# dafyomi

lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WITNESSES WHO SAY THAT THEY SIGNED IMPROPERLY (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Summation of question:</font></b> Why does R. Meir say they are not 
          believed to say that they were forced to sign?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Rav Chisda):</font></b> He holds that witnesses should 
          forfeit their lives rather than sign falsely.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection (Rava):</font></b> If they would consult with us, we would 
          instruct them to sign and live. Why shouldn't we believe 
          them?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One may transgress anything to save a life, except 
               for idolatry, incest, or murder.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> (The case is, the borrower admits that 
          the document was valid, but he says that he paid.) R. 
          Meir holds like Rav Huna:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If Shimon agrees that a document (that 
               says that he owes Reuven) was written properly, 
               Reuven need not prove that the signatures are valid. 
               (We do not say that Shimon is believed Migo (since) 
               he could claim that the document was forged.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Rav Nachman (to Rav Huna):</font></b> You deceive people! If you 
          hold like R. Meir, say that the Halachah follows R. Meir! 
          (By saying the law in your own name, you imply that all 
          agree to it!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rav Huna:</font></b> How do you hold?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rav Nachman:</font></b> In such a case, I tell Reuven to verify the 
          signatures first. (If not, we believe Shimon due to the 
          Migo.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A DOCUMENT OF TRUST</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> If he says that the document is Amanah 
          (the borrower trusted the prospective lender and gave to 
          him the document before the loan was given), he is not 
          believed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Who claims that it is Amanah?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Certainly, the borrower is not believed to say this!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the lender says this, he should be blessed for 
               his honesty (we need not teach that he is believed)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> We must say that the witnesses are saying 
          this.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> If we can verify their signatures without them, 
          of course they are not believed! If we cannot verify 
          their signatures without them, why shouldn't they be 
          believed?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> Really, the borrower claims that it is 
          Amanah. He is not believed for the reason of Rav Huna 
          (since he admitted that the document was written 
          properly, he is not believed with a Migo that he could 
          have said that it was forged).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #3 (Abaye):</font></b> Really, the lender says that it is 
          Amanah. It is a case where his admission hurts others 
          (his creditors), like R. Nasan's law:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Nasan):</font></b> If Reuven owes to Shimon and Shimon owes 
               to Levi, we take money from Reuven to pay Levi - 'He 
               will give to the one to whom the principal is due'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #4 (Rav Ashi):</font></b> Really, the witnesses say that it 
          is Amanah, and we cannot verify their signatures without 
          them.	They are not believed, due to Rav Kahana's law:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Kahana):</font></b> One may not keep a document of Amanah 
               in his house - 'Do not let Avlah (fraud) dwell in 
               your home'.
<br>
<br>

sjt:
<font><b>1) THE REASONING OF REBBI MEIR</b></font><b>
<br>OPINIONS:</b> The Gemara (18b) quotes the ruling of Rebbi Meir that even when the witnesses' signatures on a document are not authenticated from an external source, the witnesses are <i>not</i> believed to say that they were coerced to sign falsely even when they say they did so because their lives were in danger. The Gemara explains that the ruling of Rebbi Meir is based on the opinion -- as expressed by Rav Huna in the name of Rav -- that that when a borrower admits that he wrote a loan contract, the document is binding and does not need to be verified by witnesses. Moreover, the borrower may not invoke the principle of 'ha'Peh she'Asur Hu ha'Peh she'Hitir' and claim that he should be believed that he paid back the loan on the basis that he is the one who validated the document in the first place. The fact that he originally could have said that the Shtar was not valid does not give him more trustworthiness.
<br> 
<br>How does the opinion of Rav Huna in the name of Rav explain Rebbi Meir's ruling?
