Sanhedrin 18a - Kohen Gadol Following the Deceased

The Mishna quotes a machlokes regarding a kohen gadol walking behind the coffin in the funeral procession. R. Meir (as explained by Rashi) holds that he can't be within the same courtyard because he may come to touch the coffin and make himself ta'mei, thereby violating a l'av. The Gemara 19a says that according to R. Meir the pasuk of ומן המקדש לא יצא, means that he should not leave his status of kedusha. The gemara implies that the necessary distance is that they shouldn't be in the same alleyway, because the distance will serve as an indicator to prevent him from touching the coffin. The simple reading of the gemara implies that the Torah violation is only when he touches the coffin and makes himself ta'mei, just that the Rabbonon insist on a greater distance. However, Rashi in the mishna and the gemara clearly writes that the Torah violation of not leaving his kedusha demands that he create a safeguard to prevent the possibility of becoming ta'mei. This seems to be a situation where we have a mitzva d'oraysa that serves as a safeguard for another mitzva d'oraysa. The Torah requires that he take precaution to prevent tu'mah.

R. Yehuda argues and holds that the pasuk ומן המקדש לא יצא, means at it sounds literally that he shouldn't leave the mikdash at all to follow the deceased. Rashi on the Mishna writes that R. Yehuda reads the pasuk literally and rejects R. Meir's understanding of מקדושתו לא יצא. However, the gemara 19a seems to understand that R. Yehuda reads the pasuk exactly as R. Meir does, just that he considers it necessary to make a greater safeguard that completely prevents him from following after the deceased because in his depression over the loss he won't be so aware of how close he is to the dead. The Rashash also raises this question. It seems that Rashi in the mishna understands that R. Yehuda in the gemara is just responding to the opinion of R. Meir. Even if R. Meir is correct in how he understands the pasuk, there would still be an issur even to follow after the meis from a distance.

The Ramban in Chumash (21:12) disagrees with Rashi and understands that according to both opinions the entire prohibition of following after the coffin is only d'rabonon, as the language of the gemara implies. Therefore, the issur only applies to his own relative where he is likely to be drawn close to and come into physical contact with, but doesn't apply to others. The actual pasuk is coming to say that when the kohen gadol is doing the avoda, he cannot stop what he is doing and leave for a meis because it is degrading to the avoda. The Ramban writes explicitly that a kal v'chomer can be made to a kohen gadol leaving in the middle of the avoda for some other purpose.

Sanhedrin 14a - Restoring Semicha

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sanhedrin 9b - Believing a Witness Partially

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

Sanhedrin 5b - Paskening an Outrageous P'sak

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

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

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

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

Sanhedrin 5a - Permission From Authorities

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

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

Sanhedrin 5a - Minimum Amount of Judges

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

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

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

Sanhedrin 3b - Following Rov by Monetary Issues

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

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

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

Baba Basra 175b - Shi'buda D'oraysa

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

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

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

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

Baba Basra 174a - More about Areiv and Kablan

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

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

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

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

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

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

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

Baba Basra 172b - Writing מהיום in a Gett

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

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

Baba Basra 168a - Bring Along an Am HaAretz

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

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

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

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

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

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

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

Baba Basra 165a - One Witness Signing and One Watching

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

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

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

Baba Basra 164b - Avak Loshon Ho'rah

The gemara tells of two stories where R. Shimon (son of Rebbi) was sitting by his father and a contract was presented to them. In the first story, Rebbi was unhappy with the way the contract was written. R. Shimon realized that Rebbi thought that he wrote it, so he responded that R. Yehuda wrote it. The gemara considers this actual loshon ho'rah. The Rashbam explains - לא היה לך להטיל אשמה עליו, היה לך לומר איני כתבתיו. This implies that since R. Shimon had some other way of removing the guilt from himself, it is loshon horah to convict someone else. But had R. Shimon not been able to convince his father that it wasn't he who wrote it, unless he were to mention the name of someone else, he would be allowed to do so. The rationale would be that one is entitled to protect his reputation, even at the expense of loshon horah on another, if he has no other way to convince others of his innocence.

***********************************************

In the second story, Rebbi was impressed with the writing of the contract. R. Shimon saw that his father thought he had written it, to which he responded that R. Yehuda wrote it. The gemara considers this not to be actual loshon hora, but to be avak loshon horah. Why? The gemara explains - שמתוך טובתו בא לידי רעתו. The Rashbam explains that לידי רעתו means לידי גנותו. By R. Shimon praising R. Yehuda he would also come to mention the גנות in him - מתוך שמרבין בשבחו מזכירין שם גנות שבו. We can make a subtle diyuk from the Rashbam that he seems to understand that the issur of avak loshon hora is that the speaker will be led to say actual loshon horah. From the Rashbam we don't necessarily see that if by telling something positive it will lead someone else to say something negative, that the positive statement would also qualify as avak loshon horah. However, the Rambam (Dei'os 7:4) clearly writes that the issur of avak loshon hora is that it will lead others to tell loshon horah. Even if the speaker will not be led by his words to tell of his faults, it may lead other to do so (see chofetz chaim, be'er mayim chaim 9:1, who explains that opinion of the Rambam to be an issur of leading others to loshon horah). Perhaps the nafka mina would be if one would publish praises of someone knowing that it is likely to cause the readers to point out his faults, according to the Rambam the writer would be in violation of avak loshon hora, but according to the Rashbam it would be permitted.

The chofetz chaim (hagaha 9:1) asks, why isn't every case of avak loshon hora an issur of lifnei iver since it is a stumbling block that leads others to doing an issur? He explains that lifnei iver may only apply when it is very likely to lead to the person doing an issur, but avak loshon hora would apply even if it is unlikely that the listeners would be led to speak badly about the person, since it is at least remotely possible. However, the chofetz chaim is bothered that the language of the Ramabam and Rabbeinu Yona implies that even if you directly lead someone to speaking loshon hora it would only constitute a violation of avak loshon hora, not lifnei iver? The chofetz chaim explains that the answer CANNOT be that lifnei iver only applies when the person couldn't have done it without you, but here he could have spoken loshon horah without you, but would not have. This answer doesn't hold because any time the person would not have done an aveira without you, even though they could have, would still qualify as תרי עברי דנהרא and be a d'oraysa issur of lifnei iver (see here). The Chofetz Chaim answers that in a situation where it is likely that they would have spoken bad about the person even without you speaking positive about him, nevertheless, since the positive talk may lead them to speak badly, it qualifies as avak loshon horah.

