Kiddushin 23b - Appointing a messenger for something you can't do yourself

We mentioned this issue in nazir 12 - see there http://hearos.blogspot.com/search?q=nazir+12a

The gemara asks whether an eved can appoint a shliach to receive his gett, according to the opinion that he cannot receive his own gett since he is still owned by his master. The gemara concludes that although one cannot typically appoint a messenger to do something that they cannot do themselves, nevertheless an eved my appoint a messenger to receive his gett since he is included in the concept of receiving a gett - he can receive a gett for his friend who is an eved from his master. The mitzpeh eisan explains rashi, who explains the logic of the gemara. The primary issue is whether the inability of the eved to receive his own gett from his master is a weakness in the eved's ability to receive a gett, in which case he should not be able to appoint a messenger either. Or is it merely a technicality that the gett has to leave the master's reshus which we learn from teh gezeira shava from isha. The fact that an eved can receive a gett from another eved is evidence that it is not a lack in his ability, rather a technicality. So, the requirement of "only able to appoint a shliach for something you can do yourself" = one can only appoint a shliach for something that they have the power to do themselves (if not for a technicality that makes them unable to do it by himself).

Kiddushin 22b - Acquiring a Shifcha with Bi'ah

The gemara in its discussion about acquiring a shifcha with hagba'ha and chazaka discusses whether you can acquire her with bi'ah. The suggestion would be that through bi'ah she essentially is carrying him, and should qualify as chazaka. However, the gemara starts making distinctions between an eved lifting his master where the eved does not receive hana'ah and having bi'ah with a shifcha where she receives hana'ah. At first glance, this seems to be an irrelevant distinction - who cares whether there is benefit or not? The bottom line is that she is "carrying him"!? However, after thinking about it a little more the gemara seems to be defining the type of work that would qualify as chazaka. Chazaka by an eved means to demonstrate that he is subjugated to the will of the master and must work for him. The rishonim have a discussion whether it is sufficient to do a work that does not directly involve the master such as sewing his clothes or preparing a bath for him. But all agree that the concept is to demonstrate servitude. When the eved lifts the master he is showing that he is obligated to carry the master so that the master won't have to walk. This must be done in a way where the eved receives no physical pleasure from what he is doing, because if he does then he is not demonstrating servitude. It is for this reason that the gemara understands that if the shifcha would be receiving pleasure from the bi'ah thereby possibly doing it for her own purposes, it would not qualify as a hagba'ha, since hagba'ah is not the kinyan, rather the kinyan is to show servitude.

kiddushin 21b - retziah for kohen

the braisa says that a kohen cant begome a nirtza because it will make him a baal mum. the gemara asks, so what if he turns into a ba'al mum. The gemara answers that he has to be ableto return back to his original status after he goes free which for a kohen includes able to do avoda. it seems that the gemaras original question is just 'so what if he becomesva baal mum' - is there any issurto make a kohen a bal mum. But rashi adds to the question that there is a mitzvah to do retzia. why does rashi need to adt this? rashi implies that for a kohen o make a mum without mitzva would surely be an issur, presumabely bec. he would be passul l'avoda (or maybe because of chovel b'atzmo). But since here is a mitzva, there isn't any issur mitzad hilchos mumin that would prohibit making a mum - so the gemara asks that he should be allowed to make a mum for mitzva. To this the gemara respondsthat there is a requirement in hilchos avodim that if he can't return to his original shteller then he can't be a nirtza.

Kiddushin 19a - Kattan making a Kinyan

Tosafos proves from the fact that a ketana is able to accept her own kesef kiddushin, that when there is a da'as acheres being makneh something to a child they are able to make a kinyan m'doraysa. Tosafos proves this from the gemara in gittin 65a where r' chisdah holds a child can be koneh m'doraysa even without da'as acheres makneh, so when there is da'as acheres makneh all would agree that he can make a kinyan.

This issue is actually a machlokes rishonim. Based on the gemara in Succah 46b, the Shulchan Aruch 658:6 rules that one should not give a lulav to a child prior to being yotzei himself, because the child can be zocheh but cannot give back. However, if the child reached an age of "pe'utos", the Shulchan Aruch quotes a machlokes as to whether he can give back. The Rambam holds that he still cannot give back, whereas the Ran holds that he can. Why would the Rambam say that he cannot give back, since the gemara in gittin states explicitly that the Rabbonon instituted that a child who reached pe'utos can be makneh to others? The Biur Halacha explains that the Rambam holds that with da'as acheres makneh, the child is zocheh m'doraysa (like our tosafos) and therefore even if he reached the age of pe'utos, he can only return it m'drabonon. Since m'doraysa it would still belong to the child, the adult cannot be yotzei with this lulav. But the Ran holds even with da'as acheres makneh the child is only zocheh m'drabonon, therefore the ability to give back m'drabonon (when he reaches age of pe'utos) is sufficient. Based on this approach, it would seem that if the father already gave the lulav to the child who did not reach the age of pe'utos, the Ran would say that the father should still use the lulav since he owns it m'doraysa, and perhaps would even be able to make a bracha on it.

Another approach to understanding the opinion of the Ran is that he holds that although the child was koneh on a d'oraysa level, he can give it back m'drabonon and that would be sufficient because a kinyan d'rabonon would work m'doraysa. This could even be the point of argument between the Rambam and Ran.

It would also seem that according to the Rambam where the child who reached pe'utos can't give it back because he is zocheh m'doraysa and not just m'drabonon, that is only because of da'as acheres. So, if the father would be mafkir the lulav and allow the child to take it so that he is only zocheh m'drabonon, then even the Rambam would agree that the child can return it once he reaches the age of pe'utos (which would be a solution for a situation where the father for whatever reason couldn't fulfill his mitzvah before letting the child use it).

