Brachos 21b - Shomeia K'oneh

The gemara discusses when a person can start davening when they come late to shul and says that since we hold that one cannot say kedusha alone, one cannot start shemoneh esrei unless they assess that they will be done by the time the shliach tzibbur reaches kedusha. There is a machlokes between Rashi and Rabbeinu Tam cited by Tosafos here (and in Succah 38b) how to regard the concept of shomeiah k'oneh. Rashi understands that if one were to remain silent during their shemone esrei and listen to the kedusha with intent as if they were saying it, they could be yotzei, and it would not constitute a hefsek in the shemone esrei. Rabbeinu Tam and R"I both hold that it would constitute a hefsek. Clearly, according to Rabbeinu Tam and the R"i, the concept of shomeiah k'oneh is literal, that by hearing it is tantamount to saying. However, Rashi holds that it creates some level of tziruf that allows the listener to combine with the the mitzvah being performed by the reader, but isn't as if the listener is actually saying the words and therefore doesn't constitute a hefsek. The Tzlach explains that according to the R"I and Rabbeinu Tam that shomeia is literally like being o'neh and saying the words oneself, if one were to use shomeiah k'oneh to make a bracha that they were not obligated in, it would be a violation of a bracha l'vatala (whereas the concept of hirhur k'dibur even according to Ravina wouldn't constitute a bracha l'vatala).

Tosafos asks that according to Rashi that one can be yotzei by listening even during their own private shemoneh esrei, why would the gemara require one to wait until after kedusha before starting shemone esrei? Why not start shemoneh esrei and be yotzei kedusha through shomeiah k'oneh? Tosafos answers that according to Rashi although one can be yotzei through shomeiah k'oneh, it is not ideal. It is more of a hiddur mitzvah to actually say it and not be yotzei through listening.

It doesn't seem from Tosafos that we regard the listening as a type of hefsek lichatchila, rather the mitzvah of saying kedusha is not being performed ideally unless one actually says the words. Why is this different from kiddush on shabbos when we use shomeiah k'oneh lichatchila to be motzi others? If the concept of shomeia k'oneh doesn't work lichatchila, we shouldn't use it for kiddush either?

I was at a chasuna last night and posed this question to Rav Asher Weiss. He thought that although shomeiah k'oneh is only a "bidieved", there are other considerations that can override it and that is why we sometimes use it even lichtachila. I asked what is the consideration by kiddush that overrides shomeiah k'oneh, to which he said that since we have kiddush b'makom seduah, the group element is important. In my opinion this is not correct. Although the kiddush may require a makom s'eudah (be it d'oraysa or d'rabonon - see Rosh Pesachim), it does not require a group (or perhaps, as r. warren cinamon suggested to me it is just the regular din of b'rov am hadras melech that would override the lichatchila of saying it oneself). Perhaps by Megillah there is a concept of being yotzei b'tzibbur such as we find shelo b'zmano must be with a minyan, but by kiddush we don't find such a concept.

It seems to me that Tosafos is not saying a rule for all shomeiah k'oneh that it is only bidieved, to which kiddush is an exception. Rather, Tosafos is saying something very specific to the replying to kaddish and kedusha. Tosafos holds that since the goal of answering kaddish and kedusha is to actively participate and show that one agrees and confirms the greatness and holiness of Hashem, it is ideal to do this actively. Generally, the din shomeiah k'oneh is as ideal as doing it oneself, but when it comes to things that are meant to proclaim the holiness and greatness of Hashem, it is a hiddur mitzvah to do it actively by actually saying the words as a declaration.

Brachos 19b - Kavod HaBriyos

According to our girsa in the gemara on is obligated to remove shatnez from themselves even if it will cause them public embarrassment. The Rambam had a girsa that when one finds shatnez on their friends garment they are obligated to rip it off them even in the street. From the Rosh who has our girsa, it seems that one would only need to do this to themselves but not to someone else. The Rosh actually goes lishitaso (Nida, Kilei begadim 6) where he writes that if one sees their friend wearing shatnzes and the friend is unaware, don't tell him until he reaches a place that is possible to remove the garment without suffering embarrassment.

The Rambam and Rosh seem to argue whether the שוגג, accidental violation would allow someone else to not tell him immediately to protect his kavod habriyos. The Nodeh B'Yehuda (O.C. 35) explains based on a chakira whether on why we would push off an issur בשב ואל תעשה for the sake of kavod habriyos as we find in the end of the gemara. If שב ואל תעשה  is just a lower level aveira, but when the aveira is being violated בקום ועשה such as when someone is wearing kelayim, there is a requirement on the one who knows to tell him. Or if the point of שב ואל תעשה is that one has the right to be passive, so too the one who knows has the right to be passive for כבוד הבריות and not inform the one wearing the shatnez. The Rambam would hold that since the prohibition is being violated by the active wearing of shatnez, it is not considered passive and you must tell him. However, the Rosh holds that since the one who knows is just being passive by not telling, he has the right to do so for the sake of kavod habriyos even though the prohibition is being violated actively. See Sha'agas Aryeh (58) who makes this issue dependent on two answers of Tosafos in Shavuos 30b.

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The gemara asks from the statement of גדול כבוד הבריות שדוחה את ל"ת שבתורה, that one can violate a prohibition to protect kavod habriyos. The gemara responds that they can only violate לא תסור. and then explains that all Rabbonon's are supported by לא תסור, but where it interferes with kavod habriyos, they were lenient.

There is a well known argument between the Rambam and Ramban whether all Rabbinic prohibitions are automatically upgraded to be like a d'oraysa based on לא תסור. The Rambam holds it is like the violation of a d'oraysa, whereas the Ramban says that it is only the violation of a d'rabonon. The Ramban would learn the gemara here to say that לא תסור is not more than an אסמכת to find so hint to the concept of listening to the Rabbonon from within the Torah, but in truth the pasuk is not a real source for anything. However, the Rashi seems to imply like the Rambam. Really every derabonon is supported by לא תסור, just that the Rabbonon had the foresight to lower the bar and be "mochel" on their restrictions in pressing circumstances such as kavod habriyos. Therefore. although לא תסור is a source to support d'rabonon violations, and kavod habriyos is not powerful enough to push it off, the Rabbonon never implemented their decrees in a situation where there would be a conflict with kavod habriyos. According to the Ramban we don't need to say that רבנן אחלוה ליקרייהו לעבור על דבריהם היכא דאיכא כבוד הבריות, which essentially means that the issur d'rabonon doesn't apply to such a situations, rather simply that kavod habriyos is more powerful and trumps the issur d'rabonon.

Brachos 19a - Nichum Aveilim

The mishna said that after the burial, if there is enough time to read shema before the shura is formed, the attendees must read, but if not they are exempt. The reason that they are exempt is because they are still considered to be involved with a mitzvah. Although the mitzvah of burial is over, the shura is a part of the mitzvah of nichum aveilim. Rabbeinu Yona explains that נחום אבלים is also considered a d'roaysa mitzvah because it is included in gemilas chasadim and supported by the pasuk of והודעת להם את הדרך, therefore we can apply the principal of עוסק במצוה פטור מן המצוה to even exempt from a mitzvah d'oraysa such as krias shema.

Rabbeinu Yona clearly assumes that involvement in a mitzvah d'rabonon wouldn't exempt from a mitzvah d'oraysa, but we consider nichum aveilim to be d'oraysa. Rav Elchonon Wasserman (Koveitz Shiurim 2:32) raises a question as to whether one involved in a mitzvah d'rabonon would be exempt from a Torah mitzvah, but doesn't cite Rabbeinu Yona.

However, the Mishna says that if there would be enough time before the shura is formed to say shema, they must do that. The gemara explains that even if there isn't enough time to say the entire shema, just one perek or even just one pasuk, they must do that. Now, if we assume that when the gemara says 13b that Rebbi would say שמע ישראל ה' אלקינו ה' אחד in middle of his shiur, it means only that one pasuk because only one pasuk is d'oraysa, it would make sense that we require the menachamim to say even one pasuk. However, according to Rabbeinu Yona who holds that the entire perek is necessary m'doraysa, and certainly according to those who hold that both parshiyos are d'oraysa, why would we make the menachamim say just the pasuk of shema?

It seems that the mitzvah of shema may not be fulfilled unless both parshiyos are said, but it is not all or nothing. Although there is no independent mitzvah to be מקבל עול מלכות שמים, rather it is part of the mitzvah of shema, if one fulfills that aspect, they have fulfilled a mitzvah d'oraysa - just that they are missing the other component of the mitzvah. To properly fulfill the mitzvah of shema one would need say both parshiyos to even be mekabel עול מצות, if not they should at least say the entire section of shema to be מקבל עול מלכות שמים properly, but if not there is still a kiyum of kabalas עול מלכות שמים that is achieved by saying the first pasuk.

Brachos 17b - Exempting an O'nen From Mitzvos

There is a fundamental machlokes between Rashi and Tosafos as to the source of the exemption of mitzvos for an o'nen. Rashi says that it is similar to a chosson who is mentally focused on doing the mitzvah of p'ru u'rvu, therefore we don't impose on him any other positive obligations. Similarly, the focus on burying one's dead forces chazal to waive the imposing of any other mitzvos. Based on this the exemption is essentially based on עוסק במצוה פטור מן המצוה. Tosafos cites the Yerushalmi that says that the rationale is either for kavod of the deceased, or to ensure that there is someone tending to the burial needs. The Yerushalmi says explicitly that the kavod ha'meis concern would apply even if there are other to tend to the needs of burial.

Rashi and Tosafos seem to also argue whether the exemption of an o'nen from the making of brachos is an exemption, or even a prohibition for the o'nen to make brachos. Tosafos who holds that the rationale is to show kavod for the meis would certainly hold that it would be prohibited to make blessings since that would display a lack of undivided attention to the meis. whereas Rashi who holds that it is an exemption from doing other mitzvos, it would still be permitted to choose to do them.

The gemara asks why does the mishna stipulate מי שמתו מוטל לפניו which implies that the exemption from mitzvos is only when one in in the present of their deceased relative, but the Braisa exempts one from mitzvos even if not in the presence of their deceased relative. The gemara has two possible answers. The first is that the exemption from mitzvos only applies within the presence of the deceased. That approach certainly seems to assume that the rationale to exempt is kavod ha'meis and therefore only applies in the presence of the deceased. But the second approach which is that whenever it is your obligation to bury this relative, it is as if he is lying in your presence, wouldn't compel this rationale.

The gemara also equates the exemption of an o'nen to one who is watching a dead body and is exempt from mitzvos. That would certainly imply like Rashi that the rationale to exempt is osek b'mitzvah patur min hamitzvah, because the two rationales of the yerushalmi would seemingly not apply. Yet in the next gemara it compares an o'nen to one who is walking through a cemetery and cannot perform mitzvos because of לועג לרש - it is degrading to he deceased by teasing them that they no longer have the ability to perform mitzvos. This would indicate that the p'tur of an o'nen is also connected with kavod ha'meis as Tosafos cites from the Yerushalmi.