It seems that the question of the chofetz chaim only applies according to the Rambam and Rabbeinu Yona's definition of avak loshon hora, that it will cause others to speak badly. But, according to Rashbam that it is an issue of the speaker himself moving from positive to negative speech, it has nothing at all to do with lifnei iver.

Baba Basra 162a - Last Line of Contract

R. Yochanan says that there is a requirement to repeat a phrase of the contract in the last line, rather than right a new clause that doesn't appear earlier in the contract. The reason that nothing new can be written in the last line is because chazal instituted that any clause written in the last line of the contract is ignored. The rationale is that sometimes witnesses will leave a line between the end of the contract and the start of their signatures. There is a concern that the holder of the document will insert a clause that benefits him in that last line, therefore we have a rule that nothing can be learned from the last line.

There seems to be a machlokes between tosafos and the rashbam whether this is an actual takana that the contract should be summed up in the last line, or whether it is just a halacha that anything new written in the last line is disregarded. Rashbam seems to understand that we don't require the a the contract to be summed up in the last line, just that we will ignore anything new that is introduced in the last line. However, Tosafos (161a d.h. v'neichush, and v'tzarich) implies that since we institute the the contract must be summed up in the last line, if that is not done we invalidate the entire contract since it is prone to lead to forgery.

Both the Rashbam and Tosafos point out that the custom of writing שריר וקיים was only done for a shtar mekushar, not for a standard contract because that would have indicated an end to the contract and chazal would not have to institute the rule of not learning anything new from the last line of the contract. However, nowadays when we right שריר וקיים, Tosafos quotes from Rabbeinu Tam that even vital and new information can be written in the last line of the contract.

Practically, when we write gittin, we write ודן די יהוי ליכי מינאי ספר תרוכין ואגרת שבוקין וגט פטורין in the second to last line, and write כדת משה וישראל in the very last line. However, Tosafos points out that since כדת משה וישראל in a gett is equivalent to שריר וקיים of other contracts, one can technically write the entire statment of ודן די יהוי ליכי....כדת משה וישראל in the last line. But, Tosafos writes that after Rabbeinu Tam died they found in his writings that we are careful not to write anything important in the last line, therefore the statement of ודן די יהוי ליכי מינאי ספר תרוכין which is integral to the gett (dependent on the sugya of yadayim mochichos), cannot be written in the last line (because that is all part of the to'ref of the gett), only the words ואגרת שבוקין וגט פטורין כדת משה וישראל, which are repetitive can be written in the last line.

Although Tosafos ultimately holds like the original version of Rabbeinu Tam that we can learn from the last line since we write כדת משה וישראל, the Shulchan Aruch (e.h. 126:18) writes that לכתחלה the last line shouldn't contain anything more than כדת משה וישראל, so if the last line contained any part of the statement ודן די יהוי ליכי מינאי ספר תרוכין it would invalidate the gett. The Beis Shmuel (27) points out that the shulchan aruch seems to be more machmir than Tosafos, that לכתחלה we don't even allow ואגרת שבוקין וגט פטורין to be written in the last line, but bidieved we can even allow ודן די יהוי..ספר תרוכין to be on the last line since we write כדת משה וישראל.

Baba Basra 160a - Gett Mekushar for Kohanim

The gemara says that the concept of a gett mekushar was instituted for a place where there were kohanim who were easily angered (not clear if the gemara is saying that this is the nature of kohanim, or just saying that in this place this was their nature) and would divorce their wives out of anger (Yad Rama points out that the takana was already in place in the time of Yirmiyahu since we the pesukim hint to the shtar mekushar). Since kohanim weren't able to remarry their divorced wives, the chachamim wanted to delay the gett proceedings so that their is time for their anger to subside, so they instituted the concept of a gett mekushar (and extended it to other contracts as well).

Clearly the implication is that when one would divorce out of anger, the gett would be binding. Tosafos 161a points out that the chachamim intentionally made the process complicated to delay so that kohanim will have to spend time figuring out what to do.

The Toras Chaim asks on the Tur cited by Rama (choshen mishpat 333:8) who writes in the context of mechila, that when one does something out of anger it is not binding? The Teshuvos Mahari"m Brisk siman # 38 (cited by Pischei Teshuva E.H. 134:43) answers that when one says something out of anger it isn't binding, but if he writes a gett which is a significant action, it is binding even if done out of anger. Secondly, even if it wouldn't be a gett to be matir her, it would at least be a rei'ach ha'gett (smell like a gett), which would forbid her to a kohen.

Practically, we never do a gett mekushar anymore, even for kohanim. Tosafos 160b made this observation and offers 3 approaches:

1. Since we lost the expertise of how to do a gett mekushar, it is better to just to a standard gett.

2. It was initially only instituted for a particular place where there were many kohanim and this presented a problem (as the gemara says - אתרא דכהני הוו).

3. Even the original institution wasn't an obligation on kohanim to do a gett mekushar, and was only instituted for their benefit so they don't lose their wives.

I heard from R. Nota Greenblatt that the entire necessity of the gett mekushar may have only been prior to the cherem of Rabbeinu Gershom who instituted that one cannot divorce his wife against her will. But, after R"G instituted that he needs her consent, and without that he is not able to divorce her, there is no longer a concern that he will divorce her out of his rage, because she will refuse to accept it. Perhaps Tosafos doesn't offer this approach because they knew that it was historically abolished prior to Rabbeinu Gershom.