Based on the assumption that a child can only acquire m'dorabonon even with da'as acheres being makneh, the gemara would have to be explained that the girl can receive her kiddushin money m'din areiv (cosigner) as Tosfaos originally entertains.

Kiddushin 16a - Eved Ivri Gufo Kanuy

Now that yom tov is over I hope to be more diligent about posting!

Tosafos discusses whether hefker would be a viable option to free an eved ivri. Tosafos claims that hefker works by an eved k'nanin and should also work for an eved ivri. However, according to the opinion that hefker by an eved k'nani would not be sufficient to permit him to marry a jewish girl, there is a machlokes by an eved ivri if hefker alone would be enough. The Ritva holds that just as an eved k'nani requires a shtar to remove the issar aspect that forbids him to a jewish girl, similarly an eved ivri requires a shtar to forbid him to marry a shifcha k'nanis. However, Tosafos clearly holds that even though a shtar would be necessary for an eved k'nani, hefker would work completely for an eved ivri and no shtar would be necessary. The question is, how can hefker change his status and forbid the eved ivri to a shifcha k'nanis? R' Moshe (dibros, heara 5) explains that by an eved k'nani there are 2 seperate kinyanim, one is monetary that binds him to work and the other is a kinyan for the purpose of issur that forbids him to a bas yisroel. Therefore he is not permitted to a bas yisroel through hefker, since it does not remove the seperate kinyan for issur. However, an eved ivri is the same as any other jew. The right to marry a shifcha k'nanis is not a seperate kinyan in him that would change his status of being a regular jew. Rather, it is an outgrowth of being owned by someone else that his master is entitled to provide him with a shifcha. It is literally part of the master monetary entitlement that allows him to work with the eved by day and night as the gemara says 15a. Therefore, as soon as the ownership is removed using hefker, the eved ivri is automatically assur to a shifcha. R' Moshe is so convinced that Tosafos approach makes sense that he is troubled with the Ritva.

Kiddushin 4b - Double Ring Ceremony

In the gemara today, there is a hava amina that kiddushin can be accomplished by her giving money to him and/or her saying she is mekadesh her (or that she is mikudeshes to him). R' Moshe in Dibros Moshe points out that this hava amina seems to undermine the entire process of kiddushin. Kiddushin is for him to acquire her, and it is strange for the gemara to entertain that she can acquire him. But he explains based on rashi that the gemara thinks that perhaps kiddushin is not a kinyan at all, rather the exchange of money from him to her or even her to him creates a commitment from both of them to join in a state of marriage. The gemara rejects this notion and insists the kiddushin is only when he "acquires" her.

R' Moshe has 2 teshuvos regarding a double ring ceremony. In (E.H. 3:18) he explains that if he gives her a ring and says "הרי את מקודשת לי" and then she does the same, although it is assur [based on a brilliant diyuk from the gemara in Shabbos 14 that one is not allowed to do an action of shtus that makes it look as if it is part of a torah procedure], the marriage is completely binding. Yet in (E.H. 3:25) he writes of a reformed wedding where there is a double ring ceremony (even if the eidim would be kasher) the entire wedding is invalid becasue they are merely committing to want to be in a state of marriage but never doing the procedure of him being koneh her [R' Moshe explains that even according to R' Henkin that a secular marriage in a court will turn into a halachic marriage based on not wanting bi'as z'nus, that will only be where they recognize that they never had a religious ceremony. But where they think they are married based on a religious ceremony, the assumption is that all future bi'ah will be based on the premise that the ceremony under the chuppah created a status of marriage, so that the marriage will never be halachically binding].

R' Moshe (E.H. 4:32) was asked that these teshuvos seem to contradict one another whether a double ring marriage is binding but assur, or not binding at all. To this R' Moshe responds that he doesn't see any problem in reconciling these 2 teshuvos. In Siman 18 the ceremony was performed by an orthodox rabbi where the procedure was done properly, just that afterward he allowed her to do her mishagas by giving him a ring and saying some nonsense statement of him being mekudash to her. But in Siman 25 the reformed rabbi considered the exchange of rings to create the marriage - "הרי שפיר מוכיח שאין עושין קידושי התורה אלא שהוא נתינת טבעות בעלמא על שנעשו איש ואשה אבל לא היה שום מעשה על הקדושין". B'kitzur, it would be assur for him to give her a ring under the chuppah, but so long as it is clear that the kiddushin was achieved by him giving her the ring, it would not prevent the kiddushin from taking place. It would seem clear that if she wants to give him a ring later i.e. not under the chuppah, just for a symbol that they are married, that would be totally fine since it in no way is connected to the process of marriage.

Kiddushin 3a - Kesef, Chalifin and Shtar

MAZAL TOV ON GITTIN!

Just some quick thoughts right before shabbos....

The gemara says that one cannot be mekadesh a woman with chalifin. Rashi explains by making 2 statements: 1. The reason less than a peruta doesn't work as kidushei kesef is because it is degrading to her. 2. Since chalifin by definition does not have to be worth a peruta, it doesn't work to be mekadesh an isha even when it is worth a peruta.

Regarding #1, Tosafos disagrees and explains that less than a peruta does not qualify as "kesef", and is therefore not included in the gezeira shava from where we learn that kesef works for kiddushin. There seems to be a dispute between Rashi and Tosafos as to whether less than a peruta qualifies as "kesef".