Brachos 16b - 17a - Tefilos after Davening

Someone in my shiur asked me today why it was necessary for all these amoraim to add on tefilos after their davening. Anshei k'neses ha'gdola instituted the nusach of davening. Why did these amoraim feel that it was insufficient and necessary to add to it?

I found that the Tzlach actually asks this question. The gemara on 28b says that tefillah cannot be "kevah" rather it must be רחמים ותחנונים. The Anshei K'neses Ha'gedola instituted a nusach of tefillah but this nusach is generic and not personal. It has a tendency to lead one to daven out of habit rather than heartfelt requests of Hashem. Therefore, the gemara teaches us that everyone must personalize his tefillah to ask Hashem for what he needs and not just leave it as the generic tefillah of the anshei k'neses ha'gedola.

Brachos 16a - Shema D'oraysa

The gemara discusses whether workers continue working while they say shema, and concludes that for the first perek they stop their work to say shema, but the second chapter they say while working. The gemara is assuming that the first perek requires kavana, but the second does not. The issue of kavana was already dealt with at the beginning of the perek regarding the part that one has to stop walking for. Rava holds only the first pasuk requires intent, whereas R. Yochanan says the entire first parsha. The Ri"f explains that even Rava who only requires kavana for the first pasuk and would allow one to continue walking after the first pasuk, would say that one cannot do work for the entire first parsha דלא לשוי לה עראי  - not to degrade the first parsha of shema. However, Tosafos says that the gemara's answer is to allow for a distinction even in the opinion of R. Yochana, but since we pasken like Rava it would be sufficient to stop working for just the first pasuk.

Rabbeinu Yona points out that according to the Ri"f the d'oraysa part of shema is only the first pasuk, yet we force workers to stop their work for the first parsha דלא לישוי עראי, but after that we are not concerned. Why are we not concerned after the first parsha? From here the Rabbeinu Yona derives that only the first parsha of shema is d'oraysa, the parsha of והיה אם שמוע is only d'rabonon. Rabbeinu Yona elaborates to prove this point. One of his sources is the gemara 13b that Rebbi Yehuda HaNasi would only say shema yisroel within the time of Krias Shema. Rabbeinu Yona understands this to mean that he would read the entire first perek, not just the first pasuk. If the second perek were d'oraysa Rebbi would have had to say that as well, the fact that he didn't proves that after the first perek it is only d'rabonon. 

In the gemara on 13b about Rav Nachman who would dose off during shema and only required his servant to keep him awake for the FIRST PASUK, not the first parsha. If the first parsha is d'oraysa why didn't he require his servant to keep him awake for the entire parsha? Rabbeinu Yona (beginning of perek) explains that he actually read the entire shema, just that he was dosing off so he didn't have kavana. He insisted that his servant keep him alert to have kavana for the first pasuk, like Rava paskens, but not beyond that.

This distintion between the first parsha being d'oraysa and second being d'rabonon, would help explain the opinion of Rashi on 2a who says that the mitzvah of krias shema is fulfilled by the saying of the first perek before one goes to sleep. Tosafos disagrees and says that if one were to be yotzei with krias shema al ha'mita, they should read all three parshiyos (the third is definitely not d'orasya for shema, just for yetzias mitzrayim). The Sha'agas Aryeh (3) also justifies the position of Rashi based on the Ri"f that only the first parsha is d'oraysa, but for the d'rabonon parsha we rely on the saying of shema early. The proof of Rabbeinu Yona has that the second parsha isn't d'oraysa is based on his learning of our gemara that the distinction between the first perek and second is true even according to Rava who requires kavana only for the first PASUK, so the distinction between the first PARSHA and second must be whether it is d'oraysa. However, according to Tosafos that the workers only need to pause for the first PASUK, that is because of kavana, but the d'oraysa requirement to read could be both the first and second PARSHA, which is li'shitasam on 2a.

Rabbeinu Yona asks that since we require people learning to stop for all mitzvos, even Rabbinic mitzvos, why wouldn't we require Rebbi to stop for והיה אם שמוע? Rabbeinu Yona cites a Yerushalmi that we stop a reading mitzvah i.e. limud ha'torah, for an action mitzvah, but not for another reading mitzvah i.e. krias shema.

Brachos 15b - Learning Out Loud

The gemara develops a 3 way machlokes as to whether one is required to hear what they are saying for mitzvos that are dependent on amira such as kriash shema and brachos. We pasken like R. Yehuda that lichatchila one must hear what they are saying but they can be yotzei bidieved even if they don't hear what they are saying. In the discussion the gemara compares this to one who says ברכת המזון בלבו, which would seem to imply that a person can be yotzei even without articulating the words with their mouth. However, Rashi 15a implies that when the braisa speaks about saying birchas hamazon in one's heart, it doesn't literally mean in one's heart, it means that they don't hear the words that they are saying. Rabbeinu Yona writes this explicitly, we pasken הרהור לאו כדבור דמי, so the entire discussion here is when there is actual dibur, just not audible. The gemara at the very end asks, how can one be yotei brachos that aren't audible, the pasuk says הסכת ושמע ישראל, which implies that hearing what you are saying is essential. The gemara responds that the pasuk of הסכת ושמע ישראל is not speaking about other mitzvos and brachos, rather about talmud torah. Rashi explains that this does not mean that when one learns there is a requirement to hear what one is reading. Rather, the gemara 63b darshens from this הסכת that one should form groups and not study alone. Rashi is clearly bothered by interpreting the gemara to say that one must read out loud when learning, because the mitzvah of limud ha'torah is a mitzvah in the mind, not in the mouth. A similar idea is expressed by the Gr"a cited in the biur halacha in hilchos birchas hatorah. The Shulchan Aruch seems to make the halacha of whether הרהור in Torah requires a birchas hatorah to be dependent on הרהור כדבור דמי, to which the Gr"a responds that even if הרהור is not like speech, it would still require a birchas hatorah because the mitzvah of talmud torah is והגית בו יומם ולילה. Meaning the mitzvah of Talmud Torah is not a speech related mitzvah, it is a mitzvah for one to be mentally involved in Torah study.

However, the Shulchan Aruch HaGraz in Hilchos Talmud Torah (2:12) writes:

וכל אדם צריך ליזהר להוציא בשפתיו ולהשמיע לאזניו כל מה שלומד בין במקרא משנה ותלמוד, אלא אם כן בשעת עיון להבין דבר מתוך דבר. וכל מה שלומד בהרהור לבד ואפשר לו להוציא בשפתיו ואינו מוציא, אינו יוצא בלימוד זה ידי חובת מצות ולמדתם אותו וכו' וכמו בכל המצות התלויות בדבור שאינו יוצא בהן ידי חובתו בהרהור אא"כ שומע מפי המדבר שהשומע כעונה בפיו.

The Ba'al Hatanya seems to learn our gemara כפשוטו, that the mitzvah of Talmud Torah is essentially a mitzvah of dibur and can only be fulfilled if it is read in an audible way. According to this approach, Talmud Torah is actually stricter than other brachos and krias shema where one can be yotzei bidieved even if they don't hear what they are saying. The gemara considers the pasuk of הסכת ושמע ישראל to be me'akeiv, so that one is not yotzei talmud torah even bidieved unless they actually hear what they are saying.

Brachos 12b - Mitzvah to Mention Yetzias Mitzrayim

The Mishna has a discussion whether there is a mitzvah to mention yetzias mitzrayim only by day or even by night. Aside from the fact that we pasken like ben zoma that there is a mitzvah to mention yetzias mitzrayim both by day and by night, all agree that at least by day there is a mitzvah. Yet, the Rambam in his minyan ha'mitzvos 157 counts the mitzvah of sippur yetzias mitzrayim on the night of pesach, but doesn't count the mitzvah of zechiras yetzias mitzrayim, which is a mitzvah every day, twice a day. Furthermore, the Rambam in Hilchos Krias Shema in the heading writes that in the section below there is only one mitzvah - 

מצות עשה אחת והיא לקרות קריאת שמע פעמים ביום

The hagahos of the mishneh l'melech wonders why the Rambam counts it only as one mitzvah since it must be said twice a day, but a bigger question is raised by the tzlach - what about the mitzvah of mentioning yetziah mitzrayim. The Rambam himself (1:3) writes that even though tzitzis doesn't apply at night, we still say the parsha of tzitzis because it has in it yetzias mitzrayim, "and there is a mitzvah to mention yetzias mitzrayim by day and by night". Being that the rambam considers this a mitzvah, why does he not count it as a mitzvah?

The Tzlach answers that the Rambam understands like rashi in chumash that the pasuk of למען תזכור את יום צאתך מארץ מצרים כל ימי חייך, is not written in the language of a command rather in the language of a rationale. Rashi (devorim 16:3) says that it is a justification for the mitzvos that we do on the night of pesach such as eating korban pesach and matzah, in order to remember yetzias mitzrayim, and is not an independent command. According to Rashi, this pasuk cannot be considered a mitzvah at all. The Rambam understands like rashi that the pasuk of למען תזכור is not a command, but it is an indication that Hashem wants us to remember yetzias mitzrayim. That is why the Rambam says that there is a mitzvah - a mitzvah in the sense that it is the will of the Torah, but not an absolute command. This would probably be considered a kiyum mitzvah since it is the ratzon ha'torah but not a chiyuv. However, Rashi himself in parshas Bo (13:3) learns that the pasuk of זכור את היום הזה אשר יצאתם ממצרים is an absolute mitzvah and command to mention yetzias mitzrayim everyday.
The Ohr Sameiach (beginning of Hil. Krias Shema) has the same basic approach as the tzlach. Chazal understood from other mitzvos in the Torah that the will of Hashem was that we remember yetzias mitzrayim. Therefore, it is not a real mitzva d'oraysa, but also not a d'rabonon since it is the ratzon of Hashem. Based on the Meshech Chochma (shoftim) it would make sense why we would be machmir about a safeik by this type of mitzvah as well. Furthermore, the Ohr Sameiach says that even if mentioning yetzias mitzrayim isn't considered time bound since it is both by day and night (unlike sha'agas aryeh who says that it is time bound since the day mitzvah doesn't apply at night and the night mitzvah doesn't apply by day), women may still be exempt. The actual obligation for this mitzvah is only on pesach night to tell the story of yetzias mitzrayim and through that chazal indidcate that they want it mentioned daily. Since women are exempt from the mitzvah of sippur on pesach night, they are also exempt from the mitzvah of zechiras yetzias mitzrayim (this of course assumes that women are exempt from sippur but many hold that woman are actually obligated in the mitzvah of sippur on pesach night as well).

