Who Pays for the Clock?

By: Meoros HaDaf HaYomi

The Forgers’ Scheme

A person who wants to show a specimen of his signature to a Beis Din should not sign at the bottom of a blank page. A few years ago the Torah community in Yerushalayim was outraged when a claim was presented to a Beis Din against a respected Torah scholar. The claimant produced a promissory note for a huge amount signed by the supposed debtor and the latter certified his signature but denied borrowing the money. The dayanim appointed a special investigative team who revealed that the claimant belonged to a group of swindlers who had managed to misuse the defendant’s signature. They had discovered that he was accustomed to sign his name in the middle of the front page of every book in his large library and all they had to do was just borrow one of his books, remove the blank page and compose a promissory note above the signature.

Indeed, in our sugya Abaye recommends that anyone required to demonstrate his signature should do so at the top of a page to prevent anyone from adding a fraudulent text above it. Commenting on our sugya, the Ritva clarifies that Abaye’s warning stems from an understanding of people and foreseeing their spontaneous reaction at unexpected times. Abaye’s suspicion, after all, is actually unfounded as a person may claim he has paid a debt, even if a signed promissory note is produced against him, and he is believed unless the note is signed by witnesses. The Ritva explains, though, that Abaye foresaw a typical person’s behavior: By the nature of things, when someone is faced with a false document, his spontaneous reaction is to deny there having been any loan and subsequently he is not believed to assert that he paid the debt. The best thing to do, then, is to prevent any untoward use of one’s signature (Bava Basra 6a, Kesubos 88a, and see Shulchan „Aruch, C.M. 69:2, and the Shach, ibid, S.K. 10).

A claim based on a promissory note with no indicated amount: HaGaon Rav Mordechai Yafeh, author of the Levushim, cites an unusual event in his Levush Ir Shushan (section 48). About 420 years ago a person claimed to a Beis Din that another owed him a certain sum and, as proof, presented a blank promissory note signed by the supposed debtor, with no indicated amount. “The debtor,” he asserted, “gave me this note because he trusted me to fill in the amount he owes me.” The claimant added that were he a liar, he could have written in any sum he wanted and therefore the Beis Din should believe his demand. Still, the “Levush” immediately rejected the claim as “even a fool” would never give another a signed blank promissory note and we must assume that the defendant had lost the note, which was later found by the claimant. Concluding with a sharp warning, he declares that anyone giving another such a blank note is “merely a witless person willing to believe anyone, or insane and defined as a shotah, whose actions have no validity.”

Claiming money with a blank check: Nonetheless, the situation is different today and the above topic is relevant as people do give others signed checks with no specified amount, such as when paying a sum to be determined according to the future rate of exchange of some foreign currency. The practice is most common when borrowing from a free loan fund if the loan is repaid in installments and linked to a foreign currency. Moreover, most Gemachim lending medical apparatus or other equipment require a blank signed check. Indeed, what is the halachic validity of a monetary claim based on a signed check lacking any indicated amount?

Halachic authorities assert that if people are accustomed to give others such “open” checks, the holder of the check is believed to demand any amount. This regulation is also supported by Paragraph 19a of the national ordinance for promissory notes, which states that if a note lacks an essential detail, the holder may fill in the detail as he wishes. It follows, then, that the holder is believed to present a claim against the signer of a check missing a specified amount (see Mishpatecha LeYa‟akov, I, 22:6).

Who should Pay
for a Clock for the Teacher?

Our Mishna states the regulation that the person benefiting from a document must defray the costs of its being written. A borrower pays the expenses of drawing up a promissory note as he benefits from the loan and a purchaser defrays the costs of a bill of sale or deed, which is delivered to him as proof of his purchase and protects his rights. The author of Meshech Chochmah (at the end of Parashas Behar) supports this halachah with a passage from Yirmiyahu (32:10), recounting that the prophet bought a field from his cousin Chanamel ben Shalum, attesting “And I wrote the document and signed” even though the seller is generally assumed to write the bill of sale. The verse indicates, then, that Yirmiyahu paid the scribe, as stated in our Mishna.

An obligation to contribute to charity used as bail: The scope of the above halachah is seen from a question asked of the Rosh by his son Rabbi Yechiel. A certain Beis Din suspected that Shimon would not appear for a Din Torah scheduled for a particular time and commanded him to submit a guarantee. Shimon’s friend then signed a document before the Beis Din that if Shimon failed to appear as demanded, he would donate 1,000 coins to charity. The question arose, though, as to who should pay the costs of writing the document: Shimon, his litigant, or the guarantor. At first, the Rosh ruled that Shimon’s litigant must pay as the guarantee is to his benefit. He later discovered, though, that there was no other litigant but that “Shimon had sinned and the community wanted to imprison him till his punishment will be decided.” The Rosh then changed his decision and ruled that Shimon, as the one benefiting from the guarantee, must pay the price of the writing (Responsa of the Rosh, Kelal 13:2-3).

About 500 years ago an argument arose between a teacher and a certain pupil’s parent. The teacher was hired to instruct the child for a few hours each day and needed a clock in the room to know when the session ended (pocket watches had not yet been invented). The father claimed that the teacher must pay for the clock but the teacher insisted that the father bear the expense. Rabbi Yisrael Isserlin, author of Terumas HaDeshen, ruled that the father should buy the clock, but his student, Rabbi Yisrael bar Rav Chayim of Bruna, questioned the decision: Apparently, just as one who hires a tailor to sew a garment need not buy him a needle, and just as one who hires a scribe need not provide him with a pen as all artisans are hired with their tools, the teacher should pay for the clock required for his work.

The difference between teachers and tailors: Rav Yisrael of Bruna clarified his mentor’s ruling by explaining the difference between a teache r’s clock and a tailo r’s needle. A tailor without a needle is no tailor and a penless scribe is no scribe, as they cannot practice their trades without such tools. A teacher needs no clock for his work, as he only requires the ability to speak and explain. A clock is merely meant to tell him when to finish his task. We cannot force him to pay for it as he can claim that he can estimate the elapse of time without it. If the father refuses to believe him, says Rav Yisrael of Bruna, “Buy a clock and I’ll teach by it.”

The Collection of Legal Costs

In civil courts the losing party is charged for legal expenses, generally including the court costs and the winning party’s lawye r’s fees, etc. How does the Torah view such costs and how does a Beis Din act according to halachah?

Our sugya explains that the secretaries of a Beis Din would record the litigants’ claims, as Rashbam comments, “so that they would not change their claims” (s.v. Shitrei ta’anta) and our Mishna rules that the expenses involved in writing the records must be shared equally by both litigants. The Ribash deducts from there (Responsa, 222) that the general costs of a Beis Din should also be equally shared by the litigants rather than be borne exclusively by the losing party. Both the claimant and defendant need the services of the Beis Din and should divide the expenses entailed by their case.

An uncooperative defendant pays the extra costs he causes: Still, the Ribash emphasizes that if the defendant is uncooperative and causes the claimant to suffer needless expenses, such as the issuance of a “notice of refusal” (kesav seiruv), he is regarded as guilty of causing damage by negligence and must defray such expenses. Moreover, if the Beis Din discovers that a claim is baseless and only intended to hassle the defendant, the latter is exempt from all court costs and they are then borne exclusively by the claimant (Yeshuos Yisrael by the Gaon of Kutna, C.M. 14, in Ein Mishpat, s.k.14). Nonetheless, we have yet to clarify if in such cases a defendant may also demand the claimant to defray his own costs, such as payment to a rabbinical court advocate (to’en rabani) or the like. Halachic authorities indicate that the claimant should not be so charged as such expenses are not unavoidable and a defendant may represent himself. Hiring a to’en rabani is optional and the costs involved are not considered damage caused by the claimant.

A practical implication of the above discussion is that if a Beis Din allows a person to present a claim at a civil court and he wins his case, resulting in the defendant’s obligation to pay for the claimant’s lawyer, then the claimant must return to Beis Din to ask whether he may collect that sum from the defendant.

The Tree That Wasn’t

HaGaon Rav Aharon Kotler zt”l, Rosh Yeshivah of Lakewood, was known to be extremely heedful to guard the truth. Once he was shown an advertisement with a sketch of the Yeshivah including the surrounding trees. He counted the trees, though, and found that three had been drawn instead of the actual two and not wanting to lend a hand to the misrepresentation, banned the picture. “It’s a falsification,” he said, “and the Torah is a Torah of truth and any method to maintain it must rely on the strict truth.”

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Minimum Number of Coins of Different Denominations

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The braisa teaches that when a shtar mentions that a person borrowed “gold dinarin” but it does not mention the number of dinarin, the creditor may claim only two gold dinarin, since the minimum possible amount to which the plural “dinarin” refers is two -- “mi’ut rabim shenayim.” The braisa earlier (165b) teaches the same with regard to a shtar that says “silver dinarin.” Similarly, the Mishna (165b) states that when a shtar mentions that a person borrowed “zuzim,” “sela’im,” or “darkonos,” and the number of those coins was erased, the creditor may claim only two, which is the minimum possible amount of the plural word used in the shtar.

Why does the Mishna and braisa need to repeat itself with regard to these different types of coins? The Mishna and braisa need only teach this in one case, and then we would know that whenever there is an unspecified amount of “coins” (in the plural) -- regardless of what type of coin -- the creditor may collect only two!?

The Penei Shlomo answers that the Mishna (and braisa) is teaching a novelty in each case. Since the subject of the shtar is coins, which are divisible entities, we might have thought that even though the word used is plural, it refers not to two coins but to one and a half coins. The Mishna is teaching that the creditor is entitled to more than one and a half coins -- he is entitled to take two full coins of the specified denomination, because if it is true that the borrower only borrowed one and a half coins (such as a sela and half a sela), then the value of the half-coin would have been expressed in terms of a smaller denomination (a sela and two dinarin).

The Penei Shlomo adds that this is also why the Mishna and braisa use the phrase, “It is not less than two...,” instead of saying, “He may only collect two.” “It is not less than two” excludes a “lesser” amount, and implies that we might have thought that the creditor is only allowed to collect an amount which is less than two (such as one and a half). “He may only collect two” excludes a “greater” amount, and implies that we might have thought that the creditor should collect more than two. Since the Mishna is teaching that he “may” collect more than just one and a half, it says, “It is not less than two.”

The Mishna and braisa, therefore, needed to teach this novelty with regard to each denomination of coins, since we would not have been able to learn one from the other. People might write “one and a half zuzim” without expressing the fractional zuz in terms of a smaller denomination. Therefore, the Mishna must teach us in each case that the plural word is not less than two.

The Tiferes Yisroel explains that each case in the Mishna is necessary for the following reasons. In the case of “Kesef zuzim which are...,” where the number of zuzim was erased, we might have thought that the creditor is entitled to collect four zuzim, since the words “Kesef zuzim which are...” imply that the author of the shtar is defining an equal value for “Kesef zuzim.” The lowest number of zuzim which are equivalent to a different coin is four, and the shtar originally said, “Kesef zuzim which are one sela.” Therefore, the Mishna needs to teach us that the creditor may only collect two zuzim, because perhaps the author of the shtar was giving a number of zuzim, and not an equivalent value in another denomination.

In the case of “Kesef sela’im which are...,” where the number of sela’im was erased, we might have thought that the author of the shtar was referring to two “inferior” sela’im (as mentioned earlier in the Mishna), which are equal to seven zuzim (or 6 2/3 zuzim), and not 8 zuzim, and the shtar originally read, “Kesef sela’im which are seven zuzim.” Therefore, the Mishna teaches that the creditor may collect two standard sela’im and not inferior ones.

In the case of “Kesef darkonos which are...,” where the number of darkonos was erased, we might have thought that certainly the author of the shtar was referring to inferior darkonos, for the following reason. A darkon is a large, valuable gold coin, and people do not usually pay back debts with such coins. Accordingly, we might have thought that the author of the shtar meant inferior gold darkonos, and that is why he was writing the actual value of the darkonos, which was “less” than the value of two standard darkonos. Therefore, the Mishna needs to teach us that the creditor is indeed entitled to collect two normal darkonos and not inferior ones.

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Most People are Guilty of some sort of Thievery

By: Meoros HaDaf HaYomi

Dear Customer, Please Note: This Book is not Proofread at all

Rav Yehudah asserts in the name of Rav that most people are guilty of some sort of thievery and, as Rashbam explains (s.v. Rov begezel), this means that most people transacting business allow themselves to deny others their due profit. In other words, fraud, false pretenses and financial conniving are considered gezel.

In his Sefas Tamim (Ch. 3), Rabeinu Yisrael Meir HaKohen zt”l, the Chafetz Chaim, proves that even one who causes his fellow a loss is considered a thief. True to his word, he was renowned for his extreme avoidance of anything resembling falsification or thievery, as evident from his behavior concerning the books he authored.

The Chafetz Chaim was in Warsaw when he first had his Mishnah Berurah printed and every day he would come to the printer to check that no smudged or otherwise defective pages were being sent out for sale. He left his learning for several months for this purpose and afterwards relied on his son to undertake the task. When he discovered that despite his great care, one of his books had been sold with a few defective pages, he hurried a sharp letter to his son, saying “What have you done to me, my son? All my life I’ve taken care to avoid anything resembling thievery but I never thought that I would err in outright robbery and because of you this has happened!” The Chafetz Chaim immediately ordered the printer to reprint those pages found defective and publicize in the press that anyone who had bought a defective edition should inform him of such in order to receive the corrected pages by post (Michtevei HeChafetz Chaim, p. 30).

The Chafetz Chaim knew no rest till he hired special proofreaders to examine each page of his printed books and, if approved, to mark the front page of each book as “proofread” (HeChafetz Chaim Ufo‟olav, I, Ch. 32). Some of these books are still extant.

The problem of printing errors also concerned other halachic authorities. For example, the students of the Tsadik HaGaon Rav Eliahu Lopian zt”l, led by the famed Yerushalmi Magid Rabbi Shalom Schwadron zt”l, published the popular Lev Eliahu with a warning on the front page: “Dear purchaser: This book is not proofread and I assume no responsibility – The Publisher.” We have no knowledge of the severity of the printing error discovered by the Chafetz Chaim but HaGaon Rav Yaakov Kanievski zt”l, the Steipler, states in a letter that the sale of a book containing minor errors that still allow readers to understand the text is not considered gezel. After all, anyone buying a book knows that the task of printing is complicated and hardly ever free of mistakes. In his opinion, a book with no pages missing may be sold even with some defects and therefore, when he found that the last letters on a page were omitted in an entire edition of his Kehilos Yaakov, he continued to sell that edition as the defect did not prevent understanding the text (Karyana D’igarta, I, p. 351). Of course, this principle applies only to publishers of new books but one is not permitted to sell defective sidurim, as finely proofread sidurim are available on the market and they are expected to be free of errors.

All the above is just a fraction of the material pertaining to this broad topic. The Gemora in Brachos (6a) explains that one who fails to respond to a greeting is called a robber, indicating that depriving a person even of his due word is defined as gezel (Sefer “Mamon Kasher”).

Once, Rabbi Elazar Shulevitz zt”l, Rosh Yeshivah of Lomzha, was standing praying Shemoneh Esreh at the entrance to a synagogue and Rabbi Yisrael Salanter, standing near him, approached him and whispered, “Robber! The synagogue is packed full and you’re robbing the congregation of air!” Rabbi Shulevitz immediately interrupted his prayer to move away (Lev Eliahu, Bereishis). Similarly, though in an opposite circumstance, the Vilna Gaon zt”l would take care to shut the door to the bathhouse immediately after entering lest he rob the bathers of the warm air inside (Tosefes Maaseh Rav, S.K. 29). According to the Chafetz Chaim, even someone who participates in a wedding or sheva berachos meal without enhancing the joy of the chassan, about whom the Gemora in Berachos (ibid) states that he transgresses “five voices”, might be guilty of robbery (Michtevei HeChafetz Chaim, p. 46).

Why the Labor Cost More

A simple tailor became close to Rebbe Noach of Lechovitz and the Rebbe persuaded him to refrain from the custom then common among tailors to demand clients to bring them extra cloth in order to benefit from the quantity remaining after their work. “This custom is outright thievery,” explained the Rebbe, “You may charge more for your labor but you mustn’t practice that foul custom.”

“And what should I tell my customers,” questioned the tailor, “if they ask me why I charge more yet need less cloth?”

“Tell them,” replied the Rebbe, “that you learnt to cut in a new way that doesn’t need a lot of cloth but that learning the method cost a great deal.”

The tailor obeyed the Rebbe’s instructions but after a while his customers remarked that he had already covered the expenses of learning the new method and asked why he continued to charge more.

“The new method,” he answered, “is a whole system to be learnt again every day and every week” (Hizaharu Bemamon Chavreichem, p. 366).

The Old Man Fell Asleep on His Coat

On the night following the demise of HaGaon Rav Elchanan Wasserman’s wife, his son Rabbi Naftali sat down and wept incessantly while several yeshivah students slept in an adjacent room. Rav Wasserman approached his son and told him, “You shouldn’t cry so loudly now. The boys might wake up and you would rob them of their sleep” (Or Elchanan, I, p. 13).

A similar story is told of Rabbi Avraham of Purisov. Despite his known tendency to conceal his behavior, he once learnt all night in the beis midrash, later explaining that an old man had fallen asleep on the edge of his coat. “I couldn’t, after all, stand up for fear of waking him!” (Chasidim Mesaperim, I).

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Mentioning the Praise of Others

Another time Rabbi Shimon was sitting in Rebbe’s presence when he finished a section of the Book of Psalms (one of the five books that Tehillim is divided into). Rebbe said, “How neat is this writing!” Rabbi Shimon replied, “I did not write it; Yehudah Chayata wrote it.” Rebbe rebuked him by saying, “Stay away from this lashon hara.”

The Gemora asks: In the first case (by the tied document), one can understand Rebbe’s rebuke, since there was lashon hara involved; what lashon hara, however, was there in this case?

The Gemora answers: It is based upon the teaching of Rav Dimi, for Rav Dimi, the brother of Rav Safra, taught a braisa: A man should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well.

The Gemora in Gittin (67a) relates that Issi ben Yehudah used to specify the praiseworthy merits of the various Sages.

The Chidah challenges this from our Gemora, which rules that one should never speak in praise of his friend, because by mentioning his praise, he will come to mention his faults as well!?

He initially answers that Issi ben Yehudah specified their merits after their death; it would then be permitted, for there was no concern that he would talk about their faults after their deaths.

He retracts from this answer, for it is evident from the Avod d’Rabbi Nassan that Issi ben Yehudah spoke about their praises even during their lifetime!

It would seem that the Chidah’s question can be answered according to the words of the Rashbam here. He writes that a person should never speak excessively in praise of his friend, because by mentioning his praise, he will come to mention his faults as well. Apparently, it is only prohibited if one offers excessive praise; this will lead to the listener or the speaker interjecting that the person does possess some faults as well. Issi ben Yehudah, however, was not exaggerating at all when specifying the merits of those Sages.

The Maharsha challenges this explanation, for it does not seem from our Gemora that Rabbi Shimon was excessively praising Yehudah Chayata; he was merely stating that it was he who wrote that book of Tehillim, and that it was a neat handwriting.

The Rambam is of the opinion that this prohibition applies only in public, for there are bound to be enemies of the subject of the praise in the crowd, and they will almost certainly begin to talk disparagingly about him. In private, however, this prohibition would not apply.

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No Person is Saved from these Transgressions

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The Gemora states: Rav Amram said in the name of Rav that there are three transgressions from which no person is saved every day. They are: thoughts of sin, examining one’s prayers (Rashbam – feeling overconfident that his tefillah will be answered positively; Tosfos – lack of concentration during tefillah), and lashon hara. The Gemora explains that lashon hara refers to avak lashon hara (close to being lashon hara).

What does the Gemora mean that “no man is saved” from these transgressions? Certainly there are great Tzadikim and Talmidei Chachamim who -- even if not entirely free of sin (see Koheles 7:20) -- do not transgress all of these transgressions every single day! How can the Gemora say that “no person” is saved from these three transgressions every day?

In addition, if no one is saved from these three transgressions, then why are they transgressions? Hashem certainly would not give commandments that are impossible to keep.

The Iyun Yaakov explains that the Gemora means to say that because the temptation for these three transgressions is so great, no person is saved from these three transgressions without putting forth much effort. Someone who puts forth the effort to protect himself from these transgressions, though, will succeed and will not succumb.

The Toras Chaim, however, does not seem to agree with this explanation. He asks why the Gemora says that “no person is saved” from these three transgressions, instead of saying simply that “there are three transgressions which a person transgresses every day.” He answers that the Gemora is teaching that even one who attempts to avoid these transgressions will not be saved from transgressing them inadvertently, since the frequency of the challenge of these transgressions is so great.

How, though, does the Toras Chaim explain that there are Tzadikim who are able to avoid these transgressions?

The Maharsha explains that when the Gemora says that “no person is saved” from these three transgressions, it is referring to an ordinary person, but not to Tzadikim, who indeed are saved from these transgressions. He explains that while only a Jew, and not a gentile, is called “Adam” (Yevamos 61a), there is still a much higher level that a person can reach. The verse in Zecharyah (3:7) says that when a person follows the ways of Hashem, then “I will give you strides among these [Mal’achim] standing here.” Similarly, the Gemora in Chagigah (15b) explains that the verse, “The lips of the Kohen shall safeguard knowledge, and they shall seek Torah from his mount, because he is an agent (Mal'ach) of Hashem...” (Malachi 2:7), is teaching that when a Torah teacher is similar to an angel, then one should seek to learn Torah from him. This teaches that a person should strive to reach a level of absolute submission to Hashem, like the level of the angels.

When the Gemora here says that “no person (Adam) is saved” from these three transgressions, it is referring to a person who has not yet reached this level of perfection in his Avodas Hashem. The Maharsha explains that the word “Adam” is an acronym for the words, “Efer” (ashes, dust), “Dam” (blood), and “Marah” (bile), as the Gemora in Sotah (5a) says. An ordinary person, whose physical composition dominates his actions, is not able to prevent himself from transgressing these three transgressions. The fact that he is comprised of “Efer” negates his ability to activate his spiritual strengths in order to pray properly, and thus he sins with the transgression of iyun tefillah. The heat of the “Dam” within him causes him to lust for immoral pleasure, and thus he is not saved from thoughts of sin. His element of “Marah,” bile, creates in him the bitterness that causes him to have bad Middos and leads him to speaking lashon hara.

A person who conquers the lusts created by his physical composition overcomes the pull of those elements and rises above the status of “Adam” (“Efer, Dam, Marah”) and becomes comparable to an angel. Such a person certainly is able to avoid transgressing these transgressions.

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Amount of Lines that Invalidate a Document

The Gemora asks: And how much is the space that disqualifies a document?

Rav Yitzchak ben Elozar said: As much space as would be required for the writing of “lecha, lecha” above each other. [The “lamed” is a tall letter, and that should not touch the “end of chaf,” whose leg hangs low.] This indicates that he is of the opinion that the limit is two written lines and four blank spaces (for each of those words needs a blank space above for the “lamed” and a blank space below it for the “end of chaf”).

Rav Chiya bar Ammi said in the name of Ulla: As much space as would be required for the writing of a “lamed” on the top line and an “end of chaf” on the lower line. This indicates that he is of the opinion that the limit is two written lines and three blank spaces (for there is no “lamed” on the bottom line, and there is no “end of chaf” on the upper one).

Rabbi Avahu said: As much space as would be required for the writing of “Baruch ben Levi” on one line. Evidently he holds that the limit is one written line and two blank spaces (one space above for the “lamed,” and one space below for the “end of chaf”).

The commentators ask on Rabbi Avahu’s opinion: How can he maintain that the document is invalidated with one line of text and two spaces (one above and one below it) when the Gemora above clearly ruled that it is a space of two lines of text that invalidate a document!?

Some Rishonim answer that Rabbi Avahu disagrees with Chizkiyah and hold that the amount of space needed to disqualify the document is not measured according to the handwriting of the witnesses; rather, it is based upon the handwriting of the scribes. Accordingly, it is sufficient with one line of text and two empty spaces, for the scribe may manage to use the space for two lines of text with an empty space between them. According to this explanation, Rabbi Avahu agrees with the braisa above, which ruled that a space of two lines of text invalidates a document.

Tosfos Ri”d answers that Rabbi Avahu maintains that the space of two lines of text which invalidate a document is without any space above them or below them; it is referring just to the lines of text and the space between them (not like Rav Nachman bar Yitzchak). According to this interpretation, Rabbi Avahu’s amount and the ruling of the braisa are precisely identical, for one line of text with two spaces is exactly the same as two lines of text with one space between them.

The Ritv”a writes that Rabbi Avahu holds that the two lines mentioned above that invalidate a document refer to two blank spaces surrounding one line of text.

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Invalidated Contracts and Gaps in Sechach

Last Line of the Contract

Rabbi Yochanan says that a contract must review its content in the last line, and Rav Amram explained that this is because we disregard anything in the last line before the signatures.

The Rishonim explain that we fulfill this by writing vkanina – and we (the witnesses) received authorization regarding everything stated above.

The Rosh rules that if a contract does not summarize its content at the end, it does not conform to the required format of a contract, and is invalid.

The Ramban rules that it is valid, but we disregard whatever is written in the last line.

The Shulchan Aruch (HM 44:1) rules like the Ramban.

The Rishonim state that our custom is to fill in the last line with the phrase “v’hakol sharir v’kayam” - and all of this is in force and validated.