Regarding #2, Tosafos explains that the whole gemara is addressing chalifin that is worth a peruta. Originally the gemara thought that chalifin that is worth a peruta is similar enough to kesef to work as kesef, but rejects this and says that it is a seperate kinyan which we have no source for by kiddushin. Rashi and Tosafos would therefore argue if it were possible to entertain that chalifin would work when it was worth less than a peruta. Rashi holds that it was a possibility for chalifin to work even though it is a seperate kinyan from kesef, whereas Tosafos holds that we only thought it could work when it would be similar to kesef. I would like to suggest that perhaps their machlokes revolves around the definition of kidushei kesef. Is it a ma'aseh kinyan (like chazaka) or is it a reimbursement for which her receives the woman as a wife in return? Chalifin is clearly a ma'aseh kinyan from the fact that it can work when it is less than a peruta. Rashi holds that kesef is also just a ma'aseh kinyan, and therefore would be similar to kesef even though it is not worth a  peruta. But Tosafos understands that Kesef is a reimbursement type kinyan, so chalifin which is just a ma'aseh that results in a kinyan would not be comparable to it at all.

There seems to also be a machlokes rashi and tosafos whether shtar that is more than a peruta, but for whatever reason an invalid shtar, would work as kidushei kesef. Rashi on the mishna implies it would (since he makes the case of kidushei shtar to be when it is less than a peruta, implying that if it were more than a peruta it would work as kesef), whereas Tosafos d.h. v'isha, implies that it would not (Tosafos says that chalifin worth a peruta should work, even if shtar would not work when worth a peruta. The reason shtar would not work is because it can be written on issurei han'ah implying that it doesn't need any value at all, whereas chalifin at least needs some value. This indicates that chalifin is still associated with the value of the object, and therefore when it has a peruta it should work like kesef). 

If Rashi holds that shtar worth a peruta would work as kesef, why would chalifin worth a peruta not work as kesef? Perhaps rashi means to say that the Rabbonon were mevatel Toras Chalifin even when worth a peruta when it should work as kesef, so that you would not come to use chalifin when it is worth less than a peruta. But Shtar can work as kesef if it is passul when it is worth a peruta, because since normally it works less than a peruta chazal had no reason to uproot it from working as kesef.

Gittin 88b - Forced Gett

The Rambam (2:20) explains the mechanics of a forced gett is that:

לפיכך זה שהוא רוצה להיות מישראל ורוצה הוא לעשות כל מצות ולהתרחק מן העבירות יצרו הוא שתקפו, וכיון שהוכה עד שתשש יצרו ואמר רוצה אני כבר גירש לרצונו

This implies that only one who "wants to be part of klal yisroel" would be considered consent after being forced, but one who converts to christianity or islam and does not wish to be part of klal yisroel, cannot be forced even by a jewish beis din to give a gett. The Ohr Sameiach quotes the maharitatz who points this out and therefore rules that for a convert to another religion, a forced gett would be invalid, since it only works for one who wishes to remain part of klal yisroel. The Maharik suggests that under the circumstances of a convert maybe chazal use the mechanism of uprooting his kiddushin, but clearly that is a very difficult approach to accept. Therefore the Ohr Sameiach asks, Why is the "minhag" to force a convert to give a gett?

The Ohr Sameiach develops a complicated yet brilliant approach. When Beis din forces to fulfill a mitzvah, their power is limited to their ability to actually accomplish their goal. Meaning, if they would be certain somehow that this person will never consent and will give up his life to not perform a mitzvah, they would not have the right to force him (since the force is for the purpose of getting him to do the mitzvah, not as a punishment). Based on this we should never be able to force anyone, because anyone would tell you that they would ultimately not want to give the gett so that beis din will loose their ability to force, rather than his "rotzeh ani" qualifying as consent which empowers beis din to apply force! It is to answer this question that the Rambam has to explain that the inner will of every jew is to be part of klal yisroel and do mitzvos. Meaning, that as far as "consent" is concerned, the fact that he declares "rotzeh ani" in the end is all we care about since דברים שבלב אינם דברים. The only reason we need the logic of the inner ratzon is to serve Hashem is to explain why we have the right to whip him to begin with. And that is, we assume that the inner will of every jew (who wants to be a jew) is to serve Hashem, and give a gett when the din requires it. This inner ratzon is not needed to qualify as consent, rather is necessary to give the beis din the power to force to begin with. Now, this whole explanation is only necessary for one who want to be part of klal yisroel and is not a idolator because our ability to force him is only if we would be convinced that his inner will is to consent. Without that we have no right to consent based on the logic of forcing for an aseh. But one who is an idolator who we have the right to PUNISH and even kill for his aveira of idolatry, we don't need his ultimate consent to entitle us to whip him. We have a right to whip him even if we knew he would never consent, as a punishment for his aveira. Therefore, we don't need his inner ratzon to consent, we just need him to say "rotzeh ani" after suffering and that is sufficient to make the gett work. Based on this the Ohr sameiach is mechadesh that for a convert to christianity or islam, even if we force "shelo k'din", the gett should be valid because we don't need a heter to whip him.

Gittin 88a - Being Mevatel a gett before and after it is completed

Rashi explains the gemara's question "Be concerned that he changed his mind" to be that the was mevatel the gett and then decided to continue writing it. Tosafos points out that this implies that the bitul to the gett is effective, which seems to contradict R' Nachman who says that when one is mevatel a gett, if he later decided to use it, the gett itself was not batul and can be used? Tosafos answers that after it is written and is a complete entity the bitul will not be effective, but until it is completed the bitul will effectively nullify the gett.

