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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Baba Basra 146b - Planning for Divorce

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

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

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

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

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

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

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

Baba Basra 144a - Talmid Chacham Like R' Safra

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

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

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

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

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

Baba Basra 139b - Mezonos for Daughters

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

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

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

Baba Basra 138b - Concerned for Beis Din Making Mistakes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Baba Basra 136b - Kinyan Guf and Kinyan Peiros

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

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

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

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

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

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

Baba Basra 133b - Writing Children Out of the Will

The Tana Kama and R' Shimon Ben Gamliel argue whether a father is allowed to take away his inheritance from his sons who would be inheriting him, when his motivation for doing say is that they aren't behaving properly. The conclusion of the gemara is that the tana kama holds that this is forbidden, and the rashbam points out that we pasken like the Rabbonon, against rsb"g.

However, it is unclear from the gemara if this halacha only applies when there are sons who should be inheriting, but not to other inheritors, or would it even apply to taking away the inheritance from whoever is in line to inherit? The question can be broken down into 2 parts. Is there a violation to take away from daughters when there are no sons? Even if there is a violation to take away from all his offspring even daughters, perhaps it would not apply when his father or brother are the inheritors?

The Aruch Hashulchan (282) raises the question. He points out that the gemara seems to imply that it is specifically a din when there are sons who should be inheriting. However, the Rambam uses the term "inheritors" implying that it would apply to all inheritors. He concludes by compromising. One should not remove ALL the inheritance from any inheritor, but as long as he is leaving some behind he is allowed to give some to others as well. However, when he has sons he is not allowed to take away any of the inheritance to give to someone else, but is allowed to give what he wants to tzedaka - דזהו ודאי שראוי לעשיר לעשות כן וכן מנהג העולם. But, the primary bulk of the estate should be given to his children.

The Chasam Sofer (cited in pischei teshuva 282) holds that the gemara which says that inheritance shouldn't be manipulated isn't limited to sons but applies to all relatives. Also, even if he is going to be doing a mitzvah such as tzedaka with the money, it shouldn't be taken away from any relative who would be inheriting. Furthermore, even if he is not going to be giving it all, just some of it to tzedaka, he shouldn't do that.

On the other hand, the Tashbetz holds that the severe violation is only if he takes away from sons and leaves nothing behind, but even for other inheritors and even if he leaves something behind the ruach of chachamim isn't content with him. BUT, if he doesn't have children then he should use the money for a mitzvah even though he will be taking away from the inheritors. The rationale is that when he doesn't leave sons he needs a zechus to be saved from geihenom and he has a right to protect himself before other relatives.

The Tashbetz also suggests that these restrictions may apply only to a person who is giving a gift of a shechiv mei'rah where the gift goes into effect only with his death. But if he gives a regular gift in his lifetime, he can do whatever he chooses. Although the gemara in kesubos seems to hold that the issur would apply even to a regular gift, so long as he leaves his children with a significant portion it is permitted.

Baba Basra (yeish nochalin) - Taking Away the Portion of the Bechor

The gemara 130a said that the source of R' Yochanan Ben Broka that you are allowed to increase to one brother and decrease from the others, is from the pasuk of לא יוכל לבכר את בן האהובה על פני בן השנואה הבכור. The pasuk implies that it is only the portion of the b'chor that cannot be manipulated by the father, but the pashut portions can be manipulated (at least to a son among sons, or a daughter among daughters).

The Ramban holds that לא יוכל doesn't mean that you are "unable" to do so, rather it is an azhara, that you are in violation of a prohibition by doing so. He learns this from Unkelos who translates the pasuk to mean לית לך רשו. It is a method that the Torah uses to exaggerate the issur. However, the Ramban admits that aside from the violation of a positive and negative mitzvah for violating, it is not effective [In his additions to sefer hamitzvos he explains that since the Torah prohibits the father from doing this, if he does it he is stipulating against the Torah so his stipulation is void and the bechor receives what he deserves]. He also understands that these prohibitions would be violated if the father would try to cover up which one is in fact the b'chor. That is actually the simple reading of the pasuk - You are not allowed to give bechor writes to another child, כי את הבכור בן השנואה יכיר לתת לו פני שנים, but rather you are obligated to use the rights that the torah granted the father of "yakir" to identify the bechor and ensure that he gets the double portion he deserves [The ketzos hachoshen (281:1) points out that the gemara 127b which struggles with what the Rabbonon use the word "yakir for, implies that it is not an obligation on the father to reveal the b'chor, from the fact that the gemara doesn't say that].