Baba Basra 159a - Witnesses in Contracts who become Passul

The Shulchan Aruch (C.M. 36:34-35) points out that if a person is signed in a contract and later becomes passul for eidus, there is a distinction between becoming passul as a gazlan or becoming passul as a relative. If Reuven is signed in a contract and later becomes a gazlan, he can no longer confirm his own signature since he is no longer kasher for eidus, but others can confirm his signature. However, the two witnesses who are confirming his signature must know that he signed prior to becoming a gazlan because otherwise we are concerned that the contract was forged and only signed after he was already passul. The source of this is Tosafos in our sugya who explains the requirement of כגון שהוחזק כזת ידו בבית דין to mean that the beis din has to know that he signed the contract before becoming a gazlan (not a henpek, which is a kiyum written beneath the signatures as the Rashbam explains). But, if reuven signs a contract as a witness and later becomes a relative of the person who he signed for (such as becoming a son in law by marrying his daughter), he cannot confirm his own signature as a relative. However, if there are two witnesses who can confirm his signature, they don't have to know that he signed prior to becoming a relative, because we are not concerned that he forged the contract or signed b'issur. The source of this distinction is clear in the gemara which says that for becoming a relative the contract is valid אע"פ שלא הוחזק כתב ידו בבית דין. The gemara explains that since the p'sul of a relative isn't a concern of lying, rather a geziras hakasuv, there is no concern that the contract was forged.

What about if a witness who signed in a contract later becomes no'geiah, meaning that they have monetary gain by the contract. Must the witnesses who are confirming his signature be sure that the contract was signed prior to him becoming a no'geiah? Are we concerned that a no'geiah would forge the contract just as a gazlan would, or is he more similar to a relative where we don't have such a concern? The Pischei Teshuva (46:11) quotes from Teshuvos Na'os Desheh that this is explicit in our gemara. The gemara speaks of a case where Reuven signed in a shtar on something that later falls to him as inheritance so that he becomes a no'geiah. The gemara insists that when witnesses confirm his signature that it be הוחזק כתב ידו בבית דין. Since a no'geiah is also a concern of being me'shaker, we consider him like a gazlan who would forge the contract and therefore require that they know he signed it before becoming a no'geiah.

Based on this approach that a no'geiah is a concern of being me'shaker like a gazlan, the gemara is difficult. How can the gemara prove that the p'sul of a relative is a gezeiras hakasuv - דאי לא תימא הכי משה ואהרן לחותנם משום דלא מהימני הוא - meaning that by moshe and aharon there is certainly no concern of being me'shaker, so it must be a gezeiras hakasuv. Since no'geiah b'eidus is a concern of being me'shaker rather than a gezeiras hakasuv, it should come out that there is no p'sul of no'geiah by people like moshe and aharon since they would certainly not have a chashash me'shaker? If we assume that no'geiah would invalidate moshe and aharon because it is a gezeiras hakasuv to treat them as if they would lie (even though we aren't really concerned that they would lie), we can say the same thing for the p'sul of being a relative and require the eidim who confirm the signature of a relative to know that he signed the contract prior to becoming a relative? B'kitzur, since no'geiah is a concern that he is not telling the truth, this p'sul shouldn't apply to people who we know are honest such as moshe and aharon?

Baba Basra 157a - Forcing Yesomim to Pay Debts

Tosafos explains that the concept of their being a mitzvah on inheritors to pay their fathers debts, depends on a few variables: a. whether the father left them property from which to collect. b. whether a debt without a contract is collectible from the yesomim. c. whether the yesomim inherited anything from their father.

1. If the father leaves over property on which there is a loan with a contract - the orphans have a mitzvah to pay and we force them in beis din to pay.

2. If the father doesn't leave over property - the orphans have a mitzvah to pay, but we don't force them to pay [Rashash points out that the shulchan aruch (107) paskens like the hagahos ashri that if the father doesn't leave over anything, they don't even have a mitzvah to pay at all].

3. If the father leaves them property on which their is a verbal loan, it depends: One opinion holds that a verbal loan is collected from orphans, so we force them to pay. But according to Rav and Shmuel that a verbal loan isn't collected from orphans, they have a mitzvah to pay but we don't force.

We discussed this issue in Kesubos, see here:

http://hearos.blogspot.com/2007/11/kesubos-86a-mitzvah-to-repay-debts.html

I suggested that the concept of forcing the yesomim to pay is under the rubric of forcing for positive mitzvos. This seems to be supported clearly by Tosafos who quotes this gemara not only for the reason that one must repay their own debt, but to justify why we force yesomim to pay their fathers debt (when it is a contractual debt and he leaves over property). The difficulty is, if we force for mitzvah aseh, why don't we force in all situations where they have a mitzvah to pay, even when he doesn't leave over property on which there is a shi'bud? See what I wrote in kesubos.

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

R. Akiva Eiger (Teshuvos 7) discusses a sofer who had his son who was just about 16 assist him in the writing tefillin. Being that the son was never checked by witnesses to verify that he was physically an adult, R. Akiva Eiger wrote that the assumption of Rava in Nida 46 to assume he is an adult based on age would not work for a d'oraysa issue such as tefillin and Mezuzah.

However, R. Akiva Eiger writes that if they would check him today and find that he indeed has halachically reached physical maturity, all the tefillin that he wrote from when he was 13 would be kasher. The source of this ruling is Tosafos (d.h. bodkin) who writes at the end that if we would check a girl a few weeks or months after her 12th birthday and found simanim, even if beforehand she had accepted kiddushin from Reuven and then from Shimon, we are only concerend about the kiddushin of Reuven, not the kiddushin of Shimon. We don't have to be concerned that she got simanim in between the kiddushin of Reuven and Shimon, because "now she already reached gadlus, so we assume she was a gadola for a long time before". R. Akvia Eiger undertands that to mean that since now we know she is definitely a gadola, we can use the chazaka of Rava to tell us that he probably became a gadola from her 12the birthday. Therefore, this son of the sofer is also assumed to have been a gadol from his 13th birthday.