The Rambam (Hil. Tzitzis 1:15) writes that when one puts tzitzis on a garment that already has tzitzis on it, but his intent is to be mevatel the original ones, and use the ones that he is tying on now for the mitzvah, his bitul is effective to remove the mitzvah status from the original ones. The Sha'ages Aryeh (30) is troubled by this - כיון שאין בהן שום פסול, כי מבטלן איהו מאי הוי, וכי ספר תורה או תפילין ומזוזה שנכתבו בהכשר כדינם וכי אפשר להוציאם להכשירן ע"י ביטול ויהיו נפסלין ומכאן ולהבא ע"י שביטלן, הא לא שמענו, ואי איתא להא מילתא לא אישתמיט שום תנא או אמורא להשמיענו חידוש גדול כזה

To answer this question the Sha'ages Aryeh suggests that the Rambam goes l'shitaso in Hilchos Gittin (6:21)that when the husband is mevatel the gett, it can never be used again - it is like חרס הנשבר "broken pottery". Just as the Rambam holds bitul works by a gett, he holds l'shitaso that it works by mitzvos, but most poskim disagree with the Rambam that bitul doesn't nullify the gett from ever being used again, and similarly hold that it doesn't work by mitzvos.

The Sha'ages Aryeh tries to push off the Rambam as some radical opinion that bitul helps by gett and by mitzvos, but all other poskim would disagree with the Rambam in principal and maintain that bitul is not at all effective. However, based on Rashi and Tosafos that bitul would be effective prior to the completion of the gett, they should also maintain (based on the equation of the sha'ages aryeh, which needless to say is not muchrach) that bitul would be effective to a half written sefer torah or half written mezuza. If this is true, then the majority of poskim do not disagree with the Rambam in principal, they just hold that after it is completed it is not susceptible to being nullified. But in principal they would also agree that one can "nullify" mitzvos and successfully disqualify a half written mezuza from being a kasher mezuza even after it is completed!

Gittin 85b - Must a Gett have ודין די יהוי ליכי מינאי

The minhag is that we end off the gett by writing:

והרי את מותרת לכל אדם, ודן די יהוי ליכי מינאי ספר תירוכין ואגרת שבוקין וגט פטורין

We fulfill both the tana kama and R' yehuda in the mishna by writing both the "והרי את וכו'" and "ודן די יהוי וכו", but it is not clear from the conclusion of the gemara whether we really need ודן or not. When the gemara says that we should right ודן without a yud, so that it doesn't say "din". But Rashi and the Rambam disagree with the problem of it sayin "din". Rashi says that it implies that he is required to divorce her, which indicates that since he is not actually required to divorce her the gett should not be valid. The Rambam says that it implies that they made up a "mishpat" between themselves to be divorced. The Beis Yosef understands that according to the Rambam the term "din" would not be misleading, just that you would be missing the term "ודן" which is a requirement in a gett. Based on this, the sefer gett pashut, quoted in Pischei teshuva points out that if the woman would be a Sotah so that he is in fact obligated to divorce her, Rashi would hold that ודן can be written with a yud, whereas the Rambam would hold that ודן must still be written without a yud. This approach assumes that the Rambam paskens like R' yehuda that ודן must be written to indicate that he is divorcing her with this gett, whereas rashi paskens like tana kamma that ודן is not necessary.

The sefer gett pashut points out that this approach is problematic. Although in the pirush hamishna that Rambam paskens like R' Yehuda that ודן is necessary. In the yad, the rambam quotes the language of the tanna kamma that gufo shel gett is just הרי את מותרת לכל אדם. This contradicts the assumption that the Rambam paskens like R' Yehuda? He quotes the Mahari Levi who suggests that the entire machlokes about ודן is only d'rabonon. Meaning, all agree that the gufo shel gett on a a d'oraysa level is הרי את מותרת לכל אדם. But the Rambam holds like R' Yehuda that m'drabonon we need to write ודן. This is a pretty radical approach because the pashtus of the mishna is that ודן is required m'doraysa according to R' Yehuda!

Gittin 80b - Dating Gittin based on Creation of World

The mishna and gemara require gittin to be dated by the malchus that it is written in. If not, R' Meir holds the gett is pasul and the child born from a second marriage is a mamzer. The Rabbonon argue on R' Meir - According to R' Yehuda in the name of Shmuel they say that if dated by the "santer" [ya'avetz points out that it is the same word as "senator"] then she is divorced b'dieved. According to R' Huna in the name of Rav, even with the date of another malchus, the child would at least be kasher. However, Tosafos asks, that all seem to agree that l'chatchila we must write the date based on that particular malchus, how can we date based on bri'as ha'olam?

Tosafos offers 3 approaches:

1. Rabbeinu Elchonon says that certainly chazal originally required mentioning the king. However, if the king was not mentioned but the santer was mentioned the gett can be used. If it was dated by another malchus the gett cannot be used but if she had a child from another marriage, he is not a mamzer. Based on this, writing from the creation of the world should be passul b'dieved, but things changed since even the non-jews are no longer careful about this. Therefore, even though it is a violation of the original takana, the takana no longer applies.

2. Rabbeinu Yosef suggests that the original takana of the gemara was only to write the date of the malchus in a situation where the malchus is makpid. The original takana is still in existence but includes a dispensation for anything that the malchus is not makpid about. It is not the takana that changes with passing generations, rather the level of kepeida of the malchus changes. Just as writing the santer is kasher because the malchus was not makpid, so too writing bri'as ha'olam nowadays kasher nowadays since the malchus isn't makpid. Maharam Shif points out that even R' Meir would agree since the entire takana even according to R' Meir may have been not to write something that the malchus is makpid on [just that R' Meir and Rabbonon argue whether writing the santer is something they are makpid on].