But, the Ramban understands that if the bechor dies, even though the children of the bechor can inherit the double portion from their grandfather, if the grandfather would take away the b'chor portion and distribute it to his other children, it would be binding and there wouldn't be any obligation because the torah states - על פני בן השנואה הבכור, which implies that the issur is only in the presence of the bechor.

Based on the opinion of the Ramban (which the Rambam would seem to disagree with), the Ketzos HaChoshen (281:1) asks how the gemara 130a can deduce from the fact that the portion of the bechor cannot be manipulated, that the other portions can be. Maybe even the regular portions cannot be manipulated, yet the Torah isolates the portion of the bechor to say that by attempting to manipulate it he would be in violation of a l'av, but for the other portions he wouldn't be in violation of a l'av? The Ketzos answers that the extra word of יוכל, by saying לא יוכל לבכר comes to indicate that aside from the prohibition, it isn't binding, implying that for the other portions there wouldn't be a prohibition and it would be binding [The Rabbonon who disagree with R' Yochanan don't hold of this diyuk, therefore the pasuk wouldn't imply anything about the other portions. The Ohr HaChaim points out that this answers Tosafos question on how the Rabbonon would deal with this pasuk]. Therefore, if the father attempts to manipulate the b'chor portion, the rationale for it not being binding isn't just that he is מתנה על מה שכתוב בתורה, rather that the pasuk itself adds a word to indicate that it isn't binding.

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Ian Brody (one of our daf yomi learners) asked, how was yacov able to violate this issur by giving yosef the b'chor privileges (which the gemara says on 129a clearly that is what he did, as the rashbam there explains the pasuk in divrei hayamim). Even if we suggest that Yakov wasn't bound to keep every mitzvah in the torah when he had a reason to do otherwise so that he wasn't considered to be in violation, the question can still be asked why was it binding since aside from the violation the father doesn't have the ability to make it happen?

According to the Ramban in sefer hamitzvos (cited above) that the pasuk is saying an issur, just that if the father violates the issur he is stipulating against the torah, therefore not binding, then the question can be answered. Since the inability to make it effective stems from the issur, yakov who lived prior to matan torah and didn't have the issur, was able to make it effective. But, according to the ketzos where the wording of the pasuk itself is indicative of 2 points, one that it is assur to attempt to take away the portion of the b'chor, and secondly that it isn't binding; even though Yakov lived prior to matan torah, the inability to take away from the b'chor should have existed?

The S'forno asks this question and answers that if this is done because the b'chor is a rasha or did an aveira, it is permitted. Yakov's justification for doing it was that Reuven did an aveira by moving the bed, so he was able to give the b'chor portion to Yosef. The da'as zekainim says something very close to this. The s'forno learns it out from the pasuk which indicates that you can't favor the son of the wife you love just because you love her, but you can do it for a valid reason such as the b'chor is a rasha.

Baba Basra 130a - Following Piskei Halacha

After I finished learning Hilchos Nida, I visited MTJ to meet with the Rosh Yeshiva, R' Dovid Feinstein. Rather than it being a farher, which is what I was hoping for, he allowed me the time to ask him some of the questions that I had in Hilchos Nida. I took the opportunity to focus on those related to the pesakim of his father, Rav Moshe, that were printed in the Igros Moshe (he has some difficult assumptions in his teshuvos regarding bedikos at the time of vestos, and some chiddushim in harchakos). When I asked him one particular question, claiming that the Shulchan Aruch seems to say against what R' Moshe assumes, R' Dovid responded, "if you don't agree with a pesak in the Igros Moshe, then don't pasken like it". Later, I realized that rather than explaining the position of his father on the particular issue that I was asking about, he was actually living and breathing the position and approach of his father in halacha.