It seems to me from that language of the Rambam that his approach is slightly different. The Rambam after writing that there is a mitzvah to mention yetzias mitzrayim both by day and night, concludes - וקריאת שלש פרשיות אלו על סדר זה היא הנקראת קריאת שמע. What does the Rambam mean by this line that the reading of all 3 parshiyos is called krias shema? The gemara suggests the insertion of parshas balak in the krias shema, would that also be called krias shema? It seems that the Rambam is trying to say that the mitzvah of mentioning yetzias mitzrayim is not an independent mitzvah, rather part of the broader mitzvah of krias shema. A support to this is from the gemara that says that they established saying ויאמר because it has in it 5 different points - one of them being yetzias mitzrayim. It seems from the gemara that it wasn't simply tagged onto krias shema to accomplish a second mitzvah of mentioning yetzias mitzrayim which also happens to be twice a day, rather it is part and parcel of the actual shema. 

Furthermore, the Tzlach writes at the very end of the perek that if the mitzvah of mentioning yetzias mitzrayim is derived from the pasuk of למען תזכור, then it must include mentioning the plague of killing the first born as it says in the yerushalmi (since it mention the חפזון which the gemara tells us on 9a refers to חפזון of mitzrayim during makas bechoros). Therefore, the parsha of ויאמר would be a mentioning of yetzias mitzrayim but would not be sufficient to technically fulfill the mitzvah. It is only the bracha of that follows the shema of אמת ויציב by day and אמת ואמונה at night, which mention makas bechoros explicitly, that one can fulfill this mitzvah. This is supported by the gemara 21a that considers אמת ויציב to be d'oraysa since with it one fulfills the mentioning of yetzias mitzrayim - what about ויאמר? The gemara seems to understand that with ויאמר one cannot fulfill this mitzvah. According to this approach, the parsha of ויאמר  is not a technical fulfillment of this mitzvah, but was added to the krias shema because it has 5 essential principles, one being to mention yetzias mitzrayim.
Perhaps the Rambam's source that the parsha of tzitzis became part of the mitzvah of krias shema is from the gemara 13b. The gemara says that Rebbi would say the first pasuk of shema in middle of his shiur and would also try to discuss a topic that contained something about yetzias mitzrayim. The gemara questions whether after the shiur Rebbi would say all the remaining parts of shema. The gemara responds that he would seemingly not say the other sections of shema later on, because if he did why would he have to mention yetzias mitzrayim during the shiur, he could fulfill his mitzvah with the saying of it later. To that the gemara responds that even if Rebbi was going to say all 3 parshiyos of shema later on, he would still mention yetzias mitzrayim in his discourse - כדי להזכיר יציאת מצרים בזמנה, so that he can mention yetzias mitzrayim in it's time. Rashi explains - בזמן קריאת שמע. The Sha'agas Aryeh 10 points out that Rashi is teaching us that the mitzvah of mentioning yetzias mitzrayim is not limited to a certain time of day, rather Rebbi wanted it to be said in the time of krias shema. This implies that the institution of the parsha of tzitzis wasn't merely to fulfill a mitzvah of mentioning yetzias mitzrayim, rather the mentioning of yetzias mitzrayim itself became part of the krias shema.

Brachos 12a - Mitzvos Require Intent

The gemara discusses a situation where one begins a bracha with the wrong intent, but then finishes off the bracha properly, whether it is a valid bracha. Talmidei Rabbeinu Yona assume that this is dependent on the issue of whether mitzvos need intent. Since the person said all the words correctly, just that he had the wrong intent when he started the bracha, if we assume mitzvos don't require kavan he would still be yotzei. Based on this assumption, Talmidei Rabbeinu Yona asks why the gemara doesn't explicitly answer the question based on other sources that we have regarding mitzvos needing intent, such as the gemara in rosh hashana 28a. TRY (talmidei rabbeinu yona) write that according to the Ri"f who holds that mitzvos require intent, the gemara's question is legitimate. It seems that they understand that even if mitzvos would normally require intent, a bracha may not require intent at the beginning of the bracha since it was finished properly. However, according to those who pasken that mitzvos don't need intent, surely here the bracha would be valid even with the wrong intent at the beginning. What then is the gemara's quetion? TRY answers that when one does an act of a mitzvah such as blowing shofar or shaking lulav, we can pasken that mitzvos don't need intent because the act is significant enough to make up for the lack of intent. However, mitzvos that are dependent on speech, such as a bracha, would surely require intent. The rationale is:

שהאמירא היא בלב, וכשאינו מכוין באמירה ואינו עושה מעשה נמצא כמי שלא עשה שום דבר מהמצות

Since speech is ultimately dependent on one's heart, speech without intent is worthless. That is why the gemara suggests that one could not be yotzei their bracha when they had invalid intent at the beginning.

The Bach (hagahos on TRY) points out that the gemara at the very beginning of the next perek discusses mitzvos tzrichos kavana in the context of saying Shema. That is clearly a mitzvah done with speech, without action, yet the gemara seems to raise the standard issue of whether מצות צריכות כוונה? The answer of the Bach that TRY just mean that the gemara doesn't answer the question here, but does answer it at the beginning of the next perek by showing that this distinction isn't true, is a difficult answer.

To answer this question we need to understand what TRY says. What do they mean that speech is dependent on the heart and therefore intent is integral? There are two types of mitzvos that involve speech. One type of mitzvah is a mitzvah that is really dependent on the saying of something, it is a mitzvah that is fulfilled through אמירה such as shema and kiddush. Another type of mitzvah is where the focus is really on what is in one's heart but needs to be formally articulated to substantiate what is in one's heart. Brachos on food would seem to be the latter category. The purpose of the bracha is to feel appreciation for what Hashem has given, just that the feeling of appreciation needs to be articulated. When it comes to mitzvos that are truly dependent on speech, TRY would categorize them as all other mitzvos that are dependent on action. The speech in shema is tantamount to the action of shaking lulav, where even without intent one can be yotzei. But when it comes to brachos where the focus is really on what is in one's heart, they need to feel the appreciation prior to articulating it. That is what TRY means that it is dependent on one's heart, and that is why intent is more essential for brachos than it is for krias shema.

Brachos 11b - Birchas HaTorah for Women

Tosafos discusses why Birchas HaTorah can work once in the morning and one is not required to make the bracha again for the duration of the day. Tosafos makes this point by contrasting Birchas HaTorah to Leishev BaSuccah which is required every time one returns to eat in the succah. Tosafos explains that eating in the succah has set times therefore the bracha that is being made only goes on the specific meal and whatever sitting in the succah follows it. However, by Torah there is a mitzvah to learn constantly - והגית בו יומם ולילה, therefore even if one has breaks throughout the course of the day, they would not be required to say birchas hatorah when they return to their learning. The point that Tosafos is trying to make is more clearly brought out by Rabbeinu Yona. Rabbeinu Yona suggests that there should be a distinction between different types of people. Those who learn regularly throughout the day would only need to make birchas hatorah once since their intent when making the bracha goes on the entire day since they will spend the majority of it learning. However, those who aren't spending most of their day learning is only making a bracha on what he is about to learn, therefore when the opportunity arises that he is unexpectedly able to learn, he should need to make a new birchas hatorah. To that Rabbeinu Yona responds that the minhag is that even those who fall in the second category do not make a new birchas hatorah. The rationale is:

דכיון דמצות הקריאה כל היום היא, אותה הברכה שבבקר פוטרת כל מה שיקרא ביום

Rabbeinu Yona (citing the R"I) originally thought that the birchas hatorah is dependent on whether a person is actually spending his day learning and only one who does, would be able to make the bracha only on the morning. However, he justifies the minhag based on the fact that the obligation to learn all day applies to everyone. In short, the reason we don't consider the time one is not learning to be a hefsek is because the obligation is to learn even during those times. This is the intent of Tosafos as well to differentiate between birchas hatorah and the bracha on succah. It isn't dependent on what one does, rather on the inherent obligation.

The Tzlach writes what even he considers to be a tremendous chiddush and wonders why this isn't pointed out by rishonim and other acharonim. Although we hold that woman are entitled to make birchas hatorah as the shulchan aruch paskens in the last si'if of 47, the rationale of Tosafos that we don't regard the break time to be a hefsek because they are obligated to learn even during those times, doesn't apply to women. Women are not obligated at all to learn. Therefore, if a woman makes birchas hatorah in the morning and then returns to learn later in the evening, she would need to make a new birchas hatorah.

It seems to me that this chiddush may be dependent on how exactly we justify a woman's right to make birchas hatorah. The Biur Halacha quotes two approaches. The Beis Yosef and Magen Avrohom write that a woman can make birchas hatorah since they are required to learn laws that are pertinent to them and also obligated to say the parshiyos of korbanos. This is what the birchas hatorah goes on. The Gr"a disagrees and says that it is like every time bound positive mitzvah that they have a right to make a bracha on. The Biur Halacha suggests that according to the first approach, they can technically be motzi a man in birchas hatorah, whereas according to the approach of the Gr"a, they cannot. Perhaps another distinction is that although the rishonim discuss whether one needs to learn immediately after making birchas hatorah (even the yerushalmi may only require this by ahava rabba), our custom is to say pesukim and a mishna right after birchas hatorah. It would seem logical that one would need to learn something that they are obligated to learn, so that the birchas hatorah can go on that learning. Based on the approach of the gr"a women can learn anything after birchas hatorah, including the saying of the pesukim and mishna that we say. But according to the first approach, they would need to learn halachos that apply to them. 

Perhaps another distinction between these two approaches is the suggestion of the tzlach. Do we consider the time in between the learning to constitute a hefsek. If they are making birchas hatorah due to their requirement to learn halachos that are pertinent, just as we don't consider the time in between a hefsek for men, we shouldnt consider it a hefsek for women either. But if they are only able to make a birchas hatorah as they make a bracha on every time bound mitzvah, the time in between the learning should be a hefsek for them and require them to make a new birchas hatorah when they come back to learn, as the tzlach suggests.

Brachos 9b - Starting Before the End of the Zman

The Mishna says that the zman of krias shema extends for the first 3 hours of the day. To add to yesterdays post, Rabbeinu Yona explains that there is a lichatchila start and finish time for shema, and a bidieved start and finish time. The lichatchila start time of Shema is misheyakir, and the lichatchila finish time is sunrise. From Rabbeinu Yona was see that the importance of davening k'vasikin is not just an advantage of doing tefilla with sunrise, but also getting in shema prior to sunrise which is the lichatchila end time. On a bidieved level, the start time of shema is alos hashachar, and the end time is 3 hours into the day. As I pointed out yesterday, Tosafos seems to contradict themselves (8b - 9b) whether the start time is misheyakir or alos.

