana who rejects "dayo" even when it is just limiting the kal v'chomer, since it is a din d'oraysa.

Why does R' Tarfron hold that if the "dayo" would destroy the kal v'chomer we would forgo on the "dayo" in order to maintain the kal v'chomer?

Rashash explains that without the pasuk by miriam we would not limit the kal v'chomer at all because the entire logic of the kal v'chomer is predicated on the realization that the 'chamur' has chumros over the 'kal'. But, it is a gezeiras hakasuv that we say "dayo". R' Tarfon holds that since it is a gezeiras hakasuv, 'eil licha ela chidusho' - just as by miriam the dayo is just limiting the kal v'chomer, we can always only use dayo to limit the kal v'chomer. The Rambam also seems to understand along these lines. When we were given kal v'chomer as one of the 13 middos, it was meant to be used whenever possible to be mechadesh dinim. I would add that it is as if we have a mesorah telling us to make every single kal v'chomer that is possible to make (unless there is a pircha). Therefore, if we would destroy a kal v'chomer based on dayo, the Rambam says: יהיה זה הקל וחומר לשוא ולא יוסיף לנו ידיעת שום דבר - that is why we forgo the dayo and darshen the kal v'chomer.

Perhaps this explains Rashi in Succah 30a who holds that every one of the 13 middos requires a mesorah, but kal v'chomer doesn't. Why? The answer is that kal v'chomer is not really an exception, rather everything always needs a mesorah. But the mesorah by kal v'chomer is that every single kal v'chomer that can even be made without a pircha, is true. Even when dayo is applicable it will still not undermine the essence of the kal v'chomer.

On another point, the Pnei Yehoshua asks how can the dayo by miriam be the source for dayo of chatzi nezek. Perhaps the concept of dayo only applies when we try to create a din that we don't find a precedent for in any other case, such as  being locked up for 14 days. But, since we find a din of nezek shaleim in reshus hanizuk by shein and regel, maybe dayo will not limit keren in reshus harabim to chatzi nezek? He points out that according to Tosafos the 14 days are also not arbitrary, rather they are sourced in the relationship with Hashem being double the father and mother, yet we say 'dayo' to limit the kal v'chomer, so here too we should say dayo.

Baba Kama 24a - Kiruv Nigichosav and Richeik Nigochosav

The Tur (O.C. 144) writes that the Maharam M'Rottenberg who would say 90 times on Shemini Atzeres "mashiv ha'ruach u'morid ha'geshem' to create a chazaka. His logic was that if 3 times a day for 30 days works, then certainly it would work when it is said on one day 90 times. His proof is from our mishna where R' Meir holds that if an animal can become a mu'ad for goring once a day for 3 consecutive days, certainly it can be a mu'ad for goring 3 times in one day. However, Rabbeinu Peretz argues because the logic only makes sense for an animal turning into a mu'ad, where the logic dictates that the closer in time that the gorings take place, the more prone the animal is to gore. But, davening is dependent on one becoming accustomed to saying "mashiv haru'ach" and the time of 30 day may be a significant factor in changing one's habit.

The Beis Yosef quotes in the name of R"I Abuhav, that the Rosh agrees with the Maharam and rejects the distinction made by Rabbeinu Peretz. His rationale is that even the "הרגל הלשון" is also based on changing the nature of a person from what he was accustomed to until now, and therefore it is exactly the same as an ox turning from tam to mu'ad.

It seems that the machlokes maharam and Rabbeinu Peretz is dependent on the rationale of why an ox becomes a mu'ad after 3 times. It is clear from the gemara 15a that a mu'ad is considered an ox that is natural to gore. The question is, does the 3 times goring change the nature of the animal from tam to mu'ad or does it reveal that all along this animal had a bad nature that causes it to gore. If we assume like the first approach that it is a change in the nature of the animal, it is exactly the same as changing one's nature from their being accustomed to not saying mashiv haru'ach (as the R"i Abuhav explains that they are both based on changing the nature) and therefore we can apply R' Meir's kal v'chomer. But if we assume that R' Meir's kal v'chomer only applies to a case where we are trying to show that the animal was always a goring animal, we cannot learn from there that the "kiruv ni'gichos" helps to change the nature from what it was (which is the opinion of Rabbeinu Peretz).

R' Shlomo Eiger asks how we can learn anything from R' Meir since we pasken like the Rabbonon who reject his kal v'chomer? Perhaps the Rabbonon don't reject the logic of the kal v'chomer, rather they assume that the pesukim by mu'ad demand that it be over the course of 3 days.In a case where the pesukim indicate it has to be spread out, the Rabbonon insist on it being spread out, but in the context of mashiv ha'ruach they would agree with R' Meir's logic. Their proof from zavah is not that we reject R' Meir's logic in general, rather that we take the pesukim as is in that context, and assume it is a gezeiras hakasuv to take it as is in this context.

Baba Kama 22a - אשו משום חציו או משום ממונו

The Nimukei Yosef (10a b'dafei haRif) asks his famous question, if fire is like an arrow, how can we allow one to light a fire before shabbos that continues to burn on shabbos? This should be prohibited because it is as if the Jew who lit the fire before shabbos is continuously lighting it at every moment that it is burning thereby violating shabbos? He answers that the concept of "eisho mi'shum chitzo" says that since the fire is likely to spread, all the damage that is eventually caused later is as if it were completed right now at the moment that the fire was lit. Therefore it is permitted to light a fire before shabbos, because the ma'aseh of lighting is completed immediately before shabbos. The Nimukei Yosef then proves that we cannot possibly view it as if one continuously lights the fire every moment that it is burning, because if this were the case the person who lit it should not be liable for any spreading of the fire, since at that point it is no longer in his control to take back and he is an absolute o'nes. But since we view the act to be complete immediately, when it is still in his hands to abstain from lighting it, we can hold him responsible for all later damage as if it were already done at the time of lighting.

The assumption of the Nimukei Yosef in his proof is debatable. He assumes that although one made a concious decision at the time of lighting the fire to light it, if the chiyuv for eish would be that every moment it burns is as if he were lighting it, he could not be held responsible for damages caused by the fire once the fire is out of his control since it is a complete o'nes. The Steipler (21) quotes from a Ramaban in teshuva who argues and says that if a person would knowingly put himself into a situation of o'nes where they will later cause damage, even though later on it will be done b'ones, he is chayev. Even though the act of damage is only done later at a time where he is an o'nes, he is responsible for the decision that he makes now which will cause the damage later.

The Steipler cites the gemara 27b as proof to the nimukei yosef. The gemara says that if one throws keilim off the roof at a time when there are pillows underneath to cushion the fall, he then jumps down and removes the pillows, he is patur. The act of throwing didn't cause damage since at the time the pillows were there, and the removing of the pillows is only a gerama (an indirect cause) for which one is not liable. Now, if we consider the entire act of damage to be completed when the objects were thrown from the roof, as the nimukei yosef maintains, since at that time they were not set to break, it makes sense that the person cannot be liable for throwing. But if we consider one who "shoots an arrow" to be actively causing damage at every moment, the moment after the pillows are removed and the objects hit the ground it should be considered as if the thrower smashed them at that moment and be liable. From the fact that we exempt the thrower is a proof to the nimukei yosef.

Baba Kama 19a - Causing Damage from Reshus Harabim that damages in Reshus Ha'Nizuk

The Rosh writes (1:1) that shein and regel are patur in reshus harabim because "it is normal". Why not just say that its a gezeiras hakasuv (i mentioned this in an earlier post)? Rosh answers that regel is patur in reshus harabim because it is normal and well accepted that the animal has a right to be there, and it is impossible to demand that the owner follow it at all times. Based on this, the Rosh says that if the animal stepped on a piece of wood in reshus harabim that broke objects on the other end in the reshus hayachid, the owner of the animal is exempt since the animal was walking in an area where it has a right to walk.

This seems to contradict our gemara that talks about "tzroros", when the a pebble flew out from the animal that was walking in the reshus harabim and caused damage in reshus hayachid, we conclude that the owner is liable (chatzi nezek since it is tzroros). The Bach on the Rosh understands that the two rulings, being patur by the long piece of wood, and chayev by the pebble can be reconciled. However, he doesn't really explain the sevara of the distinction.

Perhaps the distinction is that when there is a lapse of time between the cause of the damage and the actual damage, such as when a pebble flies out from the animals feet (the cause occurs seconds prior to the break), we are forced to view the pebble as the "mazik" rather than the animal. Since the "mazik" is in the reshus hanizuk, the owner of the animal who is responsible for causing that damage is chayev. But when the animal steps on along piece of wood and at that moment it breaks vessels on the other end, the cause and effect occur simultaneously. Since there is no lapse of time between the cause and the effect, we can view the animal as the "mazkik. Being that the animal is in reshus harabim, the owner isn't liable. In short, determine the "mazik" as the cause of the damage at the moment of the damage. Therefore, the moment of damage by the pebble is when it smashes the object, and since the "mazik" which is the pebble is in reshus hayachid, the owner is liable. But the moment of damage by the piece of wood is when the animal steps on it, and since the "mazik" is the animal which is in reshus harabim, the owner is exempt.

Baba Kama 17 - 18 - Machlokes by Halacha l'moshe m'sinai

The Rambam (Hilchos Mamrim 1:3) writes:

דברי הקבלה אין בהן מחלוקת לעולם, וכל דבר שתמצא בו מחלוקת בידוע שאינו קבלה ממש רבינו

The obvious question is the machlokes between Rabbonon and Sumchos by chatzi nezek of tzeroros, which is clearly a machlokes on a halacha l'moshe misinai. The maharatz chiyus quotes this question from the Chavos Yair (192), and suggests based on the pirsuh hamishna of the rambam at the end of edyos where the rambam writes that we have a tradition that Eliyahu Hanavi will do good for klal yisroel at the end of time, but there is a machlokes on the specifics. Here too, all agree that tzroros is a halacha l'moshe misinai that it is included in damages that one is responsible for, but they argue how much one is chayev.

The difficulty with the approach of the maharatz chiyus is that R' Ashi asks according to Sumchos whether the halacha l'moshe misinai of tzroros applies to "koach kocho" according to sumchos. This question only makes sense if we assume that kocho is like gufo, and it is obvious without any halacha l'moshe misinai that one should pay full, but "koach kocho" may not be like gufo and we can apply the halacha l'moshe misinai to reduce the payment to chatzi nezek. It is also clear in Rabbeinu Chananel 19a, that the question of "koach kocho" is whether sumchos agreees to the halacha l'moshe misinai and applies it to koach kocho, or does he reject the halacha l'moshe misinai entirely.