The premise of his response emanates from our gemara. Rava said that when a pesak din of his comes before R' Papa and R' Huna brei d'rav Yehoshua and they have a strong question on it, they shouldn't discard it until they bring it to his attention because he may have an answer. But, after his death they should not tear it up because if he was there he may have been able to answer, but should not pasken based on it because אין לדיין אלא מה שעיניו רואות. Rava was teaching that piskei halacha are good for one who is unfamiliar with the sugya. Without having enough knowledge to deal with the sugya, it is safe to follow the p'sakim of the chayei adam, shulchan aruch ha'rav, and kitzur. But, if one learns through a sugya, and understands it differently, they are obligated to pasken against the seforim that just offer the pesak halacha without justification. Similarly, one is obligated to pasken against seforim that offer the reason, when they have a question on the reason that has been offered.

In the hakdama to the Igros, R' Moshe actually says this straight out:

הנני רק כמלמד ההלכה שהשואל יעיין בעצמו ויבדוק ויבחור, שאיני כלל כפוסק ומורה וכו' ולכן מצאתי גם לנכון להדפיסם מאחר שאיני בזה אלא כמברר ההלכה שכל ת"ח ומורה הוראה יעיין בהדברים ויבחון בעצמו אם להורות כן, וכאשר יראה שאני לא סמכתי כסומא בארובה אף על חבורי רבותינו אלא בדקתי בכל כחי להבין שהם נכונים וכו' וכן אני מבקש לכל מעיין בספרי שיבדוק אחרי דברי ואז יורה למעשה

Furthermore, the braisa warns that one cannot act on a sevara that is said in the context of learning or a ma'aseh that he witnessed, until the ruling is given "halacha l'ma'aseh". Relying on something that was said in the context of learning is not allowed because the teacher may not have explored all sides of the issue since it wasn't relevant at the time. Relying on a situation that occurred where there was a p'sak issued isn't allowed because there may have been factors that made that case special. Therefore, one may only rely on a p'sak that is issued for the purpose of a real situation that arose. For this reason, many of the pesakim found in sifrei likutim that gather various teshuvos from across the spectrum becomes completely useless in the realm of p'sak halacha. These type of seforim can be more dangerous than simple piskei halacha, because they enable the reader to sound like he did research and due diligence by name dropping, when in fact the reader is completely unfamiliar with the issue and unfamiliar with the sources he is quoting. In essence these seforim are a violation of paskening from a "ma'aseh" because the reader is unaware of the other tzirufim and tzedadim that helped form the p'sak, thereby misleading the person he is paskening for.

Baba Basra 128a - Pesulei Eidus

An Overview of Halachos of p'sulei eidus

Often people are mesader kiddushin and aren't sure who is passul to sign together on a kesubah, or be witnesses under the chupah. These are the halachos from Choshen Mishpat (33) in a nutshell:

A rishon b'rishon includes all immediate relatives in all directions such as a father/mother, son/daughter, brother/sister and even a wife.

A rishon b'sheini is one level removed such as a man to his brother's son (nephew), or man to his uncle.

A sheini b'sheini is one level removed on both sides such as first cousins (parents are brothers so they are rishon b'rishon, their children are sheini b'shein).

A rishon b'shlishi would refer to two levels removed such as a man to his brother's grandson, or to his great uncle (father is rishon, grandfather is sheini, grandfather's brother is shlishi).

Therefore: Father to son is rishon b'rishon. Grandfather to grandson is rishon b'sheini. Great grandfather to great grandson is rishon b'shlishi.