R. Akiva Eiger questions this pesak based on the Ramban that we mentioned yesterday who says that the story in b'nei berak is only if the boy died immediately after selling property, which implies that if he sold the property and then died 2 weeks later, even if we dig him up and find that he was a gadol when he died, we are concerned that he wasn't a gadol at the time of the sale (r. akiva eiger also points out that the rosh disagrees with the ramban). Clearly the Ramban holds that we don't say since he died as a gadol ,we are machzik him as a gadol from the moment he reached 13? But, R. Akiva Eiger explains that even the Ramban would agree in our case that we are machzik the son of the sofer as a gadol from when he was 13. The Ramban is only machmir in monetary issues, that we aren't entitled to take away money from the inheritors based on that assumption.

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

The gemara quotes a story in which there was a dispute between the inheritors and buyer whether they should dig up the deceased to see if he was an adult, which would verify that he had the right to sell (re: nivul hameis - see previous post). The assumption is that if they would find valid simanim, that would prove that he was an adult at the time that he sold. Why? Wouldn't it only prove that he was an adult at the time that he died, but perhaps at the time he sold he was still a kattan?

The Ketzos HaChoshen (235:5) quotes a machlokes rishonim. The Rosh in a teshuva (33) writes that if we would find that he is a gadol at the time that he died, we would be machzik him as a gadol from the time that he reached the age of gadlus (even the inheritors agree that he became 13 years old prior to the sale). But, the Ramban writes that we are speaking in a case where he died immediately after selling, therefore if he was a gadol at the time he died, he was a gadol at the time he sold.

Baba Basra 154b - Nivul HaMeis

The gemara says that the inheritors are not allowed to dig up the deceased in order to maintain the inheritance in their hands because it is a violation of nivul ha'meis. But, the buyers who claim that they purchased the property can demand that the meis be dug up in order to prove that they have purchased the property from a gadol. The gemara explains that their claim is: אנן זוזי יהבינן ליה, לינוול וליננול. The Rashbam explains that they have a right to claim that they aren't concerned with the embarrassment of the meis, and they are not obligated to be concerned because: שאינו קרובינו, והפסדנו מרובה. The Rashbam seems to hold that the concern for nivul ha'meis only applies either to a relative, or to others when they aren't suffering a loss, but buyers who are not relatives of the deceased and are suffering a loss have the right to demand that he be dug up. Where does the Rashbam get this notion that nivul ha'meis doesn't apply in a situation where there is a loss?

The gemara Sanhedrin 45a discusses whether a person is stoned in their clothing. The gemara concludes that all agree we try to fulfill ואהבת לרעך כמוך, but with clothes he will die slower, without clothes it will be more degrading. The machlokes is whether it is more ואהבת לרעך כמוך to kill him without pain, or to maintain his dignity. Based on this the issur of nivul ha'meis is a din in ואהבת לרעך כמוך. This is also the peshat in baba kama 51a where we raise the height of the place of sekilah to kill him quickly, but not too high so that he doesn't break up into limbs. Both the concern for raising it and the concern not to raise it too high are a requirement of ואהבת לרעך כמוך. Based on this, it seems that just as we have a rule in baba metzia חייך קודמין, meaning that ואהבת לרעך כמוך is only כמוך, but doesn't have to exceed himself, when it comes to the collection of a debt we don't obligate someone to suffer a monetary loss to fulfill the mitzvah of ואהבת לרעך כמוך. Therefore, the buyers are allowed to demand that the deceased be dug up to save themselves from a loss. The Rashbam is meduyak in his language that their demand is והפסדנו מרובה, meaning their loss exceeds the amount of nivul that he would suffer, which is really the hagdara of חייך קודמין. Meaning, if all things are equal or if I have more to lose, then we say חייך קודמין. But if the loss would be minimal and the nivul would be severe, there isn't any heter of חייך קודמין.

However, both the Rashbam and Tosafos seem to understand that relatives are obligated to suffer some level of loss to prevent nivul. Perhaps this is part of the din מבשרך אל תתעלם. Basically, the concept of מבשרך אל תתעלם places a greater demand of ואהבת לרעך כמוך on a relative than on a stranger.

This is all assuming that the hagdara of niuvl hameis isn't כי קללת אלקים תלוי, which would be a בין אדם למקום obligation for which there is not heter to save for a monetary loss (as we find in baba metzia - מי דחינן איסורא מקמי ממונא). Although the bizayon is because of קללת אלקים תלוי, the hagdara of the issur is considered to be bein adam l'chaveiro, for which we allow one to protect himself even at the expense of someone else.

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

The gemara said many times that one who gives a mat'nas shechiv meira (either gives all their possessions or they mention that they are dying at the time of the gift), if they are "a'mad" and recover from their illness that can retract the gift. Is the retraction automatic, or must they explicitly retract?

Tosafos is bothered about the dispute in the gemara between the receiver of the gift and the inheritors, whether it was a matnas shechiv mei'rah which allows for retraction, or a matnas ba'ri that is fully binding. Even if the inheritors claim is correct that it was a matnas shechiv meira that allows for retraction, and even if he actually recovered from his original illness, who said that he retracted from the gift before dying? Tosafos explains that אם עמד חוזר means that as long as he recovers we assume that he retracted, even though we have no evidence that he actually retracted. In analyzing Tosafos, they aren't saying that recovering is a chazara, rather that when we don't know whether he actually retracted or not, we make an assumption that if he recovered that he retracted. If we would somehow know for sure that even though he recovered, he definitely didn't retract, the matana would be binding.

However, the Rambam (Hil. Zechiya 8:14) seems to hold that when he recovers the matana is automatically void because it was only meant to be given after he died:

שאומדן דעת הוא שלא נתן זה הכל אלא ונתכוון שלא יקנו כלום אלא לאחר מותו

The Rambam holds that the default is that the matana is not binding until he dies. The language of אם עמד חוזר isn't accurate because the default is that until he dies there is no gift at all. The gift only goes into effect when he dies. The Shulchan Aruch (C.M. 250:2) writes explicitly that the gift is automatically void - אם עמד ונתרפא לגמרי המתנה בטלה ממילא, by adding the word "me'meila" it implies clearly that he doesn't need to actually retract. This is very different from Tosafos who assumes that the default is that the gift is binding, just that he has the right to retract if he recovers. The GR"A (5) seems to point out that Tosafos doesn't agree with the Shulchan Aruch.