The Chasam Sofer (Beitza 5a - pg. 20) offers another approach. We certainly find many cases of machlokes about halacha l'moshe misinai. The Rambam doesn't mean to say that a machlokes cannot develop on a tradition, rather he means to say that when there was a machlokes about a tradition and the rabbonon of the generation agree to one approach and reject the other, essentially deciding that the tradition of the one they accept is correct and the other is not. At that point, no later generation can restore the machlokes and rely on the tradition of the yachid (which can be done by an argument that develops from 13 midos).

Baba Kama 17b - Major car accident following a fender bender

Reuven is driving behind Shimon and smashes into Shimon's car, destroying his fender and causing $500 worth of damage. Shimon continues to drive home and gets into a terrible accident that completely totals his car. Reuven claims that he should not have to pay for the damage that he caused because even had he not caused the damage, it would have happened due to the later accident. Is Reuven obligated to pay the $500?

Rashash learns from Tosafos  that Reuven is responsible.

Tosafos says that although in the case of the gemara where one throws a vessel from the roof and the other one smashes it before it hits the ground, the thrower is chayev and the smasher is exempt; in a case where one throws a stone at a kli and before it hits someone else smashes it, the smasher is chayev and therefore the thrower is patur. The argument of "מנא תבירא תבר" - I broke an already broken item, only applies to a case where the item itself that was eventually damages was thrown, not when another items is thrown at it. The logic is clear. When one throws a stone at a kli, he has no connection to the kli until his stone makes contact with it, so if prior to that someone else smashes the kli, the smasher is fully responsible.

Based on this the Rashash says that if Reuven smashes Shimon's vessel, but later a fire occurs and burns the broken vessel, Reuven is responsible to pay for the damage he caused. Why? Because even if Reuven would smash the vessel after the stone has been thrown, he would be obligated to pay, certainly if he broke the kli prior to the fire heading to Shimon's home, Reuven is chayev to pay. Similarly in the case of the car accident, Reuven would be obligated to pay because even if at the time of the fender bender there was already a train headed right at Shimon's car and it would definitely be destroyed, Reuven is liable for the damage he caused [the rashash in the end suggests that if the fire was already in the chatzer, perhaps reuven would not be liable, but based on this Tosafos he still should be].

Baba Kama 16b - Tzedaka to People who don't deserve it

Yirmiyahu requested that even when the goyim try to do something good and give charity, Hashem should send their way people who are not proper and don't deserve it so that they don't receive reward for their actions. The Nimukei Yosef comments that one does not receive reward for giving to aniyim who don't deserve it, only if he knows that they are not proper and don't deserve it. But, if one is approached with a request for tzedaka and he doesn't know the person and it is possible that he does deserve it, there is certainly reward for giving tzedaka under those circumstances (even if in truth the person did not deserve it). The Nimukei Yosef explains:

שהרי לשם מצו מכוין, ועוד דאי לא תימא הכי אתה נועל דלת בפני כמה מהוגנים במקום שאינם ניכרים

Based on this, the tefillah of Yirmiyahu is strange - he was asking Hashem to send their way people who they know don't deserve it, so that they won't receive reward for giving them tzedaka. If the givers realize that the receivers don't deserve it,  why would they give them? Based on the nimukei yosef we see that there are 2 possible rewards for tzedaka, 1. for what the money accomplishes, 2. the good intent of doing it. Yirmiyahu knew about them that they would not be giving tzedaka l'sheim mitzvah, rather they would have some ulterior motives. Nonetheless, if the tzedaka ended up by someone who needed it, there would still be reward. Therefore, Yirmiyahu davened that Hashem should send them people who don't deserve it (even though the giver doesn't realize that they don't deserve it) so that they will not have reward for the intent or for the accomplishment.

Baba Kama 15a - Believing testimony of Non-jews

The gemara is medayek from the mishna that for testimony of damage we require Jews. The question is, why is it different than any other testimony where only b'nei bris are believed? The Nemukei Yosef says it is brought agav the others in the mishna, but really not necessary. The Rosh says that we would think to believe non-jews in the realm of damages either because we want the nizuk to be compensated or we had a hava amina to believe goyim when a goy was the one who damaged, so the mishna needs to say that we only believe jewish witnesses. Yam shel shlomo says that since in their courts, they are believed, we can also believe them, so the mishna needs to say that a jewish court cannot take money even from a goy who was mazik unless there are Jewish witnesses.

The Rambam in his commentary on the mishna says that since damages primarily occur in areas where Jews aren't present such as around farms and the like, we would think that those who are generally around in these areas can be trusted to testify about the damage. The Rambam also indicates that this is the hava amina in the Yad Hachazaka (nizkei mamon 8:13):

אין הנזקין משתלמין וכו' אלא בראיה ברורה ובעדים הכשרים להעיד, שלא תאמר הואיל ואין מצויין באוריות הסוסים, וברפת הבקר, וגדרות הצאן אלא העבדים והרועים וכיוצ"ב, אם העידו שבהמה זו היא שהזיקה את זו שומעין להן וכו

The Terumas Hadeshen (353) was asked about 2 women who were fighting about their makom kavuah in the shul (obviously in the veiber shi'il), and one had 2 women who were willing to testify on her behalf, can their testimony be admitted into th court? He rules that since women are more frequently found in that area, their testimony may be accepted. He supports this from the gemara in kiddushin 73b that the midwife is believed about a be'chor, since it is usually a woman who is present at childbirth. Why then do we not believe pesulei eidus such as goyim and women in the context of damages based on the same logic? The Terumas Hadeshen explains that if we believe pesulei eidus in the context of damages we are afraid of people hiring them to extort money from others, but in circumstances which are not common and only occur once in a while, we can use the sevara that the rambam rejects to believe even pesulei eidus. See Yam shel shlomo (41) who quotes this and seems to agree fundamentally, but takes issue with ever believing non-jews for these things because - פיהם דבר שוא ומרמה

The Rama (Choshen Mishpat 35:14) says that me'ikar hadin those who are passul for eidus are not even believed in areas where kosher witnesses aren't common. However, there was a takanas kadmonim to believe women in areas where men are not frequently found or for things that men usually will not know (such as the clothes that a woman was wearing).

Baba Kama 12a - Kinyan Agav: D'oraysa or D'rabonon

We discussed this issue in Kiddushin 5a.

http://hearos.blogspot.com/2008/11/kiddushin-26-kinyan-agav.html

In a nutshell, Tosafos here holds that the entire discussion of the gemara whether an eved is like karka or metaltilin is only on a d'rabonon level, but on a d'oraysa level an eved is definitely like karaka. Based on this, kinyan agav which is the focus of the discussion must only be d'rabonon. The Ketzos (202:5) and R' Akiva Eiger (chiddushim) both understand that kinyan agav being d'rabonon can be reconciled with the gemara in baba basra that says it works to be makneh money so that someone else can use it to redeem ma'aser sheini, without having to add a fifth. The concept may only be d'rabonon, but through hefker beis din can have d'oraysa ramifications.

Tosafos later in baba kama 104b, in the context of writing a harsha'ah only for one who has peoperty where "hoda'ah" works to make it as if he has property, writes that hoda'ah will not work for redemption of ma'aser sheini even though kinyan agav would. It is unclear if the root of the distinction is that "hoda'ah" is only a kinyan d'rabonon whereas "agav" is d'oraysa, and only a kinyan d'oraysa would work for redeeming ma'aser sheini. Or if they were both d'rabonon, but "hoda'ah" just provides ne'emanus so that beis din will conduct themselves as if you have property and write a harsha'ah but will not actually officiate a kinyan. Since "agav" will be a binding kinyan, albeit only d'rabonon, it will work for redeeming ma'aser sheini.

2. Tosafos struggles with the gemara that cites Shmuel's din that when one makes a kinyan on a piece of property he can acquire with it all properties since they are attached, which is a d'oraysa concept. Why does the gemara only ask this on the opinion who says eved is like karka, that this should work by eved; even if eved is like metaltitlin, that is d'rabonon but d'oraysa he is like karka so for Shmuel's din everyone should agree that it works by eved even if he is not in the property? R' Akiva Eiger (gilyon ha'shas) suggests that the concept of Shmuel may not be based on an eved having a status of karka but rather on the actuality of all land being connected which would not apply by eved. The opinion who holds eved is like metaltilin will simply say that when the eved is not in the karka, the kinyan on karka doesn't work since he is not "attached" to the ground. When the eved is in the karka, the kinyan works as "agav" since m'drabonon we view an eved like metaltilin. BUT according to the opinion who says that an eved is like karka, the only rationale for a kinyan on the land working on the eved when he is in the land is that it is like he is attached (because agav only works by metaltilin), so even if he is not in the land it should work as if he is attached.

The idea we learn from R' Akiva Eiger is that sometimes the effectiveness of the kinyan is not based on the "din" rather on the "metzius" of being attached to the ground. Based on this, why would the gemara assume that whether or not one can write a pruzbul based on owning an eved, to be whether an eved is like karka or metaltilin. Being that the rationale for requiring karka for pruzbul is that it must be something which cannot be destroyed (as tosafos says), it would seem more logical that it should be dependent on being attached to the ground, rather than having a din "karka"?

Baba Kama 11a - Sfeik Sfeikas that Contradict

Tosafos explains that we cannot create a sfeik sfeika for a woman who gave miscarried over a 2 day period, to be metaher her on the 15th day of her miscarriage, maybe most of the child came out on day 1 so she will enter days of tahara on 15, and if it only came out on day 2 maybe it was a male so there are only 7 days of tu'mah. The reason we can't use this sfeik sfeika is because there is a contradictory sfeik sfeika that one will use on day 41 to be metaher the blood she sees on that day. Maybe she miscarried on day 2 so that 41 is still within the 40 days, and maybe it was a female so that she is still in yemei tahara.

From this Tosafos the Pri Megadim (y.d. 110 - additions to kuntres of shach 1) says that we cannot use a sfeik sfeika when there is another upcoming halacha for which we will want to use an opposite sfeik sfeika, since it is an inherrent contradiciton. However, it is not clear whether we disallow this type of sfeik sfeika since both sfeikos are in direct contradiction to one another. But, in a case where only one of the two sfeikos will be used in contradiction, maybe we can still rely on sfeik sfeika. The Pri Megadim proves from Tosafos in Nidah 27a that even if just one of the sfeikos contradict, we cannot use that safeik as part of a sfeik sfeika.

Baba Kama 11a - Evaluating for a Ganav and Gazlan

The gemara concludes that if one steals an item and ruins it, he is not able to simply return the broken item and pay for the damage, rather he has to pay in cash for the entire item, or replace it with an equivalent item. However, when one damages, or borrows an item and damages it b'ones, he can simply return the item and pay the depreciation amount. Why? Tosafos explains that when one steals an item they immediately acquire the item by removing it from the reshus of it's owner, and therefore are liable to reimburse the owner for the entire item (not just the difference from the time it was stolen and the time it is returned). But, when one damages, he is only responsible for the amount that the item depreciated due to the damage, but whatever remains still belongs to the original owner. Based on this, a borrower who is responsible for o'nes is also considered to acquire the object when he borrows it and therefore is responsible for the entire item.