In terms of when we also invalidate a spouse: For a rishon b'rishon we apply בעל כאשתו (husband and wife are the same) even two times so that the husbands of two sisters are considered rishon b'rishon. For rishon b'sheini we definitly apply בעל כאשתו once, but there is a machlokes whether we apply it twice. For a sheini b'sheini we definitely apply ba'al k'ishto, but only once. For a rishon b'shlishi there is a machlokes rishonim (rashbam and tosafos 129a) whether it is passul at all. Even those who say that it is passul (rabbeinu tam and b'hag both hold that it is passul but argue if it is d'oraysa or d'rabonon) would agree that we don't say בעל כאשתו at all. The Rama holds that we only apply בעל כאשתו twice for a rishon b'rishon, we apply it once for a rishon b'sheini and a sheini b'sheini (but two people who are sheini b'sheini even with two בעל כאשתו such as the husbands of two first cousins, shouldn't sign a contract together because we are worried about a beis din mistakingly invalidating the contract), but for a rishon b'shlishi even those who are machmir (Rabbeinu Tam), admit that we don't apply בעל כאשתו at all.

It is important to point out that the concept of בעל כאשתו only applies to make the wife invalid to be testified about by the husband's relative, and make the husband invalid to be testified about by the wife's relatives (machlokes rishonim whether we apply this in both direction m'doraysa or only m'drabonon - see aruch hashulchan 33:1). But, בעל כאשתו does not create a relationship to make the wife's relatives assur to testify for the husbands relatives. The halacha is clear in shulchan aruch that the father of the husband can testify for the father of the wife (we don't even count it as a sheini b'sheini as a result of viewing the husband and wife as a rishon b'rishon, certainly we don't view it as a rishon b'rishon by viewing the husband and wife as one entity).

Now, Mar Bar Rav Ashi says that a grandfather can testify for a grandson and visa versa, but the gemara says we don't pasken like him. Rashbam explains that a grandfather to a grandson is a rishon b'shlishi. The maharsha already points out that this is inaccurate, because a father to a son is a rishon b'rishon, so that a grandfather to grandson is a rishon b'sheini! The maharsha explains that the rashbam is trying to justify the position of mar bar rav ashi. The fact that there is a large generation gap "איתפלג דרא", causes mar bar rav ashi to regard it as a rishon b'shlishi to permit one to testify for the other. Tosafos uses this logic to explain how mar bar rav ashi would justify saying that two first cousins cannot testify for one another (sheini b'sheini), but a grandson can testify for a grandfathter - איתפלג דרא make is permissible.

The Sm"a (33:15) writes that since a husband and wife is considered a rishon b'rishon, according to Rashbam and Rambam that a rishon b'shlishi is permitted, a husband may testify for his wife's grandfather because it is a rishon b'shlishi. The Taz argues with the Sm"a because the grandfather to his son would be rishon b'rishon, to his grandaughter would be rishon b'sheini, so to the husband would be a rishon b'sheini with one בעל כאשתו which would be assur according to everyone. See the nesivos who quotes the machlokes. Why does the sm"a consider this to be a rishon b'shlishi, rather than a rishon b'sheini with a בעל כאשתו? The Gr"a answers based on Tosafos. Although we don't pasken like mar bar rav ashi, we learn from him an important lesson. The larger the generation gap, the more likely we are to be matir based on איתפלג דרא, even if it should technically be assur. Therefore, since a wife is 2 generations removed from her grandfather, we don't consider the husband with the wife's grandfather to be a rishon b'sheini with a בעל כאשתו, rather we consider it a rishon b'shlishi. Just as mar bar rav ashi considers a grandfather and grandson to be a rishon b'shlishi, we reject that, but if we add a בעל כאשתו, then we also consider it a rishon b'shlishi.

Baba Basra 124a - Taking Double in Money Owed to Father

The gemara says that the bechor has a right to take a double portion on any money that a borrower owes to the father on which the father has a shtar chov. The obvious implication is that the bechor doesn't get double in any debt that is owed to the father for which the father doesn't have a contract. The distinction is that we consider the father to be muchzak in a debt on which he has a contract, but a mi'lveh al peh is only considered ra'uy, and a bechor doesn't take double it what is ra'uy. But, why is a mil'veh b'shtar considered muchzak and a mi'lveh al peh considered ra'uy?