The Nesivos (250:2) raises a chakira whether a shechiv mei'rah who is still sick maintains the right to retract. Although the ketzos assumes that he isn't able to retract, the Nesivos points to the sm"a who indicates that even in his illness he has the right to retract. This should be dependent on the machlokes Rambam and Tosafos. If we assume that the matana is binding but he has a right to retract if he recovers, then until he recovers he doesn't have that right. But, if the gift was only meant to be binding at the time of his death (Rambam), until then he can retract even if he doesn't recover from the illness.

The Rashbam 146b seems to have a third approach. The Rashbam writes:

שנראין הדברים שמחמת מיתה נתן ועל מנת שאם לא ימות לא יתקיים המתנה

This implies that we view it as a gift that is given immediately but their is a condition that it is only effective if he dies. Therefore, the Rashbam will agree with the Rambam that if he recovers he doesn't actually have to retract, it happens automatically because the condition wasn't fulfilled. But, so long as he is still ill, the rashbam would agree with Tosafos that he doesn't have the right to retract.

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

The gemara says that Rava was trying to get out of returning the money of Issur the ger, so that when he dies, Rava is able to acquire the money from hefker and therefore didn't want to give it to R' Mari (who was the biological, but not halachic son of Issur).

Some of the daf learners found Rava's actions to be not so typical for a person of his stature. I think that Tosafos here and in kiddushin shed some light on this issue.

The gemara in kiddushin says that when one borrows from a goy who later converts, sometimes returning the money to the biological (but not halachic) son of the ger is considered - רוח חכמים נוחה הימנו, meaning that chazal are happy with his actions, and sometimes it is not considered to be רוח חכמים נוחה הימנו. In a situation where the son was conceived prior to the father's conversion, but his birth was after the fathers conversion then it is recommended to return it, but if the birth was also prior to the conversion then the chachamim are completely indifferent as to whether or not it is returned (rashi). Rashi explains that when the birth was after the conversion of the father, he is easily confused with a halachic child of the father, therefore we return the money to him so as not to make people think that even to a halachic child the money doesn't have to be returned.

Tosafos points out that if we return the money to any child who was born after the father's conversion, Rava should have returned the money to Rav Mari, the biological son of Issur (who was born after his father's conversion)? Rabbeinu Tam answers that the idea of returning the money is to show hakaras ha'tov to the goy for lending you the money and he would surely want the money to be paid back to his son. But, in Rava's case, Issur wasn't doing him a favor because it wasn't a loan, rather it was a pikadon on which Rava was doing a favor for Issur so there was no reason to return the money. The difficulty with the distinction of Tosafos is that it shouldn't matter whether or not the child was born after the father's conversion, because even if he was born before the father would want the money to be paid back to his son? Why does the gemara seem to hold that even by a loan where there is an issue of hakaras ha'tov, it is only recommended to pay it back to a child who was born after the father's conversion?

Alternatively, Tosafos in kiddushin offers a completely different approach than Rashi. A child who is born after the father's conversion is easily confused with being a biological son of the father, which can cause confusion in the realm of yibum. Therefore, the chachamim suggest to avoid returning loans to him so that he will not be confused with a regular halachic son. According to this approach, it is very understandable why Rava didn't return the money. He wanted to make it clear that Rav Mari was not a halachic child of Issur. The difficulty with this peshat is that Rava expressed dismay - קא מגמרי טענתא לאינשי ומפסדי לי, which sounds like he wasn't concerned with confusion in Rav Mari's relationship to his biological father, but rather concerned over the loss of money?

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

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

1. The Ri"f and Tosaof hold that the entire concept of selling a shtar chov is only m'drabonon, but on a d'oraysa level Reuven remains the owner since he has no ability to actually sell the shtar. Why can't the shtar be sold on a torah level? Tosafos 77a (top) writes that since the property is not in the jurisdiction of Reuven, he has no ability to sell it, just as he has no ability to be makdish it. Tosafos seems to understand that there is no concept of selling the "right of collection", because it is not a tangible item. The only thing which can actually be sold is the property which is not yet owned by Reuven, therefore it is not a binding sale m'doraysa. R' Elchonon (B"B 513) points out that the difficulty with this approach is that our gemara says that through a matnas shehciv mei'rah the Reuven can transfer ownership to Shimon. But if the problem is that Reuven doesn't have the property and the "right of collection" isn't transferable, how can he transfer this through a matnas shechiv mei'rah? We must say that a shechiv mei'rah works like yerusha, where shimon steps into reuven's shoes, rather than transfering ownership like r' papa says on 148a.

An alternative approach as to why the seller retains the right of mechila is offered by the Ran in kesubos quoting Rabbeinu Tam but also seems to be the approach of the Rashbam here (although he doesn't use the lomdushe terms of shi'bud haguf and shi'bud nechasim, like the ran does). The only part of the debt that is transferable is the shi'bud or "right of collection" that Reuven has on Levi's property, but the shi'bud ha'guf that reuven has on levi cannot be sold to shimon. Since the shi'bud on the property is dependent on the shi'bud ha'guf which remains in the hands of reuven, he has the ability to be mochel.

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

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

Baba Basra 146b - Planning for Divorce

The Rashbam learns the story of the "totranis" (woman who can't smell) to be a case where she is already fully married, and he is testing to see if he should give her a gett. The gemara concludes that since his intention was to divorce her if he finds her to have this problem, he loses the rights to inherit her. From this the Rashbam paskens that any time a wife dies while they are seriously fighting and he has already decided to divorce her, the husband doesn't inherit her. Tosafos and the Rosh both reject this approach and learn the gemara to speak specifically about a case of an arusa, who as it is he has no rights to inherit her. The Rama (E.H. 90:5) paskens like the Rosh and Tosafos who reject the Rashbam, therefore if she is safeik divorced he doesn't inherit, but if she is still married even though he intends to divorce, he still inherits. The Pischei Teshuva (7) quotes from the chasam sofer that perhaps the Rashbam only applies when it is completely in his control to divorce her, so when he intends to divorce her, it is considered a done deal. But, nowadays where there is a cherem against divorcing her against her will, since she must consent, his desire to divorce her isn't sufficient to make him lose the inheritance.