It isn't clear when we are given zemanim for shema and tefillah, whether they must be completed by the end time, or is it sufficient to just begin them by the end time. The Magen Avrohom (beginning of Hilchos Tefillah) cited by the M.B. (89:5) who says that the davening must be completed within the first third of the day (z'man tefillah extends 1 halachic hour past z'man krias shema). The Aruch HaShulchan (110:5) infers this from a Magen Avrohom who says that if one sees that the time of tefillah is passing, they should say havineinu. Why not just start the regular shemoneh esrei before the time passes? The M.A. must hold that one has to be finished with the shemoneh esrei before the end of z'man tefillah, so that if he can't he should daven havineinu. The Aruch HaShulchan disagrees and says that it is sufficient to begin tefillah by z'man tefillah, even if one will not be finished until after the time passes. He derives this from Tosafos Brachos 7a that says that Bilam was able to start his curse of the jewish people at the moment of Hashem's anger. Although he couldn't complete his curse in that moment, it was sufficient to just start it. We see from here that once one begins in the "zman", they can finish afterward. The logic of the Aruch HaShulchan would presumably apply to Shema as well. So long as one starts in the right time, they can finish afterward.

It seems to me that from Rabbeinu Yona on our gemara we have a very strong proof to the Magen Avrohom, against the Aruch HaShulchan. Rabbeinu Yona posits that sunrise is the end time for the lichatchila reading of Shema. He explains that the pasuk of ייראוך עם שמש requires that Tefillah be done sometime as the sun is rising and is not a specific momemnt (unlike Rashi who says that the pasuk is referring to shema). If Krias Shema could be done lichatchila after the sun begins to rise, why were the vasikin so meticulous to finish shema exactly upon the sun rising, they could have been less precise and managed to finish shema sometime within the 10 - 15 minutes that it takes the sun to rise and then davened shemone esrei. From this Rabbeinu Yona concludes that their precision was not due to hilchos tefilla, rather to hilchos krias shema. Had they not been so precise, their krias shema would extend beyond the start of sunrise, and they would not fulfill the lichatchila mitzvah of reading shema before sunrise. Rabbeinu Yona then adds, that the vasikin themselves would agree that bidieved one could be yotzei shema for the first 3 hours of the day, even after sunrise, because if they held that sunrise was the absolute end time, they wouldn't have risked losing the entire mitzvah of shema by finishing so close to sunrise. The language of Rabbeinu Yona is:

אם איתא דאינו יוצא בדיעבד אחר הנץ, היאך היו מצמצמין כל כך שיגמרו אותה עם הנץ החמה ממש, היה להם לחוש שמא יעבור זמן ק"ש ולא היו מכניסין ק"ש בספק כזה. Now, if the Aruch HaShulchan was correct, the logic of Rabbeinu Yona wouldn't have made sense. There would be no risk to saying Shema right before sunrise since all we would require is that it begin before sunrise, even if it isn't completed by sunrise. Clearly we see from Rabbeinu Yona that shema would need to be completed prior to the end of the z'man.

Perhaps one could dispute this proof by distinguishing between the z'man of shema and the z'man of tefillah. It is only for tefillah that starting within the time would be okay as suggested by the Aruch HaShulchan whereas shema would need to be completed within its time. However, if for the d'oraysa of shema it would need to be completed within the time, it is more logical that chazal would have modeled the z'man tefillah after the z'man krias shema and wouldn't have been lenient to allow one to just start before the end of the z'man. Therefore it seems that the Magen Avrohom is correct, and the proof of the Aruch Hashulchan from bilam's curse is not the model for chazal's institution of z'man tefillah.

Brachos 8 - 9 - Time for Shema

The gemara says that one can read shema before and after amud ha'shachar and fulfill both the shema of the evening and shema of the morning. The gemara then has a second lashon that says one can read shema both prior to sunrise and after sunrise and fulfill both the shema of the evening and the shema of the morning. Rabbeinu Yona (2a) says that the Rif holds that these leshonos don't disagree. The first lashon which says that evening shema can be read before amud ha'shachar (at least m'doraysa), and the morning after amud ha'shachar is even in a normal circumstance. The second lashon which talks about before sunrise and after sunrise is speaking about a sha'as ha'dechak where a person could not read shema earlier, so they can read the night time shema before sunrise even after alos ha'shachar, and then again after sunrise. Actually, Rabbeinu Yona says that when the gemara says that the morning shema could be read after sunrise, it is to the exclusion of the evening shema which cannot be read after sunrise, but the ideal time to read the morning shema is just before sunrise as the gemara says on 9b. Tosafos 9a in the second answer also says that one can read the even shema before misheyakir and the morning shema after misheyakir and be yotzei. Even in the lashon that allows the morning shema to be read after alos, Tosafos 8b holds that it cannot be read until misheyakir, and when the gemara says after also ha'shachar, it is לאו דוקא. However, Tosafos 9b implies that even lichatchila one can say shema in the morning after alos. In Shulchan Aruch (o.c. 58) we pasken that ideally one should say the morning shema just before sunrise and daven with sunrise as the vasikin do. If one is unable to do the מצוה מן המובחר, they can say shema as early as misheyakir, and from that point it should be done as soon as possible and must be done before 3 hours of the day. In a sha'as ha'dechak one can say it as early as alos hashachar, provided that they have said the evening shema before alos hashachar (m.b. cites gr"a who doesn't consider it to be a contradiction to say both evening and morning shema after alos, since it is both a time when people are sleeping and a time when people get up.

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Rav Moshe has a teshuva where he explains the Mishna in Megilla that says all day mitzvos can be done from alos, but lichatchila should be done after sunrise. Rashi says that m'doraysa the z'man is alos, but m'drabonon they wanted us to wait until sunrise to be sure that it is day. Rav Moshe understands from the Rambam that both the lichatchila and the bidieved are on a Torah level. The Torah considers alos ha'shachar to be day on a bidieved level, and sunrise to be day on a lichtachila level. It seems to me that the language of Rabbeinu Yona 2a strongly supports Rav Moshe's chiddush:

אע"פ שאחר שעלה עמוד השחר יוצא ידי חובה מק"ש של יום, קורא אותו לילה מפני שעיקר היום אינו אלא אחר הנץ החמה ואילך, וכל דבר שמצותו ביום לכתחלה צריך לעשותו מהנץ החמה ואילך, וכיון דלכתחלה אינו יום אע"פ שבדיעבד יוצא מק"ש של יום, קורא אותו לילה

Brachos 5a - Hashem "Sold" Torah to Klal Yisroel

The gemara darshens the pasuk of כי לקח טוב נתתי לכם תורתי אל תעזובו, that the giving of the Torah is comparable to a man selling his most precious item. The gemara points out the contrast that when a man "sells"  at item because he needs the money, he is saddened by the sale, whereas Hashem "gave" the Torah to the Jews and was happy about it. The Tzlach points out that the gemara is comparing apples and oranges. How does it compare the sale of a man to the giving of Hashem? The Tzlach explains that is exactly the point of the gemara. The pasuk says in Iyov (35:6) אם חטאת מה תפעל בו...אם צדקת מה תתן לו. Hashem has not benefit from our mitzvos and not loss from our aveiros. Even when we say that our aveiros causes Hashem to be weakened, that is only in His relationship to us, but it doesn't truly impact Hashem at all. The gemara is coming to illustrate that when a seller sells an object he receives payment for the object, and is nevertheless saddened by it's loss. Whereas Hashem gave us the Torah, while receiving nothing in return, yet is happy about giving it up.

Another important point in understanding this gemara is something that my wife's grandfather, Rabbi Yitzchok Gefen, develops in his sefer dalyas ha'kerem, which I also found in the Nesivos' sefer on aggadah called Emes L'ya'akov. The gemara is seemingly trying to illustrate the contrast between the reaction of a seller and the reaction of Hashem by giving up the Torah. The question is that it is not at all comparable. When a seller sells an object, that object is now in the hands of the buyer, and lost from the seller. When it comes to a חכמה such as Torah, it can be taught to the Jewish people without being lost from the giver. It is more similar to the transfer of fire where the "seller" has no reason to be upset since he didn't lose anything? The answer is that when Hashem gave the Torah to klal yisroel, he literally gave it up. As the gemara says in Baba Metzia, the ability to pasken and be machriah in Torah was handed over to the chachmei ha'torah so that even when Hashem disagrees, the halacha follows the chachmei hatorah. Hashem literally handed over the ba'alus - ownership of the Torah to the Jewish people. He had every reason to be saddened by giving up the Torah, yet His reaction was one of joy.

Brachos 4b - Geula Next to Tefilla

The gemara cites a machlokes between R. Yochanan and R. Yehoshua Ben Levi whether the concept of לסמוך גאולה לתפלה, applies only by day or even by night. R. Yehoshua Ben Levi holds that it doesn't apply at night since the primary redemption was during the day, not at night. What is the purpose in being מסמיך גאולה לתפלה and why is one who does it deserving of the title בן עולם הבא? Rabbeinu Yonah says that Hashem took us out of mitzrayim to be His servants. We recognize this in the bracha of ga'al yisroel. By davening immediately afterward we show that we recognize that we were acquired from Mitzrayim by Hashem to be His servants and are bound to his mitzvos. Alternatively, Rabbeinu Yona writes that it is Hashem earned out full trust by taking us out of mitzrayim and we are completely confident that he will always provide for us. Therefore, we say that just as we had this confidence when we left mitzrayim, we maintain this confidence when we turn to Him to ask for our needs.

Both approaches of Rabeinu Yona seem to attribute the advantage of being סומך גאולה לתפלה to be something new. It is not that the bracha of geu'la compliments the tefila, or the tefila compliments the bracha, rather the connection implies either a recognition of being his servants, or confidence that He will provide for us. Rashi seems to offer another explanation by citing the Yerushalmi which says that by making the bracha of geu'la and then walking away, we are tantamount to servants who knock on the door of the king and run away when he answers. After we appease Hashem and speak great praise about how we were redeemed, we run away without asking for our needs. Rabbeinu Yonah seems to say that both the bracha and the tefilla serve a significant function on their own, but when we put them together we show a special allegiance to Hashem. Rashi on the other hand says that the reason we need to daven after making the bracha of ga'al yisroel is because otherwise the bracha doesn't fulfill it's purpose. Rashi seems to say that the entire purpose of ga'al yisroel is to set up a situation where we can ask Hashem for what we need.

The gemara asks that according to R. Yochanan who requires geu'la to immediately precede tefillah, how can we say the Bracha of השכיבנו at night which separates between the bracha of ga'al yisroel and tefilah? The gemara answers that השכיבנו  is like a "long geu'la" - meaning that it is an extension of the bracha of ga'al yisroel, and therefore not a separation.