The Rashbam says that when the father has a contract he is considered muchzak in the money because the actual shtar is considered the "guf" and the money that is collected with it is considered the "sh'vach" that comes automatically. This would be based on the the opinion of Rebbi who says that any sh'vach that comes automatically a bechor gets double in. Based on this, it should be obvious that a mi'lveh al peh isn't considered muchzak because we consider the money collected to be sh'vach, and there is no object on which the sh'vach can accrue automatically. Therefore, even if the father was 100% confident in being able to collect the money through witnesses, without a shtar it would be considered just ra'uy and a bechor doesn't get double. But, the Rashbam doesn't say this. Rather the Rashbam explains that a mil'veh al peh is considered ra'uy because the borrower can claim to have repayed it and the lender isn't confident in his ability to collect. Why does the Rashbam need to say this, even if he could absolutely collect, the absence of a shtar makes it only ra'uy?

R' Elchonon Wasserman suggests that any debt which the father was absolutely confident about collecting, even in the absence of a shtar is considered muchzak, and the bechor can get double. Based on this approach, the Rashbam didn't technically have to consider it as if the sh'vach accrued on the sh'tar.

Tosafos on 124b disagrees with the Rashbam's approach that we view the money collected to be sh'vach that accrues from the shtar. According to R' Yehuda, the Rabbonon who disagree with Rebbi and hold that a bechor doesn't get double in any sh'vach would hold that he doesn't get double in a debt with a contract either. But, if the Rashbam were correct that the shtar is like the "guf", then we should give the bechor double in the guf and view the money afterward as sh'vach that accrues after the bechor already received the guf, from which he can certainly get double. Perhaps Tosafos isn't content saying that we view the money collected as sh'vach that accrues between the death of the father and the splitting of the estate, because if that would be the case then we have no understanding of the "shalchu mi'tam" who hold that according to the Rabbonon the bechor does get double in the money collected. Since the Rabbonon hold that a bechor doesn't get double in sh'vach that accrues automatically between death and the division of the estate, the bechor should also not get double in the debts collected.

Based on this, Tosafos would be forced to learn that the reason a debt with a contract is considered muchzak is because the father is absolutely certain that he will be able to collect it so it is as if the money is in his hand, whereas by a mi'lveh al peh he isn't certain that he will be able to collect.

Tosafos seems to go lishitasam. On 145b Tosafos writes that a bechor doesn't get double in "shushbinus" (the returning of gifts sent to a chasan), even if he gets double in a debt, because maybe the shushbinus will never be collected. The Maharsha asks on Tosafos why he has to say that since we say that only a debt with a contract is considered muchzak for the bechor to collect double, so "shushbinus" is at best like a debt without a contract. Therefore, even if it will definitely be payed, the bechor shouldn't collect double? The Maharsha answers that shushbinus can be collected in beis din and is more powerful that a milveh al peh. Tosafos holds that the fundamental difference between a debt with a contract and without a contract, is how sure the father is that he will be able to collect it. This seems to be li'shitasam in our gemara where Tosafos rejects the Rashbam that the technicality of having a contract is not what enables the bechor to collect double, rather it is the confidence of being able to collect.

Baba Basra 123a - Who is the Bechor of Yakov?

The gemara says that because of Leah's davening and tears she merited having Reuven, the bechor born to her. But in the zechus of Rachel's selfless "tznius" of giving over the simanim to Leah to prevent her from embarrassment, she earned back the rights of the bechor (Yosef got a double portion in EY by both Ephraim and Menashe taking a share). The gemara rejects the idea that Reuven lost rights to the bechor because of moving the beds, rather even if he wouldn't have done so, Yosef would still be the bechor.