3. Rabbeinu Tam writes that according to the Rabbonon there was never a takana to write the date based on the malchus at all. R' yehuda in the name of Shmuel is saying that even if one were to write the date based on the santer which could cause animosity from the king, would be kasher l'chatchila. Certainly, writing bri'as ha'olam which will not cause animosity, will be kasher l'chatchila. Based on this, we pasken exactly like the gemara, nothing changed - the gemara was simply saying a chiddush that even if dated by the santer it would be kasher. Our minhag would therefore be based on the Rabbonon according to shmuel, but would not fit with R' Meir.

4. The Ran has another approach that the entire takana was against writing another malchus which would cause jelousy. But there was never a requirement to write the malchus that you are in, therefore if you write based on creation which is benign, it would be kasher even according to R' Meir. Rashi (80a d.h. mi'shum) clearly implies that the institution was to give prestige to the malchus that one resides in, not just a prohibition against writing another malchus, not like the Ran.

Gittin 77b - Giving a gett on shabbos

In sefer Atzei Besamim # 34 (from the rosh kollel in milwaukee - R' sederovic) he discusses a very interesting question. A man was being me'agen his wife for many years by refusing to give a gett. They managed to convince him to give her a gett over a shabbos that he was in town, but by the time shabbos would be over he would be gone. Is it permitted to set up the sofer, eidim and shliach on shabbos, to write sign and deliver the gett after shabbos, or is the set up also assur?

The first question is would one be able to give a gett on shabbos in this circumstance. The gemara permits someone who is dying to be makneh the gett to his wife with a kinyan chatzar (or agav - see rashi), but not to move the gett. The Rosh explains that it is possible that if need be chazal would be matir the issur to move the gett (muktzah) also, just that they prefer to be matir the issur of making an acquisition on the chatzer [The Rosh explains that we already find that they were matir kinyan for a sh'chiv meirah in baba basra 156b, so they would rather be matir something that they were already matir elsewhere. The Ran explains that it is less recognizable that she is doing a kinyan than it would be to move the gett, so they prefer to be matir the issur kinyan. The korban nesanel (3) suggests that they prefer to be matir an issur that will be simultaneous with the gett going into effect]. However, aside from the issur kinyan on the chatzer and the moving of the gett, there is also an issur to divorce on shabbos. Tosafos and Rosh say that they were also matir this issur for a sh'chiv mei'rah. Why? Tosafos here says that it is to prevent her from falling to the yaveim. But, in Baba Basra the gemara says that it is to prevent the sh'chiv meira from tiruf da'as and causing his death [that is why they were matir kinyan on shabbos. The Rosh here and Tosafos there both connect the heter in our sugya to that sugya]. The sefer atzei b'samim makes a very good point. If the heter is based on igun, it should apply in our case as well. But if the heter is based on tiruf da'as of the sh'chiv mei'ra, that is not applicable here.

But it seems to me that the entire issur geirushin is not applicable in this case. The sefer Atzei Besamim suggests that whether the issur geirushin on shabbos would include setting up the sofer/eidim/shliach depends on somewhat of a discrepancy in Beitzah 36b between the simple reading of the gemara and tosafos whether the problem of divorcing on shabbos is because of leading to writing or making a kinyan. He suggests that kinyan would not apply to setting up the sofer, eidim and shliach, but he assumes that the issur of coming to write would apply. It seems to me that even if chazal were normally concerned by kiddushin, gittin and other business transactions that you will come to write, they were only gozer on the ma'aseh of kiddushin/gittin.... but not on the preliminary set up. The setting up of the sofer/eidim/shliach is at most a problem of making a shliach on shabbos [tosafos 22b holds that the sofer and eidim aren't even shluchim, it is only a din of l'ishma that they must be appointed]. It is clear from the Rosh that there wouldn't be any problem with setting up a shliach on shabbos [from the fact that he rejects the rashbam who holds that the concern was to avoid carrying in the reshus harabim, by saying that he can simply appoint a shliach to go to the place where the gett is and give it to her]. Therefore, even if normally the gezeira against marriage and divorce is that it would lead to writing, they were only gozer on the actual ma'aseh of marriage and divorce, but not on the preliminary set up which is no more than appointing shluchim.

Gittin 76b - Remarrying before conditional time expires

The gemara asks regarding a gett that was given to be effective from now on the condition that he does not return for 12 months, and he dies within 12 months; in the presence of a yaveim, can she remarry someone else within the 12 months since the condition will definitely be met making the gett effective retroactively or must she wait until the 12 months expires. The gemara does not explain what the rationale would be to wait until the 12 months expires. Tosafos suggests that m'doraysa she can certainly remarry immediately upon his death, but m'drabonon we are afraid that people will not hear that he died and think that she is permitted to remarry relying on a gett with a pending condition. The Ran suggests that we are concerned that although he said that gett should be effective from now retroactively, he was certainly not expecting to die and therefore he may have only really wanted the gett to be effective after 12 months (immediately before his death). Based on the Ran, the Beis Shmuel (144:5) points out that it would possibly be a d'oraysa violation to remarry with in the 12 months. The Ramban has another approach, that chalitza is necessary until the condition has been actually met - it is not sufficient to just know for sure that it will be met.

The Poras Yosef quotes a fouth apporach from the yerushalmi. Although he meant the gett should be effective retroactively from today, it will only be effective if he truly does not return. We have to be choshesh for techiyas hameisim, and that he will return. Therefore, it is like any other condition that is pending where we cannot permit her until the condition is fulfilled out of fear that it won't be fulfilled. The korban ha'eida asks, if so, how can a widow ever remarry, we should be concerned that her husband will return. To this the Poras Yosef answers, that by all other women, the death of their husband is matir them. Even if they were to return through a miracle, they are no longer married to their wives. But here where he stipulated "if i don't return for 12 months", and he returns within 12 months after having techiyas hameisim, the gett will not be effective and she will be a widow who is zekuka to the yaveim.