</p><p>
(a) <b>RASHI</b> (DH Ein ha'Malveh) explains that the Gemara's discussion of Rebbi Meir's ruling with regard to a borrower refers not only to when the borrower admits that he wrote the loan document, but also to when he told the witnesses to sign the document. When Rebbi Meir states (in the case of the Mishnah) that even when the signatures are not authenticated from an external source the witnesses are not believed to say that they were coerced to sign falsely, he refers to a case in which the borrower admits that he wrote the Shtar himself and had the witnesses sign it. Accordingly, there is no reason to believe the claim of the witnesses (for they are not the 'Peh she'Asar').
</p><p>
<b>TOSFOS</b> (DH Ta'ama) questions this explanation. If the focus of the case is the <i>borrower</i>, why do Rebbi Meir and the Rabanan discuss a case in which the focus is the claim of the witnesses?
</p><p>
(b) <b>TOSFOS</b> quotes <b>RABEINU TAM</b> and the <b><b><b>RI</b></b></b> who explain that the reasoning of Rebbi Meir in the case of the Mishnah is identical to the reasoning in the case of a borrower who is not believed to say that he repaid the loan when he admits that he wrote the Shtar. In both cases, the claimant (the borrower or the witnesses) is not believed on the basis that he could have claimed that the Shtar was forged. (The Rabanan maintain that this logic applies only in the case of a borrower but not in the case of witnesses; see <b>RITVA</b>.)
</p><p>
Why, though, is this claim not valid? 
</p><p>
1. Tosfos (DH Modeh) explains that the borrower is afraid to use the claim that the Shtar is forged, because the lender can prove him wrong by bringing proof that the Shtar is legitimate. Accordingly, he has no believability on the basis that he could have claimed that the Shtar was forged. On the other hand, he is not afraid to say that he paid back the loan, since there is no way that the lender can prove that he is lying.
</p><p>
2. Tosfos adds another explanation in the name of Rashi. According to Torah law, a Shtar is considered valid and Beis Din does not need to be concerned that it is forged. The Rabanan decreed that when one claims that the Shtar is forged, the Shtar may not be used until it is verified. Accordingly, when the borrower or witnesses agree that the Shtar was not forged, the Halachah follows the Torah law that the Shtar is valid.
</p><p>
This answer is difficult to understand. Although according to Torah law the Shtar is valid, the borrower still should be able to claim that the Shtar is invalid mid'Rabanan, since the Rabanan decreed that his claim necessitates validation of the Shtar.
<br> 
<br>The <b>KOVETZ SHI'URIM</b> (volume 2, 3:4) writes that Rashi here has a different understanding of the concept of 'Migu.' Normally, the concept of 'Migu' means that one should be believed with his present claim because had he wanted to lie, he would have said the better claim. Rashi here understands that a 'Migu' gives a person believability for a different reason: since the person would be believed if he would make a certain claim, any claim he makes is believed as though he actually made that claim.
</p><p>
The Halachah states that a Shtar is considered to have been authenticated by Beis Din as long as no one actually claims that it is forged. Since the enactment of the Rabanan which permits a person to challenge the validity of a Shtar is a novel concept, the Shtar's validity becomes subject to doubt only when its validity is actually challenged. When no one challenges the Shtar's validity, the Shtar is assumed to be valid. Accordingly, in the case of the Gemara here, there is no 'Migu' that the person could have said a better claim, because the better claim (the fact that one may challenge the validity of the Shtar) is a novel concept that it is not taken into account unless it is actually utilized. The Shtar is considered a valid Shtar, and everything written in the Shtar is taken at face value, unless someone actually claims that the Shtar is forged.