Yakov calls Reuven ראשית אוני, which means that she was conceived on his wedding night with Leah (rashi on vayechi 49:3 based on yevamos 76a), prior to Yakov's marriage to Rachel which occurred a week later. Tosafos in Yevamos 76a explains that although it isn't typical to get pregnant from the first bi'ah, Leah did get pregnant with Reuven from the first bi'ah. Therefore, Rachel wasn't even a candidate to have the bechor since she wasn't even married to Yakov at the time that Reuven was conceived. But, the gemara means to say that the tefilos of Leah prior to her marriage to Yakov, to avoid marrying Eisav, earned her the zechus to be the first wife of Yakov thereby having the Bechor. Then the gemara says that Rachel received the rights of the bechor back as a result of her "tznius". The gemara isn't saying that Rachel earned it back in the merit of the great "tznius" or chessed that she exhibited. Rather, the gemara is saying that she was entitled to it all along. The only reason she lost it was because she was concerned about her sisters embarrassment, so Hashem made it that the act of kindness she did wouldn't cause her to lose the rights of the bechor.

The difficulty is that after everything is said and done, Leah's tefillos didn't seem to help at all because ultimately, Rachel's child Yosef became the bechor. Why does the gemara say that Leah's tefillos helped, when in fact they didn't help at all? Perhaps the gemara is saying that her tefillos helped that she actually married Yakov, because had Yakov married Rachel first he would never have married Leah at all. So, Leah's tefillos earned her the marriage with Yakov and the right to Bechor, but since the bechor rights only came from Rachel's selflessness, she eventually got it back. But, the gemara seems to be saying more than that. It seems to be saying that Leah's tefillos even earned her some bechor rights. But, those rights were given back to Rachel?

The pasuk says in divrei hayamim (1:5:1) - ובני ראובן בכור ישראל, כי הוא הבכור ובחללו יצועי אביו ניתנה בכורתו לבני יוסף בן ישראל ולא להתיחס לבכורה. Rashi in divrei hayamim explains that Reuven was the bechor and should have been king, but lost rights of being king by moving the bed, and it was given to Yosef. However, Yosef didn't merit the malchus either because his "bechor" he wasn't given those privileges. The Rashbam on our daf learns this pasuk differently. The Rashbam learns that Reuven only lost monetary rights to being the bechor and the double portion was given to Yosef, but Reuven still retained the status of being the bechor - דלעולם ראובן קרי בכור ישראל. Based on this, the tefillah of Leah did in fact earn her the zechus of having Reuven who would always have status of the bechor, even though the double portion was given to Yosef.

Regarding the contradiction, that the pasuk indicates that Reuven lost rights to the bechor because of moving the bed, whereas the gemara says that even if not for that story, Yosef would have gotten it? Perhaps the Yosef deserved it anyway, but unless Reuven did something to lose it, Hashem couldn't have taken it from him.

Regarding the issue of "tznius" - why was Rachel's action called tznius, it was really chessed to prevent her sister from embarrassment? Furthermore, in Midrash Eicha (pesicha end of 24) the midrash considers the act of Rachel to be a midah of overcoming jealousy, for which she asks Hashem that He should also overcome the קנאה of the Jews worshiping Avoda Zara just as she overcame jealousy for her sister and provided the simanim. In what way is this "tnzius"? Rashi in megilla 13b says מסרתן ללאה, והוא צינעות שלא יתפרסם הדבר שמסר לה סימנין. Rashi seems to be saying that the middah may have been chessed or overcoming jelousy, but the action was that of tznius. The primary embarrassment for Leah wasn't that Lavan was using her to trick Yakov, rather the embarrassment was that Yakov took the initiative to give simanim to Rachel in order to avoid marrying Leah. This would be devastating to Leah for the entire community to realize that Yakov made up simanim with Rachel, just to avoid marrying Leah. The rejection by Yakov was far more embarrassing than Lavan using her to trick Yakov. Rachel did an act of "tznius" to conceal the simanim and hide it from the community, so that her sister would suffer the embarrassment of publicizing her being rejected by Yakov.