Why is a "sho'el", a borrower, considered to make a kinyan at the time he accepts shemira? Just as a shomer sachar is only responsible for what was stolen but can return whatever remains and just pay the difference, a sho'el should be able to do the same? Tosafos understands that since a sho'el is responsible for o'nes, he responsibility cannot begin at the time that the o'nes occurs because one cannot be liable for a complete accident. The only way that a sho'el can be responsible for o'nes is because he makes a kinyan on the object when he borrows it. Based on this, there is a major difference between the chiyuv of a shomer sachar/shomer chinum and a sho'el. A shomer sachar/chinum is responsible for their negligence in not protecting the object, and that obligation begins at the time of the incident. A sho'el on the other hand, is not responsible for the incident but responsible at the moment he borrows to return the item as it is at that moment.

Baba Kama 10a - Corpse Assur B'hana'ah

Tosafos asks why we need a special pasuk to exempt a person who is killed by falling in a pit, it should be included in the drasha of והמת יהיה לו which means you are only chayev when the corpse can belong to the owner of the animal. Just as we exclude pesulei hamukdashin which cannot belong entirely to its owner, we should exclude adam as well since he is assur b'hana. Tosafos answers that from this pasuk alone I would have said that the ba'al habor is chayev for being mazik a goy, since he is mutar b'hanah, so we need a pasuk to exempt a ba'al habor for the death of all people.

Shulchan Aruch (Y.D. 349:1) writes that even a non-jewish corpse is assur b'hanah. The Nekudas Hakesef quotes this from a Teshuvas Harashba. But, the Nikudas Hakesef points out that both our Tosafos and the Magid Mishna hold that only a Jewish corpse is assur b'hana'ah. Gr"a proves that Tosafos is correct from David who used the orlahs to be mekadesh an isha. He also points out that the Rashba in chiddushim says like Tosafos.

However, the Pischei Teshuva reconciles Tosafos and the Rashba by saying that it is not assur d'oraysa, and that is why a special pasuk is needed to exempt when a person is killed in a bor, but is assur m'drabonon. 

hidur mitzva

Reb Avi, didnt see you posted. Hope i am not doubling up....
בענין הדיור מצוה

בגמרא מחלוקת אי שליש מלבא או מלגאו. ויש מ"ח ראשונים שמובא במנב"ב אי ספק לחומרא או לקולא. ובפשטות המחלוקת אי דין הדר הוי דאורייתא או דרבנן. וכן ביאר רב יצחק אלחנן בעין יצחק.

והריטב"ט מוכיח (בסוכה) דהדר רק דרבנן מזה שמפורש בגמרא לרבנן דאגד של לולב שהוא מדין הדר לא מעכב, ואי הוי דאורייתא לא מצינו חילוק בין לכתחילה ובדיעבד בדינים דאורייתא. ובדומה מבואר בתוספות מנחות ל"ט שרק בקדשים יש דין שצריך שנה עליו הכתוב כדי שיעכב.

ושיטת המאירי בלולב היבש (ריש לולב הגזול) כשיטת רש"י שפסול מדין הדר, ומפורש שהדר הוי דין של בדיעבד ומדוארייתא, ומצד שני בדין של עשה לך ס"ת נאה (שבת קלג) מבואר במאירי שהוי רק אסמכתא. ומוכח שס"ל למאירי שיש שני דיני הדר אחד מדאורייתא שמעכב כעין ביביש, ואחד דרבנן. ובגדר הדינים בעצמו מפרש שאי ניטל כל הדרו הוי דאורייתא אך אם הוי רק תוספת נוי הוי דרבנן.

ובשיטת רש"י יש לומר קצת אחרת מהמאירי. שיש לחקור אי הידור מצוה הוי מצוה בפני עצמה או הוי סניף לכל מצוה ומצוה. ובלולב היבש שפסול לשון רש"י משמע שהוי חלק ממצות לולב ולא פסול בפנ"ע וכך גם מוכח דאי הוי דין בפנ"ע א"כ אף שלא קיים דין הידור אך מדוע שלא יצא יד"ח לולב. אך ביומא דף ע' לגבי אלו שהביאו את ספרי התורה שלהן לבית המקדש ביום הכפורים, לשון רש"י שהביאו כדי להראות נוי של הס"ת ותפארת בעליה שטרח להתנאות במצות, ומבואר שזה סתם דין בפנ"ע של נוי מצוה שלא הוי חלק ממצות כתיבת ס"ת ולכן לא מעכב בדיעבד.

ולפ"ז יש להסביר שיטת רש"י הכא בב"ק. דשיטת רש"י שהידור עד שליש הוי בקנייה, דהיינו כשקונה אתרוג צריך לבחור עד שליש יותר מהודר. והראשונים מקשים דא"כ אין לדבר סוף דתמיד ימצא יותר יפה וילך ויקנה היותר יפה. והמנ"ב מביא הירושלמי שהכונה של שיטה זו שפעם אחת יקנה ויותר לא. והנראה שרש"י לומד שהידור הוי דין בפנ"ע ולכן הוא דבר יחסי לכל אתרוג ואתרוג, אך תוספות סובר דהידור הכא הוי ג"כ סניף ממצוות אתרוג, וא"כ סובר שלא יכול להיות דבר יחסי ומשתנה מאתרוג לאתרוג אלא הוידין במצוה, ולכן מבאר שהתורה חייבה להדר בשליש מאתרוג ששיעורו מצומצם.

עפ"י שיעור ששמעתי מגאון אחד ר"מ בירושלים

Baba Kama 9b - Hidur Mitzvah

2 Hearos:

1. R' Moshe (o.c. 187) has a great diyuk from rashi who lists among the items that require hidur mitzvah - לולב נאה, טלית נאה, ציצית נאה. What is a "talis na'eh"? Is there a kiyum of hidur for one to purchase expensive clothing? R' Moshe suggests that it is referring to what we call a talis - a garment meyuchad for tefillah. From this he proves that even a minhag that is for the sake of kiddush hashem, such as a tallis that one davens in, requires hidur mitzvah. Based on this he says that the din hidur mitzvah is not limited to chiyuvim, but also applies to things that one has no obligation in and is only there for kiddush hashem purposes.

2. It is not clear from our gemara how much one must spend on a positive mitzvah (see my sefer). Tosafos proves that one certainly does not have to spend all their money, and the gemara implies that one doesn't even have to spend a third of their assets. The Rama in hilchos succah assumes that the limit is a fifth, which he learns form tzedaka. However, Maharatz Chiyus quotes form Mor U'ketziah (ya'avetz)that if we force someone to fulfill a mitzvas aseh עד שתצא נפשו, one's money should not be more important than their physical pain, so one should be obligated to spend all their money. The maharatz chiyus himself only challenges this from the Ramban who limits the din of  כופין אותו עד שתצא נפשו to one who rebels against the entire mitzvah. However, most rishonim don't learn like the Ramban, so the question of the ya'avetz would return. How can it be that one does not need to spend all their money, but you beat him until he dies? To me it seems that the answer is obvious. The din of כופין אותו is not a punishment, rather a way to get him to do a mitzvah that he is required to do. But, when the mitzvah cost more than a fifth of his assets, he is not obligated in the mitzvah. The beating is not equivalent to spending, because the beating applies only when he is obligated and not performing, but the spending limit determines whether he is obligated altogether. See Tosafos Menachos 41a where there is an implication that כופין אותו עד שתצא נפשו is not only a push to do the mitzvah, but is actually a punishment.

Baba Kama 8b - Ta'anos of the buyer

In the gemara we see various claims that a buyer from a borrower can claim against the ba'al chov. I think it is worthwhile summarizing and explaining when each is applicable.

1. הנחתי לך מקום לגבות הימנו - The buyer can make this claim if he left behind some property in the hand of the borrower, to force the lender to collect from the borrower (even if it is ziburis). This does not apply when the second buyer claims to have left behind by the first buyer (Tosafos), since the entire claim is based on the premise that you cannot collect from משעובדים when there is בני חורין.

2. אי שתקת ושקליתו כדינייכו שקליתו ואי לא מהדרנא וכו - This claim is really a threat that allows the buyer to give beinunis to a nizuk by threatening to otherwise return the ziburis to the seller (who is the mazik) and force the nizuk to collect beinunis. This does not work to force a ba'al chov to collect ziburis because he can call the bluff and say "go return it". In other words, the threat only works when if carried out, would force the one who is collecting to take a lower grade than you are trying to make him collect now. Also, the concept of returning only is binding from this point forward, as if the seller would be purchasing a new property now. Therefore, it doesn't work by Yesomim who are not obligated to pay their father's debts from their own purchases (Tosafos). Rosh disagrees and holds that this threat can even force a ba'al chov to get beinunis because every threat that can be done, it is as if it were done and the other can never call his bluff.

3. אנא בהא תקנתא לא ניחא לי - A buyer who purchased ziburis, then beinunis, then idyis, one after the other, has the ability to force all people that are making claims on the sellers property to collect from ziburis, by forfeiting the takana d'rabonon of not collecting from m'shubadim when their are b'nei chorin.

4. מה מכר ראשון לשני כל זכות שתבא לידו - This claim empowers a second buyer to make any claim that the first buyer would have made. Therefore, if buyer #1 who purchased all the fields from the seller, went and sold idyis to buyer #2, then buyer #2 can force everyone to collect from the beinunis and ziburis left behind by buyer #1, since if buyer #1 would have retained the idyis, he would not have given it up (rather he would claim he doesn't want the takana d'rabonon).

5. להכי דייקי וזבני עידית וזיבורית ארעא דלא חזי לך - This claim applies to a case where buyer #1 sold to buyer #2 idyis and ziburis, and now has a b'al chov claiming the from #2. Buyer #2 cannot claim that he left behind beinunis for him to collect from (הנחתי לך מקום לגבות הימנו), because the ba'al chov can claim that he prefers to collect ziburis [Tosafos d.h. aval, and Rashi 7b d.h. v'iy, hold that a ba'al chov can choose from either beinunis or ziburis, and a nizuk can choose from idyis, beinunis and ziburis. The Rosh holds that the b'al chov only has a claim on beinunis, not on ziburis]. Nevertheless, buyer #2 can claim that he specifically bought types of fields that the ba'al chov either has no right to (idyis) or is not likely to collect from (ziburis), and force the ba'al chov to collect beinunis from buyer #1. 

מבעה זה אדם

לכבוד תחילת סדר נזיקין - מחשבה
בגמרא שבת ל"א עה"פ אמונת עתיך וכו' מבואר שישועות כנגד סדר ניזקין וכנגד זה שואלין את אדם לאחר מיתתו "ציפת לישועה". והביאור שכמו שבסדר ניזקין זוכין בדין רק אחר תביעה בב"ד כך הישועה באה רק לאלו שמצפין לישועה.