This brings up another issue in understanding how the death of the husband is matir the issur of eishes ish. The gemara in kiddushin 13 searches for a source that the death of the husband is matir the wife. Ultimately the gemara learns it out from a hekesh to divorce. But what aspect of the death is matir her? Is it the act of dying which serves as a matir or is it that she no longer has a husband? The nafka mina would be in a situation where the time of death cannot serve as the matir but the person is dead and will never return. R' Elchonon (kovetz shiurim 2:28) quotes a machlokes between the Ramah and beis yosef (y.d. 267) when a ger dies and leaves behind slaves who are ketanim and cannot be koneh themselves through his death - Ramah holds that these slaves are stuck, since they don't go free with the death of the owner, they can never be freed. Beis Yosef argues because he understands that the nature of death serving as a matir is not an act, rather a continuous status of not having the owner alive. Now, if we understand that the heter of misas hab'al for an eishes ish is an act of dying (like Ramah) then the Poras Yosef is correct in his distinction between a regular almana and our case of condition. But if we understand that death is a continuous state of being where she doesn't have a husband, not a one time act that is matir her for ever, then if we are concerned for techiyas hameisim, we should never be matir a widow to remarry.

Gittin 75b - T'nai and Ma'aseh in the same object

The gemara says that one who would give a gett on condition that the gett be returned is a violation of the condition and action being in the same object i.e. the gett itself. Tosafos explains this issue that it is not just a technical condition in stipulation. The problem is that the condition to retain the gett is an inherent contradiction with the action of giving her the gett. Since the gett is only effective after the condition is fulfilled and at that point the gett is already back in his hands, it is impossible for the gett to be effective. But in a case where there is no contradiction between the action and the condition, the condition is allowed to be in the same object as the ma'aseh. The Beis Shmuel (E.H. 38:7) points out that the Rosh in Baba Basra disagrees with Tosafos. The Rosh asks on the case of giving an esrog to someone al m'nas - on the condition, that it be returned is a violation of t'nai u'ma'aseh b'davar ehcad. The language of "al m'nas" implies that the condition will make the action go into effect retroactively at the time that it was received, the condition does not in anyway interfere or contradict the action, yet the Rosh maintains that this would still be a violation of t'nai u'ma'aseh b'davar echad. It seems that the Rosh and Tosafos argue whether the concept of "t'nai u'ma'aseh b'davar echad" is a technicality in rules of tenaim like t'nai kaful, and t'nai kodem l'ma'aseh, or is is a practical consideration that the condition can't contradict the ma'aseh.

The B'nei Ahuva (from R' Yonasan Eibshitz Ishus 6:2) mentioned by R' akiva eiger (C.M. 241:6) asks on Rabbeinu Yerucham who seems to pasken that by a gett that is given on the condition to return the paper it is written on, is a violation of t'nai u'ma'aseh b'davar echad, so the condition is void and the gett is effective. Yet, when one gives an esrog on the condition that it be returned, the condition is binding and the receiver will only fulfill the mitzvah if the condition is met. Why is there a difference? R' Yonasan Eibshitz explains that really he holds like the Rosh that there is a violation of t'nai u'ma'aseh b'davar echad, even when there is no contradiction (since we pasken that al m'nas is k'meiachshav, so there won't be a contradiction). However, when one stipulates that the esrog must be returned the condition does not have to be fulfilled with the same esrog, rather the receiver can return a different esrog so long as it is just as good. But by the gett where the husband clearly is trying to cause anguish by demanding the paper back, the condition cannot be fulfilled with anything other than the paper the gett was written on and is therefore a problem of t'nai u'ma'aseh b'davar echad.

The rationale of R' Yonasan Eibshitz that when one borrows an esrog on condition to return it, can return another esrog, is based on the Rosh (3rd perek of Succha) who says that the original owner wants an esrog to be yotzei with (therefore returning money would not be sufficient). Therefore it should not matter whether it is the same esrog or another one that is just as nice that he can use to be yotzei with.

Gittin 74b - Giving against the receivers will

The gemara has 2 versions of Rava whether when one gives against the receiver's will, but in his presence, whether that qualifies as having been given (when not in the receiver's presence all agree that it does not qualify as giving). Tosafos qualifies the opinion that considers giving against the receiver's will not to be considered giving - this only applies when it is detrimental to the receiver to get the money because he will have to give something in return, but if the receiver will not loose anything then it would be considered giving provided that the money is owed. But if the money is a gift, all would agree that one cannot force someone else to receive a gift against his will. In short, all agree that a gift cannot be given against the receiver's will. All agree that when the money is owed and the receiver has nothing to loose by receiving it, it is considered giving even against his will. They argue only in a situation where the money is owed, but the receiver has something to loose.

The Beis Yosef has a discussion what the definition of "giving against his will" is. Does it mean that you can force him to physically receive the money (by forcing the money into his hand) or is it sufficient to simply give it without him receiving at all? The Taz (E.H. 143:9) proves that the opinion who considers giving against his will to be considered giving, will hold that you can simply throw it down in front of him, and there is no requirement that he receive it at all. Tosafos asks that according to the opinion that giving against his will does not qualify as giving, why should the purchaser of a house in a walled city have to hide to avoid the seller redeeming his house; he should simply refuse to receive the money? From the fact that Tosafos doesn't ask this question even in the opinion that giving against his will qualifies as giving, implies that according to that opinion the refusal to receive the money would not help because he can just throw it down in front of him, therefore the buyer had to hide.