Baba Basra 119b - Honoring a Student in the Presence of His Rebbi

The gemara says that one is not required to honor his rebbi even in the presence of his rebbi's rebbi, unless the rebbi's rebbi went out of his way to show honor to the rebbi indicating that he wants you to honor him. Presumably the rationale is that to honor a student in the presence of his rebbi, even if that student is your rebbi, is considered a lack of kavod for the rebbi, therefore, it is only permitted if the rebbi is mo'chel on his kavod and allows you to show honor to his student in his presence. The Shulchan Aruch (Y.D. 242:21) paskens this. One shouldn't stand up for their rebbi in the presence of his rebbi or stand up for his father in the presence of the father's rebbi, unless the rebbi indicates that he allows the honor shown to his student. However, the Rama qualifies this to cases where the student of the rebbi is also a student of the rebbi's rebbi, but if the student is only a student of his own rebbi and has no connection to the rebbi's rebbi, he isn't required to show kavod to the rebbi's rebbi by not honoring his rebbi in the presence of the rebbi's rebbi.

But, the Shach (40) quotes the Mahar"i HaKohen from krakow (maharik) who argues and holds that even if the student never learned anything from his rebbi's rebbi, he is obligated to honor him and show more kavod to the rebbi's rebbi than to the rebbi. And if he even learned a little from the rebbi's rebbi then he cannot show kavod to his rebbi in the presence of the rebbi's rebbi (unless he is mo'chel).

The nachalas tzvi explains that the source for the Maharik that one is required to honor his rebbi's rebbi even if he hasn't learned anything from him, is the gemara in kiddushin that says that the kavod of a father preceeds a mother (assuming they are married) because she is also obligated in the kavod of the father. Similarly, the student should show more kavod to the rebbi's rebbi than to the rebbi, since the rebbi himself is obligated in the kavod of his rebbi. But, the difficulty with this concept is that we hold that the kavod to a father supersedes the kavod to a grandfather (shulchan aruch 240:24) - why don't we say that the grandson owes more honor to his father's father, since his father is also obligated to honor him? This question is the key point in determining our halacha. If we assume that a grandson is obligated to honor a grandfather, as the rama writes (240:24), then we see that even though the son is obligated to honor his grandfather, and the father is obligated to honor the grandfather, the honor to a father would still come first. Therefore, the rama goes li'shitaso that the honor shown to a rebbi would supersede the honor to a rebbi's rebbi, and you don't need permission to honor the rebbi (unless you are also his student). But the maharik must hold that there is no real mitzvah to honor a grandfather, and therefore would hold that we can't compare our case to a father and grandfather, because here there is still a mitzvah on the talmid to honor the rebbi's rebbi as a chacham. Therefore, even if the student has not learned anything from the rebbi's rebbi, he is still obligated to honor him more than his rebbi.

The underlying issue is whether the requirement of the rebbi to honor his rebbi, would also require the student to honor his rebbi's rebbi even more than his rebbi, or do we only require the student to honor the rebbi's rebbi more than his rebbi when he has a direct connection to him because he actually learned from the rebbi's rebbi also.

Baba Basra 119a - Tzlafchad the Mekoshesh

The gemara groups together tzelafchad and the one who gathered wood on shabbos (after the sin of the meraglim) not only because these were 2 halachos that moshe had to consult on and were attributed to the person he raised the issue, but also because the gemara says in shabbos that the mekoshesh was tzlafchad.

The gemara says that Moshe knew that the daughters of tzlafchad had rights to inherit, but didn't know if they were entitled to the right of bechor because he didn't know if EY was considered muchzak in the hand of Cheifer. Also, Moshe knew that the one who gathered wood should be killed but didn't know which death penalty he deserved. The parsha of inheritance was attributed to the daughters of tzlafchad from which they benefited (by receiving yerusha) and the parsha of stoning for chilul shabbos was attributed to the mekoshesh from which he was killed - this teaches מגלגלין זכות ע"י זכאי וחובה ע"י חייב.