Although we don't pasken like the Rashbam regarding inheritance, the Maharshal in Gittin (perek 2) writes that for aveilus we always follow the lenient opinion, therefore if a wife would die while they are in the middle of divorce negotiations, even before she receives a gett, the husband would not have to sit shivah for her. The maharshal writes that the chachmei Eretz Yisroel agreed, and the Pischei Teshuva quotes the Yeshuas Yacov where he relied l'ma'aseh on this maharshal. However, R' Shlomo Kluger points out that based on what we quoted from the Chasam Sofer that even the Rashbam only said his din in a case where you can divorce her against her will, it would not apply nowadays even to exempt the husband from sitting shivah.

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

The gemara says that shemita nullifies loans, but doesn't nullify shushbinus. Tosafos assumes that shushbinus is really the same as stipulating that the borrower doesn't have to pay back for 10 years, which the gemara in makos 3b quotes 2 versions as to whether shemitah nullifies it. There is a machlokes rishonim which version we pasken like. Tosafos, as well as the Rosh in makos hold that we pasken that shevi'is doesn't nullify such a loan. Why would we pasken like the more lenient approach? Tosafos says that this gemara supports the more lenient approach that there isn't any prohibition against collecting the loan after shevi'is, just as shushbinus can be collected after shevi'is.

The Rosh in Makos says that the rationale for the lenient p'sak is that shemitas kesafim nowadays is only d'rabonon and we have a rule that safeik d'rabonon l'kula, which entitles the lender to collect. The difficulty with the Rosh is, why do we view it from the perspective of the lender where it is a leniency that he may collect, we should look at it from the perspective of the borrower who is muchzak in the money and be lenient with him by exempting him from paying it back?

The Sha'ar HaMishpat in Choshen Mishpat suggests that the Rosh holds like the sefer yerei'im that shemita isn't an automatic annulment of the loan. Rather it is a mitzvah on the lender to say he is me'shamet, and that declaration annuls the loan. Therefore, it is not a monetary issue where in a case of safeik we are lenient on the muchzak by exempting him from paying, rather it is an issur issue where we are lenient on the lender from making the declaration so that the borrower must pay back. However, all rishonim reject the approach of the sefer yerei'im and hold that the loan is annulled automatically. Therefore, the Rosh must be holding that Shemitas kesafim is regarded as an issur v'heter issue, just that it impacts monetarily. We follow the rules of safeik l'kula, meaning that there is no issur on the lender to collect, and as a result allow him to collect the loan by forcing the borrower to pay.

What is the halacha if the borrower gives the lender a post dated check that is dated for after shemitah? Certainly according to the opinions that when the date of payment is for after shevi'is the lender would be able to cash the check after shevi'is passes because it is as if the lender stipulated that the loan is only due after shemitah. Furthermore, R' Moshe (c.m. 2:15) holds that if the borrower would give the lender a post dated check, dated for after shemittah, the lender would have the right to cash it even if a 10 year loan, would be nullified by shemitah. His rationale is that a post dated check is equivalent to paying back right away, even though it isn't regarded as money, since it is illegal for the borrower to bounce the check. Therefore, if the borrower gives the lender a post-dated check for after shemitah, even if he would bounce the check when the lender tries to cash it after shemitah, it would be as if a new loan was created by the bouncing of the check so the lender would be able to collect.

Baba Basra 144a - Talmid Chacham Like R' Safra

The mishna says that whenever one of the brothers does business causing the estate to appreciate, we assume that he is doing it for all the brothers unless he stipulates otherwise, or invests his own money to cause the appreciation (gemara). However, R' Safra invested and kept the profits for himself. The gemara justifies this by saying that R' Safra was a great person who would not leave his learning to do business for others, therefore even though he didn't explicitly state that he was expecting to keep all profits, it should have been understood that this was his intent.

The Rambam (Hil. Nachalos 9:5) paskens:

אחד מן האחין שלקח מעות ועשה בהן סחורה אם היה תלמיד חכם גדול שאינו מניח תורתו שעה אחת הרי השכר שלו, שאין זה מניח תורתו ומתעסק לאחיו

The Rambam holds that this halacha should apply today, so long as the brother is the type of person that the younger brothers should assume would only leave his Torah to profit for himself. However, the Nimukei Yosef writes that this halacha isn't applicable nowadays because we don't have people that are of the stature of R' Safra, therefore talmidei chachamim are no different than everyone else since they aren't that deeply involved in their Torah study. He supports this approach with the meforshim in brachos 16a who say that a chasan nowadays isn't exempt from she'ma since the level of kavana deteriorated, the chasan will not be different than others in terms of his ability to concentrate.

The application of the Nimukei Yosef is difficult to understand because this din is not dependent on the objective level of talmidei chachamim. This din is really dependent on the perception of the other brother. If the other brother perceive the one who invested the money to be one who never leaves his studies, then they should have assumed that the was doing it to profit only for himself despite the fact that he has not reached the level of R' Safra?

Baba Basra 139b - Mezonos for Daughters

The gemara mishna says that when a father dies, depending on how much assets he leaves behind, the sons may lose their inheritance to provide for the daughters mezonos. The basic rule is that when there are נכסים מרובין the sons inherit and the daughters are fed until they reach 12 and a half (bogeres), but when there are נכסים מועטין the daughters receive mezonos and the sons get nothing. The gemara quotes 2 opinions to define נכסים מרובין. Rav says that it is when there is enough to provide mezonos to both sons and daughters for 12 months, less than that is considered מועטין. But the Chachamim say that it is when there is enough to provide mezonos to both sons and daughters until they become the age of bogeres, less than that is מועטין. The gemara then asks on the chachamim, do we mean to say that if there is less than enough to provide mezonos until bogeres, the daughters just get everything (even more than their mezonos until they reach bogeres)? To which the gemara responds that they only get what they need for mezonos until bogeres, but the remainder will go to the sons.