Tosafos explains the concept of כגאולה אריכתא דמי to mean that since it was instituted by chazal, it is not considered to be a hefsek. It seems that Tosafos holds that only personal interruptions are viewed as a hefsek. Based on this, Tosafos holds that the insertion of יראו עינינו and other pesukim are also not considered a hefsek since they were instituted by the chachamim.

Rabbeinu Yonah seems to disagree with Tosafos. Rabbeinu Yonah explains that השכיבנו is considered an extension of the geu'la because it is a reference to the night before we left mitzrayim and Hashem protected us during the makas bechoros. Rabbeinu Yonah seems to hold that simply being instituted by the chachamim doesn't give it the status of גאולה אריכתא. Perhaps it is for this reason that Rabbeinu Yona cites the Ramban disagreeing with Tosafos, that יראו עינינו shouldn't be said because it does interrupt between the geu'la and the tefillah. Even Rabbeinu Yonah himself who justifies the saying of it, is only because ma'ariv originally started as a re'shus where it wasn't so important to be מסמיך גאולה לתפלה, but otherwise would hold that it couldn't be said.

Perhaps the machlokes between Tosafos and Rabbeinu Yona regarding יראו עינינו being a hefsek, is actually dependent on the function of being מסמיך גאולה לתפלה. Rabbeinu Yona who holds that it is a special statement that is implied from the immediate juxtaposition that we show allegiance to Hashem or confidence in Hashem, it is only implied by an immediate juxtaposition without any other interruption. Therefore, Rabbeinu Yona is litshi'taso that even a hefsek instituted by chazal would dilute the connection between geu'la and tefilla so that the concept would no longer be recognized. However, Tosafos holds like Rashi that the purpose of being מסמיך גאולה לתפלה is that we can't walk away from גאולה without asking for our needs since that is the entire purpose of why we mention the geu'la. There isn't anything that we are trying to imply by the connection, but by breaking the connection we are undermining the purpose for the bracha of geu'la in the first place. Therefore, anything that chazal institute to be there wouldn't be considered knocking on the door and walking away. The immediate juxtaposition is only necessary for Rabbeinu Yona who holds that the effort for one to follow the other has a special implication, which wouldn't be obvious if there were some other passage in between. But Rashi and Tosafos hold that the concern is that we shouldn't knock and run, and any passage instituted by chazal would not qualify as running away after knocking.

Brachos 2a - Reading Shema After Chatzos

Last night we were zocheh to make the a siyum ha'shas in Palo Alto, CA. This was probably the first time a group ever learned through the entire shas together in this area of the world. 

Mazal Tov to ALL!

We have a machlokes in the Mishna between Rabban Gamliel and the Chachamim whether Shema must be read by chatzos. It is clear from the Mishna that on a Torah level, the actual end time to read shema is alos ha'shachar (or maybe sunrise), and the end time of chatzos is only m'drabonon to prevent people from being negligent and coming too close to the actual end time and violating an aveira.

It would seem that the entire argument would be lichatchila. Meaning, all would agree that if you haven't read by chatzos that you should still read afterward to fulfill the mitzvah d'oraysa. This is clearly the approach of the Rambam (Hil. Krias Shema, 1:9). However, this approach doesn't fit well into the Mishna because the Mishna seems to illustrate the opinion of Rabban Gamliel by citing a story where he told his sons to read shema even after chatzos. How does this illustrate the opinion of Rabban Gamliel? Even the Chachamim agree that you can read after chatzos if you haven't read beforehand?

Rabbeinu Yona has an alternate approach. He understands that the machlokes between Rabban Gamliel and the Chachamim must be bidieved because lichatchila one must read it immediately when the time arrives. Rabbeinu Yona learns this from the gemara later 4b that explains that we try to avoid a situation where a person sits down to eat prior to the reading of Shema, even if there is plenty of time until chatzos. Since all agree that one must read shema immediately, they must be arguing about the bidieved. According to this approach, Rabbeinu Yona struggles with why the chachamim would say that even if chatzos passed and one hasn't read shema, it is too late and there would be no point in reading it. Why wouldn't you read it to fulfill the Torah obligation? Some suggest that they no longer allowed you to say the brachos, but shema should still be said. However, Rabbeinu Yona himself says that after chatzos there is nothing at all to do. He draws a parallel to when chazal uprooted the mitzvah of shofar and lulav when yom tov falls on shabbos. Similarly, chazal exempt linen garments from tzitzis, even though they are obligated m'doraysa, in order to prevent a shatnez violation. Here too, they uproot the Torah mitzvah after chatzos to prevent the violation of this mitzvah.

The Sha'agas Aryeh disagrees with this Rabbeinu Yona. We only find that chazal would uproot a positive mitzvah to prevent one from avoiding a more serious violation such as shabbos or shatnez. But here there is no potential violation of any external prohibition. The entire concern would be that one would violate the mitzvah of krias shema. What sense would there be to uproot the mitzvah of shema to prevent the violation of the mitzvah itself? Apparently, Rabbeinu Yona understands that it is worthwhile for chazal to uproot the mitzvah of shema for this individual this one time, to preserve the general mitzvah of shema by others and even for this individual for the future. They felt that had they left the z'man to be alos ha'shachar, many would be negligent and violate this mitzvah, but by making the end time chatzos they would ultimately be gaining the preserving the fulfillment of this mitzvah.

Nida 71a - Is it embarrassing to be a Nida?

Rav Moshe has a Teshuva regarding whether a woman is required to keep harchakos in public in a way that it will become obvious that she is a Nida. The suggestion is that the kavod habriyos can push off a לא תעשה שבתורה which means a d'oraysa lo ta'aseh if it is passive, and a d'rabonon lo ta'aseh if it is violated actively (based on gemara brachos 20b). Rav Moshe's premise is that he doesn't see any justification to be lenient based on kavod ha'briyos because it isn't embarrassing to be a Nida. All women in their younger years spend 40% of their lives as Nida, so it shouldn't be considered an embarrassing situation.

The difficulty is the gemara which says that when they were tovel the clothes of a woman who died as a Nida (even clothes that were removed before she actually died), the live women who were Nidos were embarrased, so they instituted that they treat all women who die as a Nida in order to prevent embarrassment to those who are Nidos. Clearly, the gemara assumes that the state of being a Nida is embarrassing and therefore it is legitimate to consider it a kavod habriyos concern. Rav Moshe himself deals with this question and is me'dayek from Rashi who says

 - מתביישין - שאפילו במיתתן הם משונין מכל אדם, that the aspect that is embarrassing is not the state of being a Nida but rather the fact that they are being treated differently than everyone else. Therefore, Rav Moshe maintains his position that the state of being a Nida is not considered inherently embarrassing. Of course, this is somewhat subjective, but Rav Moshe holds would qualify as kavod habriyos which is measured objectively.

Nida 70b - Success in Learning

Someone recently reffered me to a  teshuva of Rav Wosner where he discusses the way to succeed in learning. He emphasizes the importance of looking everything up in Shulchan Aruch to understand the conclusion of every sugya which was the way of the Chasam Sofer and R. Akiva Eiger. He writes that when the Chazon Ish was young he would always learn the Tur and Beis Yosef after finishing a sugya and his friends would tease him that he is going to be a school teacher.  The Chazon Ish commented "Baruch Hashem I did what I did", clearly attributing his style of learning to be a factor in becoming the Chazon Ish.

At the end of the Teshuva, Rav Wosner writes that the main thing is to daven to Hashem for success in learning, citing our gemara that to achieve success one must both study and daven for siyata dishmaya.

The gemara asks how one becomes wise, and answers by limiting business activity and focusing on learning. The gemara then questions that it doesn't seem to work for all, to which the gemara answers that one also needs to seek mercy from the one who distributes wisdom - Hashem. The gemara then tells a mashal of a king who made a feast and distributed the food to all those who were beloved to him. The gemara ends by saying why do we suggest be ma'rbeh b'yeshiva if it is really dependent on davening, to which the gemara says that you need both.

However, the mashal in the gemara seems strange. The gemara is trying to emphasize the importance of being mevakeish rachamim and beseeching Hashem to grant wisdom. Yet, the mashal is simply about a king who distributes of his feast to those who are beloved to him. It would seem that the mashal to Tefila should include these people requesting or even begging the king to share his food with them. If the entire point of the mashal is to illustrate the power of prayer, why doesn't the mashal even include it? I would like to suggest that the function of Tefilah is not merely to make a request of Hashem and ask for success in learning. The function of Tefila is to develop a relationship with Hashem, recognize that He is the source of wisdom and become one who is beloved to Him. Therefore, the mashal doesn't include the request. The emphasis of tefillah isn't on the request but rather it is the method of becoming an o'heiv - one who is beloved by Hashem. The mashal is simple. If you are an o'heiv of Hashem He will distribute wisdom to you as a king distributes his feast to those who are beloved to him.

Nida 69a - Status of Hefsek Tahara

The Mishna 68a and Braisa 68b refer to the hefsek tahara as being "hifrisha b'tahara", and is certainly essential to being able to go to the mikva. However, the mishna and gemara only clearly demand this in the context of a Nida, not in the context of a zava (although on 69a there is a reference to a zava being hifrisha b'tahara). There is a machlokes tana'aim how early a Nida is able to be mafsik b'tahara. The issue is that during the 7 days there is an assumption that she will bleed and therefore, without a hefsek tahara she has no ability to change her status to an assumption that she isn't bleeding. The Mishna implies that the most lenient opinion (rabbonon) allow a hefsek tahara as early as day 2, but not on the day she started bleeding since she established herself to have a ma'ayan pa'suach (as the gemara explains in Rebbi's original position). In the end the the gemara implies that the conclusion of Rebbi is that she can even do the hefsek tahara on the first day. 

When it comes to a Zav and Zava there is no mention of hefsek tahara, just a discussion about the minimum amount of bedikos. We pasken like R. Eliezer, but there is a machlokes Rav and Rav Chanina whether she must at least have bedikos on day 1 and 7, the bookends, or any one bedika in the 7 clean days is sufficient. Rashi (69a d.h. v'hacha) points out that the only reason we are going to allow the bedika on day 7 to retroactively serve as 7 clean days for the past 7 day is because she did a hefsek tahara prior to the start of the 7 clean days. The concept of doing a hefsek tahara before starting the 7 clean days is also indicated to by the gemara saying that a zava who is "hifrisha b'tahara" on the 3rd consecutive day of bleeding can count the next 7 days (starting from the next day) as the 7 clean days even though she doesn't do a bedika until day 7. It isn't clear though from the gemara how essential this is. Rashi takes it very seriously:

ומיהו הפרשה בטהרה בעינן דמשוחזק מעין פתוח ליכא לאחזוקי בטהרה עד שתבדוק ותמצא שפסק כדאמרינן במתניתין דהפרשה בטהרה בעינן

Rashi understands that the same requirement of hefsek tahara that we have for a Nida we have for a Zava, which implies that it is essential on a d'oraysa level. However, the gemara then assumes that according to Rav who holds that a bedika works on day 7, a woman can show up on day 7 and go to the mikva - we don't require ספורים בפנינו. Therefore the gemara asks from a braisa that indicates that we do require ספורים בפנינו on Rav who says you don't [Similarly, Tosafos (d.h. v'hacha) seems to take for granted that the hefsek tahara is essential according to Rav and therefore questions why the Mishna speaks about a bedika on day 1 since anyway we are speaking when there was a hefsek tahara with a bedika on day 7]. The Maharsha asks, what is the question on Rav, even Rav agrees that without a hefsek tahara it cannot count as 7 clean days, and she didn't do a hefsek tahara?