However, Tosafos 119b writes that the mekoshesh wasn't quite as bad as we think. The story happened immediately following the meraglim because he was afraid that when people realize that they aren't going into EY for 40 years they won't be accountable for the keeping of mitzvos. He davka violated shabbos so that he can be publicly killed to teach a lesson to all the Jews that we are still bound to the mitzvos. The maharsha asks, if his intent was truly l'sheim shamayim, how was he able to do this? How can he do such a severe aveira just to make a point? The maharsha answers that since he was doing it just to make a point, it wasn't actually a violation of shabbos because it is a מלאכה שא"צ לגופה, since the melacha isn't being done for its intended purpose. Based on this, the mekoshesh wasn't really mechalel shabbos, he just gave the impression to the witnesses of being mechalel shabbos so that he can be killed to make the point of showing the severity of keeping mitzvos.

The approach of Tosafos as explained by the Maharsha seems to indicate that the mekoshesh was a big tzadik who was moser nefesh to teach the Jewish people the severity of mitzvos. Why then does the gemara say that the mekoshesh was מגלגלין חובה על ידי חייב, he should have been considered a tzadik? We learn from here that although the mekoshesh technically didn't do an aveira of chilul shabbos, and although he intended l'sheim shamayim, but the fact that he did an aveira that gave the impression of chilul shabbos, it was considered a chilul hashem which he is considered guilty for. Although the mekoshesh sacrificed his life to show the severity of mitzvos, and technically didn't violate anything, he was considered a rasha for giving the impression that he violated shabbos. We learn from here how sensitive a person has to be not to even give the impression that he is doing something wrong, even when it is completely correct.

Baba Basra 118a - Complaining for More Land

In sefer Yehoshua the b'nei Yosef complain that they are a large tribe with too small of an inheritance in Eretz Yisroel. Yehoshua seems to allow them to conquer uninhabited land from other shevatim, or at least to cut down the trees to make what is already belongs to them more inhabitable. However, the Rashbam explains that this could not have been the intent of Yehoshua, because he couldn't steal land from another tribe, and they didn't need special permission to use what already belonged to them. Therefore, the gemara understands that Yehoshua wasn't even attempting to solve their problem, rather he was telling them that since they merited such bracha of increased numbers, they should protect themselves from ayin ho'rah (to which they responded that it wasn't necessary since they descended from Yosef and aren't affected by ayin ho'rah). Nonetheless, it seems a bit strange that Yehoshua wasn't helping them solve the problem that they were faced with? Perhaps the message that Yehoshua was sending them is that they shouldn't complain about the bracha they were zocheh to, even if it comes with a housing shortage. He was telling them to appreciate their bracha and protect it by hiding from ayin ho'rah, rather than complaining about their plight.

On a side note - the Meshech Chochma (Pinchas 26:62) asks why the tribe of Levi was so small, less than half of other tribes even though they counted the children above 30 days old. The approach of the Ramban that since they didn't undergo the shi'bud of mitzrayim, they weren't zocheh to the bracha of כן ירבה וכן יפרוץ, would still not explain why their growth rate was so slow. In the first count (Bamidbar 3:39) they were 22,000 and in the second count they were only 23,000? The meshech chochma explains that since they weren't going to inherit any real part in EY, Hashem had the foresight to keep them small so that they don't complain about their housing shortage, as the descendants of Yosef complained. Furthermore, since they were supported by the rest of the b'nei Yisroel, Hashem didn't want them to be a major financial burden so he limited their growth to completely natural numbers, without any special divine bracha as was given to the other tribes. He then continues to read this into the pasuk which says that they were 23,000, counted from 30 days old "because they weren't given a portion in Israel". Simply, the pasuk is saying that the reason they were counted from 30 days rather than 20 years is because 20 years old was only important for inheritance. But, the meshech chochmah explains that the pasuk is explaining why their numbers were so small - "because they didn't get an inheritance", so Hashem specifically kept them small.