The gemara earlier had a discussion where he make a condition with her that it would only be a gett if she would give him a specific garment. We pasken like the Rabbonon that money cannot be given instead. The Rosh holds that this is only if the husband insists on the garment, but if he agrees to accept money all agree that the condition can be met by paying money. The Beis Shmuel (143:10) points out that based on this, the entire machlokes Rashbag and Chachamim would only be when he demands the garment and does not agree to accept money in it's place.The Rabbonon would say that since a garment was stipulated, he cannot be forced to accept money in lieu of the garment. The B"S points out that this doesn't relate to the argument of giving against his will, because even if normally he can be forced to accept the money against his will, however, when the garment was specifically stipulated he can insist on receiving the garment itself. However, the B"S points out that we should be able to point out from here that normally giving against his will qualifies as giving, since the only reason he cannot be forced to accept the money is because the garment was stipulated, but otherwise he can be forced to accept the money?

Gittin 70b - Shoteh between writing and giving

Tosafos seems to say that we have to make sure that a person dying who is giving a gett to his wife does not loose his cognitive abilities in between the writing and the giving since that would invalidate the gett. The Maharsha asks that he doesn't know where Tosafos gets this from. Although he must retain his mental state for the writing and during the shlichus of giving it to her, why should he have to be in a good mental state in between the two? The Beis Yosef agrees with the question of the Maharsha and therefore stretches Tosafos to be saying that he must be in a good mental state during the time of the giving of the gett. One may have thought that the fact that he improves after the giving the gett would indicate that he was in a good mental state when it was in fact given, to which Tosafos says that we cannot rely on that assumption. Based on this the Beis Yosef holds l'halacha that he does not have to retain a good mental state between the writing and giving. Beis Shmuel (121:5) suggest l'chatchila being machmir for Tosafos, but me'ikar hadin agrees with the beis yosef.

The Rashash justifies the simple reading of Tosafos that he must remain mentally stable from the writing thru the giving. The rashash compares this to dichuy by mitzvos where we have a discussion whether if something is pushed off whether it can become fit once again. However, the rashash doesn't directly address the question of the Beis Yosef, that the Mishna implies that kurdaykos i.e. bad mental state, doesn't ruin his original command to write the gett, certainly it should not ruin a gett which has been written. The Taz (121:4) takes the same approach as the rashash, reading Tosafos as it implies, not like the Beis Yosef, and therefore requires his mental stability in between the writing and giving. He responds to the question of the Beis Yosef by saying that if someone had only commanded to give a gett the shlichus begins only when the sofer begins to write, so if he would loose his mental abilities before the writing begins and then become cured, it would not invalidate the shlichus. But in our case where the gett is already completed and ready to be given, if he would loose his mental abilities so that it could not be given at that moment, the gett is invalid at that time and cannot be fixed by restoring his mental ability.

Gittin 68a - Aveni Eifod and the Shamir Worm

The gemara implies that the shamir worm was needed for the avnei eifod to carve out the name of the shevatim, as rashi explains based on sotah. Tosafos proves that the shamir must have existed in the time of the bayis sheini becasue in the story with dama ben nesina they needed the eifod stones, and that story took place in the second tempe era [from the fact that they had a para aduma]. The eifod stones would be useless without the shamir, since there was no other way to carve on the stones, which implies that they had access to the shamir in the second beis hamikdash. Although Shlomo had a hard time accessing the shamir, Tosafos assumes that they kept it from the time of Shlomo through the destruction of the bayis sheini.

The Ramban in Chumash in Parshas Teruma (cited by rashash) says that only the avnei choshen needed a shamir because it says "במלואתם", but the avnei eifod to not need a shamir [and the gemara which says avnei eifod is not precise] and can be scratched with a knife. Based on this, we no longer are able to prove from the story of dama ben nesina that there was a shamir in the second beis hamikdash, since the stones they needed were not choshen stoner, just eifod stones. Based on this, the Minchas Chinuch (mitzvah 95) suggests that there is a machlokes in sotah 48b if the shamir was needed for the stones of the beis hamikdash. Although the gemara implies that we pasken like R' Yehuda that we need the shamir for the beis hamikdash stones, the Rambam paskens like R' Nechemia that the shamir wasn't needed [rather they used knives to cut the stones outside of the har habayis area]. The Minchas Chinuch is bothered by what compels the Rambam to pasken like R' Nechemia that they didn't need a shamir. He suggests that the Rambam held like the Ramban and therefore there is not gemara compelling that the shamir existed in the second beis hamikdash. Since they were able to build the second beis hamikdash even in the absence of a shamir, it must be that we pasken like R' Nechemia that the stones could be cut with metal knives so long as it is outside the area of the mikdash.

Gittin 66b - Words given to a shliach - 'mili mimsaran l'shliach'

The Maharit (1:127) has a discussion whether one can make a shliach to be makdish something, because the hekdesh is achieved through speech and should be a problem of mili lo mimsaran l'shliach. The Nodeh B'yehuda (tinyana, Y.D. 147 - written by his son) writes that the issue of the maharit seems completely unconnected with the concept of mili lo mimsaran l'shliach (mlm"l). The concept of mlm"l means that a shliach who is told to do something with words such as told to write a gett, cannot give over that shlichus to a second shliach because all he is giving over to the second shliach is the command to write the gett [nothing but words]. This is apparent from Rashi on 66b and from Rashi on 29a d.h. rava - שלא מסר להם אלא דברים ואין בדברים כח להיות חוזרים ונמסרים לאחר

But one is perfectly able to set up a shliach to do something that only involves speech such as be makdish something for him, and this in no way violates mlm"l. The issue would only be when Reuven would appoint Shimon a shliach to be makdish something for him, whether shimon can now go and appoint levi to do it - based on mlm"l shimon doesn't have the ability to give over mere words to a second shliach.