The Rashbam says that this phrase is a form of validation, and gives the line above it full legal force.

Other Rishonim disagree and state that even with our contracts, the last line has no legal validity.

Rabbeinu Tam explains the form of a get, in which we write the following last 2 lines:
v’dain etc. – this should be a contract of divorce
k’das moshe v’yisrael – as instituted by Moshe and Yisrael
Rabbeinu Tam says that the first of these lines is an integral part of the get, and not just a review of the earlier text. The last line takes the place of the validation of sharir v’kayam, and gives the preceding line legal validity.

The Rosh says that nowadays we require a contract to end with sharir v’kayam, and any contract without it is invalid. We therefore give all the preceding lines full legal validity.

The Shulchan Aruch (HM 44:9) rules like the Rosh.

See Shach (10-12, 21) for a deeper discussion of the rationale and ruling regarding sharir v’kayam.

The Gemora explains that a contract with two blank lines is invalid, since we are concerned that one will put false information in one of the blank lines.

The Ramban explains that on a contract with more than one blank line, we are concerned that there may have been more than two blank lines, and the last lines are false.

The Ri Migash says that even if we see nothing that would indicate that (no content at the end to the advantage of the creditor), the contract is invalid, since he could have forged part of the contract.

The Rema says that this is a fine on the holder of the contract, since he made forgery accessible.

1 ½ lines

The Gemora discusses whether a contract with 1 ½ blank lines before the signatures is valid or not, and resolves that it is not.

Tosfos (162b iba’ya) debates what was the case that the Gemora was discussing. Tosfos says that if the contract finished in the middle of a line, and the remainder of that line, in addition to the next line, was left blank, such a contract is clearly invalid, since the holder of the contract can fill in the space after the text of the contract. The other option is a case where the contract ended at the end of a line, a blank line was left, and the witnesses started signing half way through the next line. Tosfos says that such a case should clearly be valid, since the only line that can be filled in is the one before the signatures, and we disregard that line. Tosfos concludes that the Gemora’s question was a width of 1 ½ lines, similar to the measure of one and two lines, discussed in the braisa.

Filling in with Relatives

The Gemora cites Chizkiyah’s statement that if one filled in blank space in a contract with witnesses that are relatives to the parties, the contract is still valid.

The Rishonim debate in what context Chizkiyah made his statement. Rabbeinu Chananel says that Chizkiyah is referring to a get kereyach – a bald contract, i.e., a closed contract (mekushar), which is missing witnesses. Such a contract must be signed by three witnesses on each of its enclosures. Chizkiyah is saying that if one used relatives for the extra signatures necessary, the contract is valid.

The Mishna in Gittin (81b) records a dispute between Rabbi Akiva and Ben Nanas about this case and Chizkiyah is ruling like Rabbi Akiva, who only allows relatives to fill in the necessary signatures.

The Rashbam challenges this position, since Chizkiyah, an Amora, would not need to rule or discuss a case that was already discussed in a Mishna, nor would he need support from a braisa, since he is supported by Rabbi Akiva in a Mishna.

Rather, the Rashbam says that Chizkiyah is discussing the case of our Gemora, i.e., a contract that had too much blank space before the signatures, and is stating that if one filled in this space with related witnesses, the contract remains valid.

The Mishna in Makkos (5b) states that if a group of witnesses testify, and one is found to be invalid, the whole testimony is invalidated.

Tosfos (162b nimtza) cites different opinions regarding how to reconcile this Mishna with Chizkiyah’s statement, validating a contract in which relatives signed to fill in blank space.

The Rambam (Edus 5:6) rules that a contract with two valid witnesses is assumed valid, even if the remaining witnesses are not valid. If the witnesses are available, or if others were there, we investigate whether they signed together. If they signed together, the contract is invalid, but it is otherwise valid.

Rav Chaim Brisker explains that the Rambam considers witnesses on a contract to have two parts to their testimony – the witnessing, which takes place at signing, and the testimony, which occurs when the contract is brought to court. When a contract is brought to court, the Gemora says that witnesses signed in a contract are considered to be fully examined and accepted, and they therefore exist independently, and the invalid witnesses do not affect the valid ones’ testimony. However, if they signed together, they have joined together in their witnessing, and therefore fall under the ruling in Makkos, invalidating the contract they signed.

Invalid Schach and Gaps

Chizkiyah cites the rules for gaps in s’chach, and invalid s’chach, as a precedent for his ruling that invalid witnesses can be better than blank space in a contract.

Tosfos explains that the measures given for invalid s’chach (4 tefachim) and gaps (3 tefachim) are only in a case where these areas go from one end of the sukkah to the other, and thereby make the valid s’chach not be surrounded by three walls, or when there isn’t the minimum area of valid s’chach (7 x 7 tefachim). However, if the valid s’chach surrounds these areas, or if these areas are in a location where the valid s’chach has 3 walls around it, and there is at least 7 x7 tefachim of valid s’chach, they do not invalidate the sukkah, but only their location itself.

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Get Mekushar Bizman Hazeh

The Mishna states: A plain document - its witnesses are inside it (on the bottom). And a tied one - its witnesses are on the reverse (between one fold and the next). [They began by wring a single line or a number of lines of the essence of the document, and they folded the written part upon the part below and sewed them together. Another line or lines were written, and again the parchment was sewn down, and the procedure was repeated until the last fold. Each such fold was known as a kesher, and that is why it is called a get mekushar. The Gemora explains that the tied document type was ordained by the Rabbis primarily for gittin. They instituted it for the hot-tempered Kohen who might in a fit of anger decide to divorce his wife. Unlike any other Jew, a Kohen may not marry a divorcee, including his own ex-wife. They therefore instituted the tied deed which cannot easily be written quickly in order to allow time for the Kohen’s temper to cool. As this document type was ordained for divorce, the Rabbis also instituted it for other documents, for bills of indebtedness as well as for bills of sale so that one may choose the tied document, so as not to differentiate between bills of divorce and other documents.] A plain one whose witnesses signed on its reverse and a tied one whose witnesses signed inside it - both are invalid. Rabbi Chanania ben Gamliel says: A tied one whose witnesses signed inside it is valid, because he can make it a plain one (by not sewing the knots; and even though there are spaces between one line and the next, one need not be concerned about that, as there are many unskilled scribes who leave considerable space between one line and another). Rabban Shimon ben Gamliel says: All is in accordance with the custom of the place. A plain document requires two witnesses, while a tied document requires three witnesses. If a plain document contained one witness or a tied document contained two witnesses, they are both invalid.

According to the Ramban, the Tannaim of the Mishna disqualified even a shtar where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document. The reason for this is because the “ba’al hashtar” – the owner of the document – is particular as to how the shtar should be written. If he instructed them to write it as a plain document, the signatures of the witnesses on the back side of the shtar will ruin its “openness”; and if his instructions were to make it a tied document, their signatures on the front side remove the document from being called a tied document.

The Nimukei Yosef infers that according to the Ramban, there could be room to validate a tied document nowadays. This is because it is not the custom at all to make a tied document, and it does not enter the mind of the ba’al hashtar to instruct them to make it opened and not tied.

However, he says, according to other Rishonim’s explanation of the Mishna, it would still be invalid. They explain that the reason that a plain document is invalid when the witnesses sign their names on the back is because it was not done in the manner that the Chachamim instituted; it has nothing to do with the ba’al hashtar’s instructions. Accordingly, nowadays, a document where the witnesses signed on the back will be invalid, for it is not being done according to the established practice of the Chachamim.

The Rem”a (42:1) cites both opinions regarding this.

The Shac”h understood that the Rem”a, at least in one opinion, is validating a shtar that was completely made like a tied document – meaning, the witnesses signed only on its back side. The Shac”h disagrees and holds that this would be disqualified according to everyone, for it was not done according to the established practice of the Chachamim.

The Tumim writes that this was never the intention of the Rem”a. He was only referring to a case where the witnesses signed on both sides – underneath the body of the shtar as in a plain document, and on the opposite side, in the manner which is done in a tied document.

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Grandson vs. buyer

The Gemora rules: If a son sold the estate of his father (the portion which he was supposed to inherit) during the lifetime of the father, and he died (first the son and then the father), his son (the son of the son) may seize it from the purchasers (for it has now been clarified that it was never in the son’s possession to sell it, for he died before the father and never inherited it). The Gemora concludes that there is no clear proof to this halachah.

The Rashbam writes that the halachah is in fact that the grandson may take back the field, but it is difficult to understand (according to the Gemora’s discussion), since there is no conclusive proof.

Rambam (Hil. Mechira 22:7) rules explicitly in this very case that the grandson may take the field, and although the Shulchan Aruch (Choshen Mishpat 211:3) does not give this exact example, it is clear that the ruling would be the same.

The question is: Does the grandson need to repay the buyer?

A very important part to this is a concept that one cannot sell something that is not yet in this world, which is precisely what the son did, since the inheritance did not yet belong to him at the time of the sale (it should be as if it was not yet in existence). Therefore, the grandson has every right to take back the field. Tosfos and the Ra”n explain that the Gemora’s difficulty was not with this part of the halachah, but rather, it was with the ruling that the grandson may seize the field without compensating the buyer.

The Rashba further explains that we are forced to say that the grandson does not have to pay back the buyer because if the halachah were to be that the buyer must be reimbursed, then it should emerge that even the father should be able to take back the field.

The Baal Ha’itur and the Baal Haterumos both follow the opinion of the above Rishonim as well. The Shulchan Aruch (ibid) rules that the buyer is not reimbursed.

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Dancing at a distant Wedding

DISTANT CELEBRATION OF
REB AKIVA EIGER’S WEDDING

Reb Wolf Eiger, the uncle of Reb Akiva Eiger was unable to attend his nephew’s wedding. He made a simultaneous banquet of his own to celebrate the occasion. Reb Shaya Pik and other Rabbanim attended the festivities. He wrote to his nephew about the halachic issues (if one can fulfill the mitzvah of counting the omer by way of writing) which were discussed at the banquet.

What was the point of such a celebration? They weren’t dancing before the groom or the bride; they weren’t praising the groom in front of the bride. What caused these Rabbonim to celebrate in such a manner?

In the West (Eretz Yisroel) they would say: (A man who does not have a wife lives) without Torah.

Why is not having a wife like living without Torah; if anything, there exists more time for Torah study, not less?

Our Gemora refers to Ben Azzai as the “Talmid chaver” of Rabbi Akiva. Ben Azzai was considered somewhat of a disciple of Rabbi Akiva.

Rabbeinu Gershom comments: Since Ben Azzai was a “bochur,” he was unable to comprehend halachic logic as well as Rabbi Akiva.

What is the connection between being a “bochur,” and not comprehending to the fullest extent?

I once heard from my Rosh Yeshiva, HaRav Chaim Schmelczer zt”l that Rabbeinu Gershom means that Ben Azzai was a bachelor, and one who is not married does not have the same level of contentment as one who is married. Torah study requires one to be at ease; one must have a menuchas hanefesh in order to comprehend the depths of the Torah. This is what Ben Azzai was lacking.

This is the explanation of the Gemora. One who is not married is akin to living without Torah. He may have more time for Torah study, but he is lacking the inner contentment which is a prerequisite for Torah.

Perhaps this can explain what caused Reb Wolf Eiger to celebrate the wedding of his nephew Reb Akiva Eiger even though the bride and the groom were not present; in fact, they were miles away. Reb Wolf understood that the marriage of Reb Akiva Eiger will result in his becoming the Reb Akiva Eiger that we know now. The wedding was not only a private joy for the families of the bride and groom, but rather, it was a simchas hatorah; a celebration in the honor of Torah. Reb Akiva Eiger’s Torah would spread throughout the world. This could be celebrated anywhere, even without the choson and kallah.

HALACHOS OF THE DAF


A Husband and Wife Die in a Building

The Shulchan Aruch (Even Ha’ezer 90:6) rules in accordance with Beis Hillel. In the case where both the husband and wife die due to a building collapsing and it’s not clear who died first, the halachah is that the kesuvah goes to the inheritors of the husband; the nichsei melog to the inheritors of the wife, and the nichsei tzon barzel they split evenly. Obviously this only applies if they didn’t have children together, for if they did, it wouldn’t make a difference who died first, since the children would inherit everything.

Although a woman normally needs to take an oath (that she never collected it yet) in order to collect nichsei tzon barzel (ibid 96:1), in this case, we allow her, and now that she died - her inheritors collect it. Since the reason why a woman needs to take an oath is because we are suspicious that she might have taken some items before he died, in our case, where he died suddenly, we don’t assume that she took anything (Celkas Michokek).

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Yahrtzeit; Paying a Father's Debt; Davar shelo ba L'olam

A Yahrtzeit

Rabbi Meir Shapiro, the founder of the Daf Hayomi passed away on the day that those who were studying the daf during that cycle were learning Kesuvos 91.

The Gemora states: The orphans have a mitzvah to pay the debt of their father.

Hundreds of Reb Meir Shapiro’s students, who viewed themselves as only children of their beloved Rebbe swore by his coffin that they would continue building the illustrious Yeshiva of their Rebbe spiritually and financially. It was in this manner that they felt that they were paying the debt of their father; continuing his legacy.

And so it was. For the next six years, until the Holocaust, his Yeshiva flourished; his spirit was present in the walls of the Yeshiva, and served as a tremendous influence to all of his disciples.

Mitzvah to Pay the Father’s Debt


By: Reb Avi Lebowitz

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

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

2. If the father doesn’t leave over property - the orphans have a mitzvah to pay, but we don’t force them to pay [Rashash points out that the Shulchan Aruch (107) rules like the Hagahos Ashri that if the father doesn’t leave over anything, they don’t even have a mitzvah to pay at all].

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

Perhaps the concept of forcing the orphans to pay is under the rubric of forcing for positive mitzvos. This seems to be supported clearly by Tosfos who quotes this Gemora not only for the reason that one must repay their own debt, but to justify why we force orphans to pay their fathers debt (when it is a contractual debt and he leaves over property). The difficulty is: if we force for mitzvas aseh, why don’t we force in all situations where they have a mitzvah to pay, even when he doesn’t leave over property on which there is a lien?

Conveying Properties that are not in Existence

By: Meoros HaDaf HaYomi

Our sugya says that this principle applies to dinei mamonos [cases involving monetary matters]. As long as an article is nonexistent, it cannot be acquired (C.M. 209:4). However, under certain circumstances, when a kinyan [an act of acquisition] is made for something nonexistent, the seller must carry out the transaction.

Two Jews, one a Turkish chacham and businessman and the other captain of a cargo ship, went to the Maharit for a ruling. The Turkish chacham told the Maharit that he had recently signed a contract in which he had committed to sell four hundred skins to the captain. Now, after the chacham had reneged on his side of the deal, he argued that he had never been obligated to deliver the goods. He only intended to sell skins that were nonexistent at the time of sale and therefore the transaction is null and void since “nonexistent items cannot be sold.”

However, the Maharit ruled that the chacham could not use this excuse to sidestep his obligation. We can differentiate between selling a nonexistent article and obligating oneself concerning such an article. Although the sale of the nonexistent item is invalid, this is because there is nothing tangible for the sale to take effect upon. However, an obligation to sell such an article is binding because the obligation lies upon the person, who does exist. We regard his obligation as a monetary debt in the form of an object. The monetary debt is binding, for surely one can undertake to give money to someone else (see Ktzos HaChoshen 203:4).

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Kinyan Kesef

The Mishna had stated: If a man verbally divides his property among his inheritors, Rabbi Elozar says that whether he is healthy or dangerously ill (he is required to make a formal kinyan to transfer his property), real property (land) can be transferred only by money payment, by document, or by an act of possession (chazakah; displaying ownership), and movable property may be transferred only by pulling (a kinyan meshichah).

This would be a proof that one may give a gift through a kinyan of money, for the words of a shechiv mei’ra are merely a gift, and yet, Rabbi Eliezer said that he may transfer property through a kinyan of money.

The Netziv points this out in his He’emek Shailah. However, he cites a She’iltos that omits the kinyan of money. The She’iltos writes that his transfer of property can be accomplished through a chazakah (propriety act), a document or chalifin (exchange), but there is no mention of money. It would seem that the Tur also holds like this.

This would be dependent on the dispute between the S”ma and the Ta”z regarding the mechanism of a kinyan with money. The S”ma holds that money is the value of the purchase and it is used as part of the payment. Accordingly, this would not apply when one is giving a gift to another. However, according to the Ta”z, who holds that money is an act of acquisition similar to others; one can use the kinyan of money to acquire a gift.

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POST 2000!!!!!!! --- Testimony

Real Estate Testimony

Mar Zutra says that one between thirteen and twenty may testify on matters related to movable property, but not on real estate. Rashbam says that someone that age does not have a clear understanding of transactions involving real estate.

Tosfos (155b Lo amru) disagrees, and says that a lack of business sense should not prevent one from testifying. Instead, Tosfos says that he is only unsuited for a formal appraisal of real estate. Tosfos notes that the Gemora says that one at this age is overly impressed by money, and will therefore underestimate the value of the field.

The Shulchan Aruch (HM 35:3) rules that one who is below twenty, and does not exhibit any business sense, may not testify on real estate cases, seemingly like the Rashbam.

The Shach (3) says that the Shulchan Aruch only is referring to cases of real estate appraisal, in line with Tosfos.

The Gemora says that one under eighteen or twenty may not sell his father’s property.

Rashbam and the Rif say that this is limited to his father’s property, since he will decrease the equity inherent in that property by selling at such a young age. However, if he purchased property himself, he may sell it.

Rabbeinu Tam (155a Mochair) says that this applies equally to his own property, since he will sell it as well for a severely discounted price.

The Shulchan Aruch (HM 235:1) rules like Rabbeinu Tam.

How Old and how Sharp?

Rava rules that if someone understands business, he may sell real estate even before the minimum age. The Shulchan Aruch (HM 235:8) therefore rules that one above the age of thirteen who understands business may sell real estate.

For selling movable property, the Gemora cites the age of pe’utos, at which a child’s transactions are valid. The Gemora (Gittin 59a) defines this as ranging from 6-10, based on the sharpness of the child.

The Shulchan Aruch (HM 235:1) rules that as young as six, if a child understands business, he may conduct transactions.

The Rosh learns that the Gemora in Gittin is stating that until the age of ten we must investigate to see if the child understands enough, but from the age of ten and older, we assume a child understands enough, unless he acts irrationally.

The Rambam does not include the distinction at the age of ten, but simply says that a young child’s transactions are valid, if he understands.

The Gr”a (2) explains that the Rosh learns that the Gemora in Gittin was only requiring a level of sharpness until the age of ten, but not beyond.

The Rambam learns that the Gemora in Gittin is to be read as a continuing list of ages, depending on the sharpness of the child. Although the Gemora stopped at the age of ten, the intent was that at any age between six and thirteen, a child’s transactions may be valid, based on the sharpness of the child.

The Shulchan Aruch rules like the Rambam, while the Rama quotes the Rosh’s distinction.

The Shulchan Aruch (OH 199:10) rules that a boy at the age of pe’utos may be counted as the last one for a zimun.

The Magain Avraham (6) defines this as nine or ten, possibly based on the Rif’s formulation.

The Yechave Da’as (4:13) rules that this can be as young as six, as long as the child understands whom he is blessing.

HALACHOS FROM THE DAF

By: Meoros HaDaf HaYomi

The Testimony of a Minor that could make him Bar Mitzvah

Our sugya explains that a minor cannot serve as a winess, as the Torah says: “And the two men will stand” – i.e., men who are qualified to testify but not minors (the verse could have just said “And the two will stand”).

In his Minchas Chinuch, HaGaon Rav Yosef Babad asks an interesting question: There is a halachic rule that a beis din must accept the testimony of any witnesses who comes to them. Now, as explained in tractate Rosh HaShanah, there is a mitzvah to determine the beginning of each month according to witnesses who testify that they have seen the new moon. The mitzvah was in practice till 4119, when Rabbi Hilel ben Rabbi Yehuda Nesiah – called Hillel II – convened a special beis din to fix our present calendar to overcome the worry that there would not be an expert beis din and other conditions necessary for determining Rosh Chodesh each month, due to the long galus.

The Minchas Chinuch raises the question of two young men who come to beis din at the end of Nisan, claiming they saw the new moon and that that day, then, should be announced as 1 Iyar. The beis din, however, discovers that the witnesses will celebrate their thirteenth birthday on 1st Iyar. As long as the beis din does not announce that day as 1 Iyar, they remain minors but if they accept their testimony, they are considered adults and that day may be announced as 1 Iyar. May or must the beis din accept their testimony?

Indeed, the Minchas Chinuch asserts that the matter is up to the beis din. They may accept the testimony, as once they announce that day as 1 Iyar, the witnesses are retroactively qualified. Still, they are not obligated to accept their testimony, as when they came to the beis din, they were minors (see Minchas Chinuch, ibid, that this solution is according to one answer of Tosfos in Makos 2).

Another question related to our sugya arises from Rashi’s commentary on Bava Kamma 88a (s.v. Pesulah l’edus). Rashi adds his own idea as to why the Torah disqualifies minors as witnesses. A minor, he explains, can’t be punished by beis din and if his testimony is revealed as false, he cannot be penalized. He therefore cannot testify, as the halachah is that a beis din may accept only such witnesses that can be refuted. Why, then, did Rashi feel the need to add to the above exclusion of a minor on the strength of the verse “And the two men will stand” and, on the other hand, since Rashi’s reasoning is so wonderfully valid, why must we learn the halachah from the verse at all?

The Acharonim offer several solutions: HaGaon Rav David Rapaport suggests a case that necessitates Rashi’s reasoning in addition to the halachic interpretation of the verse: If a beis din accepted the testimony of two witnesses and a doubt was later raised as to if they were adults or minors, we must behave as the halachah requires in any instance of a doubt – to act strictly in the case of a prohibition stemming from the Torah. According to Rashi, though, we have no need to behave strictly as the rule is that a beis din cannot punish anyone for a doubtful transgression. The witnesses could have been minors when they testified and, as such, can’t be punished if their testimony is revealed as false. A beis din may accept only such witnesses as can be refuted and their testimony is definitely invalid (Hagahos Tzemach Tzedek on Responsa Rabbi Akiva Eiger, 1st edition, 176).

HaGaon Rabbi Akiva Eiger approaches the question from the other direction. Why do we need the verse if we learn the same halachah from Rashi’s reasoning? Indeed, though, not all testimonies proven false are punishable. Someone who testified, for example, that he saw the new moon and was discovered to have lied did not mean to harm anyone physically or financially and goes unpunished. We need the verse, therefore, to exclude minors from testifying in any instance.

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Defiling the Dead and Autopsies

Defiling the Dead
Rabbi Akiva had said that we cannot examine the corpse to determine if he was a minor or an adult at the time of his death, for it will be defiling the dead.

Reb Yosef Engel in Gilyonei HaShas writes that he did not find a source to the prohibition against defiling a corpse. Perhaps, he says, it is from the verse which teaches us that we are not permitted to let a dead man hang on a tree overnight. From there we see that a corpse is supposed to be treated with honor. Any disrespect to the dead will be a violation of this verse.

He also suggests that since there is a positive commandment to bury the dead – if one will be examining the corpse, even while buried, nevertheless, during the defilement it is regarded as if he isn’t buried, and one would be transgressing the positive mitzvah of burial.

HALACHOS FROM THE DAF

Autopsies: How and When?

By: Meoros HaDaf HaYomi

Physicians have always wanted to gain medical and anatomical knowledge from examining the bodies of those who expired from various diseases. We are forbidden to desecrate the departed, but, on the other hand, we want to use any potential medical information to save the lives of the similarly afflicted. All the halachic authorities treating the subject agreed on the clear principle that the Torah forbids preserving any organ from a Jewish body and thus delaying its burial or desecrating a Jewish body in any manner, even by the otherwise usual means of an autopsy to advance medical knowledge or to investigate cause of death. Autopsies are included in learning the medical profession, but the Torah strictly forbids such operations on Jewish bodies. Alternatively, medical information may be gained from autopsies on the cadavers of non-Jews who agreed to such while alive.

A Jew died in a hospital from a certain disease. Another Jew in same ward was diagnosed as terminally ill with the same malaise and the medical staff want to autopsy the body to discover the best way to operate on the lingering patient and, hopefully, save his life. As an introduction to this topic, we cite the Noda BiYehudah who warned that “even gentile doctors perform experiments only by operating on those executed for crimes or on those who agreed to such while alive” (Responsa, 2nd edition, Y.D. 210). In that era, then, every doctor was exceedingly careful about autopsies but, nonetheless, halachic authorities expressed their suspicion that granting permission in some case would invite a wave of desecration and dishonor of the departed. As usual, we do not intend to present the practical halachah, but merely to address current topics. The following discussion therefore does not include all the opinions and their rationale, but is limited to the two major approaches of the leading poskim, and we start with our sugya, which forms a basis for a fundamental difference of opinions.