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Sheshes brei d'Rav Idi):</font></b> From Rav Kahana's law 
               we learn that witnesses are not believed to say that 
               the document they signed was Amanah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is because witnesses do not sign on Avlah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (R. Yehoshua ben Levi):</font></b> One may not keep in his house a 
          document for a loan that was paid - 'Do not let Avlah 
          dwell in your home'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Rav):</font></b> 'If there is sin in your hand, distance it' refers 
          to a document of Amanah or Pasim (a document which was 
          written only to make the alleged lender appear rich). 'Do 
          not let Avlah dwell in your home' refers to a paid 
          document.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehoshua forbids keeping a paid document, all the 
               more so he forbids keeping a document of Amanah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Kahana forbids keeping a document of Amanah. He 
               permits keeping a paid document. Sometimes the 
               lender keeps it until the borrower pays the cost of 
               the document.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (R. Ami):</font></b> One may keep an uncorrected Sefer (of Tanach) 
          for 30 days, but no longer - 'Do not let Avlah dwell in 
          your home.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> If witnesses say that the document they 
          signed was Amanah, or that there was a Moda'ah (the 
          seller told the witnesses that he was being coerced and 
          intends to nullify the sale when the coercion ends), they 
          are not believed.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Mar bar Rav Ashi):</font></b> If witnesses say that the document 
          they signed was Amanah, they are not believed. If they 
          say there was a Moda'ah, they are believed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Amanah should not have been written, but a document 
               for which there is a Moda'ah may be written.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WITNESSES WHO SAY THE TRANSACTION WAS ON CONDITION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rava of Rav Nachman):</font></b> If witnesses say that 
          what they signed was subject to a condition (not written 
          in the document), are they believed?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You (Rav Nachman) say that they are not believed to 
               say that the document was Amanah or that there was a 
               Moda'ah. If this is because this uproots the 
               document, the same applies to saying that it was 
               conditional!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps a condition is a separate matter (it is 
               not considered uprooting the document)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Nachman):</font></b> When such cases arise, I tell (the 
          buyer) to fulfill the condition (i.e. the witnesses are 
          believed to say that there was a condition).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rav Papa):</font></b> If one witness says that it was on condition 
          and the other says that it was not, both agree that the 
          document is valid. We now have one witness saying that 
          there was a condition. One witness is not believed 
          against two (the signatures, which imply that the 
          document is unconditional.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection (Rav Huna brei d'Rav Yehoshua):</font></b> If so, this 
          should apply even when both witnesses say that there was 
          a condition (they should not be believed to change their 
          testimony)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Huna brei d'Rav Yehoshua):</font></b> Rather, when both say so, 
          they uproot their testimony. Also when one says that it 
          was conditional, he uproots his testimony (and we are 
          left with only one witness on the document, which is 
          insufficient).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  The Halachah follows Rav Huna brei d'Rav Yehoshua.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>TESTIMONY THAT THE WITNESSES WHO SIGNED WERE INVALID</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If David and Levi signed a document and died, 
          and two witnesses recognize the signatures but say that 
          David and Levi were coerced, children or invalid 
          witnesses at the time, they are believed;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If two other witnesses recognize the signatures, or if 
          David and Levi signed other documents that were validated 
          by Beis Din after there was a dispute over them, we do 
          not believe the ones who disqualify the document. It is 
          valid, and the lender may collect with it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Why do we rely on David and Levi more than on 
          the ones who say that they were coerced, children or 
          invalid witnesses at the time?
<br>

sjt:
<p>
<font><b>2) KEEPING A PAID 'SHTAR'</b></font><b>
<br>OPINIONS:</b> The Gemara quotes Rebbi Yehoshua ben Levi who rules that a person may not keep a loan document (Shtar) in his possession after the borrower has repaid the loan. Similarly, it was stated in the name of Rav that a person may not keep a Shtar Amanah (or Shtar Pasim; see <b>RASHI</b> to Kesuvos 79a, DH Shtar Pasim) in his possession. A Shtar Amanah is a signed loan document written by a potential borrower, who gives it to his potential lender to hold in the event that he later decides to borrow money. In both cases, if the lender is permitted to keep the Shtar the possibility exists that he will demand money from the borrower unfairly, either willfully or by mistake (he will forget that the borrower does not actually owe him the money). 