ועיין בגמרא סנהדרין צ"ז "א"ר שמואל בר נחמני אמר ר' יונתן תיפח עצמן של מחשבי קיצין שהיו אומרים כיון שהגיע את הקץ ולא בא שוב אינו בא אלא חכה לו שנאמר אם יתמהמה חכה לו שמא תאמר אנו מחכין והוא אינו מחכה ת"ל לכן יחכה ה' לחננכם ולכן ירום לרחמכם וכי מאחר שאנו מחכים והוא מחכה מי מעכב מדת הדין מעכבת (פירוש שנזכה לגאולה מכח הדין ולא כמתנה בעלמא)וכי מאחר שמדת הדין מעכבת אנו למה מחכין לקבל שכר (דהיינו שעצם הצפיה גורמת שהגאולה תהיה בבחינת שכר ולא מתנה)שנאמר אשרי כל חוכי לו" מבואר בגמרא שרק שייך גאולה כי אנו מצפין לה בבחינת ציון היא דורש אין לה מכלל דבעי דרישה, והבן.

ובגמרא ב"ק מבעה זה אדם כדכתיב אם תבעיון בעיון, ומבואר ברש"י שקאי על הגאולה שתבא אחר תביעה למחילה מאיתנו, וזהו עצם שם אדם שצריך לצפות לישועה. רמז לדבר שהמילוי של אד"ם הוי מתפל"ל באופן כזה - אל"ף דל"ת מ"מ.

וכן מצינו בבריאת האדם כדאיתא ברש"י עה"פ והאדם אין לעבוד את האדמה, שכל מעשה בראשית לא יצא על פני הארץ עד שנברא אדם שהתפלל לגשם והכיר בטובת הבריאה. ובעומק יש עוד לומר שהאדם נברא מתערובת של עפר, נשמה, ומים. והמים האלו הוי המים שהתפרדו מהמים העליונים, ומבואר במדרש שמובא ברבינו בחיי (ויקרא) שאלו המים נקראין מים בוכין על שרוצים שוב להתחבר למים עליונים עד שהקב"ה פייס דעתן ואמר להן שיעלו על המזבח לקרבנות ולניסוך המים. והמזבח הוא המקום שמחבר המעלה והמטה בבחינת מקום שנשקי שמיא וארעא אהדדי.

ועיין בסמ"ק שמקור לציפת לישועה הוי בדיברה הראשונה של אנכי ה' אלוקיך אשר הוצאתיך מארץ מצרים. והביאור דהגילוי של יציא"מ בשלימותו הוי שידעו כולם שאין עוד מלבדו, ועד כמה שחטאו בעגל ולא זכו אותו דור דעה להכנס לארץ, נמצא חסר בגילוי הזה, וא"כ האנכי מחייב שיבא היום ויתגלה כבוד שמים במילואו וידעו כל באי עולם שאין עוד מלבדו ומלבד קדושת התורה. ואכמ"ל.

נמצינו למדין שעיקר צורת אדם הוא זה שרוצה להתחבר לעליונים וזהו עומק התפילה שמונח בעצם יצירתו ורק על ידי כח זה של תביעה לחיבור שבעצם שייך אלינו מעיקר הדין נזכה לישועה.
ע"פ מה ששמעתי ממורי ורבי
ונזכה לביאת משיח צדקינו במהרה

Baba Kama 5a - Eidim Zom'min Paying from their BEST

Tosafos writes that we need a pasuk to teach that eidim zom'min pay "idyis" (from their best) even when they tried to make someone pay only ziburis. But, in a case where they try to make someone pay idyis, it is obvious that they must also pay idyis and not ziburis, because that is implicit in the requirement to pay "ka'asher za'mam" - like they intended to do. My question on Tosafos is that we should really need a pasuk requiring eidim zom'min to pay idyis, even when they were trying to be mechayev someone to pay idyis. We pasken that the chiyuv of "mei'tav" is to pay the idyis of the mazik - meaning, that if the damager has property that exceeds the standard "best" of the world, the mazik must pay from his idyis. In a case where the eidim zom'min have a quality that exceeds the standard "best", even when they try to make someone pay a standard "best" (which is their highest quality field), the din of ka'asher za'mam requires them to pay only the standard best, but the din of "meitav" should require them to pay their best. Why does Tosafos say that we don't need the pasuk of "meitav" for a case where the eidim zom'min are trying to be mechayev idyis, we need a pasuk even for that case when they have a quality that exceeds idyis?

Perhaps Tosafos holds that even the din of ka'asher za'mam is mechayev to pay from their own best. Meaning, the eidim zom'min must pay like they tried to do. Did they try to make someone pay quality A (which was his best) or did they make someone try to pay "their best" so the ka'asher zam'am would require the eidim zom'min to pay their best which would be quality A+. Perhaps the din ka'asher za'mam is like the latter, in that they tried to make someone else loose his best (quality A) and therefore would have to pay their best (quality A+), even without a special pasuk of mei'tav. That is why Tosafos says we only need a pasuk of mei'tav for a case where they try to make someone pay ziburis, but not for a case where they try to make someone pay idyis.

Baba Kama 4a - Adam HaMazik: Damaging in your sleep

Tosafos quotes from the yerushalmi that even though a person is chayev for damages that he does while sleeping, that is only if he goes to sleep near keilim so he was somewhat negligent by going to sleep there. But if someone only brought the keilim after he fell asleep and he damaged them, he is patur. The Maharatz Chiyus points out a machlokes between Tosafos and Nemukei Yosef, exactly why is he patur? Tosafos writes "they caused it". Meaning, we don't hold the sleeping damager responsible since someone else caused the damage by putting the keilim there. The primary liability and responsibility for the damage is the person who put it there (but he is probably exempt because of grama), which removes responsibility from the sleeping mazik. Based on Tosafos the rationale to be patur is not "o'nes", rather it is that we don't consider the person who damaged to be the cause of the damage. However, the Nimukei Yosef says that he is patur becaue he is o'nes. Based on this, the maharatz chiyus asks, why does the rambam write that if one's life is threatened unless he takes money from his friend, he is responsible for taking the money. Why don't we exempt based on the claim of o'nes? The Shach makes a distinction between a case where one damages unintentionally to one who damages due to o'nes of his life being threatened. Whenever the action is done with intent, even though he was under duress, he is liable. But when he is sleeping, the action is not done with any intent so he is patur.

This sevara is similar to the concept of mis'asek. When one does a mitzvah and has no intent for the action that he is doing, it doesn't count. For example, if he would be trying to clean out a shofar by blowing through it and it made a sound, even if mitzvos don't need kavana, he isn't yotzei. But if he had intent for the action that he is doing, just that he is forced to do it, the gemara in rosh hashana 28a (kaf'uhu parsi'yim) is clear that according to the opinion that mitzvos don't need kavana he would be yotzei.

Baba Kama 3a - Shein and Regel are Patur in Public Domain

The Rif says that shein and regel are exempt for damages in a public domain because "it is normal" - meaning that the type of damage is not out of the ordinary. The Rosh is bothered with why the Rif feels compelled to offer a rationale for the exemption in public domain, it is just a gezeiras hakasuv that the gemara learns on 21b that shein and regel are only chayev in reshus hayachid. The Rosh explains that the Rif is coming to explain the Torah's exemption, since it is normal for them to go in the public domain and damage by just normal activities, it is impossible for the owner to watch them and prevent these types of damage. Therefore, if there is a beam half in the public domain and half in the private domain, and the animal steps on the beam in the public domain which causes damage to vessels in the private domain, the owner is exempt. Had it just been for a pasuk the owner would be liable since the damage occured in a private domain, but since the rationale for exempting in reshus harabim is because the animal has a right to walk there freely, the owner is even exempt for damages that are caused in a private domain from the animal that is in the public domain.

The Yam Shel Shlomo offers a simpler understanding of the Rif. The Rif is not coming to be mechadesh halachos, rather just trying to help us categorize the different forms of damage. Anything which is normal qualifies as shein and regel which are exempt in reshus harabim. This idea is supported by the Nemukei Yosef 15b. The gemara says that if a dog eats large sheep that are not normal for a dog that size to eat, it qualifies as keren, but if they are small sheep then it qualifies as shein since it is normal. The Nimukei Yosef explains that anything which is abnormal is considered keren even if the animal is doing it for the pleasure of eating, and therefore the damage qualifies as a "penalty" which we don't have the power to collect outside of Israel. The Rif is also explaining that the primary characteristic of shein and regel is that they are normal, to the exclusion of anything which is abnormal automatically qualifies as keren rather than shein or regel.

Kiddushin 82a - One Last Post on Hilchos YICHUD

ג' טבת תשס"ט

הערות בענין יחוד

א. בקדושין פא ע"א קאמר רבה בעלה בעיר אין חוששין משום ייחוד. רש"י מפרש שהוא רק לענין מלקות מפני דמסתפי מבעלה דהשתא אתי. אבל התוס' השיגו עליו וקושייתם ממעשה דרב ביבי דאיקלע לבי רב יוסף וקאמר רב יוסף "שקולי דרגא מתותי ביבי" דהיינו להעביר הסולם שלא ירד מן העליה להבית מקום שאשתו של רב יוסף נמצאת, וקפריך בגמ' מהא דרבא דבעלה בעיר אין חוששין משום ייחוד, ומשני דשאני רב ביבי דשושבינתיה הויא וגייסא ביה. כלומר, דכיון דגייסא ביה מסתמא גייסא גם בה ובזה לא שייך כל ההיתר של בעלה בעיר. והקשו התוס' על פרש"י דאי כדבריו מאי קפריך מבעלה בעיר, הא אף בעלה בעיר מועיל רק לענין מלקות ולא לענין איסור. לפיכך כתבו התוס' דאין חוששין כלל משום ייחוד ואפילו איסורא ליכא היכא דבעלה בעיר. וראיתי בבינת אדם (שער בית הנשים ס' י"ז) שכתב ליישב פרש"י וז"ל נ"ל דרש"י ס"ל דהכי מקשה הש"ס, דבשלמא דאם שהיא מתיחדת אסור מדאורייתא שייך לגזור שלא יבא לידי יחוד, אבל כיון שאם בעלה בעיר אין בו יחוד דאורייתא להלקות אפילו אם הוא עמה ביחוד בחדר נעול, אלא מדרבנן לכתחלה אסור, א"כ לא שייך למיגזר לשקול דרגא שמא ילך ויתיחד עמה, וא"כ לא קשה מידי קושיית התוס' עכ"ל. ובזה מיישב נמי עוד קושיא על רש"י דכבר אמר בגמ' דאין מלקין על היחוד באשת איש שלא תהא מוציא לעז על בניה, וא"כ אף כשאין בעלה בעיר נמי אין מלקין על היחוד. אלא כוונת רש"י דנהי דאין מלקין הוא רק מדרבנן שלא להוציא לעז, אבל מדאורייתא ראויה להלקות, אבל כשבעלה בעיר אין בזה ייחוד דאורייתא רק מדרבנן ומש"ה מדאורייתא אין מלקין [וא"צ לדחוק כמש"כ הב"ח דלולי בעלה בעיר הוי מלקין ומכריז כדעביד מר זוטרא].