The Ma'areh Kohen (r' betzalel hakohen, Rav of vilna) points out that the gemara didn't ask this question on Rav, only on the chachamim. This implies that according to Rav, when there are only מועטין, the daughters will actually get everything. The gemara isn't troubled by this since it is likely that even if they get everything (amount to supply mezonos to sons and daughters for just under 12 months), it is likely that they will still be getting less than the t'nai kesuba of נכסים מרובין which would likely entitle them to a lot more than 12 months of mezonos (depending on their ages). But, according to the chachamim when there is less than enough to provide mezonos to sons and daughters until they reach bogeres, it will come out that the daughters will be getting much more in when there are נכסים מועטין than the t'nai kesuba entitles them to when there are נכסים מרובין. Therefore, the gemara has to say that anything beyond what they need for mezonos will go to the sons.

The question that still remains is according to the chachamim, what is the difference whether their are נכסים מרובין or נכסים מועטין since in both scenarios the daughters will get all the mezonos they need until bogeres, and the sons will get the rest? It seems the only difference will be in the cases that the gemara discusses next, such as the price of food increases. When there are נכסים מרובין we allow the sons to inherit, so if the price of food gets more expensive afterward, the daughters lose out. But when there are נכסים מועטין, the daughters have a claim on everything to ensure that they get the amount of mezonos they need, and only the remainder is inherited by the sons. Therefore, even if food gets more expensive the sons will lose, not the daughters.

Baba Basra 138b - Concerned for Beis Din Making Mistakes

The gemara discusses whether or not we are concerned that a beis din will make a mistake. The type of mistake that the gemara is referring to is that a later beis din may make an assumption based on the ruling of a previous beis din. Therefore, we can't allow a beis din to do chalitzah without first checking in to make sure that he is the yaveim and she is the yevama, because a later beis din may marry her off assuming that the earlier beis din had already looked into it, when in actuality the halacha requires the later beis din who marries her off to look into it, not the earlier beis din. Even by that type of mistake, the gemara concludes that a beis din will not assume that eidim who signed a contract looked into the matter, rather the beis din themselves will look into it.

This gemara seems to undermine a halacha in Shulchan Aruch (c.m. 33:4). The Rama writes that 2 witnesses who are related but are technically kasher to testify together, shouldn't sign a contract together because we are afraid that the beis din who reviews the contract will not know the halacha and passul the contract based on their relationship to one another. The Gr"a on that halacha points to our gemara which says clearly that the only kind of mistake a beis din will make is to rely on an assumption that an earlier beis din looked into the people before doing a chalitzah, but we never are concerned that a beis din will make an outright mistake and not know the halacha of "sheini b'sheini" with 2 ba'al k'ishto being kasher?

It seems that the Rama will hold that although we wouldn't make a takana (such as demanding of the beis din doing a chalitzah to check into the yaveim and yevama) out of fear that a beis din will make an outright mistake, we are able to advise 2 witnesses who are distant relatives not to sign together because they are unnecessarily jeopardizing the lenders ability to collect with this contract on the slight chance that a beis din will make such a mistake.

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

The gemara says that if Reuven tries to give a gift to Shimon directly, and Shimon starts screaming that he doesn't want it, he doesn't acquire it against his will. The Rashbam explains:

לא קנה שאין מזכין לו לאדם בעל כרחו דחוב הוא לו דכתיב שונא מתנות יחיה

The Rashash points out that the Rashbam is difficult to understand. Why does he have to justify and give a rationale to explains Shimon's refusal to accept? Even if we had no understanding as to why Shimon would refuse the gift, his refusal would still prevent him from acquiring since a person cannot acquire against his will? I would suggest that the Rashbam is saying this in order to explain the next case where Reuven gifts it to Shimon through someone else being zocheh in it for Shimon. There too we say that if Shimon is screaming that he doesn't want it, then no one can be zocheh it for him. The Rashbam is bothered why don't we say "זכין לאדם שלא בפניו", and receiving a gift is a zechus. He answers that it is not an absolute zechus, rather just an assumed zechus. Therefore, if Shimon is quiet the assumption is that he want this person to be zocheh for him, but if he protests then he reveals to us that it is chov for him, and we cannot apply the concept of זכין לאדם שלא בפניו. The Rashbam would seem to hold that Shimon can't do a ma'aseh kinyan against his will, but if someone else is doing it for him, even if Shimon is protesting we should apply the concept of זכין לאדם שלא בפניו. That is why the Rashbam is compelled to say that by protesting he is revealing to us that it is not a zechus for him, rather a chov, so the concept doesn't apply. The difficulty with this approach is that if we assume that זכיה works through the mechanism of shlichus, which most rishonim (tosafos kesubos 11a) hold, even if it were an absolute zechus, Shimon should be able to prevent the person being zocheh from serving as his shliach by protesting. Even if we couldn't justify why it may be a chov for Shimon, he should be able to prevent the zocheh from being his shli'ach. Why then does the Rashbam have to say the sevara of שונא מתנות יחיה to explain why it may really be a chov for Shimon?

It is possible that the Rashbam is coming to explain that even in a case where Shimon wouldn't be there at the time that the person is zocheh it for him [although the rashbam writes explicitly that we are speaking about when someone else is zocheh in it for Shimon "בפניו", that is to explain the continuation of the gemara that makes this dependent on the machlokes tanna kama and rashbag], and we would assume that it is a zechus, but when shimon finds out he immediately starts to scream, he would retroactively not be zocheh because he revealed that it is a chov for him. The Ramban (quoted in magid mishna hilchos zechiya perek 4) says exactly this. Even something which is technically a zechus, but the receiver protests when he hears about it, he is not zocheh against his will.

The Machaneh Ephraim (Zechiya U'matana #6) explains that the logic of this Ramban would be that a gift is not an absolute zechus since some people don't want gifts, as the Rashbam writes - שונא מתנות יחיה. Clearly, the Machaneh Ephraim is using this Rashbam to explain why Shimon would even be able to protest after the person is zocheh in the gift for him (so long as it is as soon as Shimon finds out about it).