The Tosafos HaRosh (to which the Maharsha had no access) asks the same question. The Tosafos HaRosh suggests that the hefsek tahara for Zava may only be a d'rabonon, not a d'oraysa. Therefore, although a woman wouldn't be permitted to her husband without doing a hefsek tahara, she would be required to be to'vel at the end of 7 days by doing a bedika on day 7 (according to Rav who doesn't require ספורים בפנינו), if we assume טבילה בזמנה מצוה. The halacha of טבילה בזמנה מצוה would require that we are machmir to assume that perhaps she stopped bleeding in a way where the 7 clean days were effective in the absence of a hefsek tahara. Tosafos HaRosh then adds that even if we consider the hefsek tahara to be essential on a d'oraysa level, as rashi implies, we still must be concerned that maybe she did it and didn't remember and therefore we require her to be tovel on the day she comes by doing a bedika and considering it the 7the day of her 7 clean days.

Nida 67b - Chatzitza D'oraysa

The gemara says that to qualify as a chatzitza d'oraysa it must be both רובו ומקפיד, meaning it must cover the majority of one's body and one must be makpid in not wanting it there. The Rabbonon are go'zer to consider it a chatzitza even if it is רובו or מקפיד. If it is neither רובו or מקפיד it is not even chatzitza d'rabonon (just a minhag to remove everything prior to going to the mikva). 

Rashi interprets the entire gemara to be referring to a chatzitza on the hair, presumably because it immediately follows a gemara that talks about knots in the hair being a chatzitza. Both Tosafos HaRosh and Tosafos in Succah 6a understand from Rashi that it is only in the hair where we consider something to be a chatzitza d'oraysa ONLY if it is רובו ומקפיד, but on the rest of the body it would be regarded as a chatzitza d'oraysa even if it is a מיעוט שאינו מקפיד. 

Perhaps this is the source of the Rama (beginning of 198) who requires a woman to remove everything prior to going to the mikva, because according to the Tosafos and Tosafos HaRosh understanding of Rashi, everything is a chatzitza on the body. It is difficult to understand why the Tosafos and Tosafos HaRosh learn Rashi to be holding that even a מיעוט שאינו מקפיד is a chatzitza on the body, rather than saying that what is only d'rabonon by the hair such as מיעוט המקפיד or רובו שאינו מקפיד is a chatzitza d'oraysa on the body. 

Tosafos disagrees with Rashi and understands the gemara to be speaking about the body, not the hair. 

Perhaps even Rashi would hold that the same halacha that we find by the hair (according to his understanding that the gemara is talking about the hair) would apply to the body as well. The reason Rashi would limit the gemara to be speaking about hair could be because he holds like the opinion cited by the Rambam that we view hair as an independent entity. Meaning, the halacha of רובו is the majority of the hair, or the majority of the body. Rashi could simply be saying that if the majority of the woman's hair is tangled, each hair onto itself, it would be a chatzitza d'oraysa because it would qualify as רובו ומקפיד even though there is no chatzitza on the body. The same would be true on the body if there was a chatzitza covering the majority of her body, even if there were no chatzitza on her hair.

Nida 66b - Fit for Bi'as Mayim

The gemara says that the beis has'tarim, hidden areas of a woman's body but still external, such as the inside of the mouth and nose, don't need actual contact with water but must be cleaned from chatzitza so it is fit for contact with water. Tosafos 87a (d.h. pascha) writes that we tell a woman to open her mouth so that it is fit for water, just as we are makpid for chatzitza inside the mouth. The simple reading of Tosafos implies that if a woman keeps her mouth closed while toveling, the inside of her mouth is not "fit" for bi'as mayim and it will invalidate the tevila (but it is possible that the real concern of Tosafos is the chatzitza created by sealed lips). Tosasfos (d.h. kol) clearly holds that the requirement of ראוי לביאת מים for beis hastarim is d'oraysa, because Tosafos learns this from pesukim. However, the Ritva in Kiddushin 25a writes that the requirement for the beis hastarim to be fit for bi'as mayim is only d'rabonon.

The Sidrei Tahara (198:23: d.h. umi'dei avri) brought in my sefer mayim rabim pg. 213 asks on the how can a pasuk consider the beis hastarim a place that must be fit for water but not actually come into contact with water. Since the halacha is that on a Torah level something would only qualify as a chatzitza if you are makpid about AND covers the majority of one's body, it is impossible for there to be a d'oraysa chatzitza in beis hastarim. How then can the pasuk come to exclude beis hastarim? 

The Mishna Achrona based on this question concludes that anything that is placed on one's body intentionally can be a chatzitza even on a Torah level even though it only covers a minor part of the body. 

Alternatively, the zichron yosef (quoted by sidrei tahara) answers that although chatzitza couldn't be a d'oraysa problem in the beis hastarim because it is only a minority of the body, if one were to close their mouth preventing water from entering that would be a problem. The rationale is that a chatzitza is ta'fel - secondary, to the body, therefore when only covering a minor part of the body, it is as if it isn't there. However, by sealing the lips and preventing the entry of water, it would be a chatzitza if not for the Torah telling us that we don't need actual bi'as mayim (and according to the ritva excludes it on a torah level entirely from even being fit for bi'as mayim). Based on this he rules that although a safeik in chatzitza is a safeik d'rabonon, a safeik about sealing one' lips is a safeik d'oraysa.

The Sidrei Tahara himself says that the question doesn't compel any great chiddush. If not for the pasuk excluding the mouth from requiring contact with water, one would think that water must touch the majority of the body and if the beis hastarim helped make up the majority by the fact that it didn't come into contact with water, it would invalidate the tevila d'oraysa. The pasuk teaches that it doesn't need contact with water, it just needs to be fit for contact with water and would only invalidate the tevila if it weren't possible to come into contact with water.

Nida 63b - Cause and Effect for Vestos

The mishna lists specific types of vestos ha'guf that if they occur repeatedly (tosafos) prior to a woman getting her period, even just for one cycle, she establishes a veset (according to Rebbi that normally a veset takes two times, here it only takes one). The Mishna explains the definition of vestos ha'guf to be thing such as sneezing and yawning repeatedly prior to the start of the period. The gemara then identifies another situation where a woman eats garlic or onions and then gets a period. If this were to happen 3 times she would establish a veset. Tosafos question why the gemara considers it possible to establish a veset for eating garlic, yet the gemara says 11a that a woman cannot establish a veset for jumping at the time of the bleeding? Tosafos explains that jumping is an "o'neis", meaning a very mechanical method of causing the bleeding and therefore doesn't establish a veset since it is not so predictable. Whereas eating sharp foods is a more chemical cause of the bleeding which is more predictably associated with the bleeding. The Rashba in the first perek distinguishes between jumping and the standard vestos ha'guf of the mishna. A veset is an indication that the bleeding is about to begin, meaning that the symptom is caused by the start of the menstruation and therefore an indication that the bleeding is about to start. However, jumping is not a sign or indication of the bleeding about to start, it is actually the cause. A veset is only when the bleeding causes the symptom or action, not when the action causes the bleeding. This approach doesn't answer Tosafos question where the sharp foods would seem to be the cause of the bleeding.

In the next Mishna we pasken like Rav Yehuda who says that a woman must be concerned for her period the entire o'nah (12 hour time slot) that she is expecting it, either by day or by night. The Rashash asks that since she has to expect her period our before it usually occurs, from the start of the o'nah that it usually occurs in, why do we say that a woman who has a veset is דיה שעתה and is not tamei retroactively? Shouldn't we be concerned that the blood was here a few hours prior to the finding of it from the start of the o'nah? The Rashash answers that the concept of forbidding a woman to her husband during the o'nah is out of fear that the chimud for being with her husband would contribute to the blood coming earlier. Therefore, when she gets her period she doesn't have to be concerned that the blood came earlier, but if she were permitted to her husband at the beginning of the o'nah we would be concerned that the blood will come earlier. The chimud can actually be a cause of the dam, not just a halachic prohibition created by the dam.

Nida 61a - Being Concerned for Loshon HoRah

The gemara tells us a rule that although one is not allowed to believe loshon ho'ra, they must at least take precautionary measures. The gemara cites a pasuk that considers Gedalia Ben Achikom guilty of the murders of Yishmael Ben Nesanya (who was the one who killed Gedalia himself), because Gedalia could have protected himself by following the advice of Yochanan, and did not. Similarly, the gemara tells of people who had a reputation of murderers who made a request of R. Tarfon that he hide them. R. Tarfon said that if he doesn't hide them, they will be killed by the government (even if they aren't actually guilty), but if he does, he himself will be in danger for protecting fugitives. Therefore, he compromised by advising them where to hide without playing an active role in hiding them.

Rashi explains that R. Tarfon was correct in not assisting them in hiding because "maybe they killed and it would be forbidden to savve them". The Rosh (also in Tosafos HaRosh) questions this. How can the concern for the possibility that "maybe" they killed, create a prohibition on R. Tarfon to save them? Therefore, Tosafos and Tosafos Harosh conclude that he was concerned that his safety would be compromised if the government found out that he was hiding them. He was afraid that perhaps they were murderers and the government would hold him responsible for protecting them. Tosafos HaRosh writes emphatically that one may one be "choshesh" for loshon hora by protecting himself and others from harm. One has no right to be concerned or believe the loshon hora beyond what is necessary to protect people from harm. The Ya'avetz asks, why is this an example of being concerned for loshon hora, even if R. Tarfon would know beyond the shadow of a doubt that they did not kill, he would have the right to refuse helping them in order to protect himself? Perhaps the situation was that R. Tarfon knew that the government wouldn't harm him unless they looked into the matter and found these people guilty of murder, so the only concern for his safety would be if they actually were murderers.