נמצינו למדים מדברי החכ"א בביאור דעת רש"י, דבמצב ששייך ייחוד דאורייתא איכא למיגזר שמא יבא לידי ייחוד, אבל במצב שאף אם יתייחד הוא רק מדרבנן, אין לאסור משום שמא יבא לידי ייחוד. וזה מדוייק בפרש"י שכתב בעובדא דרב ביבי וז"ל שקולו דרגא, שאכלו בעליה וירדו רב יוסף ואשתו, והוא נשאר בעליה, שקולו דרגא מתותי ביבי שלא ירד ויתיחד עכ"ל. הרי משמע מרש"י דאם אם לא שקלו הדרגא לעליה, אילו היה נשאר רב ביבי בעליה לא מקרי ייחוד, אלא שאסרו מדרבנן שמא יבא לידי ייחוד. לפיכך לא גזרו אלא במקום ששייך לבא לידי איסור ייחוד דאורייתא ולא כששייך לבא רק לידי איסור ייחוד דרבנן כגון היכא דבעלה בעיר.

אמנם יש לעיין בפרש"י אהא דקאמר אביי בין כשאנשים מבפנים ונשים מבחוץ בין איפכא, חוששין משום ייחוד. הרמב"ם מפרש דלא שייך איסור ייחוד אלא במצב שפירש אחד מהם, אבל רש"י מפרש וז"ל שמא יצא אחדמהם ויתייחד עם הנשים עכ"ל. הרי אף בזה סובר רש"י דחיישינן שמא יבא לידי ייחוד. איברא, שאינו ברור כ"כ מה החשש בזה בפרט לפרש"י, שהרי לדעת רש"י אשה מתייחדת עם ב' אנשים עכ"פ בעיר וביום [ודלא כהרמב"ם ושו"ע דסתם אנשי אינם כשרים אלא פרוצים, כיון שאף האמוראים חששו על עצמן שאינם כשרים]. אלא שכבר הרגיש רש"י בזה וכתב בעצמו דאם תכנס היא לפנים לא איכפת לן דאשה מתייחדת עם שני אנשים, אלא החשש הוא שמא יכנס או יצא אחד מן האנשים להיות בין הנשים. אלא שגם זה קשה לפרש"י פב ע"א על המשנה דתנן כל שעסקיו עם הנשים לא יתיחד עם הנשים, שפירש רש"י דהא דאסרינן לעיל איש אחד בב' נשים, דוקא הוא וכדפרש"י פ ע"ב דשתיהן נוחות להתפתות, אבל בג' או ד' נשים מותר להתייחד משום שכיון שאי אפשר לפתותם, ע"כ כל אחת מתביישת לעבור לפני חברתה. וכבר עמדו התוס' פב ע"א בזה, וחלקו על רש"י דדעתם שאין חילוק בין אשה אחת לשנים או שלש, שהכל אסור [והא דמחמירין בעסקו עם הנשים היינו אף כשאשתו עמו]. ולפי"ז הא דחיישינן שמא יכנס או יצא איש אחד בין הנשים, ע"כ קמיירי בב' נשים ולא יותר, או כשעסקו עם הנשים דאל"כ ליכא איסור ייחוד כלל. עכ"פ בב' נשים ודאי חיישינן שמא יכנס או יצא איש אחד ביניהם ויבא לידי ייחוד, ולכן אסרו לגמרי נשים ואנשים כשיש דרך זה על זה ליכנס או לצאת כדי שלא יבא לידי ייחוד. ולפי חידושו של החכ"א הנ"ל דלא אסרינן מפני החשש שיבא לידי ייחוד רק באופן שאם יתייחד איכא איסור דאורייתא, אבל במצב שאפילו אם יתייחד ליכא אלא איסור דרבנן כמו בבעלה בעיר, אף דאסרינן להתייחד, לא חיישינן שמא יבא לידי ייחוד. וא"כ יש להוכיח מכאן דהא דאסרינן ייחוד מדאורייתא אין זה רק באיש אחד ואשה אחת, אלא אף איש אחד בב' נשים נמי הוי איסור ייחוד דאורייתא. דנהי דבגמ' פ ע"ב דיליף איסור ייחוד מקרא ד"כי יסיתך" קמיירי בבן עם אמו, לאפוקי איש אחד ואשה אחת, מ"מ אהני לן סברת הש"ס דנשים דעתן קלות וכדפרש"י ששתיהן נוחות להתפתות, לאסור מדאורייתא באיש אחד וב' נשים.

ותמהני על החכ"א בעצמו שכתב בבינת אדם (שם ס' ט"ז) דאינו אסור מדאורייתא רק איש אחד עם הערוה, אבל איש אחד עם ב' נשים אינו אלא מדרבנן. שהרי לפי דרכו שאין זה אלא מדרבנן, אמאי חיישינן בנשים מבפנים ואנשים מבחוץ וכן איפכא שמא יתייחד איש בין הנשים, הא לשון נשים ודאי משמע דקמיירי בב' או יותר, וא"כ אין בזה איסור דאורייתא, והרי החכ"א בעצמו סובר דכל היכא שאם יתייחד ליכא איסור דאורייתא לא חיישינן שמא יבא להתייחד.

והנה, באגרו"מ (אהע"ז ח"ד ס' ס"ד אות ג') כתב לאסור ליסע יחד עם אשה במכונית אפילו ביום שמא יניחו המכונית על הדרך ויתרחקו למקום סתר ויבעלנה. אלא שהתיר בשעת הדחק משום שמשמע לו דאין חושששין מדינא לשמא יטה מן הדרך בכשרין ורק חיישינן שמא יתקוף היצר ויעברו במקום שנמצאים. ותלה זה בפלוגתא בין הרי"ו ומהרש"ל הובא בב"ש (ס' כ"ב ס"ק ט') והעלה להקל בשעת הדחק. אכן, לפי מה שביארנו דבמצב שאין שם ייחוד ממש, אלא דבקל יכול לבא לידי ייחוד, ודאי חיישינן לזה באופן שהאיסור ייחוד תהוי מדאורייתא, וא"כ ה"נ שבקל יכול להטות מן הדרך למקום סתר יש מקום לחוש שיבא לידי ייחוד באופן שהייחוד אסור מדאורייתא כגון באחד מן העריות כשאין בעלה בעיר.

ב. באור שמח דייק מלשון הרמב"ם דלא מהני בעלה בעיר אלא להתיר האשה עצמה אבל כשיש שם עוד נשים, אסור לאדם להתייחד עמהן, ולא אמרינן שאשה זו שבעלה בעיר משמרתן. וראייתו מהא דכתב הרמב"ם בהל' ח' לא תתייחד אשה אחת אפילו עם אנשים הרבה עד שתהיה אשתו של אחד מהם שם, דמשמע דבעינן בעלה ואשתו עמו ואז מותר לאשה אחרת להתייחד עם האנשים הנמצאים [זה הרמב"ם לשיטתו דאסרינן אשה אחת עם ב' אנשים או יותר]. וקשה למה בעינן שתהא הבעל וגם אשתו שם, הא אף כשאין הבעל שם אלא אשה שבעלה בעיר ועוד אשה אחרת עם הנשים הרבה נמי מותר כיון שהאשה שבעלה בעיר משמרת חברתה. א"ו מדבעינן הבעל וגם אשתו, מצינו דבעלה בעיר אינו מועיל אלא לעצמה ולא לאחרים עד שתהא בעלה שם עמה [ובסוף דבריו כתב שיש לדחות דאולי איירי הרמב"ם כשהוא גס עמהן, לכן בעי שיהא בעלה עמה ממש, ולא מהני בעלה בעיר]. עיין באגרו"מ (אהע"ז ח"ד ס' ס"ד אות ו') שנתקשה הרבה בלשון הב"ש דמשמע כדברי האור שמח, דאשה אחת עם הנשים הרבה בעינן שתהא אחד מהאנשים הבעל של האשה, ותמה דאף כשליכא שם בעלה רק שנמצא בעלה בעיר מותרת להתייחד עם אנשים, וממילא ליכא איסור ייחוד אף על נשים אחרות דכיון שהיא לא תזנה יכולה לשמור את חברתה. ובאמת כתב האגרו"מ (שם אות ח') סברא לומר דאשה שבעלה בעיר יכולה לשמור חברתה טפי מקרובו, שהרי שגם להאשה שבעלה בעיר איכא תאוה לזנות וכיון שהיא מונעת גם הן ימנהו, אבל מה שנמנעות הקרובות הוא משום שאין להן תאוה אבל יתכן שאשה שאינה קרובה ויש לה תאוה תזנה. ואף שלדינא דחה סברא זו דאף אשה שהיא קרוב לו יכולה לשמור אחרות, מ"מ מסתברא לו דאשה שבעלה בעיר הוי שומרת לגבי אחרות יותר מקרוב.