The Machaneh Ephraim then goes on to explain that this ability to protest only applies to something which has a tzad chov, but something which chazal decide is an absolute zechus, the receiver would have no ability to back out of when he finds out. He deduces this from the Ran in Kiddushin (2nd perek) that something which is a "zechus gamur" would be binding even if the receiver would protest when he finds out [he points out that Tosafos in kesubos 11a seems to contradict this and holds that one can protest even a zechus gamur].

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

The gemara says that when brothers inherit an esrog from their father, they cannot use it for a mitzvah unless they are not makpid on one another so that it can belong to the one who is taking it for the mitzvah entirely. But, if they would remain partners in the esrog, it would not qualify as "lachem" and they cannot fulfill their mitzvah with it. The Rashbam explains that "lachem" requires that the person using it for the mitzvah have complete and total ownership over it, to the exclusion of an esrog which two people are partners in, that is only partially owned by the person using it. Based on this the Rashbam says that when the community purchases an esrog together and each member of the community is going to use the esrog on the first day of succos for his mitzvah, it is understood to be using the mechanics of a מתנה על מנת להחזיר so that at the time each of them uses it for the mitzvah, it is theirs entirely.

There is an interesting opinion of Rabbeinu Avigdor quoted in the teshuvos HaRosh, cited by the kapos temarim in succah 41a. He understands that the term "lachem" rather than "li'cha" would include even an esrog that their are multiple partners in, provided that the esrog was purchased jointly for the purpose of them fulfilling the mitzvah. The reason our gemara understands that the brothers couldn't use the esrog of tefusas habayis is because it wasn't purchased for the purpose of being used for the mitzvah. The kapos temarim struggles with trying to understand the distinction between an esrog purchased by partners for the mitzvah which can be used vs. an esrog purchased by partners for business which cannot be used. Rabbeinu Avigdor is not assuming that when purchased for the purpose of the mitzvah, there is an automatic מתנה על מנת להחזיר, rather he is holding that even though the person using it doesn't own it entirely, it would qualify as "la'chem".

In truth, this issue whether an esrog that is shared by two owner is considered "la'chem" seems to be a machlokes Rashi and Tosafos in succah 27b. Tosafos holds like the rashbam, but rashi implies that it would be "la'chem". The shulchan aruch (658:7-9) paskens like Tosafos. Although the Rama seems to make the distinction of Rabbeinu Avigdor, that if it was bought together for the purpose of mitzvah it qualifies as "la'chem", it is really just based on the assumption that they will then have in mind to give it to each other as a matana when it is time to be yotzei with it.

The minhag for many generations was to collect money from the entire tzibur to purchase one esrog for everyone. Although the intent of the ka'hal is that everyone should be able to be yotzei with this esrog, the m.b. (38) quotes from the Chayei Adam that anyone who can afford to contribute and refuses to contribute cannot be yotzei with it because the tzibur would not give over their portion to him.

Baba Basra 136b - Kinyan Guf and Kinyan Peiros

We once again have the machlokes between R' Yochanan and Reish Lakish whether a kinyan peiros qualifies as a kinyan ha'guf. The gemara has 2 applications of this argument. One is that if a father gifts the guf of property to his son, retaining for himself the fruits for the duration of his lifetime, and the son would sell what he owns, if the father would out live the son then the question becomes whether the father's retention of peiros would entitle him to take the property back from the buyer. The second application is in the context of bikurim, whether one is able to read the parsha when they only have a kinyan peiros.

The Rashbam explains that according to Reish Lakish that kinyan peiros wouldn't entitle someone to read the parsha is because they couldn't say האדמה אשר נתתה לי, but they would be obligated to bring the fruits even m'doraysa because they are included in אשר תביא מארצך. Tosafos rejects the rashbam because if they aren't included in the pasuk of "nasata li", they shouldn't be included in "artzecha" either? Tosafos concludes that the entire obligation to bring the fruits according to this opinion is only rabbinic.

The Ketzos HaChoshen (257:3) answers a major question and with it explains the rashbam. The gemara in Yevamos says that unless we accept R' Yochanan that kinyan peiros is like kinyan haguf, no one would ever be able to read the parsha of bikurim unless they come from a chain of only sons (because if there are multiple sons, we view their inheritance as purchasing from one another so they only own kinyan peiros). How then can we hold like reish lakish? Tosafos in Yevamos raises this question and says that we only hold like reish lakish in the context of the father gifting property to the son because a father will be mochel to the son and leave over a very weak share of kinyan peiros, but in general we follow r' yochanan that a standard kinyan peiros would be like a kinyan haguf.

The ketzos offers another approach. Kinyan peiros can sometimes refer to a weak ownership but sometimes can refer to a standard ownership which expires with time. A kinyan l'zman is a very powerful kinyan peiros because the "owner" can do whatever he wants, even ruin the field, just that his ownership will expire, whereas a true kinyan peiros cannot ruin the field. One who owns a field until yovel is considered to have a "kinyan peiros", but it is a very strong kinyan peiros which would enable him to even read the bikurim because it is like a kinyan haguf until it expires. But, when one only has a kinyan peiros, they cannot read the parsha of bikurim.

The Rosh in a teshuva quotes Rabbeinu Avigdor who says that one who has a lulav for kinyan peiros, namely only to fulfill the mitzvah, cannot fulfill the mitzvah since it doesn't qualify as לכם. But if they have a matana al m'nas l'hachzir it is like a kinyan haguf that expires and they can fulfill their obligation with it. Therefore, one who has a kinyan haguf on a field that will expire such as a purchased field that will return with yovel, qualifies as אשר תביא מארצך because for the time being when he brings the bikurim he "owns" the land [similar to the requirement of לכם, which is fulfilled by a kinyan haguf that will expire]. But, the requirement for reading the parsha is האדמה אשר נתתה לי which means it is his forever, which is not the case, so he cannot read the parsha.

It seems based on the ketzos that the distinction between the two pesukim is that one can consider a land which he is now an owner but his ownership will expire, to be "your land" since it is not his. But, from the perspective of the giver, it is not a "land that Hashem gave me", because it was only given temporarily.