</p><p>
The Gemara explains that there is a difference between these two opinions. Rebbi Yehoshua ben Levi, who says that a lender may not keep in his possession a paid Shtar, certainly would agree that one may not keep in his possession a Shtar Amanah. Rav, however, who says that one may not keep in his possession a Shtar Amanah, may permit a lender to keep a paid Shtar in his possession. It is possible that the lender did not give back the paid Shtar due to 'Peshiti d'Safra.' <b>RASHI</b> (DH Peshiti d'Safra) explains that the borrower is the one who must pay the expense of producing the actual loan document. Occasionally, a borrower is so destitute that he cannot afford to pay the scribe who writes the Shtar, and the kindhearted lender loans him the money for that as well. The lender is entitled to hold the Shtar -- even after the primary loan has been repaid -- until the borrower remunerates him for the 'Peshiti d'Safra.' Hence, Rav might not prohibit the lender from keeping the paid Shtar in his possession.
</p><p>
What does Rebbi Yehoshua ben Levi maintain with regard to 'Peshiti d'Safra'? Does he argue that the lender indeed is prohibited from withholding the document even when the borrow did not yet reimburse him for the 'Peshiti d'Safra'?
</p><p>
(a) <b>TOSFOS</b> (DH Zimnin) and the <b>ROSH</b> write that Rebbi Yehoshua ben Levi understands that when the lender loaned the money for the writing of the Shtar, he must return the document immediately after the borrower reimburses him. Rebbi Yehoshua ben Levi agrees that the lender does not have to give back the document until he is reimbursed for the 'Peshiti d'Safra.' This is also the understanding of the <b>RITVA</b>.
</p><p>
(b) The <b>RAN</b> states that Rebbi Yehoshua ben Levi understands that 'Peshiti d'Safra' is no reason to withhold a paid Shtar, despite the fact that giving back the paid Shtar compromises the lender's ability to get back the money he loaned for the 'Peshiti d'Safra.' 
</p><p>
The <b>SHACH</b> (CM 57:4) questions why the <b>SHULCHAN ARUCH</b> (CM 57:1) rules like the Ran and ignores the opinions of Tosfos, the Rosh, and the Ritva (which the Shulchan Aruch himself quotes in <b>BEDEK HA'BAYIS</b> on the <b>BEIS YOSEF</b>, CM 57). The Shach adds that it is clear to him that even according to the Ran, one certainly may keep the Shtar in his possession if he tears it or writes on it that the debt has been paid.
</p><p>
The <b>KORBAN NESANEL</b> (2:11:4) asserts that the Shach misunderstood the Rosh. He explains that the Rosh does not disagree with the Ran. Rather, the Ran refers to a case in which the lender neither marks the Shtar as unpaid nor gives a receipt to the borrower for the repayment of the loan. In such a case, the lender may not withhold the Shtar due to 'Peshiti d'Safra.' When the Rosh rules that the lender <i>may</i> withhold the Shtar, he refers to a case in which the lender writes that it has already been paid or gives the borrower a receipt.
</p><p>
The Korban Nesanel proves that this is the intent of the Rosh (and Tosfos and the Ritva) from the Gemara in Bava Metzia (68a). The Gemara there is concerned about a document akin to a Shtar Amanah ('Shtara d'Mechuzai') falling into the hands of the lender's heirs when the lender meets an untimely death. The heirs would have no reason to suspect that the Shtar is not genuine, and they would proceed to collect the loan as stated in the document. Accordingly, the Rosh cannot mean that a lender may keep the Shtar (until he gets back the 'Peshiti d'Safra') without making any note that it was paid, because the same concern that applies in the case in Bava Metzia applies in the case of a paid Shtar. It must be that the Rosh means only that when the lender makes a note on the Shtar that it has been paid, or gives a receipt for the borrower, is he allowed to keep the Shtar. 