ג. החכ"א (כלל קכ"ו ס"ו) כתב דלא מהני סברא דבעלה בעיר אלא בביתה דחוששת שמא יבא בעלה, אבל כשתלך לבית אחר אין אימת בעלה עליה כיון שאין בעלה יודע היכן היא. עוד החמיר באשה שהלכה ברשות בעלה וכ"ש כשבעלה נתן לה רשות לדבר עם איש אחד דבר סתר ולסגור הדלת, דלא מהני בעלה בעיר בכה"ג. באגרו"מ (אהע"ז ס' ס"ד אות כ"א) השיג על החכ"א מפני שהבין בסברתו של החכ"א דכל שבעלה נתן לה רשות דבר עם אחד בסתר, אין אימת בעלה עליה, והקשה דמה בכך שנתן לה רשות, הא אכתי איכא למיחש שמא יבא ואימתו עליה עדיין שאומרת השתא אתי. וכן כשנתן לה רשות לילך לאיזה מקום הא יודע לילך לשם ואין להחשיב ייחוד לשם כסתירה ששייך שיבא ואימתו עליה. גם ביאר דהא דהקפיד החכ"א דדוקא בביתו ליכא איסור אבל כשתלך לבית אחר איכא איסור ייחוד, הוא דוקא כשהלה למקום שאין רגילה ללכת אבל כשרגילה ללכת לשם ובעלה יודע המקום שהלכה, הוי כביתה לענין זה וליכא איסור ייחוד. לדינא, כתב שבדין שלישי אף החכ"א מודה, אבל בדין ראשון ושני לא מסתבר כלל כדברי החכ"א מ"מ יש להחמיר שלא בשעת הדחק. ונעלנ"ד דלא עיין בדברי החכ"א בבינת אדם שביאר שיטתו בזה, שהרי אין כוונת החכ"א לומר דכשנתן לה רשות אין אימתו עליה. אלא כתב בבינת אדם (ס' י"ז) דהא דמהני בעלה בעיר מפני שאימת בעלה עליה, אין הכוונה שמתיירא שמא יבא הבעל בשעת ביאה ממש, דא"כ אמאי לא מהני גם כשלבו גס בו. אלא הסברא הוא שמתיירא כשביא הבעל וימצא שהיא מתיחדת עם איש שאינו גס בה יחשוד אותה דמסתמא זנתה עמו דלא"כ מאי בעי גביה, וכיון שיודעת שאם יבא בעלה יחשוד אותה וידרוש ויחקור אם באמת זנתה עמו, שומרת את עצמה שלא לזנות עמו מפני אימת הדרישה וחקירה. אבל בגס בו לא יחוש הבעל אם ימצא שהיא מתיחדת עמו ולכן תזנה ג"כ. לפיכך סובר החכ"א דכל שנתן לה בעלה רשות הוי כגס בו ממש שהיא יודעת שאין הבעל דורש וחוקר על הייחוד, וסוברת בדעתה דמסתמא לא יבא בשעת ביאה ממש, ותזנה עמו. איברא, שדברי החכ"א מחודשים הם, דלפי הפשטות הא דמהני בעלה בעיר מפני שמפחדת שיבא בשעת ביאה, מ"מ לפי דרכו שפיר השוה הא דנתן לה רשות להתייחד עם איש אחד לייחוד עם מי שגס בו דלא מהני בעלה בעיר כדמפורש בגמ'.

Kiddushin 81b - Yichud with Relatives

MAZAL TOV ON SEDER NASHIM!

R' Moshe (E.H. 4:64:1) was asked whether a family who converts have an issur yichud since halachically they are no longer related - גר שנתגייר כקטן שנולד דמי. His basic approach is that the heter for yichud is not based on the halacha of being related, rather on the metzius of whether or not there is desire for these relatives. Being that both jews and goyim don't have a yetzer hara for blood relatives, he paskens that there isn't any issur of yichud.

In the course of the discussion, R' Moshe raises a tremendous question. Rashi explains that the reason that there is no yetzer hara for a mother and daughter is because the anshei k'neses ha'gedola davened to remove the yezter horah for blood relatives. However, the gemara on 80b learns out from a pasuk that yichud with a mother. Clearly, even prior to the anshei k'neses ha'gedola there was a heter of yichud with one's mother, so the heter can't be based on their tefillah to remove the yetzer hora? Based on this question R' Moshe explains that between a parent and child the nature from the time of creation is that there is no yetzer horah. That explains why Lot's daughters had to give him to drink wine in order to sleep with them, since he had no desire for them. Rashi is citing the gemara in sanhedrin where they davened to remove the yetzer horah for arayos, to explain why there is no issur yichud by a sister. This is not part of the nature of the human being, and was only a result of their tefillah. Included in the tefillah of anshei k'neses hagedola is also the sister of one's parent, where prior to their tefillah, there was a desire for them. Nevertheless, R' Moshe assumes that even the removal of the yezter horah for sisters and aunts, applies to goyim just as it applies to jews.

Kiddishin 81a - Yichud

The Chochmas Adam (126:7) says that when there are 2 rooms, one outer and one inner room - if a man is in one and a woman is in the other, it would be a machlokes rashi and rambam whether this is a yichud problem. In the Binas Adam (18) he elaborates. Rashi says that the case of men on the inside and women on the outside, or the opposite, is assur because it will lead to yichud. Rashi implies that the issur is not for the man to go in to the place of the women, but even to set up a situation which will lead to yichud if the man will go into the women is assur. However, the Rambam understands that the issur is only when the man actually goes into the area where the women are present, but the set up of a situation which will lead to yichud, is not yichud.

It seems that this machlokes would also apply to a house when a man and woman each go into separate room in the same house. Under the present state there isn't any yichud, but since it can easily lead to yichud by the man or woman leaving their room, rashi would hold it is assur to set up such a situation. The Binas Adam suggests that even the Rambam is only lenient because there are many men and women in the gemara's case, but in the case where a man and woman are alone in a house, being in separate rooms would be an issur yichud even according to the rambam. But, he then rejects it, and assumes that the rambam would be meikil so long as each stays in their private room. He considers this a safeik hashakul, and is therefore lenient by yichud with a p'nuya which is only d'rabonon but is machmir with yichud of a nidah which is d'oraysa.

Kiddushin 78b - Claiming your son is a Mamzer

In the mishna there is a machlokes whether one is believed to claim that his son is a mamzer. The Shulchan Aruch (Even Haezer 4:29) says that although we pasken like R' Yehuda that a father is believed that his son is a mamzer, a mother is not believed. R' Moshe has many teshuvos where the mother claimed her son is a mamzer because she was married prior to this marriage, and never received a gett. R' Moshe (E.H. 4:23:2) ignored all these claims, and held that the mother is not even believed to create a safeik, because the din of "yakir" is only on the father. In regard to believing the father, R' Moshe writes (4:23:1) that it only applies when we know that he is father such as a case where he is married to the mother. But if the fact that he is the father is purely based on his claim, then he is not believed. He proves this from the Rambam (Issurei Biah 15:16):

אבל האב שהוחזק שזה בנו ואמר בני זה ממזר הוא נאמן

Clearly, the Rambam implies that only if it is "huchzak" that this is his son, is he believed about him to make him a mamzer. But, if the we have not chazaka that this is the father because he is not married to the mother and the son didn't live with him, he is not believed to create the status of even a safeik mamzer. R' Moshe then launches into a big discussion based on the Rambam that a man is believed to claim about someone in the street "this is my son and he is a bechor". Since both the right to claim he is a bechor and the right to claim he is a mamzer come from the same source - "yakir", why by the bechor is he believed even on someone who is not muchzak as his son?

Kiddushin 77a - Kedushas Kehuna

Recently, we had a situation where a kohein who is married to a goy was called up for an aliya. The policy in the shul is to give aliyos to ovrei aveiros (which will hopefully change one day), but the question is whether a kohein is worse. The Shulchan Aruch (128:40) writes that a kohein married to a gerusha is not called for the first aliya and looses all privileges of being a kohein, but implies that he is allowed to get an aliya. I assume that the same would hold true with a kohein married to a goy, even though it is obviously a much more sever issur.

R' Moshe (O.C. 2:33) has an interesting teshuva to the Sridei Eish, regarding a kohen who is married to a gerusha. R' Moshe says he agrees with the sridei eish that the kohen is not allowed to get the first aliya but is allowed to get an aliya. He also comes to answer the question of the pri megadim: Since a Talmid Chacham comes before a Kohein, because kedushas hatorah takes precedence, certainly a Yisroel who keeps mitzvos should come before a kohein who does aveiros. Why is the halacha that only aveiros of kehuna make the kohein loose his rights to get the first aliya, but for other aveiros he will not loose his rights?

R' Moshe elaborates in explaining that a talmid chacham doesn't have more kedusha then a kohein, he merely has rights of kedima because others have a higher responsibility to honor him. Kedusha comes only from being chayev in more mitzvos. Therefore, a talmid chacham comes before a kohein due to the responsibility to be mechabeid him, but his kedusha is still less. Therefore, a kohein who is a rasha would come before a yisroel who is shomer mitzvos, since there isn't any chiyuv to honor a yisroel who is shomer mitzvos and the kohein is obligated in more mitzvos still has more kedusha.

Kiddushin 76b - Appointing a Ger to a Position of Authority

The gemara darshens that one is not allowed to appoint a ger to a position of authority, unless the mother is a jew. The Rambam (Melachim 1:4) writes that this applies not only to a first generation ger, but for all future generations as well (just at the heter for a ger to marry a mamzeres applies to future generations, not only to the first generation, as the gemara says 74b). Kesef Mishneh writes that a Jewish father will also work to allow him to assume a position of leadership. The gemara means that even a Jewish mother would give him enough yichus to assume such a position, but certainly a father would also work. Based on this he explains that Rechav'am the son of Shlomo was able to be king even though his mother was Na'amah Ha'Amonis. However, the Hagahos Maimon says that having his mother from a yisroel (or father) only works for other positions of leadership, but to be king he must be completely from yisroel because we require "muvchar she'biachicha". That is why Agrifos (Sotah 41b) was unfit to be king even though his mother was a jew. Based on this there would be a question how Rechav'am was able to be king.

R' Moshe (Igros Y.D. 4:26) was asked whether a ger can be a rosh yeshiva. He rejects the proof from Shemaya V'avtalyon who were descendents from sancheirev and were leaders, because it could be that they have yichus from a jewish parent, or that since they were so much greater than anyone else, it was a hora'as sha'ah.

R' Moshe then says a wild chiddush. Part of the mitzvah of "v'ahavtem es ha'ger" would demand that we be lenient in these areas whenever possible. Based on this, he develops a sevara to be meikil. Being a Rosh Yeshiva doesn't qualify as a position of authority, because the purpose of the yeshiva is to teach students who choose to enroll on their own. The Rosh Yeshiva has no authority over people against their will. His authority is only similar to that of a business owner over his employees, who chose to work for him in the first place. Although in an earlier teshuva he discusses the notion of a woman being a mashgiach and considers it a position of authority, that is only because the mashgiach has power to go against the ba'al habayis to maintain the kashrus standard, and therefore qualifies as a position of authority.

R' Moshe also suggests that the issur is only on the people to accept him as a leader, but there is no prohibition on the ger to assume a leadership position on his own. Perhaps this is how Shemaya Avtalyon and Devorah became leaders - they just assumed a position due to their greatness without being formally appointed.

Kiddushin 73a - Tefisas Kiddushin for a Safeik Mamzer

Yevamos 16: R' Yehuda in the name of R'  Asi says a Goy who is mekadesh a Jewish woman nowadays we are choshesh for kiddushin because maybe he is from the 10 lost tribes. Rashi explains we are concerned that his father is from the aseres hashvatim and married a non-jewish woman, and R' Asi holds that a Jewish father and non-jewish mother will create a mamzer. So we are choshesh that this guy who was mekadesh this woman is a mamzer, not a goy. Tosafos challenges Rashi, since it is clear from the mishna and gemara at the end of the third perek of kiddushin that we follow matrilinial descent to determine his status as a Jew. Tosafos explains that all the mishnayos that imply that the child of a non-jewish woman is a goy hold that a child born from a jew and goy is not a mamzer. But, R' Asi holds like R' Akiva that an issur lav creates a mamzer so the child born from a jew and goy will be a mamzer.