However, R' Shlomo Vilna points out that Rashi on 71b seems to hold that any shliach who is appointed to just do says words to someone. Based on this rashi it would be plausible that one cannot set up a shliach to be makdish something because of mlm"l. To deal with the contradiction in Rashi to explain the nature of mlm"l, R' Shlomo Vilna suggests that it depends whether we are allowing "omer imru" - meaning whether reuven telling shimon to tell levi would work. According to the approach of mlm"l, but omer imru would work, it must be that words can in fact be given over to the first shliach, just that the first shliach is unable to appoint a second shliach (as rashi says on 29a and 66b). But according to the approach that "omer imru" doesn't work either, it is possible that the problem is that a shliach can only be appointed to do an action but can never be appointed to just say something.

The Nodeh b'yehuda asks 2 questions on the maharit, who doesn't allow a shliach to be makdish something. 1. It is omer imru, and even though all hold mlm"l, some to hold that omer imru works. 2. The maharit understands that mlm"l means one cannot appoint a shliach to say something, which is against Rashi on 29a and 66b. Based on R' Shlomo Vilna that the definition of mlm"l is completely dependent on whether we accept omer imru, and if we would accept omer imru then the maharit's understanding is correct - both questions of the nodeh b'yehuda are really one - since some pasken omer imru therefore one should be able to be makdish through a shliach (but if we would pasken that omer imru doesn't work, then being makdish through a shliach would in fact be a violation of mlm"l).

Gittin 63b - Shliach Must Return To Say He Fulfilled His Shlichus

The gemara says that if a husband would make a shliach to bring a gett to his wife (shliach l'holacha), and then the wife would turn him into her shliach to receive the gett (shliach l'kabala), the gett is not valid because the shliach is not able to return to tell the husband he did the shlichus. What does this mean? Rashi explains that the basis for this concept is:

שליח שחזר ונעשה שליח למי שנשתלח לו ניתק משליחות הראשון עד שלא היה לו שהות לחזור אצל שולחו ולומר עשיתי שליחותך

Both the Taz and Avnei Miluim (E.H. 141) explain that by becoming a shliach l'kabala he looses his status of shliach l'holacha, and therefore there is no time between being his shliach and her shliach to report back to the husband that he did the shlichus. Based on Rashi, the shliach who accepts status of shliach l'kabala, will loose his prior status of shliach l'holacha, and therefore even if he decides to hand the gett into her hand, she will not be divorces - since he is no longer a shliach l'holacha. However, the Rambam clearly writes that under these circumstances she is not divorced by the shliach becoming her shliach l'kabala, but as soon as the gett would be given in her hands she would be divorced since the shliach would retain his original status of shliach l'holacha. In short, Rashi and Rambam argue whether the issue of the shliach not being able to report back prevents him from becoming her shliach l'kabala but he retains status of his shliach l'holacha (Rambam) or does the acceptance of becoming her shliach l'kabala make him loose status of shliach l'holacha so that even if he would decide afterwards to give the gett into her hands she would not be divorced (Rashi).

Gittin 62a - Shalom Aleichem to Goyim

The Mishna 61a says that chazal were matir to give shalom to goyim because of darkei shalom. Rashi explains that the reason it should be prohibited m'ikar hadin (if not for darkei shalom) is because shalom is a name of Hashem and there is only a heter to use it in giving shalom to another jew. However, the gemara 62a asks: "if one is allowed to give words of encouragement to a goy who is working, he should surely be allowed to give shalom". The gemara proceeds to say that the argument for prohibiting it is specifically during their holiday where it is likely to cause them to thank their idols for the Jew showing them respect. Based on Rashi in the mishna there is a very significant chiddush in being able to give them shalom, in that one is entitled to use the name of Hashem. If so, what is the question of the gemara? The Rashash is bothered by this question and says that even when one gave words of encouragement to continue working, the name of Hashem was invoked. Therefore, the gemara asks that since the name of Hashem was invoked for that purpose, it can certainly be used to give Shalom.

The gemara says that Rav Kahana gave shalom to a goy by saying "Shalom to Mar". Rashi explains that he didn't intend to refer to the goy, but rather to his Rebbi. Tosafos doesn't understand what would compel rashi to say such a thing since we only find a prohibition in repeating shalom, but for saying it only once we don't need a heter of darkei shalom [Tosafos also asks that it seems to be a geneivas da'as of the goy]. Tosafos seems to imply that there is some inherent prohibition to repeat shalom, and is not clear why. Rashi however explains that the problem with repeating Shalom is predicated on the problem with saying it in the first place, in that it is using the name of Hashem. Therefore rashi explains that although the heter of darkei shalom would permit saying it once, it would not permit repeating it. We can now understand why Rashi l'shitaso is compelled to say that R' Kahana would have intent for his rebbi when giving shalom, because rashi is trying to explain how R' Kahana avoided the prohibition of using Hashem's name for a goy [and apparently didn't want to invoke the leniency of darkei shalom, whereas R' Chisda who would give them Shalom was willing to rely on the darkei shalom heter (the Ran adds that the chiddush of R' chisda is that he jumped at the opportunity to say shalom first based on the darkei shalom heter, because if he waited for them to say shalom first the expectation would be to repeat it twice so he tried to think ahead to avoid that)]. Perhaps rashi would hold that the issue of geneivas da'as would also not apply since he truly did intend to greet the goy, but the for the use of the name of Hashem he had to intend to give the bracha of Shalom to his rebbi.