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CONTRADICTION BETWEEN WITNESSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #1 (Rav Sheshes):</font></b> This shows that contradiction is 
          the beginning of Hazamah (disqualifying witnesses through 
          testimony of other witnesses that at the time the first 
          witnesses say that they saw the testimony, they were 
          elsewhere).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like Hazamah is only in front of the witnesses, 
               also contradiction must be in front of them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Objection (Rav Nachman):</font></b> If David and Levi were here and 
          contradicted these latter witnesses, we would have 
          contradictory testimony, and one could not collect with 
          this document.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In our case David and Levi are not here, and if they 
               would be here, perhaps they would admit. Do we rely 
               on David and Levi (and allow one to use the 
               document)?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (Rav Nachman):</font></b> The latter two witnesses counter 
          the former two, and we leave the money (or property) in 
          its Chazakah with its current owner (the alleged borrower 
          or seller).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  This is like the property of Bar Shatya (a man who 
          alternated between sanity and insanity).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  Bar Shatya sold property. Two witnesses said that he was 
          insane at the time (so the sale is invalid). Two others 
          said that he was sane at the time.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Rav Ashi):</font></b> Two witnesses counter the other two, and the 
          property stays in the possession of Bar Shatya.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  This applies only to property he inherited, but not if he 
          himself bought property and now sold it. (There is no 
          Chazakah that it is his.) Perhaps he was insane when he 
          bought it!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (R. Avahu):</font></b> <i>Hazamah</i> of witnesses can only be in their 
          presence. They can be <i>contradicted</i> in their absence.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Hazamah is done in their absence, it is not 
               considered Hazamah, but it is contradiction.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>VALIDATION OF DOCUMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa (19b)):</font></b> If (other) witnesses know that these are 
          their signatures, or if there is another document which 
          they signed which was contested and validated by Beis 
          Din, they are not believed (to say that the witnesses on 
          a document were invalid).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Inference:</font></b> Another document may be used to validate only 
          if it was disputed. This supports R. Asi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Asi):</font></b> We validate a document only from a 
               document that was disputed and validated by Beis 
               Din.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Chachamim of Neharda'a):</font></b> We validate a document only 
          from two Kesuvos or from two documents of sale of fields 
          that the buyers used for three years without protest.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (R. Simi bar Asi):</font></b> This applies only if the documents are 
          held by others, and not by the bearer of the document we 
          wish to validate;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The bearer may not validate it from documents he 
               holds, lest he copied the signatures.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> The same concern applies to documents held by 
          others. Perhaps he saw them and imitated the signatures!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> We are concerned that he could imitate them so 
          well only if he has the documents.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WRITTEN TESTIMONY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> A person may write in a document testimony 
          that he saw, and (orally) testify based on it many years 
          later.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Opinion #1 (Rav Huna):</font></b> He can testify only if he 
          remembers (some of) the testimony by himself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Opinion #2 (R. Yochanan):</font></b> He can testify even if he does 
          not remember it by himself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> We learn from R. Yochanan that if two 
               witnesses saw testimony and one forgot it, the other 
               may remind him.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> May a party in the case remind a witness of the 
          testimony?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (R. Chaviva):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (Mar bar Rav Ashi):</font></b> No.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  The Halachah is, he may not;
<br>
<br>

sjt:
<font><b>1) TESTIMONY VIA WRITTEN AFFIDAVIT</b></font><b>
<br>QUESTION:</b> The Gemara states that a witness may record in writing his testimony about an event and refer to his written record to remind himself of the details of the event when he testifies in Beis Din even many years later. The Gemara quotes Rebbi Yochanan who says that this form of testimony is valid even when the witness would not remember the details of the event without reading his record of them.
</p><p>
<b>TOSFOS</b> (DH v'Rebbi Yochanan Omer) explains that Rebbi Yochanan does not mean that a witness who has no recollection at all of the event may testify based on what he wrote. The Gemara in Yevamos (31b) clearly states that such testimony is not acceptable. Rather, Rebbi Yochanan means that when the witness has a general recollection of what happened he may augment his testimony with details based on his own written record from the past.
</p><p>
The Gemara's ruling that a witness may give testimony based on what he wrote earlier raises a question. Why does the witness' note differ from a common Shtar? A common Shtar records the details of a transaction, and those details recorded in the Shtar are validated by the signature of witnesses. The validated Shtar may be used as testimony in Beis Din as the Gemara states (18b), 'witnesses whose signatures are signed on a Shtar are considered as though their testimony has been [presented to and] examined by Beis Din.' Why is a private note written by a witness not considered like testimony given in Beis Din?