Avnei Miluim (4:12) asks that if R' Asi holds like R' Akiva so that this "goy" may really be a Jewish mamzer, why should we be concerned about the kiddushin, since a mamzer is a chayvei l'av so that according to R' Akiva there is no tefisas kiddushin?

Avnei Miluim explains based on our gemara that a safeik mamzer is permitted to marry k'hal. R' Akiva holds that by chayvei l'avin including a mamzer there is no tefisas kiddushin. BUT, for a safeik mamzer there would be tefisas kiddushin since the Torah permits him to marry into k'hal. Therefore, R' Asi says that when a "goy" is mekadesh a woman, he is a safeik mamzer (because a jew and goy as parents would make a mamzer), so there is a concern for kiddushin. We cannot say "m'ma nafshach", if he is a mamzer then there is not tefisas kiddushin because of being chayvei lavin, and if he is not a mamzer then he is a goy. Because, the idea of tefisas kiddushin for a safeik mamzer is not based on safeik, rather it is a gezeiras hakasuv (even if it is tarti t'sasri), so that even on the tzad that he is a mamzer, there is tefisas kiddushin since he is only a safeik to us.

Kiddushin 71a - Revealing Mamzeirim

There is a famous Ran on this gemara who proves that it is assur for one to reveal a family that has a mamzer in the family. In the future, even when it will be possible to identify the p'sul, the family and even the individuals will remain mutar. The Ran does suggest that tzenuim who know about a p'sul in the family should let their friends in on the secret privately because the family doesn't qualify as a mishpacha miyucheses, but they should not tell others. At first the Ran questions whether the heter of being metaher families with pesulim mixed in applies now or only l'asid l'avo, in the end the Ran concludes:

וכיון שאין אליהו עתיד לגלותן, אף היודעים בהם עכשיו אין מגלין אותם שאין בין העוה"ז לימות המשיח לענין זה כלום

Meaning, that nothing can change between now and then, therefore if they are mutar then they are mutar now.

R' Moshe (Even HaEzer 4:9:3-4) offers 2 possibilities in understanding the Ran. Why is the issur of marrying a mamzer different than other issurim in the Torah? Just as one is obligated to prevent their friend from violating another issur in the Torah, they should be obligated to prevent their friend from marrying a mamzer, and not cover up the p'sul!

A. The issur of marrying mamzeirim and other p'sulei yichus is dependent on the knowledge. Although by most issurim we consider the lack of knowledge to merely be an o'nes, but not an actual exemption. In this context, we truly follow "what you don't know won't hurt you". The issur is only realized through ye'diya, and without it there is no issur. Based on this, one should technically not reveal even a private individual who they know to be a mamzer and is not mixed up into a larger family. However, Chazal were concerned that it will cause a takala in that even people who know will marry them, so they require one to tell about an individual who is a mamzer, but not to tell if the mamzer is mixed in with kasherim.

B. It is not the knowledge that is matir, rather it is the ta'aroves that is matir. If one can identify an individual who is a mamzer, they are obligated to identify him, but when that individual is mixed in a family, the ta'aroves of the kesheirim with the pesulim will be matir the entire family. Once the ta'aroves occurs, and is not able to be identified following rules of Rov and Chazaka, he is permitted even if he can be identified by Eliyahu through Nevuah. Therefore, if witnesses know about an individual who is a mamzer, they are obligated to reveal, but if they know about a family who has a mamzer mixed in, their revelation won't have any affect since the mamzer remains mixed in with kasherim and can't be identified.

Kiddushin 70b - Arvus for Geirim

Tosafos proves that geirim were not included in arvus. Based on this it should come out that the halacha that allows one to make kiddush and blow shofar for another even after being yotzei himself should not apply to a ger. I am troubled that the exclusion of a ger from arvus isn't mentioned by the halachos where we use arvus to be motzi others such as kiddush. Is anyone familiar with a source? 

(I found an article from my brother R' Aryeh, where he quotes R' Shternbach who says a drush to distinguish between arvus for communal responsibility for them, and arvus on the personal level to be motzi them. However, I find this very hard to swallow).

Kiddushin 69a - Mamzer marrying a Shifcha

The gemara says that R' Simlai would have counseled a mamzer to marry a shifcha to make his children mutar l'kahal based on R' Tarfon. The gemara questions whether the right to marry a shifcha is even l'chatchila or only b'dieved (since there is an issur to be a kadeish that should apply to a mamzer as well). Even on the tzad that one cannot marry a shifcha l'chatchila, the gemara says that R' Simlai would have advised stealing so that the can be sold as an eved ivri and then be permitted to a shifcha. The Tosafos Rid explains that it would be permitted to steal with the intent of eventually paying back, since it is being done for the purpose of being m'etaher his children. But, the Maharsha asks that it should still be problematic, because the children that the eved ivri has with the shifcha will be owned by the master and he will not be allowed to free them since it is a violation of לעולם בהם תעבודו?

R' Elyashiv points out in his sefer that the maharsha only asks the question on the gemara, but not on the mishna. Why doesn't he ask on the mishna itself that the entire approach of R' Tarfon requires the master freeing the children which would be a violation of freeing an eved. R' Elyashiv explains that based on the Ran in Gittin that this issur of selling an eved follows the rules of "lo sei'chanem" - it cannot be done for the benefit of the eved, but can be done for the benefit of the master, there is no question. R' Tarfon would advise that the Mamzer purchase a shifcha to be owned by him so that the children he has with her will be avadim that are owned by him. When he allows them to go free, it is for his benefit of being metaher his own children. The question can only be asked on the gemara where the method of having children with a shifcha will involve being sold as an eved ivri, in which case the children will be owned by someone else and not by him.

Kiddushin 66a - Believing an Individual Witness

In the machlokes between Abaye and Rava where an individual witness testifies that an eishes ish committed adultery, Tosafos explains that there are certain premesis that they both agree to in order to understand the exact point of argument. All agree that there is a concept of אין דבר שבערוה פחות משנים, but Abaye holds that the concept is limited to an act where the witnesses are necessary to make it happen such as gittin and kiddushin. But, when the witnesses are only there to serve the purpose of testifying what transpired, even by davar sh'berva and eid echad is believed. Tosafos also explains that all agree to the concept of שויא אנפשיה חתיכה דאיסורא so  that if the "shtika" is considered admitting guilt, she would be forbidden to her husband [If not for Tosafos, I would have said that שויא אנפשיה cannot be acheived through שתיקה כהודאה since shtika k'hoda'ah is a concept of ne'emanus - trust, but will not form a neder which is the foundation of shavya anafshei]. But, Tosafos explains that Rava rejects the notion of "shtika k'hoda'ah" since there are other things that the silence can be attributed to (such as the gemara pointed out in the "tzricha" before). Rava holds that the issue at hand is not whether she is considered to admit, rather it is purely focused on whether we trust the testimony of the individual witness. Therefore, Rava disagrees with Abaye on 2 points. 1. Abaye holds that being quiet is tantamount to admitting, and Rava holds that it isn't. 2. Abaye holds that  אין דבר שבערוה פחות משנים applies only to gittin and kiddushin, but Rava holds that it applies even to making a woman forbidden to her husband.

The difficulty that I have with Tosafos is that once Tosafos establishes that Rava rejects the notion of "shtika k'hoda'ah", and we know that Abaye holds shtika k'hoda'ah, that should be sufficient to answer why Abaye isn't bothered by the davar sh'berva aspect. Meaning, even though  אין דבר שבערוה פחות משנים, Abaye holds that when she admits she should be assur due to shavya anafshei. Why does Tosafos have to say that Abaye holds that  אין דבר שבערוה פחות משנים only applies to gitting and kiddushin, even if it applies to z'nus she should still be assur based on shtika k'hoda'ah?

Perhaps Tosafos holds that if an eid echad is not regarded in matters of erva at all, it would not even qualify as shtika k'hoda'ah. For example, we certainly wouldn't say that if someone hears a parrot say that he owes his friend money, that if he remains quiet it is shtika k'hoda'ah. Shtika k'hoda'ah only applies when it is stemming from a credible source. Therefore, Tosfaos must first reject the notion of  אין דבר שבערוה פחות משנים in this context to determine that an eid echad is a credible source and only at that point would she be assur based on shtika k'hoda'ah.

Practically speaking we pasken like Rava, that we don't say shtika k'hoda'ah. BUT as Tosafos points out and Shulchan Aruch (179:9) paskens, if the husband considers the individual witness so credible that he trusts him like 2 witnesses, then she will be assur to him. Based on this we see that even Rava has limitations for when we apply  אין דבר שבערוה פחות משנים. It only applies absolutely to the chalos of gittin and kiddushin, but in the realm of believing the witness, it depends on how much the husband trusts him.

Kiddushin 65a - Eidei Kiyum and Eidei Birur

The gemara asks about a case where kiddushin is done in the presence of only one witness, but both he and she admit to the kiddushin. Rashi seems to understand that the question is whether we require eidei kiyum to create the chalos kiddushin or do they only serve as eidei birur just to clarify that it was done. However, further on in Rashi (d.h. v'i leka) he implies that the gemara knew that at least one witness is necessary to create the kiddushin. By simply having him and her admit to being married the gemara understood all along that there would not be any chalos kiddushin. The only question is that maybe a single witness is sufficient to create the status of kiddushin (just as he can be mechayev a shavua) and the admission of the husband and wife is sufficient to confirm that they were married in the presence of a witness.

The gemara concludes that without the presence of 2 witnesses there is no chalos of kiddushin at all. Yet, by monetary issues the gemara 65b concludes that witnesses only serve the purpose of preventing the parties from denying. The Ketzos Hachoshen 241:1 raises a major question: How can monetary issues serve as the source to require 2 eidim for the chalos of kiddushin? How can we learn from monetary issues where eidim are only l'vrurei, that by gittin and kiddushin we need eidim l'kiyumei?

The Ketzos explains that really by monetary issues we also require eidim to make the chalos of the kinyan. Just that in dinei mamonos we have a concept of hoda'as ba'al din, so that the people involved in the kinyan will always serve as "100 witnesses" to make the kinyan go into effect. Since gittin and kiddushin are consisered a chov for others, so that we cannot use the concept of hoda'as ba'al din, we require actual witnesses to make the kinyan go into effect. 

Relying on Chazakos and Eid Echad for Capital Punishment

The Rambam (Sanhedrin 16:6) explains that when we require 2 witnesses for malkus, it is only for the act of the aveirah that we require it. But, the issur itself such as the status of the meat being assur can be established even through an eid echad. Based on this the Chasam Sofer (cited in pischei teshuva Even Haezer 169:13) rules that even if witnesses verify the age of someone to be 13 based on the father being machzik the child as a 13 year old (for example, he was wearing tefillin for a few months), it is sufficient for dinei Torah to assume that he is old enough to do chalitzah. The Chasam sofer argues that if we reject the Rambam's assumption that we can uses chazakos that were established prior to the situation at hand, we would never be able to be mechayev someone for having relations with a nida, because the witnesses would certainly not know that she is a nida (they would presumably only witness the act of bi'ah).