The great Tanna Rabbi Akiva lived in Bnei Brak and already then the halachah was a guiding beacon for residents of the town. The Gemora recounts that some people asked him to allow them to disinter their relative to ascertain if he was halachically an adult at the time of his death. Some merchants, on the other hand, claimed that he was grown up when he sold them land he had inherited from his father. The halachah is that only a mature adult is considered sufficiently experienced to sell inherited land and the heirs wanted to exhume the deceased to prove that he was not halachically mature at his death. They would then be able to invalidate the sale of the land and claim it for themselves. Rabbi Akiva forbade them to do so, as one must not desecrate the deceased and, moreover, anatomical features are liable to change after death, making it impossible to pinpoint the person’s age. What, though, is Rabbi Akiva’s source for the prohibition on desecrating the deceased? According to Responsa Binyan Tziyon (171), Rabbi Akiva meant that we must never desecrate the dead, as such acts are regarded as robbing them and, if so, we are not allowed to do so even to save a life. Although we must ignore almost all prohibitions to save a life, which is a mitzvah in itself, the dead are exempt from mitzvos and we must not desecrate them, causing them great pain. Moreover, even a person in danger may not save his life by stealing, if he will never be able to return the theft (see Bava Kamma 60b and Rashi and Tosfos ibid) In our case, then, the doctors would be forbidden to autopsy the deceased in an attempt to save the terminally ill patient. Still, the Noda BiYehudah (2nd edition, Y.D. 210) and the Chasam Sofer (Responsa, Y.D. 336) hold that Rabbi Akiva did not forbid making use of the deceased’s remains to save a life. The relatives who came to him, after all, wanted to clarify a matter of property. As for saving lives, though, the prohibition on desecrating the dead is like any other prohibition and must be ignored and “it is almost certain” that there is no transgression involved.

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The famous get delivered at Cleves

If He’s Healthy, He must Produce Evidence that he was Moribund

The famous get delivered at Cleves
Not many divorce cases have earned a special name or deserved to be assiduously detailed in halachic literature. One outstanding case, though, was that of Yitzchak Neierburg and Leah Guntzheusen of Germany, who were divorced very soon after their marriage about 200 years ago, on 8 Elul 5526. The couple wed in Mannheim but the bill of divorce was delivered in Cleves and has been since known as “the Cleve get.”

A divorce enacted at the Dutch border
Immediately after the wedding, the young husband became very introverted and sometimes murmured incomprehensible statements. One the Shabbos of the sheva berachos week, he took the dowry of 94 gold karolen and absconded to a neighboring village and, when discovered, explained that he had to desecrate the Shabbos and flee because “all his limbs trembled and a deathly fear had befallen him.” For some reason, the bride’s family did not yet demand a get. After the next Shabbos, Neierburg was in Bonn where he summoned his wife’s relative, Rabbi Shimon Copenhagen, and told him he was in great danger and had to leave the country immediately. There was no beis din in Bonn, so the wife’s family continued to Cleves, on the Dutch border, as Neierburg intended to flee to England via Holland. HaGaon Rav Yisrael Lifschitz, the rabbi of Cleves and the grandfather of the author of Tiferes Yisrael on the Mishnah, arranged the divorce once the husband insisted that he would be condemned to death unless he fled to England. The couple’s financial matters were then settled and Leah returned home.

The dispute that engulfed the halachic community
On hearing the news, Neierburg’s father became incensed, especially about the financial settlement which he deemed unfavorable to his son. He appealed to the rabbis of Mannheim and Frankfurt-am-Main to disqualify the get, claiming his son was insane and therefore halachically unable to divorce. The rabbis of Frankfurt and Mannheim soon issued a long and elaborately explained decision disqualifying the get and consequently defining Leah as still married. Her family appealed to other leading rabbinical authorities and the stormy discussion echoed throughout the halachic community to the point where every prominent expert voiced his opinion. The replies of some poskim were even publicized, including those of HaGaon Rav Yechezkel Landa, author of Noda’ BiYehudah; HaGaon Rav Aryeh Leib of Metz, the Shaagas Aryeh; HaGaon Rav David, av beis din of Dessau, known for his Korban Ha’Eidah; Rabbi Shlomo Chelma, famous for his Mirkeves HaMishneh on Rambam; Rabbi Elchanan Ashkenazi (Sidrei Tohorah); Rabbi Yitzchak HaLevi of Hamburg; HaGaon Rav Yaakov Emdin; and Rabbi Shaul of Amsterdam.

Why the Frankfurt community was hard put to hire a rav
So many rabbis expressed their opinions that several years later, when the Frankfurt congregation was seeking to appoint a new chief rabbi, the leaders of the community were only willing to consider one who did not disagree with his predecessors and they only found three candidates. The Frankfurt rabbis were the sole ones to still insist that Neierburg had been insane, whereas all the others allowed Leah to remarry. We shall now devote some study to the thought-provoking reply of the author of Shaagas Aryeh, publicized in Responsa Or HaYashar and at the end of his major work (Shaagas Aryeh, addition to #2).

In our sugya Rabbi Nassan states that one who had been moribund but recuperated may renege on the gifts that he distributed on his deathbed, as he was then sure that he was in his last moments and would have no further need for his property. What, though, is the halachah if we are unsure of the state of the person’s health when he distributed the gifts? The Gemora says that we must examine his condition right now. If he’s healthy now, we should assume he was so then but if he’s presently infirm, we assume he was the same then unless one of the sides proves otherwise.

Back to the get at Cleves, then, it had to be ascertained if Neierburg was sane or insane when he gave Leah her get, and, according to our sugya, we should consider his current condition. The Shaagas Aryeh wrote that he detained Neierburg at Metz for three days on his way to London and found him sane, and consequently, in his opinion, the get was valid. (The Shaagas Aryeh included many ideas, profound pilpul and halachic principles that we cannot fully explain here due both to lack of space and their profundity; we have touched on only one of his ideas, related to our sugya, without citing all his supportive proof leading to his final decision). Some record that Neierburg returned to Germany and remarried Leah but others deny the fact.

HALACHOS FROM THE DAF

Is He Alive?
In what type of scenarios do we remain with the assumption that a missing person is still alive? Which circumstance must occur before we assume that a missing person may have died?

The Shulchan Aruch (Even Ha’ezer 141:69) distinguishes between various settings. In cases where the city was;
a) surrounded by an army from the nearby government;
b) a ship floundering at sea;
c) a person that is on his way to be tried in a case where convicted carries the death penalty;
In all these cases, the person in question is considered to have remained alive.

Conversely, in cases where;
a) the city was captured;
b) surrounded by an invading army;
c) a ship that is lost at sea;
d) a convict that is on his way to be executed by non-Jews;
e) when a person was dragged away by a wild animal;
f) a river swept him away;
g) a house collapsed on him;
In all these instances, we cannot safely assume that he assuredly remained alive; therefore we give him the status of both a living and dead person.

This would have strict implications:
a) His wife cannot remarry - for he might be alive.
b) Even if a get was given to an agent to give to his wife, he may not do so - for he might be dead (since one cannot divorce his wife after he is dead). If the agent did give her the get, she would have the status as a safek migureshes.
c) If the missing person is a Kohen, his wife cannot eat terumah - for he might be dead.
d) If the missing person is a Yisroel, but his wife is a daughter of a Kohen, she cannot eat terumah - for he might be alive.

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One Gift to Two People

The Gemora discusses a case where a shechiv mei’ra gave the same gift to two people and both these people were zocheh (a legal acquisition). Rav says that the first person is zocheh, while Shmuel argues that the second one is zocheh. The halachah follows Shmuel (Choshen Mishpat 250:13).

The Rashba (Shu”t Chelek 2 Shaila 293) was asked what to do in a peculiar case. The story was that a father, Yaakov, gave his son Reuven a field as a gift while in complete health (matnas bari), stating that it is Reuven’s “from today and after I die,” which means that the field itself would immediately belong to Reuven, but the “fruits” (the profits) would belong to the father until he died, and only then would it be transferred to Reuven.

Years passed and Yaakov realized he was nearing his end, so he drew up a will dividing his inheritance among his children. Interestingly enough, the very field that was previously given to Reuven, Yaakov stated in his will that it would belong to Shimon. At the end of the will, Yaakov added a clause that if any of the children would contest any part of the will, than he would forfeit his part to the inheritance that he had received. So the question is: who does this field belong to?

The Rashba answered that logic would dictate that Yaakov simply forgot about the gift he gave Reuven years ago, and Shimon should never have received this field, and more importantly we should disregard the clause. However ,since there is a possibility that he did remember and Yaakov decided to give this field to Shimon, this causes a serious problem for Reuven, for although the field is rightfully his, if he opens his mouth, he loses the rest of the inheritance. On the other hand, says the Rashba, Shimon cannot keep the field either, for it clearly belongs to Reuven, since Yaakov cannot take away a matnas bari through any means. Therefore we have reached an impasse; Shimon cannot claim the field because it’s not his, and neither can Reuven, because of the clause. The only way out, concludes the Rashba, is that Reuven’s inheritors can claim the field (once Reuven dies), if in fact Reuven never contested the will. This is because the only thing stopping Reuven was that Yaakov added a clause in the will, which effectively muzzles Reuven’s mouth, but not his inheritors.

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Tefillin; Sefer Torah

Tefillin as a Garb

The Gemora states: Tefillin are called possessions. This is proven from the following Mishna: If someone consecrates his possessions, his tefillin are evaluated (and he redeems the tefillin from hekdesh with money).

The Gemora inquires: What would be regarding a Sefer Torah? Do we say that since it is forbidden to be sold, it is not included in “possessions,” or perhaps, since it may be sold for the study of Torah or to marry a woman, it is regarded as his possession? The Gemora leaves this question unresolved.

The Rashbam explains: Perhaps there is a distinction between a Sefer Torah and tefillin. Since one wears tefillin on his body, perhaps it is considered as part of his garb, and that is why it is regarded as a “possession.”

The Maharsham in his responsa (1:148) was asked regarding someone who took a vow to donate money to clothe the naked; is he allowed to purchase a pair of tefillin for a pauper?

A proof is brought from a Tikunei Zohar, which states that when the Torah states (regarding Adam in the Garden of Eden): And Hashem made for Adam and for his wife shirts of skin, and He dressed them; this is referring to tefillin. This, the Gemora in Sotah (14a) explains to mean that you should go in His ways. Just as He clothes the naked, so too, you should clothe the naked. Accordingly, we can say that buying tefillin for a poor person is regarded as clothing him.

The Maharsham cites our Rashbam as a proof to this as well.

HALACHOS FROM THE DAF
Sefer Torah

The Gemora inquires: What would be regarding a Sefer Torah? Do we say that since it is forbidden to be sold, it is not included in “possessions,” or perhaps, since it may be sold for the study of Torah or to marry a woman, it is regarded as his possession? The Gemora leaves this question unresolved.

The Shulchan Aruch (Yoreh De'ah 270:1) writes that it is a mitzvah for every single man to write a Sefer Torah, even if he had inherited one. One may not sell a Sefer Torah even if he has many Sifrei Torah, and even in order to buy a newer and nicer one. However, one may sell a Sefer Torah in order to learn Torah or to get married, if he has nothing else to sell. The Re”ma adds that one may also sell a Sefer Torah in order to redeem captives.

The Shulchan Aruch in other places adds a few other cases where one may sell a Sefer Torah. Orach Chaim 153:6 states that it would be permitted in order to have money to support the students, and if money is needed to marry off orphans. The Chelkas Michokek (Even Ha'ezer 1:1) writes that this only applies to a yasom (an orphan boy) and not to a yesomah (an orphan girl). However, the Magen Avraham (Orach Chaim ibid) rules that it applies to a yesomah as well. Bais Shmuel and many others including Mishnah Berurah rule as the Magen Avraham.

As for the answer to the Gemora’s inquiry, the Shulchan Aruch (Choshen Mishpat 248:11) rules that the halachah is in doubt whether it is included or not (because the Gemora did not answer the question), and we will only know once Eliyahu Hanavi comes, and he will resolve this question for us. Therefore, if the recipient has already taken the Sefer Torah, the shechiv mei’ra cannot take it back.

This concept is elucidated by the Drishah, with a fascinating halachic distinction. In cases where the Gemora has a teiku and the halachah is not clear due to the logic that can go both ways, and we will only know once Eliyahu Hanavi comes, then, we say that if the other party grabbed it, we cannot take it away from him, since the halachah may very well be in his favor. However, in cases where the Gemora isn't clear what the halachah is due to a question of what an average person had in mind, then we won't know the answer when Eliyahu Hanavi comes, since some people think like this and some like that. Therefore in our case where the question is due to the logic that can equally be heard both ways, and we will know how to rule when Eliyahu Hanavi comes, the halachah is that if the recipient grabbed it, we cannot take it away from him.

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Slaves and Land

Comparing Slaves and Land

The Torah has a hekesh which equates slaves with land. Our Gemora says that although slaves might be considered as land, there are differences between the two stemming from the fact that slaves are movable and land is not. Therefore, our Gemora says that even if people consider slaves like land, they don’t mean to include them is the sale of the city. All real land is included in the sale.

There are other instances where the actual difference between slaves and land causes them to have different halachos as well. Rav Chaim HaLevi quotes a Raavad who differentiates between these two categories. If one steals a slave and the owner gives up hope of retrieving him, the owner loses ownership of him. This is not the case with land. Why should there be a difference? Rav Chaim answers that if giving up hope is related to the ability the Torah gives thief to acquire a stolen object, there would be no difference between the two. Anytime an object is out of the possession of the owner, and the owner has lost hope of retrieval, he relinquishes ownership. It doesn’t matter whether the object was lost or stolen. Therefore what matters is whether the object in reality is out of the owner’s possession. Slaves, which move, can be considered out of the owner’s possession. Land, which is stationary, is always considered in the owner’s possession. Thus, even though there is a halachic comparison between the two categories, sometimes the different properties of each will determine differences in halachah.

HALACHOS FROM THE DAF

Slave - Karka or Mitaltilin

The Gemora inquired: When a shechiv mei’ra gave his movables as a gift, does a non Jewish slave have the status of karka (property, real estate), or movables (lit. movable objects, i.e. possessions that are not property)? Rashbam points out, that for Biblical laws there is no question that they are considered karka, however, here we need to ascertain what the shechiv mei’ra had in mind when he gave a gift of movables - did he mean to include the slave or not.

One of the cases mentioned in Rashbam where a slave has the status of karka is by kinyan. The Shulchan Aruch (Choshen Mishpat 196:1) rules: A slave has the same laws as karka, therefore he can be acquired via money, document or chazakah (he may also be acquired through kinyan suddar and meshicha, ibid). In order to be acquired via chazakah, the slave needs to serve his master, for example - he should tie or untie his shoes; he should carry the masters clothing to the bathhouse or do any of the myriad other chores which he is expected to do once he is officially his slave.

There is a machlokes Rishonim how to rule. The Gemora did not answer this question; therefore, the Rema says that the slave is not included in the gift, since the burden of proof is on the one exacting money from his fellow. The Rif, Rosh and Rambam, however, rule that the slave is included.

The Shulchan Aruch (Choshen Mishpat 248:10) rules that the slave is included.

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Odisa

Kinyan through Admission

The Gemora in Bava Metzia (46a) struggles to figure out a way how Reuven can transfer his money that he has at home to Shimon, who will then use that money to redeem the ma’aser sheini of Reuven and avoid the additional fifth surcharge.

The Gemora suggests that if Reuven would have land to transfer to Shimon, he could transfer the money “agav” the property. Although Tosfos in Bava Kamma (12a) writes that kinyan agav is only Rabbinical, apparently Tosfos understands that even a Rabbinical kinyan would be sufficient to establish Shimon as an owner of the money to redeem the ma’aser sheini and biblically avoid the additional fifth surcharge.

Tosfos raises a question: Even without a kinyan agav or kinyan chalifin, can’t Reuven very directly transfer to Shimon the money by “admitting” that it actually belongs to Shimon? This is what Rav Ikka asked Rava in our Gemora.

In this question, Tosfos evidently assumes that an admission doesn’t merely allow Beis Din to act as if witnesses testified, but it actually transforms the ownership of the item to belong to Shimon and would be considered Shimon’s money for ma’aser sheini redemption purposes.

The Ketzos HaChoshen (40) answers Tosfos question by establishing a clause in this type of kinyan that it must be done in the presence of witnesses. Therefore, we can easily state that we are dealing with a case where there are no witnesses available to allow the kinyan hoda’ah (admission) to go into effect.

The Ketzos (194:4) has an elaborate discussion where he explains that this type of admitting would serve as a kinyan even for the purpose of transferring chametz that is another place to belong to a gentile. We see from the fact that it works for ma’aser sheini that it not only works for monetary purposes, but even for prohibition purposes, therefore it should work for chametz as well.

However, Tosfos in Bava Kamma (104b) implies that it would not work on a Biblical level and wouldn’t work for ma’aser sheini purposes. Nevertheless, the Ketzos argues that it should still work for chametz since one has nullified the chametz and the requirement to rid himself of the chametz is only Rabbinical. But in truth, the Ketzos points out that even if kinyan hoda’ah is only Rabbinic in origin, it shouldn’t be any worse than kinyan agav which works for ma’aser sheini.

Reb Avi Lebowitz suggests that Tosfos in Bava Kamma doesn’t necessarily contradict the other Tosfos because Tosfos in Bava Kamma is speaking about a case where he is admitting that he owns property by which he will transfer the money through a kinyan agav - to which Tosfos says that it doesn’t work on a Biblical level. But this Tosfos speaks of directly transferring the money through an admission, which would work on a Biblical level.

The rationale for the distinction is that admitting to owning property would require two Rabbinical allowances - one for the kinyan hoda’ah and a second for kinyan agav. A kinyan which is based on a combination of two Rabbinical allowances is weaker and perhaps would not work on a Biblical level.

HALACHOS FROM THE DAF

A Ger Does Not Inherit

The Gemora relates that Issur cohabited with Shmuel’s daughter and only converted once she was pregnant. The child would one day become the great Amora, Rav Mari. Years later, Issur died and his estate was worth a large amount of money. The Gemora deals with how Issur would be able to transfer the money to his son, Rav Mari. The very first of many different ways that the Gemora tried to transfer the money, was via inheritance. But that couldn’t work, since Rav Mari cannot inherit his father.

The Shulchan Aruch (Choshen Mishpat 283:1) rules that although the Torah says that a non-Jew can inherit his father, a convert cannot, since he has the status of a infant that was just born into Klal Yisrael without any Jewish parents. However the Chachamim did allow for him to inherit, for they feared that he would revert to being a non-Jew in order to claim the inheritance.

However in a case where the father is a convert and his child is a non-Jew (i.e. the father converted after the child was born), or even when both the father and son converted, the son does not inherit the father, since the above reason obviously doesn’t apply. Furthermore, even if the father converted before the child was born (but after conception), that son cannot inherit his father, nor can the father inherit him. The reason is that a convert has a newborn status in regard to relation, and only a child that was born and conceived after he converted can be said to be his Jewish son. If, however, the conception was prior to the conversion, then this child cannot be considered his son.

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Gifts of a Shechiv Meira

Gift Paradigm for Shechiv Meira

Rav Nachman says that although a shechiv meira need not perform a formal acquisition to transfer his property to others, he may not accomplish a transfer that has no parallel in normative transfers. Therefore, a shechiv meira may not transfer future usage or fruits of property, since there is no way for a healthy person to accomplish such a transfer.

The Gemora explains that a shechiv meira can transfer a loan due him, either because this can be transferred through inheritance, or because a loan can be transferred in the presence of the three parties – the debtor, creditor, and third party taking over the loan.

Tosfos (148a Shechiv Meira) explains that although one may transfer a debt or use of property via an agav acquisition (as an ancillary to a real estate transfer), that is not considered a normative paradigm on which a shechiv meira’s command can be patterned. A transfer with agav is based on an acquisition of another item, and is not an acquisition of the debt or use per se, and therefore is not a valid paradigm for a shechiv meira, who wishes to transfer the debt or use itself. When the Gemora cites inheritance as a precedent, it is not considering that an acquisition from a healthy person, but rather a paradigm of transfer, analogous to a shechiv meira, who transfers upon death.

Tree vs. Fruits
The Gemora discusses one who gets branches of a tree, when one splits a palm tree and its fruits between two people, or when he gives someone only the palm tree, but retains the fruits. It is unclear what the parameters of the question are, nor the ramifications of the answer.

The Rashbam quotes those who say that the Gemora is discussing a regular sale, and is asking whether the recipient of the fruits receives the branches or not. The Rashbam rejects this explanation, since this chapter does not deal with sales. Such a question should have appeared in the chapter that deals with sales of fruits.

Rather, the Rashbam and Tosfos say the case is a shechiv meira who commanded to distribute a palm tree. The Rashbam says that the palm tree is all the shechiv meira owns, and the ramification of the branch ownership is whether the shechiv meira has retained any property, or given it all away. If he has given the branches to the recipient of the fruits, he has not retained any land, and therefore his gift is a full gift, which he can void if he recovers. If he has kept the branches, he has retained land, and his gift is a partial gift, and is valid even if he recovers.

Tosfos (148a Iba’ya l’hu) disputes this explanation. Tosfos objects that if the ramification is in classifying this as a partial or full gift, the Gemora should have raised this question later, when discussing the topic of what a shechiv meira leaves over. Furthermore, this ramification may not be relevant for classifying a partial or full gift. The Gemora cites an opinion that the property left over may be movable. In that case, when the shechiv meira retained the fruit, it is a partial gift whether he retained the branches or not. The Gemora also cites an opinion that the property left over must be enough to support the shechiv meira. In that case, even the branches will not make the gift partial.

Rather, Tosfos says the question is based on the statement of Rav Nachman (147b) that a shechiv meira cannot give someone fruits from a tree, since there is nothing tangible and existent to transfer. The Gemora therefore asks whether giving the fruits includes the branches, which will make the gift effective, or does not include the branches, and therefore is not effective. Similarly, the Gemora asks whether a shechiv meira’s retention of the fruits includes the branches, and therefore is effective, or does not include the branches, and therefore is not effective.

HALACHOS FROM THE DAF

Shechiv Meira
A shechiv meira is a person that is deathly ill and might not recover. If he would give away any of his possessions, they are automatically acquired by the receiver of his gift as soon as he dies, even without making any formal kinyan (Choshen Mishpat 250:1). The reason being, since the health of the shechiv meira is precarious, we don’t want to cause him unease (that he might die before the person formally made a kinyan to receive his gift, and his inheritors might not honor his wishes to give away this gift) which would adversely affect his health.

The gift does take effect until the shechiv meira dies, for if he gets better, then he probably would want back his money.

How sick does one have to be in order to be considered a shechiv meira? The Shulchan Aruch (Choshen Mishpat 250:5) quotes Rambam that the litmus test is if his entire body is so devoid of strength that he can’t get out of bed.

We learned in the Mishna (146b) that a shechiv meira that gave away all his possessions and did not exclude anything, his gift is not valid if he recovers. Our Gemora has a question regarding a shechiv meira that did not exclude anything and gave everything to hekdesh, and then recovered. The Gemora similarly asks in cases of hefker and tzedakah. The Gemora does not resolve these questions.

There is a dispute amongst the Rishonim whether the shechiv meira that recovered may keep his money or not. Rambam and Rimah hold that he can, and does not have to give it to hekdesh, hefker or tzedakah, while the Rosh, Tur and Mordechai argue that his gift was valid.

The halachah is that the gift is not valid if the shechiv meira recovered (Choshen Mishpat 250:3).

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Bava Basra 147

Being Moichel a Shtar Chov that was Previously Sold

The Gemora states that a lender who sold a shtar chov (a document stating that the borrower owes x amount of money to the lender) to a third party, which would mean that the borrower would have to repay the loan to the third party, and then the lender forgives the payment (in the Gemora’s vernacular - he was moichel the shtar), it is valid and the borrower does not have to pay back the loan to neither the lender, nor the third party. The rationale for this halachah varies, and there are many halachos that pertain to this complex concept. We will discuss a few of them.

For starters let’s understand the problem. Of all the various types of sales that we have learned about, this is the only one that is seemingly not final. This means that although the sale of this shtar was completely valid, and the previous owner should have absolutely no say in the matter at all, he can easily cause the third party to hold a worthless piece of paper by being moichel the shtar. Furthermore, the lender’s mechilah can take effect even if the third party bought the shtar on the condition that the lender would not be moichel it! Another issue is that even an inheritor can be moichel. How does the lender have such broad powers?

Before we answer these questions, it is important to note that the third party is remunerated. Although logically he cannot collect the money from the borrower via this shtar, the lender must reimburse the third party because of the concept of dina di’garmi, which basically means that a person that inadvertently harmed someone has to pay his damages.

There is a machlokes in the Rishonim if the ability to sell a shtar is of Biblical origin or merely a Rabbinic enactment. The Rif and Rambam hold that it’s a Rabbinic enactment, while Rabbeinu Tam maintains that it is Biblical.

The Drishah (Choshen Mishpat 66:23) explains that according to the Rishonim that hold it’s Rabbinical, the rationale why the lender is able to forgive the payment even though he had already sold the shtar, is because the shtar is not intrinsically valuable. All other types of sales revolve around an item which has monetary value, as opposed to a shtar chov, which is only worth money in theory. Therefore the sale was never Biblically valid, and can be accepted by the Rabbis according to their terms.

Rabbeinu Tam, however, holds that the ability to sell a shtar chov is recognized by the Torah. If so, a shtar should be no different than any other sale where the previous owner is completely cut off from the item?

The Ran explains that in fact there is a huge difference. When Reuven borrowed from Shimon, two things take place: 1) A shibud haguf - the onus is placed on Reuven to repay Shimon. 2) A shibud nichasim - an onus is placed on Reuven’s money to repay the loan, which means that if Reuven doesn’t repay the loan, then his money serves as a guarantor. A shibud haguf cannot be sold, since Reuven’s shibud is exclusively to Shimon. On the other hand, a shibud nichasim can be sold, which would mean that Reuven’s money is paid to the third party, since this shibud is to repay the loan and not necessarily to the person who lent it.