It seems from Rashi that the concept of being "choshesh" for loshon hora doesn't simply entitle you to protect yourself, but rather it is a halachic requirement to not take action that would be forbidden if the loshon hora were true (such as saving an alleged fugitive). The Chofetz Chaim (6:10:25) paskens like Toasfos that being choshesh for loshon hora cannot go beyond what is necessary Ch protect oneself and others.

Nida 58b - Dam V'elo Kesem

R. Akiva teaches his talmidim a drasha דם יהיה זובה בבשרה - דם ולא כתם, only a flow of blood is metamei but not a stain. Based on this R. Akiva rules that so long as something exists to attribute the stain to, even an injury that is presently scabbed and not bleeding, she would be tahora. The Sidrei Tahara (end of 190) explains that according to the Rambam a woman is only tamei d'roaysa if she is confident that the blood is from her, AND that she has a hargasha. The absence of either, such as the blood definitely being from her but coming without a hargasha, or the possibility of a hargasha but having something else to attribute the blood to i.e. finding blood after tashmish when she has some type of wound, she is tahora. The source for the requirement of hargasha is the drasha of Shmuel on 57b בבשרה - עד שתרגיש בבשרה, and the source of her knowing for sure that the blood is from her is from R. Akiva's drasha in our gemara. Both are true and accurate.

The Maharatz Chiyus asks from our Mishna on the Taz who writes (Y.D. 116) that any leniency that is explicit in the Torah, the Rabbonon don't have the authority to forbid. How then can they be go'zer on kesamim after the Torah says דם from which chazal understand is to the exclusion of a kesem? Although one can say simply that the inference of ולא כתם is merely an inference and wouldn't qualify as explicit in the Torah, the Maharatz Chiyus cites another Taz (O.C. 588) who says that chazal couldn't prohibit doing a Bris on Shabbos out of fear that one may carry as they did by shofar and lulav because it is explicit in the Torah that a Bris can be done on Shabbos. The Torah says וביום השמיני ימול את בשר ערלתו and chazal understand that ביום implies even shabbos. Just as this is considered "explicit" in the Torah since that is how chazal interpret the word of  וביום, so too we should consider the exclusion of a kesem from Nida to be explicit in the Torah. How then can chazal be go'zer on kesamim?

It seems to me that there is a clear distinction between considering it explicit in the Torah that Bris can be done on shabbos, and considering the heter of kesamim explicit in the the Torah. When the Torah writes the word וביום, chazal teach us that it means as it sounds, every day of the week including shabbos. Therefore, the Torah is explicitly saying according to the translation of chazal that one can do a bris on shabbos. That is why the Taz holds the Rabbonon don't have the authority to forbid it. However, in the context of a stain, although chazal understand the term דם to include only clear bleeding from her body, not a stain, the Torah doesn't make a statement about what is not tamei, it only makes a statement about what is tamei. The Torah says that "dam" is tamei, which chazal interpret to refer to a flow, but the Torah never says explicitly says that anything aside from that it is tahor. It is a correct inference, therefore kesamim are not tamei on a Torah level, but it doesn't qualify as explicit to prevent chazal from prohibiting it.

Nidah 56b - Kusi'im and their beliefs

The Mishna says that Kusim are believed to say that there is no miscarried fetus buried in a particular location. In general we assume that they are believed on d'oryasa things but not d'rabonon. Areas of halacha that they keep, Rav Shimon Ben Gamliel in Gittin 10a says that they are more strict than Jews in the way they keep it. However, they generally don't accept Rabbinic law (with the exception of cases where the rabbonon used a pasuk as an esamachta for their institution, and the kusim believed it to be the simple understanding of the pasuk as the gemara says 57a by tziyun kevaros), and they also reject the interpretation of chazal that remove the pesukim from their simple understanding. This is why the gemara assumes that they wouldn't darshen the pasuk of לפני עור לא תתן מכשול to include causing someone to do an aveira. They take the pasuk literally to refer to placing a stumbling block in front of a blind man as rashi writes in chulin (it is unclear whether they would include giving bad practical advice in this pasuk). Therefore, the Kusi is only believed that a place is tahor if he is a kohein standing on that place, otherwise it would just be an issue of causing someone else to stumble which they aren't sensitive to.

The main issue with Kusim is that they don't trust the Rabbonon in their assumptions and drashos. Tosafos asks why are kusim believed about their kesamim, since the tu'mah of a kesem is only rabbinic, kusim shouldn't hold of it. Tosafos answers that they assume that it comes from her body. Meaning, that the kusim don't follow the rabbinic parameters of kesamim to be strict or lenient. Rather, they follow their own simplistic assumptions that it would have come from her body. It should follow that kusim not only keep the laws of kesamim but they are stricter than we are and render even kesamim smaller than a gris or found on something not susceptible to tu'mah, to make her tamei. This can actually lead to a problem since the Kusi may start the count of 7 days from a kesem that didn't make her tamei, completely throwing off her proper day of immersion.

Nida 55a - Eating Skin and Nails

Some people have a terrible habit to bite their nails. A grown man recently admitted at my Shabbos table that he has a bad habit to bite his nails and that he swallows his nails after biting them. Similarly, some people bite the skin on their lips and swallow that as well. This raises an interesting question regarding the kashrus of human nails and skin.

There is a machlokes Rambam and Rashba (Ran in Kesubos) whether the prohibition to eat human flesh - בשר מהלכי שתים, is a Torah violation (issur aseh), or a Rabbinic violation. The Rama (Y.D. 79:1) rules in accordance with the Rambam that human flesh is prohibited from the Torah. In the parenthesis citing the soures for the Rama it mentions that Tosafos and the Rosh seem to understand that it is not a Torah prohibition. The Gr"a also provides some background for the two opinions. This is all in regard to the flesh of a live human being. The Shach (3) points out that the flesh of a dead body is an issur hana'ah which is certainly d'oraysa and derived from egla arufa. The Aruch Hashulchan rules in favor of the Rambam because since human flesh is tamei on a Torah level, it must also be prohibited to eat since we usually don't find tu'mah without their being a prohibition.

It isn't clear whether nails and skin have the same status as flesh. The Darchei Teshuva cites a sefer who quotes telling that he was approached by a childless woman who wanted to swallow the circumcised skin (orla) of a baby as a segula to have a child. He ruled that this would be prohibited according to the Rambam from the Torah. He assumed that skin would be included in the status of flesh. However, the Pri Megadim (sifsei da'as 3) quotes from the Rashba in a teshuva that the skin of a person is permitted since even by kodshim where the meat is certainly forbidden, it is permitted to use the skin. Furthermore, it should be similar to hair on which there is no prohibition, but then writes that perhaps there would be a Rabbinic prohibition.

The gemara in Nidah 55a clearly states that hair and nails aren't included in flesh in the realm of tu'mah. Only flesh of a dead body is a source of tu'mah, not teeth, hair or nails because they are either not created with the person (teeth), or they regenerate. Based on this it would seem clear that in the realm of eating human flesh, hair, teeth and nails would also not be included. Regarding skin the gemara has 2 approaches. In the first approach the gemara assumes that in the world of tu'mah, skin is not like flesh because it regenerates, but in the second approach the gemara assumes it is like flesh since it doesn't regenerate and therefore has tu'mah like flesh. It would seem that the question of whether skin is regarded as flesh is a point of dispute between the two approaches of the gemara. The Rambam (Tu'mas Meis 3:11) rules in accordance with the second approach, that human skin unless it is thoroughly worked like a hide, would be a source of tu'mah on a Torah level, therefore it is legitimate to assume that when chazal say that for humans skin is like flesh - עורן כבשרן, it would mean in all areas of halacha. Based on this, human skin is forbidden to eat m'doraysa.

On the first version of the gemara that doesn't consider human skin tamei on a torah level, yet the Rabbis rendered it tamei to prevent mistreatment of the skin of one's parents; Tosafos asks, why did they need to make it tamei m'drabonon since anyway there is a Torah prohibition to benefit from a dead body? Tosafos offers 2 answers: 1. The Rabbonon realized that people take tu'mah more seriously than issur, so although there is a Torah prohibition, they felt that by rendering it tamei it would be more of a deterrent. 2. The prohibition to benefit from a dead body applies only to flesh, not to skin. Tosafos supports this notion from the fact that the source to prohibit benefit from a dead body is egla arufa which is learned from kodshim and by kodshim itself there is no prohibition on the skin. It seems from Tosafos that regardless of whether the tu'mah on human skin is d'oraysa or d'rabonon (2 approaches of gemara), all would agree that the issur to benefit from a dead body would not include the skin.

Since we pasken like the second version of the gemara, we are faced with somewhat of a discrepancy in categorizing skin. In the world of tu'mah it is like flesh which is tamei, but in the context of benefiting from a dead body it is not considered like flesh and there is no prohibition. It is unclear whether the prohibition to eat human flesh includes skin. If we model after tu'mah it should, but if we model after the prohibition to benefit from a dead body it should not. It seems more logical to learn issur from issur rather than issur from tu'mah which seems to be the assumption of the Rashba cited by pri megadim who doesn't consider human skin prohibited by the Torah.

Nida 54 - This Chart May Help

Click HERE for PDF

Red = Days of bleeding
Bold = Days of Ziva
Yellow = 7 clean days
Strike through = Forbidden days
Underline = Days of Nida on which she doesn't bleed

Nidah 52b - Shiur for Hairs

The Mishna has three opinions for how long a hair must be to be considered a hair. The first opinion is that it must be long enough to bend the tip back to the root, the second opinion is that it must be long enough to catch a nail when it runs over it, and the third is that it must be able to be cut with a scissors. Rav Chisda says in the name of Mar Ukvah that we pasken like all of them to be machmir. Tosafos explains that she can't do chalitza until she has 2 hairs that meet all the requirements, and she couldn't do mi'un even if she has hairs that meet the minimum requirement (Tosafos says in the name of Rabbeinu Tam that since the hairs can be anywhere and don't need to be adjacent to one another, and they can even be follicles without actual hairs, we are machmir not to allow mi'un as soon as she is 12 years old even if we don't find any hairs).

The Rambam (Hil. Ishus 2:16) writes that when a boy or girl have 2 sa'aros, from the stage of being able to be cut with a scissors until the stage of being able to bend it back to its root, we are machmir to consider them adults, but not lenient.

Rav Chaim (Brisker) questions why the Rambam omits the middle shiur of כדי לקרוץ בצפורן. Although generally being machmir for the largest and smallest is sufficient, there would still be a point to mention the middle shiur. For example, in a case where she married herself off after stage 1, stage 2 and stage 3 to 3 different people, we shouldn't say that it is sufficient to receive a gett from 1 and 3, rather she would also need a gett from 2 because she may have transformed into a gedola at that stage? Furthermore, Rav Chaim asks that the Rambam in the context of Para Aduma in discussing the halacha of 2 black hairs invalidating the parah aduma, writes that you can trim the hair down to the shiur of "being cut by a scissors" and if what remains is red and not black, the para aduma is kasher. The kesef mishna asks why is the Rambam lenient for the small shiur of being cut by a scissors, we should be machmir for the larger shiur of bending the head back to the root so that the hairs would be considered black and passul the para aduma?