The Pischei Teshuva asks, that this seems to contradict the Shulchan Aruch (Even Haezer 169:11) in the context of chalitzah who says that the age of the child has to be established based on neighbors who know his status completely independent of the father. Why would we require that their knowledge be independent of the father?

It seems from rashi in our sugya that he also assumes not like the Rambam. Rashi writes that if she is machzik herself as a married woman by saying that she received kiddushin herself, and then she committed adultery in the presence of witnesses, she is not stoned. Rashi writes:

ואף על פי שהחזיקה עצמה קודם הזנות בחזקת ארוסה

Even though it may be true that we have a gezeiras hakasuv giving ne'emanus to the father, and we have no pasuk giving ne'emanus to her. Why should he being machzik herself as a married woman be any worse than another chazaka that is established prior to the violation, where we rely on the chazaka and don't require witnesses?

Kiddushin 62b - Kabalas Hamitzvos in front of Three

The gemara says that a ger needs a beis din of 3, but isn't clear about what part of the conversion requires 3. Rashi seems to hold that both the tevila and to inform him of mitzvos requires 3. However, Tosafos proves from the gemara in yevamos that tevila can work even when done for other purposes such as to become tahor from keri, which is obviously not in the presence of 3. Based on this Tosafos holds that only kabalas hamitzvos absolutely requires a beis din of 3. The two answers of Tosafos seem to dispute whether the tevila would at least require 3 l'chatchila or not at all. The Shulchan Aruch (268:3) paskens like Tosafos (first answer) that tevila and mila require 3 l'chatchila, but b'dieved would work even if done in the presence of one. However, kabalas hamitzvos must be in the presence of 3. The Gr"a (15) points out that our gemara is a proof that without 3 the kabalas hamitzvos is absolutely invalid, because if it were only a l'chatchila requirement, it should be considered b'yado to convert. From the fact that we don't consider it b'yado implies that we always need 3 for some aspect of the geirus.

The rationale for kabalas hamitzvos requiring 3 more than the tevila, the shach and Taz quote from the Rosh, that kabalas hamitzvos is like techilas din which requires 3, but mila and tevila are like the g'mar din which can be done even at night and therefore would be more lenient. Based on this approach the dagul m'rvava explains that for a ger kattan where there isn't any kabalas hamitzvos, we would require a beis din of 3 for the tevila which is the primary act of conversion.

The Shulchan Aruch quotes that the opinion of Ri"f and Rambam is that even mila and tevila require 3 and are invalid if done not in the presence of 3.

Kiddushin 58b - Payment for mitzvos

The mishna implies that one is allowed to receive payment for para aduma ashes (from the fact that it has value when you are mekadesh an isha with it -עיין ביש"ש שמפרש דפליגי רש"י והר"ן וכן הרמב"ם והראב"ד אם מקדש בגוף הדבר או בשכר שיכולה לקבל על הבאת האפר), but the mishna in bechoros says that one cannot receive payment? The gemara makes a distinction between the transporting from place to place that one can receive payment for, but for the actual sprinkling one cannot receive payment for. What is the point of distinction?

The distinction seems obvious. One cannot receive payment for the actual performance of a mitzvah, but can receive payment for enabling a mitzvah so long as they are not doing the actual mitzvah. Transporting the material is not the mitzvah, it merely makes the mitzvah possible. This peshat is mentioned in the Tosafos R"I HaZaken, but is not the peshat of Rashi.

Rashi implies that even if it is not the ikar mitzvah, there is still a prohibition to take payment. The only heter to take payment is for something that has a significant tircha, you can take payment for the difficulty of doing it. But when there isn't any major tircha, it is assur to take payment.

Based on Rashi it should be permitted even for a witness to take payment (so long as it is from both sides, so that it does not create a bias in his testimony), when it is a bother for him to come to court. In fact the Taz in Choshen Mishpat (on the rama in 34:18) says exactly that based on our gemara. The Rama allows one to receive payment to go watch something so that they can testify on it, but once they have watched the event, they cannot receive payment for going to court since after witnessing the even they are obligated to testify (and it is a mitzvah incumbent on them). The Taz adds that if there is a difficulty for the witness to go to court he can receive payment for that just as he can receive payment for the transporting of the ashes.

Upon further analysis of Rashi, it seems that the Rama is correct (and it seems that the Taz does not have a good comparison from rashi's peshat). Rashi writes:

 בשכר הבאה האפר ממקום למקום ושכר מילוי המים דמילתא דטירחא היא ורחמנא לא רמיא עליה ושרי למשקל אגרא

Why does Rashi add the words "the torah does not obligate him"? Rashi seems to hold that the entire distinction between the transportation where there is tircha, and the sprinkling where there is no tircha, only applies to a type of mitzvah that is not an obligation on this individual. Meaning, there is no individual who is personally responsible to do the mitzvah of eifer parah, therefore we allow the one doing it to receive payment for his tircha. However, a mitzvah that is incumbent upon an individual in particular such as testifying in court about what they saw, cannot take payment even if there is a tircha involved in going to court. Based on this, one cannot use a heter of "tircha" to permit payment for Talmud Torah because the mitzvah to teach torah is incumbent on every individual. כנלענ"ד

Kiddushin 57a - Darshening "es" in the Torah

The Maharsha explains that the rationale for darshening every "es" in the torah is to show kavod hatorah by proving that there is no extra word or letter (as rashi explains at the end of sotah, when r' akiva died batla kavod hatora). But, when shimon ha'amsuni couldn't darshen "את ה' אלקיך תירא", he retracted from all of them and commented that just as he received reward for showing kavod hatorah by darshening every word, he also received reward for showing kavod hatorah that nothing can be equated with yir'as hashem. However, R' Akiva held that including talmidei chachamim also showed kavod hatorah.

The Chasam Sofer (pesachim 22b) also has a beautiful approach to this gemara. Shimon Ha'amsuni realized that the pasuk can be darshened to include talmidei chachamim. However, he was concerned that this would force the explanation of את ה' אלקיך תירא to mean Yira'as Haromimus - awe for the greatness of Hashem, rather than fear of punishment, since fear of punishment is not applicable by talmidei chachamim. He was afraid that by publicizing this drasha it would scare people off and intimidate them, since most people can't achieve this high level of awe. He abstained from this drasha and declared that since he is abstaining l'sheim shamayim, he will receive reward as if he publicized it. However, R' Akiva who came from nothing, and accomplished everything, personified the ability to have achieve incredible heights in yir'as hashem. He was able to publicize the derasha because when people will see what he accomplished they will be more encouraged rather than discouraged by the difficulty to achieve yira'as haromimus.

kiddushin 56b - Mekadesh with Issur Hana'ah

בתוס' ד"ה המקדש, הקשו אמאי אינה מקודשת כשמקדש אשה באיסור הנאה, הא יכולה ליהנות שלא כדרך הנאתו. ותרצו דקמיירי כשאין בשלא כדרך הנאתו שו"פ, או שאשה סבורה שיכולה ליהנות ולא סמכה דעתא על הנאה שלא כדרך הנאתו. היוצא מדבריהם שאם שוה פרוטה שלא כדרך הנאתו ואמר לה בהדיא שתתקדש בזה, שהיא מקודשת. עיין בתוס' ע"ז סב ע"א בד"ה בדמיהן, שכתבו דאסור לו לקדש אשה בדבר האסור בהנאה משום דהוי כמו מכירה חשובה, אבל אין דבריהם שם מספיק אלא לגבי האיסור לכתחלה אבל אינו מספיק לפרש אמאי אינה מקודשת

עיין במשנה למלך (פ"ה מהל' יסודי התורה הל' ח' בד"ה וראיתי) שתמה על תוס' שהרי אפילו למ"ד דשלא כדרך הנאתו שרי מדאורייתא, איסורא דרבנן מיהא איכא, וכו"ע מודים שהמקדש אשה בדבר שהוא אסור בהנאה מדרבנן שאינה מקודשת אף מדאורייתא כיון דסוף סוף אינו שו"פ. א"ו ס"ל להתוס' דשלא כדרך הנאתו אפילו איסור דרבנן ליכא. אמנם עיין בקובץ שיעורים בקונטרס דברי סופרים שמתחיל בחקירה זו שהמקדש באיסור הנאה דרבנן אי מקודשת מדאורייתא. ויש סברא לומר שמדאורייתא מיהא מקודשת, שהטעם שהמקדש באיסור הנאה שאינה מקודשת אינו משום שיש איסור השתמשות אלא שמדאורייתא לא מקרי ממונא, אבל איסור הנאה דרבנן מקרי ממונא מדאורייתא ודו"ק

Kiddushin 56a - Ma'aser money and Lifnei Iver

Rashi explains that when someone has ma'aser sheini money and intends to purchase an animal (which would become ma'aser sheini) to eat outside of yerushalayim, it would be a violation of lifnei iver for the seller to sell it to him. Tosafos (d.h. aval) asks that this should not be a violation of lifnei iver because lifnei iver only applies by "two sides of a river". In other words, lifnei iver would only apply if the buyer could not find someone else to sell him the animal, but since he can find someone else to sell him the animal, it is not lifnei iver for this seller to sell it to him.

Although Tosafos in Shabbos 3a understands that there would still be an issur d'rabonon of supporting and aiding in the doing of an aveira, even if the seller would not be in violation of a real lifnei iver, he should still be in violation of an issur d'rabonon. Perhaps Tosafos is assuming that the buyer we are speaking has a status of a mumar, and based on Tosafos in Avoda Zara [explained by the shach (y.d. 151:6) ], the issur of supporting in doing an aveira wouldn't apply. Furthermore, based on dagul m'rvava there, the issur of helping do an aveira wouldn't apply to anyone who is intentionally doing an aveira, which is certainly the case here. Also, it is possible that Tosafos held that for an issur d'rabonon we would not impose such a penalty on the seller.

It seems to me that Tosafos question on Rashi can be answered based on the Mishna l'melech (malveh v'loveh 4:2) cited by pischei teshuva (y.d. 160:1) who explains that one who borrows with interest violates lifnei iver by causing the lender to do an aveira, even if their are other borrowers who are willing to borrow from this lender with interest. His rationale is that the fact that if reuven and shimon are the two potential borrowers, they can't each be moreh heter saying that it is not "two sides of a river" since the other can borrow b'issur. Just as when reuven sees shimon about to pass wine to a nazir and quickly jumps to pass it himself, is still in violation of lifnei iver, so too when reuven sees shimon about to borrow with interest and jumps to borrow himself, would be in violation. Here too, the fact that the buyer can purchase from another seller who would sell it to him b'issur would not help to remove the lifnei iver from this seller.