Now let’s work this out logically. Since; a) the shibud haguf never left the lender, and b) the shibud nichasim is only in place if the borrower defaults on his loan, or in other words - if there would not be a shibud haguf, then there wouldn’t be a shibud nichasim, then we must come to the conclusion that if the lender is moichel the shibud haguf, then the borrower does not have to repay the loan to either of them.

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Divorce in the Back of His Mind

The Gemora relates a story about a man that was told that his wife can't smell. Rashbam quotes a Gemora in Kesuvos regarding a man that was mekadesh a woman on the assumption that she has no mum (blemishes, or deficiencies) and finds out once they are married that she does, he can claim that it is a mekach ta’us (a mistaken purchase) and she leaves the marriage without a kesuvah. This only applies to a mum that is hidden (i.e. it was not noticeable before they got engaged), for example, she can’t smell. The Gemora continues: The man decides to test her. He takes her into a secluded place and hidden in his pocket is a radish. He remarks to her that he smells radishes from nearby Galilee. The point of this was to test her response, and from that he’ll be able to discern if she could really smell or not. His wife immediately understood what this whole charade was about, and jokingly replied that she can smell the dates (which in those days was eaten together with radishes). The man realized that she can smell after all, and was about to apologize, but calamity struck and the room that they were in collapsed on her, and she died.

The question is: Can the husband inherit his wife’s property? The Gemora rules that “since he only went into the secluded place to test her, he may not inherit her property.” The Rashbam explains that since the husband tested her to see if she can smell, and although she was able to, in the back of the husband’s mind, he was about to divorce her if she had a mum. Therefore the status of imminent divorce stays, until he clearly has no intention of divorcing her. The Rashbam logically applies this to any case where the husband had an argument with his wife and has in mind to divorce her, if she dies when he is still in that mindset, then he cannot inherit her. He brings proof from a Gemora in Gittin which states that once a husband intends to divorce his wife, as long as he still has that mindset, he cannot continue to eat her fruits (a husband has a right to eat the fruits of his wife’s field or property).

Tosfos explains that the Gemora is talking about a man that was not married to the woman, rather he was engaged. Understandably, the Rashbam’s premise that a husband loses his right to inherit his wife if she died while he had in mind to divorce her, has no basis from this Gemora. Tosfos also disproves the Rashbam’s proof from the Gemora in Gittin.

The Rema (Even Ha’ezer Siman 90 Seif 5) rules that as long as a man did not actually divorce his wife, even if he intended to do so, he inherits her property. This is the opinion of Tosfos.

There is a rule in the halachos of mourning that we go after the lenient opinion. Therefore although we don’t follow the opinion of the Rashbam in regards to inheritance, there are Poskim (Chochmas Shlomo cites Yam Shel Shlomo, Pischei Tshuva cites a Yeshous Yaakov that records that this was the Maharal’s view), that maintain in the above scenario, where the husband had in mind to divorce his wife, he is not considered a mourner.

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Bava Basra 145

Why the Kiddushin Money is Irretrievable

The Gemora cites a dispute whether kiddushin money is irretrievable or not (does a man, when giving money to betroth a woman, resolve in his mind that he is prepared to forfeit the money if this will not result in a nisuin). Rabbi Nassan holds that the kiddushin money is not irretrievable (and it must be returned), and Rabbi Yehudah HaNasi holds that the kiddushin money is irretrievable (and it does not need to be returned).

What is the explanation of the Tanna that holds that the kiddushin money is irretrievable?

The Ritva writes that the man gives the money to the woman on the condition that it should be returned to him if she would die before the nisuin. He adds that this stipulation is only with respect to the kiddushin money more than the value of a perutah, for if the entire kiddushin money was included in this condition (and everything must be returned), it would emerge that they were retroactively never married, and why would it be necessary to give a get (in a case where she retracted prior to the nisuin)! If she would commit adultery, why would she be put to death? It would be a case of a hasra’as safek -- “an uncertain warning,” for if the kiddushin does not result in a nisuin, it would emerge that the man never gave her any money, there was never any kiddushin!

The Rashba disagrees and proves from a Gemora later that all the kiddushin money is returned. And although all the money is returned, the kiddushin is nevertheless valid through the benefit that she received by being able to use the money until she would be required to return it.

HALACHOS FROM THE DAF

What should I Learn?

By: Reb Avraham Klein

The Gemora discusses different types of Torah scholars. There are those that excel in Mishna, some in Aggadah, others in Pilpul, some in Halachah, while there are yet others whose field of expertise is Gemora. They are all part of Torah, and each contributes its part to Torah learning. Although there is a mitzvah of Yedias Hatorah (to know as much Torah as possible), there are halachos in what is imperative to learn.

The Shulchan Aruch (Yoreh De'ah Siman 246 Seif 1) writes that every single Jew is obligated to learn Torah; it makes no difference if he’s rich or poor, healthy or ill, young or old, even if he’s preoccupied with earning a living and taking care of his family, everyone is obligated to set aside time to learn - by day and by night. If it is absolutely impossible for him to learn, either due to the fact that he has no idea how to learn anything, or he is simply extremely busy without even a moment to learn, then he should pay others to learn.

There is an opinion in halachah (ibid Seif 4) that when one is starting to learn Torah (i.e. in his younger years) he should split his learning time into thirds: the first third he should study Tanach, the second - Mishna, and the third - Gemora, and when he gets older, he should just learn Gemora while routinely reviewing Tanach and Mishna. However the Rema rules that Talmud Bavli is considered a mixture of all three, and therefore, if one focused all his energies in Gemora, he has fulfilled his obligation to study Tanach and Mishna as well. The Rema continues that “all one needs to learn is Tanach, Mishna, Gemora and the Halachos that are derived from them, and through this, he will acquire this world and the next.”

The Shach and Taz quote Drishah that notes that there are baalei batim (laymen - people who work and have less time to study Torah) who learn Gemora without halachah. He rules that they must also learn halachah. He bases his ruling from the famous Gemora which states: Whoever learns two halachos a day is guaranteed a portion in the World to Come. Rashi explains that to halachah means halachah lima’aseh (practical rulings; there are instances when the Gemora uses the word halachah, and it translates as Gemora). So although the Rema says that it is sufficient to learn Gemora, that is only for those who learn most of the day, but baalei batim that learn considerably less, must also learn halachah.

In regard to Kabbalah and other esoteric studies, the Shach rules that one should not start learning them before he is 40, since it requires a high level of holiness and purity. Pischei Tshuvah argues and cites Chavos Yair who recommends that one should altogether distance himself from learning these areas of Torah.

Mishna Berurah (Siman 290 Seif Katan 3) writes that it is written in the Zohar that a person should come up with a novel interpretation in Torah on Shabbos, and for those that can’t, they should learn an area of Torah that they never learned before.

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Bundle Up

The Gemora states that catching a cold or heat related illness is considered a negligent illness. The Gemora teaches us that “everything is in the hands of heaven except for heat and cold.”

Tosfos explain that all mishaps and occurrences that happen (in contrast to misfortunes that we actively bring to ourselves, for example jumping into a raging ocean) in our life, is not a random act attributed to queer and meaningless fate. Rather, everything that occurs in our lives, whether big or small, is directly caused by G-d. There is one exception to this Law of Occurrences - illnesses that are caused by heat or cold. This is exclusively in man's department.

There is an interesting difference between the two. The Shulchan Aruch (Orach Chaim Siman 276 Seif 5) rules that in cold places, it is permitted to tell a non-Jew on Shabbos to make a fire (or in today’s vernacular - turn on the heater) for the little children (because for them, it’s cold, even in weather where the adults are comfortable). Once there is a fire, everyone is allowed to benefit from it. However, the Taz and others add that one may not sit close to the fire out of concern that one might momentarily forget and make the fire larger. In a place where it’s extremely cold, one may tell a non-Jew to light a fire (even for adults). The reason for this is, as the Shulchan Aruch puts it, “Everyone is considered ill in regard to the cold.” The ill here refers to the category of “an ill person that is not in danger,” and therefore, we are not allowed to make a fire, but a non-Jew can, because a non-Jew may be specifically asked to perform forbidden labor when there is an ill person, without the hints that usually must accompany an “Amirah Li’akum” (telling a non-Jew to do a melachah on Shabbos).

Similarly, in a case where the air conditioner is on, and it is very cold, one may ask a non-Jew to turn it off. However, if it is very hot, there is no such concept of “Everyone is considered ill in regard to heat.” Although some (Minchas Yitzchak and others) permit to ask a non-Jew to turn on an air conditioner for different reasons, Reb Moishe Feinstein forbade it (Igros Moshe Yoreh De'ah Chelek 3 Shaila 47 Ois 2).

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Bava Basra 143

Rabbi Meir’s Text

The Torah says that “all the souls of the House of Yaakov coming to Egypt were 70” (Bereishis 46:27), but the Midrash says that if we count them, we find only 69 (Bereishis Rabah, 94:9). The Torah, though, reckons 70 because Yocheved was born at the gates of Egypt, and by the time the Israelites passed through the walls, they numbered 70. Alternatively, Chushim is counted as two since he would eventually beget many offspring, as the Torah says: “…the sons of Dan: Chushim” (see Tosfos, s.v. Shehayu). Still, the Midrash adds that Rabbi Meir had a sefer Torah whose text read “the son of Dan: Chushim”; this statement is altogether perplexing.

According to the commentary Avnei Shoham (on Bereishis 46:23), the above two explanations depend on the difference of opinions as to if a fetus is regarded as a limb of its mother, or is the unborn child a separate entity. If like the latter, we can count Yocheved separately and include her in the total of 70. If a fetus is a part of its mother’s body, we cannot count Yocheved and must rather count Chushim as two. Rabbi Meir holds that a fetus is not part of its mother’s body. He therefore reckoned Yocheved as an individual, though she had not yet been born as they approached Egypt, and his sefer Torah said “the son of Dan…,” counting Chushim as only one.

Is a Disqualified Esrog always Inferior?

by: Meoros HaDaf HaYomi

The owner of an esrog orchard separated the required terumah and tithes, including ma’aser rishon which he gave to a Levite. The latter was glad to get such a large amount of esrogim and thought he would find at least one of them to be a choice specimen for the mitzvah of arba’ah minim. After a thorough search, however, he discovered that all the fruit were unfit for the mitzvah and he came to the owner of the orchard in resentment. “You took great care to separate ma’aser rishon,” he asserted, “but you separated inferior fruit from the superior – esrogim unfit for their mitzvah as ma’aser for those kosher for their mitzvah – and the Gemora says that someone who uses bad fruit to separate the required gifts for good fruit is a sinner.” The owner of the orchard asked Rav Yitzchak Silberstein to decide the question and the latter referred him to his brother-in-law HaGaon Rav Chayim Kanievski. Rav Kanievski ruled that the ma’aser had been properly separated as “good” and “bad” refer only to the fruit’s edibility. In that sense one should prefer using a big, ripe esrog for tithing rather than an esrog considered choice for its mitzvah, even if the former is disqualified for the mitzvah of arba’ah minim.

HALACHOS FROM THE DAF

"My Dear Sons" - Who is Included?

By: Reb Avraham Klein

A father of five is overseas on a business trip, and decides to send his children a present. He shops around for a nice gift for his beloved children, and sends it off with UPS. The next day his children receive the package, tear off the wrapping paper, and out comes a note from their father. “My dear sons, just a little present from Daddy. I miss you tons! Love, Daddy.” The children are nonplussed. “Sons”? asked Rachel. “We only have one brother.” The four sisters as one stare at Chaim. “What is the meaning of this, Chaim?” they ask the bewildered young man.

We learned that when a father calls his children - sons, he means to include his daughters as well. That doesn’t mean that the four sisters in the above story will automatically get their present. First we have to analyze a number of factors. a) The type of gift. b) Are the children married? The son? The daughters? c) What would be the halachah if the father didn’t write sons, rather just wrote, “A present from Daddy” without specifying any of his children? d) What would the halachah have to say in the same exact story, but with one difference? Instead of on an overseas trip, the father is deathly ill!?

A) The Shulchan Aruch (Choshen Mishpat Siman 247 Seif 1) rules that both the sons and daughters receive the gift, only when the presents clearly indicate that some are for boys (walkie talkie) and some are for girls (dollhouse). However, if it can be used by both the sons and daughters (for example, money), then, only the son would get it. The rationale (as explained by the Kessef Mishnah and Aruch Hashulchan) is that the father does normally refer to his daughters by calling them “my sons,” and therefore, she receives a gift too when it is obviously meant for her. But if the present can be for both, logic dictates that “sons” means sons - even if there is only one son.

B) All of this is true whether the sons and daughters are both not married, only the sons are married or only the daughters are married (S’ma). There is a dispute in a case where they are both married. S’ma rules that the daughters-in-law receive the gift, but not the daughters. K’tzos cites the Bach that the daughters are the ones that receive the gift, and not the daughters-in-law.

C) In a case where the father didn’t specify “sons,” the Mechaber records two opinions. 1) If it’s a type of gift that is clearly meant for his daughters, then they receive it, and if they are married, then the daughters in law get it. This is true even according to the Bach, because the daughters-in-law are part of his household. 2) If the father has a wife, then she is the one that receives the gift, and not the daughters. But in the above case where the father wrote “sons,” she is obviously not included.

D) Regarding a deathly ill person that wrote “my sons,” his daughters are not included, even if the present is clearly for them. The reason is, that when it comes to a deathly ill person, he is essentially dividing his inheritance, and there we assume his language is following the Torah’s directive that the daughters do not inherit when there is a son.

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Public; Tzadikim's Vision; Paternity - Bava Basra 142

HOW MANY JEWS ARE NEEDED TO MAKE SOMETHING PUBLIC?

Shmuel once said to Rav Chana Bagdasaah (from Baghdath, or an Aggada expert), “Go out and bring me ten people (so that the ruling should be publicized) in order for me to say to you before them that one who gives something to a fetus, the fetus has acquired it.”

It would seem form this Gemora that if something should be publicized, ten people are required.

This is also evident from the Gemora Sanhedrin (74b) which states that a person who is in public must be martyred even for a minor precept rather than violate it. Rabbi Yaakov said in the name of Rabbi Yochanan: The minimum for publicity is ten. This is derived from the verse [Vayikra 22:32]: And you shall not profane My holy name; but I will be holy among the children of Israel.

It is written [Bamidbar 16:21]: Separate yourselves from among this congregation, that I may consume them in a moment. An analogy is drawn from the use of congregation (edah) in two passages; one, just quoted, and the second, [ibid 14:27]: How long shall I bear with this evil congregation. ‘Congregation’ there refers to the Spies sent out by Moshe. As Yehoshua and Calev had dissociated themselves from their evil report, ten were left, all Israelites. Thus we see, that ten Israelites creates a quorum.

This applies to desecrating the Shabbos in public as well. The Peri Megadim (Sifsei Daas Y”D 2:17) states in the name of the Rashba: If there are ten men present when one violates the Shabbos, one is regarded as a desecrator of Shabbos in public.

This would seemingly be inconsistent with a Gemora in Bava Basra (39b) which states according to one opinion: A protest must be lodged in the presence of three people because this way, we are certain that the protest will become known.

The Gemora in Gittin (33a) also states that three people make a matter public. The Gemora rules that if a husband wishes to nullify a get, he must do so in front of three people. This is to ensure that the matter becomes known, and his wife will not mistakenly get married.

The Sdei Chemed (V p. 260) answers: Three people are sufficient when we wish to make something public knowledge; once three people know about the matter, we are certain that the public will become aware of this. However, when something must be performed in public, it is only regarded as being public, if ten Jews are present at the moment it occurred.

Refuting a Denial of Paternity

by: Meoros HaDaf HaYomi

In the previous sugyos (127b) we learned that a father is believed to declare one of his sons as his firstborn even if another had been assumed as such and that the newly declared firstborn gets a double portion of his father’s estate. The halachah was ruled according to Rabbi Yehudah, that a father is believed even in opposition to chazakah – the long-assumed status of another son. Moreover, a father is believed to declare a certain son as his firstborn even if the older brother must perforce be understood to be another’s son born to his married wife, and therefore passul (Tosfos, ibid, s.v. Kach; Tosfos also offer another explanation for a father’s credibility to discredit a son). The Gemora learns this halachah from the verse “…for the firstborn…he shall recognize” (Devarim 21:17) – i.e., he may recognize him even in the presence of others.

Many Rishonim hold that a person is also believed to recognize someone who was not even known to be his son, as his firstborn, or, in modern terms, declare his first paternity. The Rishonim explain that the Torah lends a father such credence as no one else can reliably offer such testimony.

Ramban maintains that every Jewish father has a positive mitzvah to let people know that a certain one of his sons is his firstborn who is to inherit a double portion. If this fact is known already, the father fulfils the mitzvah by remaining silent (Ramban on Sefer HaMitzvos, negative mitzvah 10).

Lack of space prevents us from elaborating the many details, rules and differences of opinion concerning a father’s recognition of his firstborn. A sad event, though, occurred in Europe about 180 years ago when a person with a pregnant wife claimed that the baby wasn’t his as his having been far from home precluded his paternity. The couple eventually divorced and 20 years later the son asked the local beis din to examine the circumstances of his birth. Witnesses then came forward who discredited the husband’s claim that he had been away at the time of the son’s conception and the only remaining support for the father’s claim was if a father has the right to “recognize” who is his son.

The question was referred to HaGaon Rabbi Akiva Eiger zt”l who thoroughly investigated the issue. He mentions (Responsa Rabbi Akiva Eiger, I, 128) several opinions of Rishonim to support the view that in such a case the father is not believed. Among others, he cites the Tosfos Rid on Bava Basra 128b, that a father is not believed if the mother contradicts him, and the Ba’al Halachos Gedolos that he is believed to declare a young man his firstborn even if his wife’s older son is perforce understood to be another’s son and pasul, but he is not believed to directly declare that someone is not his son (see ibid another opinion attributed to the Riaz).

The main chiddush of Rabbi Eiger’s long reply stems from our sugya, which explains that a firstborn born after his father’s demise is not entitled to a double portion of the estate as the father could never recognize him. If so, contends Rabbi Akiva Eiger, a father can’t “recognize” (i.e. declare) his firstborn before his birth either, as then, too, he can’t see him. In our case, the father denied his paternity before the birth, but, according to the Gemora, he can’t do so! The father’s authority to recognize his firstborn is valid only when he sees him (see ibid with proof from the Rosh).

How Far is the Perception of Tzadikim!

Concluding his reply, Rabbi Eiger departed from his usual style and quoted his son-in-law, the Chasam Sofer zt”l, whom he asked for his opinion. The Chasam Sofer then expanded on the topic and discussed a subject which had not yet been raised: What would the decision be if the witnesses contradicting the husband’s testimony were related to each other and therefore disqualified? His father-in-law subsequently wrote: “I’ve now seen how far is the perception of tzadikim as he extraordinarily dealt with an issue without being asked. When Rav Pila (the local Rabbi) investigated the matter, however, he discovered that the witnesses were indeed related and we thus see that Hashem’s spirit spoke through him.”

HALACHOS FROM THE DAF

A Deceased Convert’s Property

By: Reb Avraham Klein

The Gemora mentions a case involving a deceased ger’s (convert) property that was acquired. Although a ger is a bona fide Jew in every aspect, when it comes to inheritance, there is often a major difference between him and the rest of Klal Yisroel - namely, Jewish relatives. Every Jew has some living relative if you go far enough up or down his family tree. A ger, however, has a status of a newborn in terms of relation; therefore, unless he married and had children, his property would have nowhere to go, and therefore anyone that is machzik (a legal acquirement though kinyan chazakah) this ger’s property, now becomes the owner.

The Gemora discusses a case in which a ger died and someone was machzik the ger’s property, and then he heard that the deceased ger has a son, or he heard that the ger’s wife is expecting - either case would obviously negate this person’s kinyan, for the property belongs to the relatives of the ger. And then he heard that the son died, or he heard that the ger’s wife had a miscarriage - now there isn’t any living relatives. So if the person is machzik it again (or anyone else for that matter) then he would acquire the ger’s property.

There is a major dispute as to the reading of the Gemora. Rashbam learns that when he heard that the son died, that is when he actually died, meaning, that when he heard that there was a son, that report was true.

Rambam (Hil. Zchiah Perek 2 Hal. 18) learns that when he heard that the son died, that means that the report that the son was alive, was false. For in actuality, the son had died before this person was ever machzik. The Maggid Mishnah proves that the Rambam’s way of learning this Gemora is correct, and brings up serious questions on how one can learn this Gemora the way the Rashbam does. The Mishnah Lamelech argues with the Maggid Mishnah and explains the Rashbam in a novel approach.

The halachah would depend on how one learns this Gemora. Without going into a lengthy rationale (see the Maggid Mishnah and Mishnah Lamelech above), if one would understand the Gemora like the Rashbam, the halachah would be that the first person that was machzik would in fact be the owner. According to the Rambam the halachah would be that the second person that was machzik is the owner.

The Shulchan Aruch (Choshen Mishpat Siman 275 Sief 30) rules in accordance with the Rambam, and the halachah is that the second person is the owner and not the first.

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Support in Kollel; Kaddish; Yahrtzeit

Is Support Tzedakah?

The Gemora discusses the obligation for one to support his sons and/or daughters.

The Shulchan Aruch (E”H 71:1) rules that one is obligated to support his children, but only up to the age of six. Beyond that age, the Sages instituted that he support them, but the court has no power to force him to do so.

The Shulchan Aruch (YD 253:3) rules that supporting one’s children is a form of tzedakah, based on the Gemora (Kesuvos 50a) that explains the verse extolling one who is oseh tzedakah b’chol ais – does tzedakah at all times, as referring to one who supports his young children.

The Shach (4) explains that this refers to children above the age of six, whom the father has no enforceable obligation to support.

The Poskim discuss whether one may therefore use money set aside as ma’aser for supporting his children.

The Taz (YD 249:1), echoing the Rama, says that ma’aser is meant exclusively for the poor, and supporting one’s children is like any other monetary obligation, which may not be fulfilled with ma’aser money.

The Shach (YD 249:3) disagrees, based on the Maharam miRutenburg, citing the Gemora in Kesuvos, which refers to supporting one’s older children as a form of tzedakah.

The Igros Moshe (YD 1:143) states that the obligation to support one’s wife includes an obligation to support her children, as long as they live with him. Such an obligation is like any other monetary obligation, which may not be fulfilled with ma’aser money. The Igros Moshe says that even the Shach only meant to include children who are of an age to earn their own living and live on their own, but would agree that one’s support for children living at home may not come from ma’aser money.

The Yechave Da’as (3:76) rules that one may take ma’aser money to support children above the age of six, and rejects the Igros Moshe’s assumption that support of one’s wife includes an obligation to support her children. Further, he rules that one may use ma’aser money for any form of support – including providing food, furnishing an apartment for a new couple, and supporting children learning Torah pre and post marriage. He recommends that one stipulate before earning money that he will use the ma’aser to provide such support, as some Poskim allow such a stipulation to allow use of ma’aser for other purposes. He adds that although the Rabbinate of Israel instituted a rule to force parents to support their children until the age of fifteen, this is simply giving more power to the institution of the Sages, but does not change the nature of such support from the status of tzedakah.

A Daughter First
is a Good Sign for Sons

by: Meoros HaDaf HaYomi

The Maharsha explains that a firstborn daughter prevents any discord that would arise between the sons if one of them were a firstborn, as now all of them inherit equal portions. If, however, a father leaves a firstborn son after him, he gets a double portion and his brothers become jealous. “A daughter first” is therefore a good sign that peace will reign among her brothers.

Others explain that a big sister will care for her brothers willingly and energetically, as she knows that “most sons are like their mother’s brothers.” In other words, when she is ready to marry, people will inquire after her brothers and she therefore has a good reason to help them grow up properly (Peninei Kedem).

Who Supports Whom?

Rabbi Eliezer Gordon eventually became the Rosh Yeshivah at Telz and one of the leading Torah figures of his generation, but after his marriage, he was supported by his father-in-law, who was a rabbi and a great scholar, but exceedingly poor. Still, despite his indigence, he contributed to his son-in-law’s welfare and, moreover, prevented him from responding to any of the many offers tempting him to serve as rabbi in various communities. Witnessing their sorry plight, his wife often tried to convince him to allow their renowned son-in-law to become an officiating rabbi, if only to keep him from resorting to their support. Nonetheless, he refused and once even rebuked her, saying, “Who knows who’s supporting whom?” Eventually, though, his wife prevailed upon him so unrelentingly that he had to agree that Rabbi Gordon should accept the next offer. Such an opportunity soon came and Rabbi Eliezer and his family packed their belongings and moved to another town. The same day the father-in-law suddenly collapsed and passed away. Those who attended the funeral and knew the family echoed his remark: “Who knows who’s supporting whom?”

Those who Learned Mishnayos for their own Departed Souls

Our Gemora highly praises anyone who leaves a son to inherit his estate. A previous Gemora, on 116a, applies the verse “…cry for the one who goes” (Yirmyahu 22:10) to a person who fails to leave a son after him. The Gemora in Sanhedrin explains that sons increase their fathers’ merits and the halachah accordingly stresses the importance of a son’s saying kaddish for his father (Remo in Shulchan ‘Aruch, Y.D. 376:4; Responsa Binyamin Ze’ev, 51).