</p><p>
<b>ANSWER: TOSFOS</b> asserts that in order for a Shtar to be valid it must be written with the 'Da'as ha'Mischayev' -- 'the consent of the one who is being obligated [by the words of the Shtar].' Both parties involved in the transaction must agree to write the specific details in the Shtar. In contrast, the memoirs of a witness are written without the consent of the parties involved, and thus his written record does not attain the status of a Shtar.
</p><p>
However, this approach needs clarification. The testimony that a witness delivers does not depend on what the parties involved want the witness to see, hear, or report. Why does a witness' written record of the event not attain the status of a Shtar simply because it was not written with the 'Da'as ha'Mischayev'?
</p><p>
<b>RAV ISER ZALMAN MELTZER</b> in <b>EVEN HA'AZEL</b> (Hilchos Edus 8:1) explains that the reason why a Shtar is a valid attestation of the transaction is that the signatures of the witnesses constitute an affirmation of the details at the time they sign. Their signatures are like a formal notarization; it as if they are testifying that whatever is written in the document is true. Accordingly, the testimony of the witnesses is actually finished at the moment they sign the Shtar. At that moment the details about which they are testifying are clear and fresh in their minds. Later, if they are summoned to Beis Din to testify and they do not remember the details of the event, the Shtar is not considered invalid because their testimony is considered to be the same as it was at the time they signed the Shtar. This is what the Gemara earlier (18b) means when it says, 'witnesses whose signatures are signed on a Shtar are considered as though their testimony has been [presented to and] examined by Beis Din.' At the time they sign the Shtar, it is as if Beis Din was present and accepted their testimony.
</p><p>
Why, though, does Beis Din accept all of the details written in a Shtar as true, as if the testimony has already been examined and scrutinized? It must be because the Shtar was written with the 'Da'as ha'Mischayev.' The 'Mischayev' (the borrower) certainly would not let anything untrue be written in the Shtar to his detriment. Accordingly, the details written in the Shtar with the 'Da'as ha'Mischayev' are treated as validated testimony. In contrast, a record of the details which was written without the 'Da'as ha'Mischayev' is not treated as testimony examined by Beis Din. Any form of testimony in writing, such as the written memoirs of a witness, or a written affidavit the witnesses send to Beis Din, does not have the credibility of testimony which has already been examined by Beis Din.
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the witness is a Chacham, he may testify even if 
               the claimant reminded him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  Rav Ashi knew testimony for Rav Kahana, but forgot it, 
          even after Rav Kahana tried reminding him of it. Later, 
          he remembered and testified for him.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  Rav Kahana was taken aback that Rav Ashi was testifying 
          for him.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rav Ashi:</font></b> Don't worry, I'm not relying on what you said. 
          I put my mind to it and remembered.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>'TUM'AH' OF MOUNDS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Mounds that are close to the city or the road 
          are Tamei, whether they are old or new;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Old far mounds are Tamei, and new ones are Tahor;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (R. Meir):</font></b> Within 50 Amos is considered close. Sixty 
          years old is considered old;
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (R. Yehudah):</font></b> If there is no closer one, it is called 
          close. If no one remembers before it was built, it is 
          old.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> What do 'city' and 'road' refer to?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It cannot refer to the simple meaning, for mi'Safek 
               (without a source) we do not presume that there is 
               Tum'ah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Reish Lakish):</font></b> An excuse was found to be 
                    Metaher Eretz Yisrael.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (R. Zeira):</font></b> Rather, 'city' is a city near a 
          cemetery, and 'road' is a road to a cemetery.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> We understand why the mound on the road is 
          Tamei. Sometimes there is not enough time before Shabbos 
          to get to the cemetery, and the body is buried in the 
          mound;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if a city is near a cemetery, why is a nearby 
               mound Tamei? Everyone would go to the cemetery!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (R. Chanina):</font></b> Women bury miscarriages in mounds, 
          and lepers bury limbs that fell off;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Up to 50 Amos, a woman would go alone (and the 
               Tum'ah would be unknown). More than 50 Amos, she 
               would get an escort, and go to the cemetery. 