Rav Chaim writes that the halacha of כדברי כולן להחמיר is only for halachos in the hair themselves. For example, when there is a halacha that through these hair we would consider him/her to be a gadol, we are machmir in both directions for the shiur of what qualifies as a hair. Since the halacha demands "2 hairs" we are machmir that it does't qualify until it is large enough to bend back to its root. However, in the context of para aduma the halacha of the hairs being red isn't a halacha in the actual hairs. The halacha doesn't demand a hair that has red roots. Being that the halacha of red hairs doesn't require the hair to have a status of a hair in halacha, we can follow the minimum din that would allow us to consider the hair to be a hair - being able to be cut with a scissors.

However, Rav Chaim points out that his approach is only plausible if we are to say that the din of הלכה כדברי כולן להחמיר is not a halacha resulting from a safeik of not knowing who to pasken like. Rather, it is a halacha that is said בתורת ודאי. Meaning, all agree that hairs that meet the minimum requirement has status of a hair, just that the halacha demands that to consider her a gedola the hairs must meet the maximum requirement. If it were simply a halacha resulting from not knowing who to pasken like, it would be obvious that we couldn't be lenient until we were sure she was an adult. Rather, there are 3 legitimate shiurim said by hairs, the smallest allowing the hair to have status of hair, and the largest shiur invalidating the smaller shiur and establishing a larger shiur. Based on this approach, the halacha only considered the largest and smallest to be legitimate shiurim of hair for which we must be concerned. The middle shiur is not part of this halacha and therefore the rambam omits it from his halacha.

Nidah 46b - Obligation on a child to do mitzvos

In Brachos 48a the gemara says that one who eats a kezayis can make birchas hamazon for others. Rashi understands that since the one saying birchas hamazon is obligated m'drabonon, he can be motzi others who are obligated m'doraysa. However, Rashi asks that we find that a child who reached the age of chinuch cannot make birchas hamazon for an adult, to which rashi answers that a child who reaches an age of chinuch is not even obligated m'drabonon, rather it is a rabbinic obligation on the father to train him to do mitzvos. Tosafos asks on rashi -דוחק לומר בקטן שהגיע לחינוך קרי אינו מחוייב מדרבנן. They seem to argue whether a child who reaches an age of chinuch is considered to be obligated m'rabonon, or is it merely an obligation on the father not on the child himself.

However, from our gemara (as explained by rashi) this isn't plausible. The gemara says that if a מופלא סמוך לאיש is m'doraysa in that his vows are binding, he should receive lashes for eating what he is makdish. If it is not d'oraysa, not only should there not be malkus for the child, there shouldn't even be a prohibition. The rationale of the gemara is that unless there is a gezeiras hakasuv telling us that a מופלא סמוך לאיש is responsible for his actions, it isn't possible to hold him accountable for his actions at all. Rashi explains that if the concept of מופלא סמוך לאיש is d'rabonon, all they would institute is that other shouldn't eat what this child was makdish. They wouldn't impose an issur on the child himself - דקטן לאו בר קבולי עליה תקנתא דרבנן הוא. Rashi holds that had the Torah imposed a specific issur on a child, we would have to accept it. But, if the Torah wouldn't impose an issur on the child, it would be impossible for the Rabbonon to do so. According to this approach it is impossible to say that a child is "obligated" in anything. Others may be required to guide him, depending on chinuch and whether we say beis din metzuvin l'hafrisho, but he himself has no obligation to refrain from issurim.

Regarding the issue of קטן אוכל נבילות , we pasken אין בית דין מצווין להפרישו, that beis din isn't required to stop him. There is a Toasfos in Shabbos that says that when a child reaches an age of chinuch we would then say that beis din is obligated to stop him. The Rashash asks that our gemara is clearly against this. Our gemara is speaking about a child who is one year prior to being a gadol, yet applies the concept of אין בית דין מצווין להפרישו. The Rashba also raises this question. 

Nidah 45b - Binah Ye'seira

The gemara makes a famous statement that Hashem gave MORE bina (understanding) to a woman than a man. This implies that on some level a woman has a greater mental capacity than a man. However, in the context of the gemara, as pointed out by the Tosafos HaRosh, the gemara is simply saying that a woman matures and her mind develops prior to a man. It is for this reason that she is considered to be an adult at the age of 12 whereas a man must wait another year. According to this approach the gemara isn't making a comment about the amount of understanding being greater in a woman, just the time that they develop their level of understanding.

The Torah Temima in Parshas Eikev (11:9) discusses why the Talmud considers women to be exempt from the mitzvah of Talmud Torah. He raises a contradiction between our gemara which considers women to be superior in the realm of Bina, and the Talmud's comment in Sota that women are da'atan kalos - light headed. The Torah Temima explains that Da'as refers to the מושכל ראשון, the initial assessment of a situation.  Bina refers to the ability to analyze, disect and understand deeply. The Torah Temima explains that women have a greater Bina but a weaker da'as, therefore their initial recognition of the material isn't as sharp. When they apply Bina to a less sharp picture, their analysis of the material ends up being distorted. However. men have a weaker bina and less ability to dissect the material, but a sharper מושכל ראשון, which enables them to have a more accurate picture although not as in depth of an understanding.

The entire approach of the Torah Temima is based on the assumption that שנתן הקב"ה בינה יתירה באשה יותר מבאיש, means that women have greater Bina. But, according to the Rosh the contradiction between Bina and Da'as isn't a question since the Bina is not greater, just comes to women at an earlier age.

Nidah 44b - Killing an Fetus

The gemara implies that a "ben yom echad" is considered a life so that if one would kill him, the killer would deserve capital punishment. Tosafos explains that this would not apply to a fetus. Prior to birth we wouldn't render a fetus a full fledged life. When Tosafos discusses the issue of killin a fetus - abortion, they use a language of "mutar" - permitted. The simple reading of Tosafos would indicate that not only would we exempt one who aborts a fetus from capital punishment but it would actually be permitted to abort a fetus. Tosafos asks that it is clear from the gemara in Erchin 7b that one is permitted to violate shabbos to save a fetus inside the mothers womb. How can we permit the violation of shabbos for a fetus that one is "allowed" to kill? Tosafos answers that although one must even violate shabbos to save a fetus due to the importance of pikuach nefesh (saving a life), nevertheless it is permitted to kill it. Tosafos cites a proof from one who is a go'ses - dying, where we find that one who murders him is "patur" - will not receive capital punishment, but it is still necessary to violate shabbos to save him.

If we are to take Tosafos at face value, that "mutar" actually means permitted, the logic of Tosafos is impossible to understand. How can it be permitted to kill the fetus, yet would warrant violating shabbos to save it for pikuach nefesh?! If we don't regard it as a life and permit the killing of it, we certainly can't justify the violation of shabbos to save a "life"! Furthermore, the proof that Tosafos cites from go'ses wouldn't prove this chiddush, it would only prove that you could violate shabbos for an individual that you wouldn't receive capital punishment for killing, but you couldn't prove that you could violate shabbos for one who it is "permitted" to kill. For this reason, Rav Moshe writes in a teshuva that the language of Tosafos is misleading. Tosafos never meant that it is actually "mutar" - permitted, to kill a fetus, rather Tosafos is just saying that one wouldn't receive capital punishment for doing so. Rav Moshe understands that it would be a Torah prohibition to abort a fetus and would even fall under the heading murder, but it would be the type of murder for which there is no capital punishment. According to this approach it is understandable how one can violate shabbos to save a fetus. Tosafos thought in their question that the right to violate shabbos should be dependent on their literally being capital punishment for aborting. Tosafos concludes that even if there is no capital puishment, since it is still considered a life by the torah so that one who aborts would be considered a murderer, it is permitted to violate the shabbos to save the fetus. This approach is supported by Tosafos in Chulin 33a that distinguishes between goyim and jews - a goy is killed for abortion just like actual murder, whereas a jew is not killed, which implies that it is still a prohibition. This approach is against the chavos yair cited by maharatz chiyus who says that prior to labor it is literally permitted. Rav Moshe considers the approach of the chavos yair to be a terrible error.

Nidah 43a - Shichvas Zerah Being Capable of Impregnating

The gemara has three versions regarding the type of shichvas zera that is able to make someone tamei. The first version is that only if his entire body feels the sensations, does it render him tamei. The second version is that any shichvas zerah that doesn't leave his body like an arrow, doesn't make him tamei. The third version is that shooting out like an arrow is only a necessary requirement to impregnate, but even if not, would render him tamei. The gemara explains that according to the first version, so long as the shichvas zera would begin to emanate with a hargasha, it would render him tamei even if it leaves his body without a hargasha. The gemara learns this from the fact that the shichvas zerah needs to be able to impregnate in order to be metamei. This implies that so long as the shichvas zerah begins with a hargasha, even though it leaves his body without a hargasha, it is capable of impregnating. Tosafos asks that this seems to contradict the gemara in Yevamos and Nedarim that say that if the shichvas zera doesn't leave his body forcefully, like an arrow, it isn't capable of impregnating. Tosafos offers 2 approaches: 1. The first version of our gemara holds that so long as it initially uproots itself with a hargasha it is capable of impregnating even though it leaves his body without a hargasha and is not "yoreh k'cheitz" - doesn't shoot like an arrow. In short, this gemara contradicts those gemaras. 2. The gemara in Nidah is only addressing the potency of the semen, but not the mechanical ability to impregnate. The fact that it uproots with a harghasha is the type of semen that is potent enough to impregnate, but the sperm will not reach it's destination so that it can actually impregante, unless it is yoreh k'cheitz - shoots out like an arrow. According to this second approach, the version in Nida that requires Yoreh K'cheitz would hold that otherwise the shichvas zerah doesn't have the chemical potency to impregnate.

According to the second answer of Tosafos, the third version of Shmuel that requires Yoreh K'cheitz to impregnate, would hold that it is a chemical determination of the semen, not merely a mechanical requirement of penetrating deeply into the woman's body. Based on this we can understand the gemara in Chagiga 15a. The gemara talks about the possibility of a man leaving behind sperm in a bath and a woman subsequently bathing and becoming pregnant. The gemara asks, how can this happen since the shichvas zera didn't penetrate her while being yoreh k'cheitz. The gemara answers that since it left the mans body while being yoreh k'cheitz, it can impregnate even though it didn't enter her body with the force of "an arrow". Clearly, the gemara understands this statement to be a determination of the type of semen that can impregnate, not a method of penetration into the woman.