A Father who Told his Son to Say Kaddish for 12 Months

To be careful for his father’s honor, a son stops saying kaddish for him 11 months after his demise; saying kaddish for the full year of mourning would suggest the father was a rasha, as only the evil stay in Gehinnom for 12 months (Remo, ibid).

Halachic authorities have discussed the question of a son, whose father commanded him to say kaddish for a full year.

HaGaon Rav Shlomo Kluger zt”l commanded his son to do so and the latter asked Rabbi Yitzchak Shmelkes of Lvov, author of Beis Yitzchak, as to how to behave, fearing that such an act would disgrace his father.

The Beis Yitzchak (II, 157) ruled that he should say kaddish for a full year to obey his father, as that would be the best way of honoring him (see ibid as to the halachah concerning the thirteenth month in a leap year).

Hiring a Person to Say Kaddish

If the deceased had no son, some relative should say the kaddish according to the following order of preference: the deceased’s sons’ sons, his daughters’ sons, his father, his brothers and other relatives. In the absence of any relative, a person should be hired to say kaddish for the elevation of his soul and according to the Kaf HaChayim (55:30), the person hired should say before any prayer that the kaddeishim he is about to say are for the elevation of the soul of So-and-so.


May a Daughter Say Kaddish?

Several halachic authorities ruled that if the deceased had no son, his daughter should say kaddish in a minyan at her home, and some even had the custom that if the daughter was very small, she would say kaddish in a synagogue. Still, almost all the Poskim hold that daughters must not say kaddish even at home, and if she wants to increase her father’s merits, she should answer amen after the sheliach tzibur (Penei Baruch: Aveilus BaHalachah, 34:20, in the name of Shevus Ya’akov, etc., and see S.K. 36).

Why Rav Auerbach Said Kaddish for Rabbi Shlomo Kluger’s Granddaughter

HaGaon Rav Shlomoh Zalman Auerbach zt”l used to say kaddish for his relatives who had no one else to say it, and also for a woman called Shasha Mindel bas Rav Chayim Yehudah on her yahrzeit, 24 Nisan.

Shasha Mindel was not his relative and no one paid him to honor her yahrzeit. She was the granddaughter of HaGaon Rav Shlomo Kluger, who lost her father as a girl and was brought up by her grandfather; she passed away many years before Rav Auerbach was born. She suffered much during her short life and had no children.

Rav Kluger dedicated his Nidrei Zeiruzin, on tractate Nedarim, to her memory and in his preface he describes her short life and appeals to any reader to “mention her soul on the anniversary of her demise… He who is not thus dishonored should say kaddish for her… and he who thinks he is thus dishonored should pay a worthy poor person a small amount to say kaddish for her and this will be a true kindness done for the deceased and for me and their reward from Heaven will be double.” As one who learnt Rav Kluger’s works, Rav Auerbach obeyed his request despite the long time since her demise (Halichos Shlomo, Ch. 18, note 78).




Nine Years and One Son-in-Law

Immigrants from Russia recount that Jews in the communist era used to maintain groups for learning mishnayos in the remaining synagogues. The special feature of these groups, however, was that the members learnt mishnayos for the merit of their own souls as in the bitter reality of the Soviet regime, they could not rely on their sons to remember them in any way. A member of one group learnt mishnayos for himself for nine years before he passed away. His daughter eventually emigrated to Eretz Yisroel and wed a Torah scholar, who began to learn mishnayos in his father-in-law’s memory. When? Exactly nine years after his father-in-law’s demise!

HALACHOS FROM THE DAF

Does a Father have to Support his Son in Kollel?

By: Reb Avraham Klein

The Gemora cites Rabbi Meir that says: It is a mitzvah for a person to support his daughters and certainly his sons that learn Torah. This Gemora appears in Maseches Kesubos (49a) as well, and there ,the Gemora infers that it is a mitzvah, but not a chovah (obligation).

At what age is Rabbi Meir referring to? What about the sons that don’t learn Torah?

There are three categories:

1) Children under six years old: Their father is obligated to support them, even if the children have money (one of the only ways that money would be theirs and not automatically belonging to their father is if it was from an inheritance), and even if their mother died. (Shulchan Aruch Even Ha’ezer Siman 71 Sief 1)

2) Children aged six to Bar/Bas Mitzva: Chazal instituted that their father should support them if they don’t have money, even if he himself is not wealthy. If he chooses not to, we scream at him and shame him. If this doesn’t work, then we take even more drastic measures: We publicly announce that this person is a callous cold-hearted man that refuses to support his own children. However, we can’t actually force him to support them. In a case where the father is wealthy and can easily afford to support his children and he doesn’t, then we forcibly take away money from him to support them (ibid).

3) Children that are over the age of Bar/Bas Mitzva (gadlus): The father is obligated to support them like any other poor person (Shulchan Aruch Yoreh De’ah Siman 151 Sief 4).

The Bais Shmuel (in Even Ha’ezer ibid) explains that the father’s obligation to these children is equivalent to any other of his relatives. However, regarding the children under gadlus, the father has a greater obligation towards them than he has to other relatives.

A father that gives money to his children who he is not obligated to support, so that they can learn Torah, that money is considered tzedakah (and can be deducted from his ma’aser). Furthermore, he must support them before any other tzedakah. This is true for any relative that learns Torah, not just a son (ibid Sief 3).

There are many other halachos regarding tzedakah and ma’aser that was not mentioned here. One should always ask a competent Posek in this or any other area of halachha. There are many halachos about the order of tzedakah, how much to give, who should one not give to, etc.

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Twins, Mathematics and Widow

Unexpected Birth of Twins

by: Meoros HaDaf HaYomi

Our Mishna concerns a person who wants to distribute his estate before his demise. According to Rashbam (s.v. Haomer im), he could be healthy and just wants to grant his future child a certain portion through the offices of a third party or he could be moribund (shechiv mera) and not be expecting to witness his child’s birth, in which case we must obey his wish as it is a mitzvah to execute such a person’s orders. At any rate, the person in question commanded that if his wife bears a son, he gets a maneh (100 zuz) from the estate and if she bears a daughter, the daughter should receive 200 zuz. The Mishna then adds that if she bears “a male and a female,” the son gets a maneh and the daughter 200 zuz.

The Rosh assumes that the Mishna means that she bore twins (Responsa of the Rosh, Kelal 81:2). Rashbam disagrees (s.v. Hachi garsinan im zachar; see Maharsha) and explains that the Mishna merely means that the father expressed both eventualities, but does not discuss the birth of twins. The halachah was ruled according to the Rosh (Shulchan ‘Aruch, C.M. 253:27) and the poskim discuss more questions arising from the unexpected birth of twins.

A Question of Mathematics

About 700 years ago a person commanded just before his demise that if his wife bore a son, he should get two thirds of his estate while the rest should be given to his brothers – the child’s uncles, whereas if she bore a daughter, the daughter should receive one third with the rest going to his brothers. The widow bore twins, a son and a daughter, and the question arose as to how to apportion the estate. If we succeed in understanding the father’s intention, we must divide the estate into sevenths. The son gets four sevenths, the uncles two sevenths altogether and the daughter one seventh. The father, after all, apparently wanted to leave his son twice as much as the uncles – originally giving him two thirds as opposed to one third for the uncles – and the uncles twice as much as his daughter, originally giving her one third and the uncles two thirds. We have no choice, then, but to apportion one seventh to the daughter, two sevenths to the uncles and four sevenths to the son.

This hypothetical solution was suggested to the Rosh (ibid), who ordered the whole estate to be given to the son as the father made no mention of twins! The Rosh assumes that when the father commanded “if my wife bears a son [or daughter],” he meant only a son or only a daughter and the birth of twins therefore invalidates the father’s condition. The son inherits the entire estate as a daughter does not inherit if there is a son and the halachah was ruled accordingly (Shulchan ‘Aruch, ibid, 253:28).

Donating 18 rotel for Lag BaOmer

A certain childless person recently vowed that if his wife would bear a child, he would donate 18 rotel of wine or liquor to be distributed at the tomb of Rabbi Shimon bar Yochai in Meiron on Lag BaOmer. Such donations have long been customary as a segula to merit Heavenly favor and are meant to provide sustenance and merrymaking for the many thousands visiting the tomb on that day. A rotel, approximately three liters, was a common measure in the Ottoman era and persists among the descendants of families that settled in Eretz Yisroel centuries ago.

Within a year the person’s wife bore twins and some insisted that he must donate 36 rotel for the double kindness. In fact, however, he had only to give 18, as that was how much he vowed.

HALACHOS FROM THE DAF

Widow vs. Daughter

The Gemora discusses an aspect in the inheritance not mentioned in the Mishna - the widow. Where does she fit into all of this? Would it make a difference if there is a small amount of money or a large amount? Does the money that supports the widow detract from the sons’ portion?

The Shulchan Aruch (Even Ha'ezer Siman 93 Sief 4) has different opinions in a case where there is a widow and daughters, and there isn’t enough to support both the widow and the daughters. The Mechaber is of the opinion that the widow gets supported and the daughters go collecting and of course, the sons too (Bais Shmuel quoting Ran). However the Mechaber cites another opinion (Tosfos) that differentiates between cases where there is a widow and son or daughter, and cases where there is a widow and son and daughter. It is important to note that the widow getting supported is a takanah (rabbinical enactment), while inheritance is m’doiraisa (biblical commandment).

Widow and son or daughter: The child inherits the money and the widow and child support themselves with that. Even if the daughter would get married (and the money belongs to her husband) and even if the married daughter dies, the widow still gets supported from that money.

Widow and son and daughter: In a case of a small inheritance we learned in the previous Mishna that the daughters get supported and the sons go begging. That is a takanah for the daughters that they get supported and not the sons. Therefore in a case where there is not enough money to support both the sons and the daughters, and there is a widow involved, and her getting supported is also a takanah, the problem arises which takanah is stronger? The answer is - the widow’s. She alone gets supported until she collects her kesuvah.

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What Is Included In Mezonos?

When a man dies and is survived by sons and daughters, there is a system in place to ensure that the daughters (who don’t inherit when there are sons) are supported. The Mishna has two scenarios; a) the inheritance is a large amount - there is enough money to support all the children until they reach maturity (12 and a half years for a girl and 13 years for a boy) or until the daughters get engaged (whichever is first); b) the inheritance is a small amount - the money is insufficient to support all the children until maturity.

In the first scenario, the sons inherit and support their sisters. In the second scenario, the daughters get supported from the inheritance, and the sons go begging from the community.

Shulchan Aruch (Even Ha’ezer Siman 112 Seif 11) explains that this is only when there is no money left over after supporting the daughters; however, even in the second scenario, if there is money left over after the daughters are supported, then, that goes to the sons.

The question that needs to be addressed is: What constitutes support? The Mishna uses the term “mezonos,” which usually translates as food. Is this the meaning here as well? What about clothing? How about a place to live?

The Shulchan Aruch (Even Ha’ezer Siman 112 Seif 6) rules that the daughter gets food, clothing and a place to live. This is the opinion of the Tur and the Rambam (Hil. Ishus Perek 19 Hal. 11).

The Rashbam on our Mishna defines mezonos as food and parnasas nisu’in - money for her marriage needs.

Tosfos argues that the term mezonos and parnasah are two separate categories. The former refers to food and drink, and the latter to clothing and marriage needs.

It is interesting to note that according to Tosfos, the daughters would only get food, and not clothing, not like the Rambam and Tur who rule that they get both.

The Chelkas Mechokek rules that the daughters get food, clothing and a place to live; however, they don’t get money towards their marriage needs.

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Only Son - Is he a Bechor?

No Path?

The Sages say that if one sells a house, he retains his pit, and a pathway, while if he sells his pit, the buyer must buy access rights. Rabbi Akiva says that if one sells a house, he retains his pit, but not access rights, while if he sells his pit, the buyer gets access rights. The Reshash says that even when one does not get access rights, this simply means that he does not own a path four amos wide to his pit. However, he does have a narrow path to his pit.

The Yad Ramah asks what the buyer of a pit bought according to the Sages, if he does not have access rights. The Yad Ramah says that all the buyer bought was the right to be a bar matzra – a neighbor, with first rights to purchase adjoining land.

The Reshash is inconsistent with this Yad Ramah, since according to the Reshash, the buyer does have access to his pit, albeit in a less comfortable manner.

Does an only Son have
Firstborn Rights?

By: Meoros HaDaf HaYomi

In his Devar Avraham (I,27), the Rabbi of Kovno, Rabbi A.D. Kahana-Shapira zt”l raises the question as to if an only son, without brothers, is regarded as a firstborn. In other words, when he inherits his father’s estate, does he do so just as an ordinary son or does he inherit half the estate as an ordinary son and the other half as a firstborn? And if you ask, “What’s the difference? He gets it all anyway!,” the following case shows that this seemingly theoretic inquiry has practical implications.

There used to be a custom to give a daughter a shtar chatzi zachar, a document granting her a portion of her father’s estate equal to half that of a son’s. If a father had, for instance, three sons and a daughter, all the children together would be considered as 3.5 sons and the daughter would get a seventh of the estate in conformity with her status as a chatzi zachar – “half a male.” If, though, he had only one son and a daughter, how much should she get? If the son is not defined as a firstborn, he and his sister are together regarded as 1.5 sons and she receives a third of the estate. If, however, he is also considered a firstborn, he inherits two portions, one as an ordinary son and one as a firstborn: the father is then regarded as having 2.5 sons and the daughter gets only a fifth of the estate.

The question occupied the attention of many halachic authorities, as attested by HaGaon Rav Y.S. Natanson, author of Shoel Umeshiv (Responsa, 1st edition, 123): “HaGaon Rav D. Oppenheim; HaGaon Rav Yonasan – author of Urim VeTumim and then Darshan (exponent) of Prague; the author of Shav Ya’akov and the inquiring rabbis have all failed to find an answer.”

Later poskim, though, have tried to solve the quandary by logical deduction: The Gemora (Bava Basra 124a), after all, defines a firstborn’s rights as a gift, learning from the verse “to give him twice as much” (Devarim 21:17). But who bestows the gift? His father is already deceased so it could be that the gift is bestowed by his brothers and, if he has no brothers, he has no gift and does not inherit a firstborn’s portion (see Responsa ‘Ateres Tzevi, 2).

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Kinyan Peiros on the Esrog

Rav Nachman bar Rav Chisda expounded: If one said to another, “This esrog is given to you as a gift, and after you (his death) it shall be given to So-and-so,” and the first recipient took it and fulfilled his obligation with it, this will be a point of dispute between Rebbe and Rabban Shimon ben Gamliel (for according to Rebbe, who maintains that the one who has the rights to the produce is not regarded as the owner of the object, he will not have discharged his obligation, for the esrog is not his; according to Rabban Shimon ben Gamliel, it is regarded as his, and he will have fulfilled his obligation).

Rav Nachman bar Yitzchak asked him: The dispute between Rebbe and Rabban Shimon ben Gamliel is only if the acquisition of the produce is like the acquisition of the capital or not, but here, if the first recipient cannot discharge his obligation with it, for what other purpose was the esrog given to him! Rather, it is clear that everyone holds that the first recipient may properly discharge his obligation with it; the argument would be regarding a case where he sold it or ate it.

The Mefarshim ask: According to Rebbe, who holds that the one who has the rights to the produce is not regarded as the owner of the object, how can the first recipient discharge his obligation with this esrog? It is not regarded as “lachem” – completely his, so what difference does it make that the donor intended for him to fulfill his mitzvah?

The Ritva explains that since the donor’s intention is that the first recipient should discharge his obligation with it, it must be that he gave him the guf (capital) and the peiros (the produce) completely; however, he stipulated that he, after he has discharged his obligation with it, must give it over completely to the second person. This would be similar to a gift that was given on condition that it is returned to him.

Reb Shmuel Rozovsky explains as follows: It is evident from the Gemora above (136b) that even according to Rebbe, it is possible to give someone rights to the produce that will be regarded as an acquisition of the guf. For the Gemora said that a father, who retains the rights to the produce in a case when he gave away the land to his son, since it affects him personally, he made sure to keep certain rights to the land along with the produce. So too in this case, it is evident that the donor intends to give the guf of the esrog along with the peiros; accordingly, the recipient can discharge his obligation with it.

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Kinyan Peiros for Bikkurim

By: Rabbi Avi Lebowitz

The Gemora cites the dispute between Rabbi Yochanan and Rish Lakish whether a kinyan peiros (acquiring the produce) qualifies as a kinyan ha’guf (an acquisition of the land). The Gemora has two applications of this argument. One is that if a father gifts the body 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 outlive 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 bikkurim, whether one is able to read the parshah when they only have a kinyan peiros.

The Rashbam explains that according to Rish Lakish that kinyan peiros wouldn’t entitle someone to read the parshah is because they couldn’t say “the land which was given to me,” but they would be obligated to bring the fruits even biblically, because they are included in “that which is brought from the land.”

Tosfos rejects the Rashbam’s explanation because if they aren’t included in the verse of “the land which was given to me,” they shouldn’t be included in “that which is brought from the land” either? Tosfos 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 Gemora in Yevamos says that unless we accept Rabbi Yochanan that kinyan peiros is like kinyan ha’guf, no one would ever be able to read the parshah of bikkurim 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 Rish Lakish?

Tosfos in Yevamos raises this question and says that we only hold like Rish 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 Rabbi Yochanan that a standard kinyan peiros would be like a kinyan ha’guf.

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 (for a limited time) 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 bikkurim because it is like a kinyan ha’guf until it expires. But, when one only has a kinyan peiros, they cannot read the parshah of bikkurim.

The Rosh in a teshuvah 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 “lachem” (being his). But if they have a gift which was given on the condition that it should be returned, it is like a kinyan ha’guf that expires and they can fulfill their obligation with it. Therefore, one who has a kinyan ha’guf on a field that will expire, such as a purchased field that will return with Yovel, qualifies as “that which is brought from the land” because for the time being, when he brings the bikkurim, he “owns” the land (similar to the requirement of “lechem,” which is fulfilled by a kinyan ha’guf that will expire). But, the requirement for reading the parshah is “the land which was given to me,” which means it is his forever, which is not the case, so he cannot read the parshah.

It seems based on the Ketzos that the distinction between the two verses 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.

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Inheritance - Bava Basra 134

What did the Father Intend?

The Gemora tells the story of Yonasan ben Uziel, who received the property of a man who did not wish to have his children receive it. The Gemora explains that Shammai felt that this gift was similar to the gift of Bais Choron, which was conditional on the recipient fulfilling the intent of the giver.

The Rashbam learns that the intent in this case was for the man’s children not to receive the property. Shammai therefore protested when Yonasan ben Uziel gave some of the property to them.

Tosfos (133b Ba) learns that the intent was for the children to receive the property, and the gift was for the man to avoid giving them the property directly, since he had sworn that they may not receive benefit from him. Shammai therefore felt this was the same as the case of Bais Choron, and further thought that Yonasan ben Uziel gave all the property to the children. Just as in the case of Bais Choron, the Sages ruled that a gift given only to circumvent an oath, and not allowing the recipient to consecrate it, is invalid, so Shammai felt that the gift was invalid. Yonasan ben Uziel explained that the father gave him the property as a full gift, and he actually did first sell and consecrate part of it.

The Ritva says that he specifically first sold and consecrated part of it, to ensure that the father meant it as a full gift, as indicated by his not protesting. The gift was thus an unconditional gift, so Yonasan could also give part of it back to the children, and avoid transgressing the oath.

My Brother?

The Mishna says that if one (e.g., Levi) claims that someone (e.g., Yehudah) is his brother, the doubtful brother only splits with the brother who made the claim, but not with the others.

The Rashbam explains that vis a vis Levi, we view the estates as split among all the brothers, including Yehudah, reducing Levi’s share appropriately. For example, if there are two other brothers (e.g., Reuven and Shimon), none of whom are first born, the estate will be split in the following manner: Reuven and Shimon claim there are three brothers, so they each get 1/3, which takes up 2/3 of the estate.

Levi and Yehudah claim there are four brothers. Levi therefore only collects ¼. At this point, 11/12 of the estate are taken. The last 1/12 is given to Yehudah. Although he claims he should be getting ¼, the other 2/12 would come from Reuven and Shimon, who do not accept his claim of being a brother. Levi can therefore tell Yehudah to discuss the remainder of his share with Reuven and Shimon.

Rabbeinu Gershom, however, says that Levi, by claiming that Yehudah is a brother, must split his whole share equally with Yehudah. Therefore, Reuven and Shimon each get 1/3, while Levi and Yehudah each get 1/6. If Yehudah proves to Reuven and Shimon that he is a brother, he will succeed in collecting 1/12 from each. In that case, he must give half of what he collects to Levi, who gave of his share to Yehudah, to compensate for Reuven and Shimon not agreeing to accept Yehudah as a brother.

A Son, for Inheritance

The Gemora says that it is obvious that a man can identify his son regarding inheritance, and therefore the Mishna is teaching us about yibum. The Rashbam says that although we learned from a verse that a man may identify one of his sons as a bechor, indicating that this is not an obvious concept, that is true when we knew the son to be his son, but not a bechor. In that case, the Torah tells us that the man has full power to identify a bechor, even regarding property which he otherwise would not be able to give to the son. However, in the Mishna, where we do not even know this person to be his son, the man has no special reliability. Therefore, all the Mishna is stating is that the man has the power to identify his son, only regarding property which he could otherwise give to him – i.e., present property, or future property that he will have until he is too frail to give it, according to Rabbi Meir, who allows for a gift of future property. That statement is indeed obvious, so the Mishna must be teaching us about yibum.

The Rashba and Ritva, however, understand the earlier verse that allows a man to identify his bechor, to allow a man to identify anyone as his son, even if we have no prior knowledge of a relationship. Therefore, the Mishna is empowering a man to identify someone as his son regarding inheritance, with no qualifications. When the Gemora says that this is obvious, the Gemora means it is obvious because we already know this from the verse cited earlier.

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Inheritor or Guardian?

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The Gemora rules: It is obvious that if he designated all of his property to his adult son, we assume that he only appointed him to be a guardian (for he would not want to take away his other children’s inheritance).

The Rishonim ask: How can our Gemora say that the father’s stipulation is not effective when the Gemora above (130a) explicitly rules that the halachah follows Rabbi Yochanan Ben Berokah?

The Rash”bam (ibid) says that the halachah follows Rabbi Yochanan Ben Berokah only when the father uses the expression “as an inheritance”; however, our Gemora is referring to a case where he used “as a gift” expression, and in such a case, the Gemora here rules that his real intention is to make him a guardian.

The Ram”ban answers that the halachah follows Rabbi Yochanan Ben Berokah only when the father stated his stipulation, however, our Gemora is referring to a case where he wrote it down.

The Ro”sh quotes Rabbeinu Chananel who says that before, the Gemora was referring to a case where he wanted to increase the portion to one son and decrease the portion of another; he did not give his entire estate to one person. Here, we are dealing with a case where he gave one of them his entire estate. In such a case, we may assume that he meant for that person to be a guardian on the estate on behalf of the others.

The Rash”ba explains that the Gemora before was discussing a specific case where he clearly said that he wants that particular person to inherit him and he does not want him to be a guardian.

The Baal Hameor understands our Gemora to be referring to a case where the sons are minors, or they are overseas. In such a case, we assume that the designated son will be appointed as a guardian.

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Bequeathing to One Son

Rava said: Rabbi Yochanan ben Berokah’s reason is based upon the following verse: It shall be on the day that he bequeaths to his sons. This indicates that the Torah gave authority to a father to bequeath to whom he desires to inherit his estate.

It is brought in the Sifri that the father has such a right even on prospective property, i.e. those that he does not currently own, but they will become his. He can say that he wants property that is not actually in existence yet to be inherited by whomever he desires. Reb Akiva Eiger, however, cites the R”if, who holds that the father cannot give away property that is not yet in existence.

There is another dispute regarding this halachah: The Nesivos quotes a Rit”va, who holds that the father may retract from this stipulation up to the moment he dies. The Ketzos Hachoshen disagrees.

The Mikdash David explains these two arguments with the following chakirah: When the father bequeaths his property to one of the sons, is he establishing that this particular son is his sole inheritor, or are all the children inheritors; the father is merely designating this property that it should belong to this particular son?

If the father is establishing that this particular son is his sole inheritor, this stipulation will be effective even on property that is not yet in existence, for once this son has been established as the inheritor, he will inherit whatever potentially should have belonged to the father. If, however, he is merely designating this property to belong to one of his sons, he can only do that on property which currently belongs to him.The same can be said regarding retraction: If the father is establishing that this particular son is his sole inheritor, he cannot retract from that (he may, however, in the future, add other inheritors, for he is not taking away the inheritor status from this son). If, however, he is merely designating this property to belong to one of his sons, he may retract up until the moment that they actually take possession of the property.

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Within the Period of an Utterance

The Gemora issues a halachic ruling: The halachah is that a statement which follows another statement within the period of an utterance is regarded as if it were made together with the first one except in the case of blasphemy, idolatry, betrothal and divorce (according to the Gemora in Nedarim 87a). [If one commits blasphemy or practices idolatry, and immediately, within the period of utterance, retracts, his retraction is unavailing, and he will still incur the death penalty. If a man betroths a woman or divorces her, and immediately thereafter changes his mind, such withdrawal is invalid.]

The Ra”n (in Nedarim) comments that he doesn’t know why these cases are different and from where did the Rabbis derive this. It would seem, he says, that in regards to other things that are not as serious, when a person does them, he doesn’t do them with absolute intent. Rather, his intention is that he will be able to retract them within the time it takes for an utterance. But these, since they are so serious, a person will not proceed unless he has made up his mind completely, and for this reason, retraction, even within the period of time it takes for an utterance, is not effective.

The Ramban quotes Rabbeinu Tam who says that the halacha that within the time it takes for an utterance is regarded as a single utterance is a decree that the Rabbis made because of a student who is purchasing something and his teacher comes, so that he will be able to greet him. They issued this ruling for all things except for these.

The Ra”n asks: How could they make a decree in respect to nedarim which will permanently uproot something from the Torah in a manner that involves actively doing something?

The Imrei Binah answers according to the Rad”vaz, who says that we are more lenient with respect to nedarim because they can be annulled by a sage. Therefore, the Torah gave the power to the Chachamim to permit a Biblical prohibition, even when it involves actively uprooting it.

Reb Shimon Shkop asks on the Ra”n: If the logic that enables one to retract within the period of an utterance is because he lacks absolute intent, how can this apply to the halacha of rending one’s garments over a death? There is no intention required!

They explain as follows: The principle of “within the time required for an utterance” accomplishes that any act performed can be viewed as continuing for a further amount of time (“the period of an utterance”). Therefore, when he rends his garments and then, within the time required for an utterance, discovers who died, it may be regarded as if he tore his clothes at that time.

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Rebbe – “I Say”

Rebbe had said: I say that a ganav is like a gazlan.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

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Admitting the Truth

Rava initially said that if two wives of a man gave birth to sons in the same dark house, and it was unclear which was born first, the two sons can give each other power of representation and together claim one extra portion for whomever is the true first born.

Rav Pappa told Rava that Rabbi Yannai said (due to the braisa cited above) that if the firstborn was never identified, neither gets an extra portion. Only if the firstborn was first identified, but subsequently mixed up, may they use the power of representation to claim the extra portion.

Rava accepted Rav Pappa’s statement, and publicly announced his mistake, and its correction.

HaGaon Rav Chayim Kanievski relates that he was once a student at the Lomzha yeshiva in Petach Tikvah, where HaGaon Rav E.M. Shach zt”l was then a rosh yeshivah. After delivering a shiur Rav Shach would sometimes recheck a chidush and retract his words. He would then quickly pass among his students and call their attention to his error.

Rabbi Y.Z. Winograd zt”l, rosh yeshivah at Etz Chayim in Yerushalayim, told a similar story about his sojourn in Brisk to collect funds for charity. Attending a lesson by HaGaon Rav Chayim of Brisk, it seemed to him that the gaon‟s statements contradicted a passage in tractate Chulin that he had learnt that morning and he whispered, “It seems that in Chulin…” “Yes? What did you want to say?” asked Rav Chayim. “It seems”, replied Rav Winograd, “that the Gemora in Chulin says otherwise.” “Not only “seems”! cried Rav Chayim, “It certainly says just the opposite!” Rav Winograd related that Rav Chayim ended the lesson then and there. At any rate, he became famous throughout Brisk and his charitable mission was crowned with success. Before leaving town, he asked Rav Chayim what he should know to succeed as a rosh yeshivah. “A rosh yeshivah must know”, the gaon advised, “that even if he toils a whole night to prepare a shi’ur and it seems to be excellent and then the weakest student asks a good question that undermines its whole foundation, he should admit his error, even if he is sharp enough to reconcile it because he truly knows that the student is right” (Peninei HaGeriz, p. 173).

Compensation for a Cornea Stolen from the Deceased

by: Meoros HaDaf HaYomi

A doctor performing an autopsy stole a cornea for a transplant and the heirs wanted to sue him for the cost of the eye, assuming that it could be likened to any stolen article. Our next paragraphs do not address autopsies, which constitute a topic on their own, but merely relate to the financial aspect of paying for the theft.

Apparently, the doctor cannot evade compensation to the heirs for the purloined cornea. The organ was worth something and if he stole it, he should pay for it. On closer examination, though, we shall discover that the matter is far from simple.

In our sugya the Amoraim try to find a situation where a person can acquire property without the ability to transfer its ownership to others and the Gemora concludes that such a situation characterizes a person in his final moments (goses) who has lost the power of speech. His inability to speak robs him of the possibility to grant ownership but he can still acquire assets such as by inheritance. It is evident that after his demise he can no longer acquire property or inherit.

The inheritance of posthumous rights

Returning to the cornea, we should first review the halachic treatment of theft. A thief must repay the value of any stolen item to the heirs of the person from whom he stole (Tur, Shulchan Aruch, C.M. 367:4) as heirs take their father’s place and payment to a son, or another heir, is regarded as payment to the father (Beis Yosef, ibid). However, who exactly owns the cornea? If the heirs claim compensation with the assertion that they are the injured party, we must first determine if they inherited the cadaver. As, however, it is obvious that no one inherits his father’s body, that possibility becomes invalid. What, though, about inheriting the right to collect compensation from the thief as in any instance of theft? Still, only the living can gain the right to collect compensation and when the cornea was removed, the deceased, of course, could no longer acquire any rights. No ordinary halachah of inheritance, then, enables the heirs to collect from the doctor (see the topic discussed in HaGaon Rav Y.Y. Fisher’s Responsa Even Yisrael, VII,

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Rebbe – “I Say”

Rebbe had said: I say that a ganav is like a gazlan.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

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Yosef’s Double Portion

It is written [Breishis 48: 4 – 5]: “And He said to me, ‘Behold, I will make you fruitful and cause you to multiply… and I will give this land to your descendants after you for an everlasting inheritance.’ And now, as for your two sons, who were born to you in the land of Egypt… Efraim and Menasheh shall be mine like Reuven and Shimon.”

From the juxtaposition of the two verses, it would seem that Yaakov was telling Yosef that Efraim and Menasheh are entitled to receive a portion in Eretz Yisroel like Reuven and Shimon on account of Hashem’s promise to Yaakov. What is the connection between the two?

The Gemora above stated that Yaakov took the birthright away from Reuven, on account of his sin, and gave the two portions to Yosef’s children. The commentators ask: How could he have done such a thing? The halachah is that one is not allowed to take away the firstborn’s portion even if he does not act properly!?

The Imrei Shefer explains that this is what Yaakov was telling Yosef. Hashem did not give the Land to him yet; it was a guarantee that it will be given to his offspring. If so, it is only regarded as “prospective property,” and a firstborn is not entitled to receive a double portion in that. It would have been fitting for Reuven, the firstborn, to receive a double portion in Eretz Yisroel, but it was not his entitlement.

This, then, is what Yaakov was saying: Since it was merely a promise that in the future Eretz Yisroel will be given to my descendants, there is no prohibition for me to transfer the firstborn right away from Reuven and give it to Yosef.

Inheriting property from one’s Father through his Grandmother

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OPINIONS: The Gemora discusses a case in which a man gave his possessions to his grandmother, stipulating that after her death the possessions should be inherited by his heirs and not by his grandmother’s heirs. The man’s sole heir was his daughter, but she died during his grandmother’s lifetime. The daughter’s husband claimed that he was entitled to the estate.

The “Benei Ma’arava” asserted that if the daughter had been survived by a son, then he would have inherited the estate (in place of his mother). Her husband is not entitled to inherit the estate through his wife, because a husband does not inherit from his wife property that is “Ra’uy” -- property which was not in the possession of his wife at the time of her death but which will come later to his wife, after her death.

Rabbah supports this view by reasoning that had the grandmother sold the possessions, the sale certainly would have been valid (even though she is not permitted to sell the property l’Chatchilah, as the Gemora teaches on 137a), and after the grandmother’s death the property would not have reverted back to the heirs.

How does Rabbah’s proof support the ruling of “Benei Ma’arava”?

The RASHBAM explains that Rabbah means that it is not possible that the father intended to give his daughter the estate itself (Guf ha’Karka), reserving only the Peiros (i.e. the rights to the produce of the property) for the grandmother. His proof for this is that had the grandmother sold not only the Peiros but even the estate, the sale would have been valid. It is evident that the grandmother owns the field until her death, and the man’s daughter would have inherited the property from her had the grandmother died first. A husband, though, does not inherit from his wife property that his wife would have inherited (“Ra’uy”). In contrast, the child of the deceased does inherit property that is “Ra’uy,” and thus had the daughter been survived by a son he would have inherited that property.

TOSFOS (DH l’Ta’amaihu) suggests that according to Rabbah, the man actually intended to give the estate to his daughter, but he reserved the Peiros for his grandmother. It is only because the grandmother can sell the estate that the daughter’s ownership is considered insufficient as far as the husband is concerned, and that is why the daughter’s husband does not inherit the estate from her.

The KOVETZ SHI’URIM (#392) points out that according to the Rashbam, since the daughter never owned the estate, her son would have inherited directly from his grandfather (his mother’s father), and it would have been as if his grandfather had stipulated that the estate should go to his heir’s heir. According to Tosfos, though, since the daughter did own the actual property (except for the rights to the Peiros during the grandmother’s lifetime), her son could have inherited the property from her.

Collecting a Debt Owed to One’s Deceased Wife

OPINIONS: The Gemora says that when a woman dies, her husband does not inherit her property that is “Ra’uy,” property which was not in the possession of his wife at the time of her death but which will come later to his wife, after her death.

When a married woman lends money and dies before she collects the debt, does her husband collect the loan from the debtor?

TOSFOS (DH Amar Rav Papa) maintains that he is not entitled to collect money owed to his wife after her death, even when she lent money of her “Nichsei Melug” (of which the husband has the rights to consume the Peiros).

The ROSH (9:11) rules that in the case of the death of the wife, a husband generally may not collect loans owed to his wife, except when the money that she lent was from her “Nichsei Melug,” property owned by the wife from which the husband is entitled to eat the Peiros. Since the produce belongs to the husband, the money is considered to be in his possession, and she had no right to lend it out. Therefore, the husband collects the money even after her death.

The MAGID MISHNEH (Hilchos Nachalos 1:11) cites the view of the RI MI’GASH who rules that a husband does collect loans owed to his wife after his wife dies. He asserts that the Rambam also seems to be of this opinion.

HALACHAH: The SHULCHAN ARUCH (EH 90:1) rules that a husband may not collect loans owed to his deceased wife.

The BEIS SHMUEL there (#6) adds that since this is the opinion of the majority of Rishonim, even if the husband seizes the money from the debtor and claims that he is certain that the ruling of the Ri mi’Gash is correct, his claim is not accepted and he must return the money.

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Rebbe – “I Say”

Rebbe said: I say that a firstborn son does receive a double portion in the natural appreciation of an estate which accrued after the father’s death, but not in the appreciation which the orphans brought to the estate after the father’s death.

Many times in Shas, it is found that Rebbe used this terminology, “I say etc.” What was his intention with these words?

Reb Yosef Engel in Beis Haotzar explains that it is known that Rebbe was a tremendously humble person. The Gemora in Sotah (49a) states that when Rebbe died, humility ceased. Perhaps what Rebbe was saying was that it appears to him that the halachah is like this-and-this, but not that it is most definitely so.

He also writes that it is clear from the seforim of the students of the Baal Shem Tov that lofty people are constantly thinking that their words and actions are not emanating from their own power and strength; rather, it is all coming from the Ribbono shel Olam. In kabbalah, the Shechinah is referred to as “Ani,” “I.” This is the explanation in the Gemora Sukkah (53a) when Hillel said, “If I am here, then everyone is here.” The “I” did not refer to himself, for Hillel, we also know was extremely humble. Rather, he was referring to the Shechinah. This, perhaps, is what Rebbe was saying when he said, “I say.” The Shechinah which is inside of me is saying that the halachah is like this.

The Letters of “Bechor”

Meoros HaDaf HaYomi cites the Maharal of Prague who states that the root letters of bechor (“firstborn”) are all multiples of 2, indicating his right to a double portion of his father’s estate: beis = 2; kaf = 20; reish = 200.

The Vilna Gaon adds that beis, kaf and reish are the only letters having a value double that of those before them in alphabetical order: alef = 1; beis = 2; yud = 10; kaf = 20; kuf = 100; reish = 200; and to indicate this sign, the Torah always spells bechor without a vav (cholam) as vav is not twice the value of hei, the letter before it.

Other sources cite the Ariz”l that the letters beis, kaf and reish even indicate the halachah that a firstborn does not take a double portion of assets to accrue but only of those existing at his father’s demise: Several letters have a value double that of others. Ches, for example, = 8 and dalet = 4. Beis, kaf and reish, though, are the only ones with a value double that of the letters next to them in alphabetical order, indicating that a firstborn only takes a double portion of the assets immediately available (Telalei Oros on Ki Teitzei).

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Leah’s Tears

Rav said: Her eyes were actually tender, but that was not disparaging to her, but rather, it was praise to her. Leah, at the crossroads, would hear people saying, “Rivkah has two sons and Lavan has two daughters; the older daughter (Leah) should be married to the older son (Esav), and the younger daughter (Rochel) should be married to the younger son (Yaakov).” And Leah sat at the crossroads and inquired about the conduct of the older one. They told her, “He is a wicked man, who robs people.” And when she asked regarding the conduct of the younger one, they replied to her, “He is a decent man, dwelling in tents.” She wept (and prayed that she would not marry Esav) until her eyelashes fell out (so this attests to her righteousness).

Why did she begin to cry only after she heard that Yaakov was righteous? It was her understanding all along that she would be married to the older one, so as soon as she heard that the older one was evil, she should have cried then!?Why did she even enquire about the younger one’s behavior? And, on the contrary! After she was told that the younger one was decent and righteous, she should have been happy for her sister; why cry then?

Ben Yehoyada answers that a righteous woman has in her power to convince an evil man to repent. Leah, upon hearing that the older one was evil, did not cry, for she was confident that she would be able to convince Esav to mend his ways and become righteous. However, after she enquired about the younger one, and found out that he too was extremely righteous, and although the two brothers grew up in the same house, Yaakov could not have a positive influence on his brother Esav, Leah knew then that she would not be able to change someone so steeped in evil. That is why she cried.

RACHEL’S MODESTY

The Gemora proceeds to record the incident of Rachel’s modesty. It is written [Breishis 29:12]: And Yaakov told Rachel that he was her father’s brother. Was he her father’s brother? Wasn’t he in fact the son of her father’s sister? This is the explanation: Yaakov said to Rachel, “Will you marry me?” She replied, “Yes, but my father is a trickster, and he will outwit you.” He replied, “I am his brother in trickery.” Rachel asked him, “Is it permitted for the righteous to indulge in trickery?” He replied, “Yes,” and the Gemora cites a verse in Shmuel proving that one is permitted to act crookedly with a crook. Yaakov asked her, “What is his trickery?” She replied, “I have a sister who is older than me and he will not let me get married before her.” Yaakov gave to Rachel certain identifying signs in order that Lavan would not be able to exchange Leah, the older sister, with Rachel. When the wedding night came, Rachel said to herself (upon realizing that her father intended to give Leah to Yaakov instead of her), “My sister will be embarrassed.” She handed over the secret signs to her.

Dr. Mark Berkowitz cited the Ben Yehoyadah who explains this Gemora. He states that the secret message and signs that Rachel and Yaakov exchanged on the first day that they spoke at the well were kept secret by both of them for the seven years that Yaakov labored for Rachel’s hand in marriage. He states that the only way that this secret could have worked and Leah could have possibly replaced Rachel was if Yaakov and Rachel did not meet or talk during those seven years. He points out that this is the great modesty that she displayed over these seven years.

Rabbi Aryeh Leib Scheinbaum in Peninim on the Torah Parshas Korach provides a similar explanation. [This article is provided as part of Shema Yisrael Torah Network.]

The Medrash teaches us that On ben Peles was saved as a result of listening to his wife. She asked him, “What do you gain by being involved in this dispute? Regardless who triumphs, you still emerge as the loser. If Aharon is selected as Kohen Gadol - you are his student. If Korach becomes the Kohen Gadol - you are still nothing more than a student. Why involve yourself in a ‘no win’ situation?” On’s wife spoke with seichal, common sense. Is this a reason to praise her? Basically, she only did what any level-headed person would do.

Horav Nosson Vachtfogel, zt”l, offers a penetrating insight into the matter. He cites the Gemora in Megillah 13b where Rabbi Elozar claims that as reward for Rachel Imeinu’s tznius, modesty, she merited that Shaul Hamelech be descended from her. When did she demonstrate such exemplary tznius? Chazal explain that when she gave her sister, Leah, the simanim, special signs, that Yaakov Avinu had given her, she acted with exemplary modesty. Rashi explains that her tznius lay in the fact that she never publicized her selfless act of devotion to her sister. She never divulged to Yaakov what she had done. She was prepared to give up that for which she had strived for so much - the opportunity to be the progenitor of the Shivtei Kah, tribes of Klal Yisrael. She did not once call attention to her exemplary act of kindness. This is tznius at its zenith.

Rav Nosson posits that included in the middah of tznius is the ability to maintain a shev v’al taaseh, status quo, attitude in regard to a situation in which one is unsure of what to do. He does not take a chance and plunge forward regardless of the consequences. No - tznius demands that one sit back and not act, rather than act rashly. Likewise, one who is a tzanua will not divulge a secret. If one is asked for information about someone and he does not know the person, it takes tznius to say, “I do not know.” Regrettably, there are those who are quick to conjecture and state their own opinions about someone, even though they are baseless.

Rav Nosson remembers that, prior to being asked by Horav Aharon Kotler, zl, to become the first Mashgiach of the Beth Medrash Govohah, he was asked by a talmid, close student, of Rav Aharon regarding a controversial sefer that was on the table in one of the Yeshivah’s classrooms. The Mashgiach responded, “I do not know.” This response prompted the talmid to approach Rav Aharon and suggest that Rav Nosson be appointed as Mashgiach of the Yeshivah. It takes someone who possesses the strength of character to assert “I do not know” to be the Mashgiach of the Lakewood Yeshivah. This was the power of On ben Peles’ wife. She had the ability to see and stress the shev v’al taaseh attitude: “If either way you will not be the victor, why bother involving yourself in the fray of the controversy? Stay at home and stay out of trouble.” It takes tznius to act in such a manner. On was fortunate that his wife had the necessary character trait - and he had the wisdom to listen to her.

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A Portion for Levi

The Rashbam and Tosfos write that in the Messianic era, the division of Eretz Yisroel will be different in two respects.
1. The Tribe of Levi will receive a portion along with the other tribes.
2. Menasheh and Efraim will receive a portion as one tribe – the sons of Yosef; and not as two different tribes.

The Ra”n, Maharsha and others all challenge this from the verses in Yechezkel which clearly indicate that Yosef will receive two portions. It is also evident from there that Levi will not receive a portion at all!?

The verse that mentions Levi and also mentions Yosef as one is referring to the twelve gates that will be in Yerushalayim corresponding to the twelve tribes.

The Minchas Chinuch asks: How can it be that in the future, the prohibition against giving the Tribe of Levi a portion in Eretz Yisroel will be violated? A prophet does not have the right to institute any new commandments, so how could Yechezkel negate this prohibition explicitly written in the Torah?

Reb Dovid Pavarsky answers that the prohibition was not that Levi should not receive a portion; rather, it was that Levi should not take a portion that was not his. In the future, they will not be taking a portion that does not belong to them! It will be rightfully theirs!

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CALCULATIONS OF DEATHS

Rabban Shimon ben Gamliel said: There were no holidays for Israel like the 15th of Av and Yom Kippur. The Gemora offers several reasons for the celebration on the fifteenth of Av. Rabbah bar bar Chanah states in the name of Rabbi Yochanan that this was the day that the last of those who were destined to die in the desert died and that was when Hashem returned to speak to Moshe.

Rashbam cites the words of Chazal which are found in the Yerushalmi and the Medrashim in Eichah. Rabbi Levi said: Each year on the eve of Tishah b’Av, an announcement would be sent throughout the camp, saying: “Go out and dig graves, go out and dig graves.” The people would go out and dig graves and sleep in them. In the morning it would be announced to separate the dead from the living. They would arise and find their number diminished. In the last of the forty years, they did this but found themselves undiminished. They said, “We must have made a mistake in counting. Could it be that the Elders had miscalculated the beginning of the month through a mistaken sighting of the new moon?” They did the same thing on the tenth, eleventh, twelfth, thirteenth, fourteenth, and fifteenth, but still no one died. When the moon was full, they said, “It seems that the Holy One has annulled the decree from all of us,” so they made the fifteenth a holiday. They rejoiced at the realization that their entry to Eretz Yisroel was imminent. It was at that time that prophecy returned to Moshe.

Tosfos asks that according to this, they ceased to die on the ninth of Av preceding the last year. Why wasn’t the prophecy returned to Moshe from that year? He answers that since they were still under the impression that the following year, there once again will be thousands of deaths; they were still in a state of sadness and the Shechinah does not rest on one who is not happy. It wasn't until the fifteenth of Av when they came to the realization that there will be no more deaths; that brought about joy and the Shechinah came down to Moshe.

Tosfos states that every year there would be a little more than twenty-one thousand deaths. The deaths over twenty-one thousand totaled fifteen thousand over the duration of the forty years.

The Maharsha and other commentators ask on Tosfos that there were 603,000 people who came out of Egypt, and according to Tosfos, if you make the calculation, it would emerge that over the course of forty years, there will be over eight-hundred thousand deaths.

The Chavos Yair (250) cites from Harav Dovid Oppenheim who explains that any year that Tisha b’Av occurred on Shabbos; there would be no deaths. According to the calendar, it would emerge that there were nine times that this occurred in the Wilderness. It emerges that there were only twenty-eight years that the Bnei Yisroel would die. Multiply twenty-one thousand times twenty-eight and that will total five-hundred and eighty eight thousand. The numbers more than twenty-one thousand, over the course of the forty years equaled fifteen thousand and that is how the 603,000 people died.

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Miracle of Yocheved

The Gemora states that Yocheved bore Moshe when she was 130 years old, as Hashem performed a miracle and restored her to a youthful state.

The Ibn Ezra (Braishis 46:23) questions why the Torah does not even mention this miracle, when it goes to such length to describe and expand upon the miracle Hashem did to allow Sarah to conceive at the age of 90.

The Magid Midubno says that at the time of Sarah, it was rare for a woman to miraculously conceive a child under such conditions, and thus the miracle was a rarity and deserving of elaborate mention. However, at the time of Moshe’s birth, Chazal tell us that the women gave birth to six children at a time. At a time when miraculous childbirth was so common, the miracle of Yocheved conceiving at the age of 130 was not as outstanding, and therefore is not mentioned explicitly.

Age vs. Wisdom

The Gemora discusses the precedence of age vs. Torah wisdom in various settings. The summary of the halachah, as ruled in Shulchan Aruch (Y”D 244:18) is:
Older person Wiser person Torah setting General celebration
Advanced age Extraordinarily wise Wiser Older
Advanced age Wiser Older
Older Extraordinarily wise Wiser
Older Wiser Older

The older person only takes precedence if he is somewhat wise in Torah as well.

Husband vs. Sage in Oaths

The Gemora compares and contrasts hatarah and hafarah. The mechanism of the two and their parameters are different, and are not interchangeable. A Sage who invalidates an oath does hatarah, and by discovering a reason why the person regrets the oath, or would have never made the oath, makes the oath as if it were in error, and never in effect. However, a husband who breaks his wife’s oath, since it brings her discomfort, or impacts on their relationship, is empowered by the Torah to do hafarah, which removes the oath’s prohibition on his wife from this point on.

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DESCENDANTS OF YOSEF

The Gemora in Sotah (36b) explains: Even though Levi was below, the people standing by Mount Gerizim were more numerous because the descendants of Yosef (who were very populous) were with them; as it says: And the descendants of Yosef spoke to Yehoshua, saying, “Why have you given me but one lot and one portion for an inheritance, seeing that I am a huge nation?”

Rashi in Yehoshua notes that the descendants of Yosef were from the Tribe of Menasheh. The Radak explains that the descendants of Efraim did not have any legitimate complaint, for they had more people in their tribe when they left Egypt than now, when they entered Eretz Yisroel. Menasheh, on the other hand, had a valid complaint, for they had twenty thousand and five hundred more people now than when they left Egypt. The portions of land were allocated according to the amount of people each tribe had when they left Egypt, and since they were more numerous when they entered Eretz Yisroel than when they left Egypt, each one of them would be receiving a lesser portion.

Minchas Yaakov adds that this explanation can inferred from the verse which states that the descendants of Yosef spoke to Yehoshua. Reb Yaakov Kaminetzky in Emes l’Yaakov asks: Why by the spies, does the Torah state, to the Tribe of Yosef, to the tribe of Menasheh, but by Efraim, the Torah only writes, to the Tribe of Efraim? Why isn’t Yosef’s name mentioned? He answers that it is written [Breishis 48: 5 – 6]: And now, as for your two sons, who were born to you in the land of Egypt, until I came to you, to the land of Egypt they are mine. Efraim and Menasheh shall be mine like Reuven and Shimon. But your children, if you beget any after them, shall be yours; by their brothers’ names, they shall be called in their inheritance. The children born to Yosef afterwards did not merit being included in the Tribe of Yosef. Yosef had the choice of delivering them to any tribe that he wished. Since Menasheh was the firstborn, he combined all of his other children with them. It emerges that the descendants of Yosef, who were not offspring of Menasheh and Efraim, were included in the Tribe of Menasheh. It is for this reason that the Torah writes, to the Tribe of Yosef, to the tribe of Menasheh.

Our verse, which states that “the descendants of Yosef spoke to Yehoshua” is referring to the Tribe of Menasheh, which consisted of Menasheh’s offspring, plus the offspring of Yosef.

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The Masculine Gender Used for an Heiress

By: Meorod Hadaf HaYomi

According to Rabbeinu Tam in Tosfos (s.v. Melamed), Anah mentioned in the verse “and these are the children of Tzivon: Ayah and Anah” was a daughter, though later referred to in the masculine gender: “…he is Anah”. The reason, he asserts, is that her brother Ayah died before Tzivon’s demise and she therefore inherited Tzivon’s estate.

Rebbe Heshel of Krakow zt”l supported the view that heiresses are referred to in the masculine from the story of Tzelofchod’s daughters: Hashem tells Moshe to give them (lachem, in the masculine) a portion of their father’s estate (Bemidbar 27:7) as they inherited it like any sons (Chanukas HaTorah, Pinchas).

The commentator Pardes Yosef adds that Yaakov said to Rachel and Leah: “Hashem saved your father’s (avichem, in the masculine) livestock and gave it to me” (Bereishis 31:9). Lavan had no sons till Yaakov came to Charan (see Rashi on Bereishis 30:27) and his estate would have fallen to Rachel and Leah. Hashem saved the property destined for Rachel and Leah from Lavan’s sons and gave it to Yaakov.

The Torah’s Viewpoint on the
Rights of Inheritance

The Torah says in Bemidbar 27:8 that “if a man dies without a son, pass his estate to his daughter.” Now, had we been asked to formulate the verse, we would probably write “if a man dies, pass his estate to his son and if he has no son, to his daughter.”

In his Torah Temimah (ibid), Rabbi Baruch Epstein explains that the Torah thus hints that a son is his father’s natural heir and that there is no need to state this detail. The Torah starts to dictate the order of inheritance from the point where a father has no son.

The Torah Temimah is just one of the commentators who elucidate that the Torah’s order of inheritance may be understood by ordinary intelligence. For many reasons, a son is his father’s natural heir. Even his name, ben, is related to the word boneh – “builder” – as a son builds and perpetuates his father’s family. Nachalah – “inheritance” – comes from nachal, a “stream,” in the sense that it forms a continuity, and, in contrast, the Torah calls passing an estate to a daughter ha’avarah – “transfer” (HaGaon Rav Binyamin Tsvi Rabinovitz-Teomim zt”l in Be’inyan Yerushas HaBas).

In his Dinei Mamonos, HaGaon Rav Yechezkel Abramsky zt”l asserts that a son’s inheritance is not a statute beyond our understanding – a chok – as our sugya in 119b quotes Tzlofchod’s daughters as saying “had he a son, we would not have spoken”; i.e., they themselves understood that a son would have been the natural heir (see Tosfos, s.v. Ilu).

A Person Wants his Relatives to Inherit his Estate

In his aforesaid work, Rav Abramsky explains that the inner logic of the Torah’s property-related statutes conforms to human understanding since the Torah sees deeply into human nature. The first rule of inheritance, for example, determines that the closest relative takes precedence in inheriting the estate if there are no children. We understand this rule quite well as any person who has toiled his whole life to amass an estate wants the person closest to him, of all his family, to inherit it. The Torah also explains the firstborn’s double portion of the estate as his due because of his being the first of his father’s “strength” (Devarim 21:17). A firstborn is beloved to his father like an only child before he has more children, with a love unshared with others. Moreover, a firstborn usually helps his father in his business to increase his wealth and therefore earns a double portion.

“And it will be to you…a statute of judgment”

What about twin boys born within minutes of each other or other instances where the above characteristics of a firstborn do not actually apply? Rav Abramsky therefore explains the following important point: The laws of inheritance express the deceased’s intention and conform to human understanding. Once the Torah rules them, however, their observance does not depend on our understanding, as the final verse in the chapter on inheritance concludes: “…and it will be to you…a statute of judgment” (Bemidbar 27:11). A general rule of the Torah is that many halachos are based on logical estimation, such as that a wife only makes a vow that her husband would approve, etc., but once the Torah determines them, they cannot be changed.

Should Daughters Sign that they Relinquish any Inheritance Rights?

A daughter inherits no part of her father’s estate if she has brothers but over the generations various people have tried to uproot the halachah and match it to gentile custom. The first were the Tzedokim (Sadducees), as mentioned by our Gemora, who were strongly repressed by our sages.

Rabbi Shlomo ben Aderes, known as the Rashba, reacted vociferously to those claiming that “the law of the government is the law” and that daughters should be given inheritance rights equal to those of sons (Responsa Rashba, VI, 254, cited in Beis Yosef, C.M. 26): “There will never be such a custom in Israel lest the Torah be girded in sackcloth because of them” (regarding “the law of the government”, see Vol. 5 of the bound series Meoros HaDaf HaYomi, p. 124).

A Signature has a Price

Still, the laws of various countries caused a disagreement among halachic authorities. In some places the law ruled that no estate should be divided till all the heirs sign that they consent to the planned division and daughters sometimes refused to sign till their brothers paid them a considerable fee or, say, compensation. Is such a demand legitimate? In his Responsa Penei Moshe (II, 15), HaGaon Moshe Benbeneshti remarks that some believe that a daughter does not have to sign any document without receiving a fair price – some say 10% of the worth of the estate and some say even more (see Responsa Shoel Umeshiv, 2nd edition, I, 1 and III, 110; Chukos HaChayim by HaGaon Rav Chayim Falaji, 184; etc.) while others say that the fee should be ruled by a beis din according to the exigencies of each circumstance (Responsa Rav Pe‟alim, II, 15).

A Sister’s Signature is like Returning a Lost Article

Nonetheless, Maharit and other halachic authorities hold that a sister must sign such a declaration out of her simple obligation to return a lost article – the estate – to her brothers as without her signature, they would be losing it. The Chasam Sofer even describes any attempt to extract a fee for such as outright robbery (Responsa, C.M. 142). In his Responsa Tzitz Eli‟ezer (XVI, 52), HaGaon Rav E.Y. Waldenberg cites Responsa Divrei Chayim (C.M., II, 3) that the poskim tend to be lenient toward the sisters and grant them a fee for their declaration and signature.

Though, strictly speaking, daughters do not inherit their father’s estate if they have brothers, our sages instituted regulations for the welfare of those daughters who are still minors, as explained in Kesubos 52b: The brothers must support their minor, unmarried sisters and give them funds to enable their marriage. We shall even learn further in Chapter 9 of our tractate that when funds from the estate are limited, daughters are given precedence over the sons for their basic needs. A custom began about 700 years ago for a father to give his daughters a document for “half of a male’s inheritance” (shtar chatzi zachar) at their marriage. Moreover, some families have a custom for the sons to voluntarily grant a considerable portion of their inheritance to their sisters though the latter are not allowed to demand such.

We conclude with Rav B. Rabinovitz-Teomim’s clarification that the above regulations are not meant to rectify the Torah, as some Reformers charged, but to rectify our lives (Kuntres Be’inyan Yerushas HaBas). The regulations serve to apply the light of the Torah to all situations and for all times, providing support and building protective fences in all facets of life.

The Tradition that no Tribe ever becomes Extinct

What Is a Tribe?

The above quote from our Gemora condenses the entire subject of the twelve tribes of Israel. We understand that our nation is eternal, with no possibility of ever disappearing, but there is also a vital need for the perpetuation of the twelve tribes. Our division into twelve tribes stems from our very essence as a people and cannot be canceled and there will always be at least one person surviving from each tribe to enable their perpetuation. As a source for this principle, the Rishonim cite the verse in Malachi (3:6) that “I, Hashem, have not changed and you, the sons of Yaakov, have not become extinct” (Rashbam, s.v. Amar Abayei in the name of Rabeinu Chananel; Yad Ramah on Sanhedrin 69b).

Israel’s division into twelve tribes is hinted in Hashem’s promise to Yaakov in Bereishis (35:11): “A nation and a community of nations will come from you”, a double expression that needs clarification.

HaGaon Rav Y.Z. Soloveichik of Brisk zt”l points out Onkelos’translation: “a nation and a collection of tribes” (Chidushei HaGriz al HaTorah, Vayechi). In other words, aside from the promise that the Jewish nation will arise from Yaakov’s offspring, Hashem promised that that nation will be comprised of tribes.

With the understanding that the twelve tribes are like the vital members of one body, Rav Soloveichik explains the verses in Bereishis 48 concerning the selection of Menasheh and Efrayim as distinct tribes. Yaakov informs Yosef that Hashem told him: “I shall make you fruitful and plentiful and shall allow you to be a community of nations” (again translated by Onkelos as “a collection of tribes”) and then adds that Efrayim and Menasheh “will be to me like Reuven and Shimon”, blessing them with “the redeeming angel will bless the boys and my name will be called in their midst.” Ramban and Rashbam comment on this passage that Yaakov’s name being called in their midst refers to the perpetuation of their offspring. Yaakov made Efrayim and Menasheh into tribes making them inseparable from the whole nation, essential members of the same body and, consequently, eternal (see more illuminating expansions on the topic, ibid).

Now, remarks Rav Soloveichik, we can better understand the meaning of Rabeinu Gershom Meor HaGolah in his Selichos prayer “Remember the covenant of Avraham and the binding of Yitzchak,” said on the eve of Rosh HaShanah and, with expansions, on the Fast of Gedaliah (Mateh Efrayim, 603). We ask Hashem to remember “the covenant of the fathers, the mothers and the tribes.” We know about the covenant with the fathers and mothers but what covenant was made with the tribes? Indeed, says Rav Soloveichik, this refers to the tradition recorded in our sugya that no tribe ever becomes extinct and we therefore plead: “The covenant of the fathers, the mothers and the tribes, Your mercy and kindnesses with the passage of time, Hashem, remember the stricken and afflicted who are slaughtered for you all the day long.”

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Retracting a Kinyan

Rabbah and Rav Yosef argue about when a kinyan may be retracted. Rabbah rules that a kinyan may be retracted as long as the parties are still sitting. Rav Yosef rules that a kinyan may be retracted as long as the parties are still discussing the transaction.

What type of kinyan are Rabbah and Rav Yosef discussing? The CHIDUSHEI HA’RAN quotes an opinion that explains that the Gemora refers only to a matnas shechiv mei’ra (the gift of a deathly ill person), because a sick person is likely to retract his words as long as they are talking about the topic of his estate. In contrast, in the case of a matnas bari (the gift of a healthy person), the person may retract his words only “toch ke’dei dibbur” – (within the time of an utterance).

The RASHBAM (D”H Hachi Garsinan) explains that the Gemora clearly refers to the type of kinyan which the Gemora discussed previously, a matnas bari or a matnas shechiv mei’ra. The Ran quotes this opinion in the name of most of the Rishonim, including the RAMBAM and RAMBAN. The Rashbam explains that one certainly may retract the kinyan as long as the parties are still discussing the conditions of the transaction (the gift). The Chachamim understood that a person does not finalize the gift until he is satisfied with all of the conditions which he stipulates.

Does this reasoning apply to other forms of kinyanim? The ROSH (#5) writes that the Chachamim gave time for the parties to consider the conditions of the transaction only in the case of a kinyan chalifin (which is often used to finalize a matanah). However, “in other kinyanim, such as where the person picks up, pulls, or gives over an object... a person cannot retract the kinyan after ke’dei dibbur.” The Rosh clearly says that although there is no extended time period in which one may retract in the case of other kinyanim, one may retract any kinyan within the time of “toch ke’dei dibbur.”

RABEINU YONAH initially agrees with the Rosh, but then he says that one can argue that when one takes possession of an object (movable objects) through meshichah or one takes possession of land through chazakah, the kinyan is finalized with the action of the kinyan, and it cannot be retracted even within “toch ke’dei dibbur.”

Why, though, should meshichah and chazakah differ from all other forms of kinyan? RAV GERSHON EIDELSTEIN shlit’a writes that Rabeinu Yonah clearly understands that the degree of finality of an act of kinyan in the mind of the person depends on the specific type of kinyan. For example, when the Gemora in Nedarim (87a) states that acts of kidushin and gerushin cannot be retracted even within “toch ke’dei dibbur,” it is because the acts of kidushin and gerushin are so serious that a person deems them final at the moment he performs the act. Similarly, when one performs an act of meshichah or chazakah, such an act may be considered more final and conclusive than other forms of kinyanim.
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What’s in a Sign?

The Gemora, before citing the various reasons offered for the second verse referring to a husband, includes the word “siman” - sign. This word usually introduces a mnemonic device for the information which will be presented. However, our text of the Gemora simply has the word siman, with no obvious mnemonic device. Some write that the device was lost. Others offer novel interpretations of what the word siman is meant to convey in our Gemora. Some say that the word is actually the name of a sage, either Siman or Seemon. Others explain that the word siman or a variation are reflective of the answers given (ish, yidbeku, matos, ben), while some say that the missing word of the mnemonic device is Amar, for the names of those offering the answers (Rav Ashi, Rav Nachman, Rava).

Transfer to a Son;
Transfer to a Husband

The Gemora cites two braisos that explain the meaning of the two verses that prohibit the transfer of a woman’s inheritance to another tribe.

The Rashbam says that the text of the Gemora states that we have one braisa that focuses on the transfer to a son, and one that focuses on the transfer to a husband. The first braisa cited is the one which cites the first verse, and states that it refers to a transfer to a son, since the second verse already refers to a transfer to a husband. The Gemora introduces this braisa as the one which focuses on the transfer to a son, since it begins with that transfer. The second braisa cites the second verse, and states that it refers to transfer to a husband, since the first verse already refers to the transfer to a son. The Gemora introduces this braisa as the one which focuses on the transfer to a husband, since it begins with that transfer. The Gemora then proceeds to discuss why both braisos agree that the second verse refers to a transfer to a husband.

Rabbeinu Tam (112b Hachi Garis) disagrees with the Rashbam, and offers a different text of the Gemora. The first braisa cites the first verse about transfer, and states that it refers to transfer to a husband, proving this from the fact that the second similar verse is referring to such a transfer, indicating that both verses, in context, are only referring to a transfer to a husband. This first braisa is introduced as the braisa which focuses on the transfer to a husband, since it accepts only such a transfer as forbidden. The second braisa cites the second verse, and states that it refers to a transfer to a husband, since the first one already refers to a transfer to a son. The Gemora then discusses why both braisos – although they differ on the meaning of the first verse – agree that the second verse refers to a transfer to a husband.

Rabbeinu Tam challenges the Rashbam’s reading. According to the Rashbam, both braisos agree in the meaning of both verses, so there is no reason for the Gemora to identify them as focusing on different transfers. Furthermore, the Gemora could have stated that both braisos agree on the first verse referring to the transfer to a son, and not just to their agreement on the second verse.

Below is the flow of the Gemora, according to Rashbam and Rabbeinu Tam:

Rashbam Rabbeinu Tam
There is a braisa that focuses on transfer to a son, and one that focuses on transfer to a husband
The one which focuses on a son is: The one which only forbids transfer to a husband is:
Braisa 1:
First verse refers to a son, by process of elimination, since second verse refers to a husband First verse refers to a husband, from the context of the second verse, which refers to a husband
The one which focuses on a husband is: The one which also forbids transfer to a son is:
Braisa 2:
Second verse refers to a husband, by process of elimination, since the first verse refers to a son
Both braisos agree that the second verse refers to a husband
[They differ only in emphasis] [They differ on the first verse only]

The Kovetz Shiurim discusses what practical difference there between being concerned about a transfer to a husband or if we are also concerned about a transfer to a son. He lists three possible differences:
1. The prohibition of transfer to a husband takes effect as soon as they are fully married, and he inherits her (nisuin), while the prohibition of transfer to a son will take effect only upon conception or birth.
2. If a woman is sterile, there will be no prohibition due to transfer to a son, but only due to transfer to her husband.
3. If the husband relinquished his right to inherit his wife, there is no transfer, and the marriage is permitted. However, the prohibition of transfer to the son will still be in effect.

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“His Plot”

Rav Pappa asked Abaye: How can it be proven from there that a husband inherits his wife? Is it not possible to maintain that a husband, in fact, does not inherit his wife, and as to those Scriptural verses (the first three), they may speak of a transfer through the son (when a daughter inherited property, married a man from a different tribe; when she dies, her son will be her heir, and her inheritance will have transferred from one tribe to another)? And the verses discussing Yair and Pinchas might not be referring to an inheritance at all, for perhaps Yair bought those cities, and Pinchas bought that hill (and the purpose of the verses is merely to demonstrate their wealth)!?

Abaye responded: It cannot be said that Pinchas had bought the land, for, if so, it would follow that the field must be returned by Yovel, and it would emerge that the righteous man (Elozar ben Aharon) would be buried in a grave which was not his own.

The Nimukei Yosef writes that our Gemora teaches us that it is a lack of dignity for the deceased to be buried in a grave site owned by another.

The Chasam Sofer (Responsa Yoreh Deah 330) citing our Gemora as its source says that the prevalent custom is that everyone pays for his own grave. Even a poor person, who lacks the means to pay full price, nevertheless should pay something, even at a considerably reduced price - for his own burial plot.

He writes that there was an incident where the Chevra Kadisha was charging an enormous amount of money for a burial plot, so much so, that it made the price which Avraham paid Ephron Hachiti seem miniscule. He proves from there and from our Gemora that it is of extreme importance that the burial plots should belong to the deceased in order that it satisfies being “his plot.”

“Al haDaf” quotes the Dover Meisharim (Responsa, Vol. 1:4) who asks that even if we say that Pinchas inherited the property from his wife, how would we refer to this as “his plot” in reference to Elozar?

He answers that Pinchas had an available solution, for he could have given land as a present to his father (he cites Responsa Rashba that there is a possibility of acquisition for a dead person) and this is according to Rabbi Meir (Bechoros 52b) who rules that a gift does not return by Yovel.

He also offers another novel interpretation that “his plot” really means the son’s plot - a plot that the son bought or inherited, and there is actually no need to gift it to the father who has died.

They add that the example that the Chasam Sofer cites, regarding Sarah, would prove either hypothesis. Either Avraham gifted the plot to Sarah after her death, or the requirement of “his plot” here would refer to Avraham, and since he was her husband that would suffice.

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Hashem’s Kal Vachomer

Why did Hashem respond to Moshe through a kal vachomer (and not any other way)?

The Baal Shem Tov answers that Moshe Rabbeinu davened to Hashem to heal Miriam by saying: “Keil na, refa na lah” – Please Hashem, heal her now. It is known that the thirteen principles of biblical hermeneutics correspond to the Thirteen Attributes of Mercy. The first of the biblical hermeneutics is a kal vachomer. It corresponds to “Keil” of the Thirteen Attributes of Mercy. Since Moshe opened his tefillah with “Keil,” Hashem responded with a kal vachomer.

When Rabeinu Gershom Sat a Double Shiv’ah for his Son

By: Meoros Hadaf Hayomi

The Rishonim relate the sad story that the son of Rabeinu Gershom Meor Hagolah together with his mother, Rabeinu Gershom’s second wife, left the Jewish faith. Subsequent halachic authorities record that Rabeinu Gershom sat shiv’ah for his son for a period of 14 days.

Maharam of Rottenberg remarks in his Responsa (§544) that there is no obligation to sit shiv’ah for those who convert to another religion (Shulchan Aruch, Y.D. 340:5) but that Rabeinu Gershom did so out of his extraordinary sorrow.

Radvaz confirms the fact that Rabeinu Gershom sat shiv’ah for his son, not mourning his death but rather that his son had not repented while alive (Responsa Radvaz, III, 558).

Other sources, though, report that he mourned for his son while he was still alive and as for the 14-day period, the Or Zarua (II, 428) offers an explanation in the name of his mentor, Rabbi Shimshon zt”l: Rabeinu Gershom learnt his behavior from our sugya concerning Miriam. Hashem’s honor is double that of even a parent and if a person mourns seven days for a human who has left this world, one should surely mourn 14 days for the loss of a soul to Hashem by apostasy.

The Gerer Rebbe zt”l, author of Imrei Emes, wondered about this reasoning: According to our sugya, Hashem Himself ruled that even though by ordinary logic, His honor is double that of a parent and Miriam should have been punished for 14 days – still, “da’yo…” - that which is learnt from another instance should not be more severe” and she was therefore punished for only seven days. Why, then, did Rabeinu Gershom mourn for 14 days? The Imrei Emes explains in the name of his brother-in-law, the Rabbi of Bendin zt”l, that only Hashem could apply “da’yo” to forgo His honor whereas we cannot ignore Hashem’s honor and the logic of extending the mourning to 14 days still holds for us [Michtevei Torah, 55-56].

The firstborn Takes a Double Portion

2, 20, 200

According to the Maharal of Prague, the root letters of bechor (“firstborn”) – i.e., beis, kaf and reish – hint at his right to a double portion of his father’s estate as all their numerical values are multiples of 2: beis = 2, kaf = 20 and reish = 200! Others point out that beis, kaf and reish can be rearranged to spell berech, “a knee”: Just as our knees support our whole body, a firstborn supports his father.

And if her Father Spat in her Face

HaGaon Rav M.M. Krengel zt”l expressed a wonderful idea about the story of Miriam described in our sugya: The Midrash (quoted by Rashi on Shemos 2:1) relates that when Pharaoh decreed for every newborn son to be thrown into the Nile, Miriam’s father Amram left his wife Yocheved and all the Israelites followed suit. Miriam, though, protested to Amram that his decree was worse than Pharaoh’s: “Pharaoh issued a decree against the sons but you issued a decree against both sons and daughters!” Miriam thought she was justified in admonishing her father as, in her opinion, he had transgressed the Torah: after all, according to Beis Shamai, a person has fulfilled the mitzvah to be fruitful and multiply only if he begets two sons and, at that time, Moshe had not yet been born. Still, when many years later Miriam complained about Moshe because he isolated himself from his wife, she was also punished for upbraiding her father as Moshe already had two sons, Gershom and Eliezer.

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Root of Yehonasan’s Sin

By: Reb Avi Lebowitz

The Gemora states that a person’s children will inherit the attributes of the family he marries into. Moshe married the daughter of Yisro who spent his life steeped in idolatry and therefore had Yehonasan as a grandson who served as a priest for the idol of Micah. But, Aharon, who married the daughter of Aminadav (sister of Nachshon), had Pinchas who was a great tzadik.

The connection between marrying the sister of Nachshon and having a child like Pinchas seems clear. Nachshon was known for his dedication to sanctifying Hashem’s Name, being the first to jump into the Yam Suf. Pinchas was also moser nefesh by being mekadesh shem shamayim by killing the Nasi of Shimon, despite the ridicule he had to suffer (as the Gemora says that all the Tribes mocked him that he descended from Yisro who worshiped idols).

It would seem that the connection between Yisro and Yehonasan is also clear. They were both involved in idolatry. But, the Gemora on 109a explains that Yehonasan was misled by a tradition that he heard: A person shall rather hire himself out to service idols rather than be in need of the charity from others. Yehonasan understood this literally, that for sustenance, one may work as a priest for idolsh.

The Rashbam seems troubled by how he could made such a mistake and writes that Yehonasan thought that as long as he is not intending to worship the idols, he is not doing anything wrong. This seems to be an honest mistake based on the misunderstanding of the tradition, so why does the Gemora indicate that he was evil? He never actually worshiped idolatry!?

The Rashbam quotes a Yerushalmi that elaborates on the behavior of Yehonasan. Yehonasan was entirely motivated by money. People would bring sacrifices to t Michah’s idol, to which Yehonasan would say that they are wasting their time. He would then tell them that they should give him precious gifts and he will bring it to the idol. When they left he would indulge in the gifts. When confronted, he admitted that the idol has no power and he is only working there for sustenance. The sin of Yehonasan is that his desire for wealth blinded him from realizing what he is doing. He may have honestly been confused and thought that the tradition allowed him to do what he was doing, but the only reason he made such a grave error is because he was blinded by his desire for wealth.

\Where did this great desire for wealth and physical possessions come from? Perhaps this came from Yisro. In Parshas Yisro we find that Yisro comes to Moshe (according to Ramban, it was prior to the Giving of the Torah), and after giving Moshe advice, he returns to his family, but the Ramban explains that he came back again while the Jews were still camped as Sinai. Then in Parshas B’ha’aloscha (10:29), he tries to leave again. Why? Rashi explains that he wanted to go back to his wealth rather than join the Jews into Eretz Yisroel. Moshe then begs him not to leave because, as Rashi explains, people will say he only converted to get a portion in Eretz Yisroel, so when he realized that converts aren’t entitled to a portion, he left. Moshe then has to guarantee Yisro some financial incentive to get him to stay. Rashi explains that the “good” that is being referred to is that when Eretz Yisroel was divided, Yisro received the fertile land of Yericho, which he would have until the time when the Beis Hamikdash would be constructed. The Ramban (Yisro) understands from this Rashi that Moshe successfully convinced Yisro to stay by offering financial incentive. Targum Yonasan also says that the good that Moshe promised to Yisro was a portion in Eretz Yisroel.

Based on this, we can suggest that the poison that Yisro brought into the genetic pool of Moshe’s descendants was not service of idol because Yehonasan his grandson never actually worshiped idols. The poison that Yisro brought, which the Gemora refers to, is the great desire for material wealth that caused Yehonasan to make such a fatal error.

Should you check out your future wife’s brothers nowadays?

By: Meoros Hadaf Hayomi

Rava asserts the well-known rule that he who plans to marry should check her brothers since, as Rashbam comments, “most of a woman’s children resemble her brothers” (s.v. Sheyivdok). The purpose of the examination is not to determine the woman’s own nature as that can be perceived by observing her, but aims to foresee her children’s character as they are assumed to resemble her brothers (Chida in Pesach Einayim on our sugya).

Rabeinu Tam explains that the link between a woman, her brothers and her children stems from their all having the same mazal (Tosfos, Yevamos 62b, s.v. Vehanosei). If so, why examine her brothers? If she and her brothers have the same mazal, would it not suffice to examine her alone? The answer is that males and females have different natures even if being under the same mazal; hence one must check her brothers to see how her sons will be (Maharal, Chidushei Agados).

The Gemora in Yevamos (63a) remarks that he who weds his sister’s daughter will enjoy marital bliss and the Meiri (ibid) attributes this promise to the fact that they have the same nature.

Rabbi Vidal HaTsarfati, who lived over four centuries ago, offered an alternative explanation in his Imrei Yosher on Midrash Rabah (Shemos 6:23): A woman’s children are accustomed to be in their uncles’ homes and, in a sense, are also brought up by them and learn from their behavior. (See also the commentaries on tractate Soferim, end of Ch. 15; Maharsha on our Gemora; Gur Aryeh on Shemos ibid; etc.)

The rule to check out one’s prospective brothers-in-law is not mentioned by Rambam, Shulchan Aruch or other halachic works. Rabbi Yehudah HeChasid, though, stresses the severity of the matter (Sefer Chasidim, 374-78) and the Shelah HaKadosh even adds that anyone not obeying the rule “deviates from our Sages’ instructions and is considered as abandoning life” (Shnei Luchos HaBeris on Shemos 6:23).

We can further understand the application of the issue from the advice offered by the Steipler Gaon Rav Yaakov Kanievski zt”l, to a young man who had difficulty finding a shiduch. The boy eventually was engaged to a young woman whose brother had completely left the path of Torah and mitzvos and he asked the Steipler if he was acting wisely or perhaps should renege on the shiduch.

Rav Kanievski then offered six reasons to adhere to the shiduch:
(1) There should be no worry if she also has observant brothers as her children might well resemble them in their behavior.
(2) Most people fail to heed this Talmudic warning and the Gemora itself says of similar cases “Hashem guards the naïve” (Tehilim 116:6; Yevamos 12b; etc.).
(3) Was her brother exposed to a negative environment as a young child and, as a result, tempted from the right path? If so, he is judged as a child led into captivity and not responsible for his actions.
(4) The stinging insult to the fiancée if the shiduch is canceled should be considered.
(5) If the boy cancels the shiduch, he won’t easily find another and might remain single for a long time.
(6) The ruling is not cited by halachic authorities and is apparently intended as merely an extra measure of piety (midas chasidus).

Finally, Rav Kanievski concluded that the young man should decide the matter for himself (Orchos Rabeinu, IV, p. 255, and quoted almost in full in Karyana D’igarta, II, 18).

What should you check for?

Rav Kanievski’s pupil, HaGaon Rav A. Horvitz, reports that his mentor offered another reason to forgo examining her brother (ibid, p. 234): In former times, families lived in a totally observant environment and a brother who deviated from the right path apparently indicated that something was amiss in his family. Now, though, the very streets are awash in heresy, the media tempt the youth in all directions and parents cannot protect their children from exposure to deleterious influences. A brother who stops being observant nowadays has no bearing on his family and we should have no worry as long as the potential bride is worthy and virtuous.

HaGaon Rav E.M. Shach zt”l further remarked that the examination concerns character and attributes, not actions which depend on a person’s choice (Michtavim Umaamarim, VI, p. 128).

A Woman of Valor, Who Can Find?

Concerning Rava’s warning to examine a prospective bride’s brothers, the Chida found the topic hinted in the initials of “A woman of valor, who can find?” – eishes chayil mi yimtza, spelling achim – brothers; alternatively, mi ach? – “Who is the brother?” (Pesach „Einayim, on our sugya; Kisei Rachamim on tractate Soferim, end of Ch. 15; Bris Olam on Sefer Chasidim, p. 374).

HALACHOS OF THE DAF

Not Accepting Charity

One should distance himself from accepting charity, and should live a life of poverty, rather than to avail himself unto others. Chazal say that a person should make his Shabbos a weekday (i.e. he shouldn’t spend so much), rather than to collect charity. Even if he is a well respected Talmid Chacham that became poor, he should work, even in a menial labor, just so that he shouldn’t have to accept charity.

Having said that, if a person can’t survive without accepting charity, and he can’t work due to sickness or old age, or even if his salary can’t make ends meet, and such a person doesn’t accept charity due to pride or misguided piety, then it’s as if he committed murder. Furthermore, all the pain and suffering that he has because of his poverty, will not be considered merits; on the contrary, it will be considered sins.

However, a person who can survive, and he chooses to live a life of abject poverty just so that he won’t have to avail himself unto others, Hashem guarantees him that he will eventually become wealthy and he will support others.

If a charlatan collects charity when he has no need for it, he will eventually become poor and really need charity.

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We do not Start with a Punishment

By: Meoros HaDaf Hayomi

A Lesson in Composition

The Gemora had asked that the Mishna should first state that sons inherit their father, as we do not start off with punishments (sons dying in the lifetime of the father)!

It is noteworthy that the Rambam begins his Laws of Divorce with the statement: “A wife is never divorced except with a written document called a get”. Radvaz comments that Rambam chose that mode of expression, as opposed to saying “A wife is divorced with a written document…” since our sugya explains that we should never open a topic with punitive connotation. We should not want a wife to get divorced and Rambam therefore wrote that she “never” gets divorced except in certain conditions” (Responsa Radbaz [manuscript], 1).

A Niece Is a Granddaughter?

The Rashbam frequently refers to a niece as a granddaughter (neched - s.v. Velo manchilin), as also evidenced later (114b, s.v. HaIshah). HaGaon Rav Shemuel Shtrashun and other commentators tried to find a solution with no success while Mahari Ya’avetz attempts to correct the text. A certain rabbinical scholar told us that we have no need for any correction: The Rishonim in France sometimes called nephews grandchildren, such as in the Rosh’s responsa addressed to “my grandson” but signed “your uncle” (see, for instance, Kelal 12:3, 98:1, etc.). Apparently, the same word was used for nephew and grandson or niece and granddaughter in the Romance languages of that era.

How do Heirs Assume Ownership of their Inheritance?

The process of an heir’s acquisition of an estate from the deceased has no parallel in the realm of halachos relevant to the acquisition of property. The Acharonim explain that an inheritance involves no usual property-related kinyan as customary in other transfers of assets. When a father passes away, rather, his son takes his place and therefore assumes ownership of all the deceased’s assets. In other words, property usually moves or is taken into another’s ownership whereas in the instance of inheritance, the former owner departs and another takes his place while the property stays put (see Chidushei HaGaon Rav Naftali Trop, Bava Basra 126b; Nesivos HaMishpat 276, S.K. 4; Responsa Machaneh Chayim, II, C.M. 41). The method of this transfer of ownership has far-reaching implications as to the types of assets included in an inheritance. A person, for example, cannot acquire an item stolen from its owner and not on his, or the original owner’s, premises. A son, though, inherits all his father’s property, even if stolen, as he simply assumes his father’s place: just as his father would still own assets stolen from him, the same applies to the son.

Distributing Funds Earmarked for Charity Included in an Estate

One of the more frequent implications of the above halachah is expressed if the deceased set aside funds for the poor. An heir finds, for instance, that, aside from not having been distributed, the money had never been designated for any particular person or group. While the father was alive, only he, of course, had the right to choose to whom to give the funds (Remo, Y.D. 257:10). Do his heirs, however, inherit that right as well or should the money be distributed in some other fashion? Indeed, the topic is far from simple: After all, even the father could not sell or grant the right, known as tovas hanaah, to another as it “lacks substance” and cannot be transferred. Rav Hai Gaon defines the matter by comparing an article acquired or transferred to the owner’s body: just as our bodies have material substance, we can acquire property or transfer its ownership only if that property has physical dimensions (Sefer HaMikach, Sha’ar 2). The right, then, to choose to whom to distribute charitable funds cannot be transferred or sold. In the light of the above, though, that a son takes his father’s place, does he also inherit this apparently untransferrable right?

The Shach (C.M. 276, S.K. 5) and Nesivos HaMishpat (ibid, S.K. 4) hold that, based on this principal, a son also inherits the right of tovas hanaah. As far Rav Hai Gaon’s rule, they contend that the maxim refers to all property matters except inheritance since, as explained above, inheritance is an automatic change of ownership, not bound by the rules of other methods of acquisition. Still, Ketzos HaChoshen (ibid) maintains that tovas hanaah can’t be inherited as it is not, in itself, a property-related right in the usual sense. In his opinion, then, the son must give the funds to the first poor person he meets or who approaches him, or leave them where the poor can divide them among themselves (see ibid; Taba’as HaChoshen, ibid; and Beiur HaGera, S.K. 23, who holds that tovas hanaah is a weak property-related right that cannot be inherited).


A Wife Inherits from her Husband

Are Bank Accounts always Divided among all the Heirs?

A fascinating question was referred to HaGaon Rav Chayim Ozer Grodzhinski zt”l, the chief rabbi of Vilna. A local Jew passed away, leaving a huge sum in a bank account. According to halachah, his widow is entitled to the amount stipulated in her kesubah while the other heirs divide the rest of the estate. The bank, in conformity with local laws, regarded the widow as the sole heir and bestowed her with the entire sum in the account whereas the other heirs were denied access thereto. Being conscientious in her observance of mitzvos, she turned to Rav Shlomo Heiman, later famous as Rosh Yeshivah of Torah VaDaas in Brooklyn, and asked if the halachah obligated her to transfer the huge sum to the other heirs. This is apparently the halachic decision we would have reached.

Now, most people are accustomed to consider their bank accounts as “deposits.” They, and the bankers, say they “deposit” money in the bank and we are all familiar with “linked deposits,” CDs (certificates of deposit) and the like. Still, these so frequently used terms are basically wrong. A deposit – pikadon – as used in the Talmudic and halachic literature, is anything given to another to be kept or watched or used without exchanging it for an identical item or harming it. The money you give a bank clerk, then, is not a deposit as it, itself, will not be returned, but rather a loan. Funds put in a bank are not watched there but their value is accredited to your account. In our case, then, the deceased lent the bank money and, according to halachah, the latter must repay it to his heirs. The bank, however, accredited the widow with the whole amount. Has she received the deceased’s money? No! It belongs to the bank and was mistakenly accredited to her, such that she has no obligation towards the other heirs. (She is not even considered as having caused them a loss [gerama], as the laws of the country forbade their access to the funds). Rav Heiman sent this wonderfully simple decision to Rav Grodzhinski, who remarked that the issue had long been obvious to him (Chidushei Rabbi Shlomo, Kesavim Uteshuvos, 8).

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Collecting a Debt from the Brothers

It was stated: If brothers split an inheritance, and a creditor took one of their portions, Rav says that their division is nullified (and they divide the remaining estate). Shmuel says: The brother lost his portion. Rav Assi says: The brother whose possessions were seized should take a quarter of his brother’s land or one quarter of money. [The other brother has the right to give one-quarter money or one-quarter land.]

Tosfos asks: What gives the creditor the right to collect his debt from only one of the brothers? Isn’t the responsibility to repay the father’s debt equally shared by both brothers? He should not be able to seize property that belongs to one, and not the other!?

Tosfos answers: We are referring to a case where the father made this particular land into an apotiki. (A person may designate any type of property as security to the creditor without placing it in the possession of the creditor. The creditor has a lien on this property, and if the debt is not otherwise repaid, the creditor can collect his debt from the security. This security is called an apotiki.) It is this land that the creditor wishes to seize. Tosfos continues that it cannot be speaking that the father told the creditor, “You can collect from any other place,” for if so, he would not be able to push off the creditor by paying him with money.

The Rosh (Bava Kamma 1:6) writes that the halachah which requires the creditor to collect equally from all the brothers is only if he is able to collect a complete field; but he is not required, however, to take half a field from one brother and half from another. The reason for this is because it is not a proper payment and lenders would refuse to lend money. Accordingly, the Pilpula Charifta writes that it is not necessary to interpret the Gemora to be referring to an apotiki. Rather, we can say that if the creditor would not collect the property of one brother, he would be compelled to take half a field from each brother. It is for this reason that he has the right to take the field from one of the brothers.

HALACHOS OF THE DAF

Dividing an Inheritance with an Unknown Brother
When a person dies, his inheritance is divided by his sons by means of a lottery. However, there are times when the sons must divide the inheritance a second time. Below are two scenarios.

Two brothers that divided an inheritance, and then along came a third brother whom they never knew existed, the halachah is that the entire dividing is void, and they split the inheritance again; this time - including the third brother.

This is true even if the two brothers had inherited three fields, and had divided it between themselves, and each brother received a whole field and half of the third. Then the third brother made his appearance and his lot fell on the third field that was split. Even if the third brother is happy with this arrangement, any one of the brothers may void the entire dividing of the inheritance, and they must all draw lots again. Furthermore, even if the third brother is satisfied with the third field even without having to draw lots, any one of the brothers may void the splitting of the inheritance. The reason for all of this is, since originally, it was a mistaken division, the entire lottery can be voided.

Another scenario would be, if after dividing the inheritance, one of the fields got taken away by a person who lent their father money and now is collecting his debt. Here too, the division is voided, and they all once again draw lots to divide the inheritance.

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Delineating a Field

By: Reb Yechezkel Khayyat

The Mishna discusses a case of one who delineates the field he is selling. By delineating the field, we allow more leeway in an error in the field’s size.

The Rashbam and Tur (quoting the Rema) say that the same is true if the seller showed the field to the buyer, and told him that he was selling “this field.” However, the Ri Migash says that showing an actual field is equivalent to the earlier case of hen chaser hen yeser (more or less), and does not have the same leeway as our Mishna.

The limit of the error accepted in such a sale is a sixth of the specified size. The Rashbam explains that although this amount is the same as the proportion for ona’ah (over or under charging), the mechanism is different. The limit in the case of a delineated field is simply a measure of how far away from the specified size a buyer will forgive, while the limit in ona’ah is defined by the variation accepted in a marketplace.

Beyond a sixth, the Mishna says that the price must be adjusted. The Rosh and Ran say that the adjustment is for the whole error. The Kesef Mishnah (Mechirah 28:12) holds that the Rambam agrees, while the Magid Mishnah suggests that the Rambam may only obligate a reduction in price to bring it to within a sixth of the specified size.

Exactly a Sixth

The Gemora cites the dispute of Rav Huna and Rav Yehudah in the case of an error of exactly a sixth of the size, with Rav Huna placing it together with less than a sixth, and Rav Yehudah placing it together with more than a sixth.

The Rishonim discuss different versions of the text of the Mishna, and how they are read according to Rav Huna and Rav Yehudah.

The Mishna rules on two cases:
1. pachos mishtos (less than a sixth): valid sale
2. Until shtos price must be adjusted

The versions of the first case are:
1. pachos shtos = a sixth less [than the size] (Tosfos 106a Hachi)
2. pachos mishtos = less than a sixth [away from the size] (Tosfos ibid)
3. piches shtos = [if he] reduced [the size] by a sixth (Bach note 3)
4. piches mishtos = [if he] reduced [the size] by less than a sixth (Bach note 1)

According to the first and third versions, this case seems to read simply like Rav Huna. In fact, this is a weakness with these versions, since Rav Huna proceeds to explain how to read this first case in accordance with his ruling. Rav Yehudah has to read this case, “[up to] a sixth less.” According to the second and fourth versions, the Mishna does not explicitly discuss the case of a sixth, leading to the dispute.

The second case of the Mishna discusses the rule ad - until a shtos. Here, Rav Yehudah and Rav Huna dispute whether this ad - until is inclusive or exclusive.

Tosfos explains that Rav Yehudah can explain that the Mishna did not explicitly discuss a sixth in the second case, lest we think that more than a sixth would invalidate the sale. According to Rav Huna, the Mishna did not explicitly discuss a sixth in the first case, to indicate that a sixth is a valid sale, just as much as less than a sixth is.

A Silver Goblet Raffled a few Times on Purim

By: Meoros Hadaf Hayomi

Our sugya explains that the heirs to a commonly inherited estate may divide it by lots and, according to Rav Ashi, the halachic validity of the lottery is based on the heirs’ consensus to divide the estate by that means. We bring you a story about a Purim raffle held somewhere in Germany about 325 years ago, next-door to HaGaon Rav Yair Bachrach, author of Responsa Chavos Yair.

A dozen exuberant friends and relatives were having their Purim banquet at the same table. Somewhat inebriated, they decided to raffle an expensive silver goblet with each paying a participation fee. Each of their names was written on a separate slip and put in a box while another box held 12 more slips – 11 blank and one announcing mazal tov! The word was given and a child was picked to take out a slip with a name from the first box and another slip from the second. On the first try, the slip from the second box was blank but already on the second try, the slip from the second box said mazal tov and the happy winner was handed his prize. Some people, though, wondered how anyone could win so soon and decided to examine all the slips. They then found another mazal tov slip in the second box and an argument soon erupted. The winner claimed that his luck caused him to win and had there been merely one such slip, he would also have won while the other participants insisted that the whole raffle was invalid as the original conditions of 11 blank slips and one mazal tov had not been met. All the participants went to Rav Bachrach’s home and the Gaon instructed them to conduct the raffle anew.

This time, someone else won but the situation was just as confusing. One of the participants examined all the slips in the box of names and discovered one missing. They all wanted to invalidate the raffle but the winner asserted that as there had been just 11 names in the box, each of the 11 had had a greater chance to win so what are they complaining about? “The only one I should confront,” he retorted, “is the twelfth, whose name was missing, and I’m willing to compromise and give him a third of the goblet’s worth.” The group again came to Rav Bachrach who ruled that even if the twelfth person would agree to the compromise, the others could invalidate the raffle (Responsa, 61).

He found a source for his decision in our sugya: Two brothers divided three fields of equal size by drawing lots. Reuven got field A and Shimon field B and they then divided field C equally between them. They then discovered another brother, Levi, whom they had never known and the three drew lots anew for the entire estate while Levi won field C! In Tosfos’ opinion (s.v. Ushmuel), Rav and Shmuel disagreed if a new lottery should be conducted or if Reuven and Shimon could keep their originally won fields and just give field C to Levi without drawing lots. The halachah was ruled according to Rav invalidating the first lottery entirely and we thus deduce that a lottery or raffle somehow excluding a participant who should have been included is invalid.

Basic Conditions for the Results of a Raffle to be Binding

According to the Chavos Yair, the reason for the above halachah is that the results of a lottery must be determined strictly by Hashem without human machinations or errors. Divine providence works its effect only when a lottery or raffle is conducted properly. If, then, even 13 slips had been put in the name box, with someone’s name appearing twice, and even had that person not won despite his greater chances, the other participants could invalidate the raffle as a raffle not conducted according to the rules has no validity.

This novel opinion, that even someone whose name was recorded twice could invalidate a raffle, was supported in a wonderfully simple explanation by HaGaon Maharil (Reb Yehoshua Leib) Diskin zt”l in his commentary on the Torah (Miketz). The twice-inscribed person could claim that he paid to participate in the raffle, assuming he had a chance to win. Had he won, though, the other participants could invalidate the proceedings, being that his name was recorded twice and thus giving him a greater chance to win. This very possibility, then, invalidates his participation retroactively since he had no chance of winning. Moreover, he could further claim that Divine providence wants him to win but his name did not appear for even had he won, the others would invalidate his winning anyway; he is therefore allowed to invalidate the whole procedure.

The Winner of the Lottery Gets the Aliyah

In a certain congregation in Eretz Yisroel, the members decided that, for the sake of good order, the Shabbos when a bar mitzvah boy would be called to maftir should be determined a year in advance. One day, a congregant came to the gabai and informed him that his son would be bar mitzvah and receive maftir the coming Shabbos. He already sent invitations, he asserted, and the desired aliyah laTorah was even mentioned therein. The gabai protested that that Shabbos was reserved for another bar mitzvah boy whose father obeyed the regulations and had advised the congregation a year ago. The question was referred to HaGaon Y.S. Elyashiv, who ruled that the son had no reason to suffer because of his father’s negligence and that the boys should draw lots for their aliyah (Tuvecha Yabi’u, II, p. 68).

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WHEN THE SELLER GETS BACK LAND

By: Rabbi Yaakov Montrose

The Mishna (103b) teaches that when the size of a field is estimated at a beis kor (thirty se'ah) at the time it is sold, both the buyer and the seller must agree to accept a loss or a gain of one quarter of a kav per se’ah. This means that if there is up to one quarter of a kav of extra land per se’ah, the buyer may keep that land. If the extra land is more than one quarter of a kav per se’ah, “the seller has the upper hand in a case where he gave nine extra kav in a field.” Rav Huna and Rav Nachman disagree about the intent of the Mishna. Rav Huna explains that the Mishna means that if the land contains nine extra kav including the one extra quarter of a kav per se’ah that a buyer normally is allowed to keep, all of the extra land goes back to the seller. Rav Huna understands that the seller would never intentionally add so much land, which itself is considered a proper field. Therefore, in a case in which an area of two kor (60 se’ah) of land was sold and one quarter kav was left per se’ah, all of the extra land returns to the seller.

Rav Nachman disagrees and explains that every kor may contain up to seven and a half extra kavin. If there is more than nine kav, the land returns to the seller.

What does Rav Nachman mean to say?

The RASHBAM (DH v'Iy) explains that Rav Nachman means that if there is even a small bit more than a quarter of a kav per se’ah, and altogether there is more than nine extra kav, all of the extra land goes back to the seller. Accordingly, whether the extra land returns to the seller depends on the size of the land being sold. If two kor are sold and there is one quarter of a kav extra per se’ah, all of the extra land goes to the buyer unless the extra land is slightly more than one quarter of a kav per se’ah. If one kor is sold and there is one quarter of a kav extra per se’ah, the buyer keeps the land. If, however, in this second case there is one kav and a half more of extra land, all of the land goes back to the seller. If there is more than seven and a half kav but less than nine kav extra, the buyer must compensate the seller for all of the extra amount (including the seven and a half kav; see Rashbam to 103b, DH Yeser Mikan). This is also the opinion of the RA'AVAD.

The Rashbam cites another opinion which explains that when Rav Nachman says, “If there is more than nine kav it goes back,” he means more than nine kav over the normal amount of one quarter kav per se’ah, regardless of how many kor are being sold.
The Rashbam cites a third opinion which explains that if there is more than nine kav per kor, all of the land goes back to the seller.

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HALACHOS OF THE DAF

Selling a Specific Beis Kor


If the seller said, “I’m selling to you this beis kor”, then it’s as if he said “I’m selling to you a beis kor even if it’s more or less than an exact beis kor.” Therefore, if there is found to be missing up to a 24th of a se’ah (a se’ah is 6 kav and a kav is split into quarters) which is a quarter-kav, or there was found to be extra, up to a quarter-kav, then the sale stands, and neither the buyer or the seller needs to give additional money.

If there is found to be missing or extra land, more than a quarter-kav, then all quarter-kavs that were missing, the seller pays back to the buyer, and all the quarter-kavs that were extra, the buyer returns to the seller.

It is interesting to note, that if only one quarter-kav was extra (or missing), then the sale stands, but if for example there were two extra, then both get returned. The reason explains the S”ma, is that once they start returning, everything that is not exactly a beis kor gets returned as well. Since the seller certainly does not intend to let the buyer receive that much extra land, he therefore takes back all of the extra land. The S”ma cites other examples where the halachah follows this logic.

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Bequeathing to One Son

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Rava said: Rabbi Yochanan ben Berokah’s reason is based upon the following verse: It shall be on the day that he bequeaths to his sons. This indicates that the Torah gave authority to a father to bequeath to whom he desires to inherit his estate.

It is brought in the Sifri that the father has such a right even on prospective property, i.e. those that he does not currently own, but they will become his. He can say that he wants property that is not actually in existence yet to be inherited by whomever he desires. Reb Akiva Eiger, however, cites the R”if, who holds that the father cannot give away property that is not yet in existence.

There is another dispute regarding this halachah: The Nesivos quotes a Rit”va, who holds that the father may retract from this stipulation up to the moment he dies. The Ketzos Hachoshen disagrees.

The Mikdash David explains these two arguments with the following chakirah: When the father bequeaths his property to one of the sons, is he establishing that this particular son is his sole inheritor, or are all the children inheritors; the father is merely designating this property that it should belong to this particular son?

If the father is establishing that this particular son is his sole inheritor, this stipulation will be effective even on property that is not yet in existence, for once this son has been established as the inheritor, he will inherit whatever potentially should have belonged to the father. If, however, he is merely designating this property to belong to one of his sons, he can only do that on property which currently belongs to him.The same can be said regarding retraction: If the father is establishing that this particular son is his sole inheritor, he cannot retract from that (he may, however, in the future, add other inheritors, for he is not taking away the inheritor status from this son). If, however, he is merely designating this property to belong to one of his sons, he may retract up until the moment that they actually take possession of the property.

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