               Therefore, in Eretz Yisrael we do not assume that 
               they are Tamei.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> We learn from R. Meir that a person 
          remembers testimony for 60 years, but no longer.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection:</font></b> This is not so. It is not incumbent on a 
          person to remember Tum'ah in a mound. He has a 
          responsibility to remember testimony, so he (puts it to 
          heart and) remembers it longer.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>VALIDATION OF A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If both witnesses on a document say that they 
          recognize both signatures, they are believed;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Rebbi says, if each recognizes only his own signature, we 
          need another witness who recognizes both signatures;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Chachamim say, this is not needed. A person is believed 
          to verify his signature.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>VALIDATION OF A DOCUMENT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Gemara):</font></b> According to Rebbi, witnesses testify about 
          their own signatures. According to Chachamim, they 
          testify about the content of the document.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Objection:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that Rebbi is unsure 
          whether the witnesses testify about their own signatures 
          or about the content of the document.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Rebbi was unsure, this would affect the law if 
               one witness died. Rebbi would require two witnesses 
               to testify about his signature.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It would not suffice for the live witness and 
               another person to testify about the signatures.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If so, the live witness would (perhaps) be 
                    giving three fourths of the testimony. (Perhaps 
                    when he verifies his signature he testifies 
                    alone about the content of the document, and he 
                    also helps to confirm the other signature.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi would be stringent in this case, and also 
               stringent in the case of the Mishnah (when each 
               confirms only his own signature).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Therefore, we needed to teach that Rebbi is sure 
               that they testify about their signatures.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> If one of the witnesses dies, two others 
          are needed to confirm his signature.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In this case Rebbi is more lenient than Chachamim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> What can we do if there is only one other who 
          recognizes his signature (in addition to the live 
          witness)?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> The live witness should write his name on 
          a piece of pottery and give it to Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Now we do not need him to confirm his own signature, 
               so he may help confirm the other signature.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  He should sign specifically on pottery, but not on a 
          parchment, lest a corrupt person find it, and write like 
          he pleases above the signature.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven signed a document saying that 
               he owes Shimon, Shimon collects from unsold 
               property.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Rav Yehudah citing Shmuel):</font></b> The Halachah follows 
          Chachamim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Why did he need to say this? The Halachah 
          (normally) follows the majority!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> The Halachah (normally) follows Rebbi when he 
          argues with one Tana. One might have thought that the 
          Halachah follows him even against a majority!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question (Rav Chinena bar Chiya):</font></b> Did Shmuel really say 
          that the Halachah follows Chachamim?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There was a document validated in Shmuel's Beis Din 
               that said that both witnesses confirmed both 
               signatures!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer (Rav Yehudah):</font></b> That document was of orphans;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel was extra careful to validate it in such a 
               way that even if a Beis Din will mistakenly think 
               that <i>here</i> the Halachah follows Rebbi against a 
               majority, they will still accept the validation.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>VALIDATION OF A VALIDATED DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Yehudah citing Shmuel):</font></b> A witness may join a judge. 
          (If someone claims that a validated document was forged, 
          it suffices for one witness to confirm his signature and 
          one of the validating judges to confirm his signature.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rami bar Chama:</font></b> What a wonderful teaching!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rava:</font></b> No! They do not join, since they testify about 
          different matters! (This is like Chachamim, who say that 
          a witness testifies about the content of the document.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rami bar Yechezkel:</font></b> Do not heed these rules that my 
          brother (Rav Yehudah) quotes in the name of Shmuel.
<br>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Ravnoy citing Shmuel):</font></b> A witness may join a judge.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Ameimar:</font></b> What a wonderful teaching!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rav Ashi:</font></b> Because your grandfather (Rami bar Chama) 
          praised it, also you praise it? Rava refuted it!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>JUDGES WHO RECOGNIZE THE SIGNATURES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Safra quoting R. Aba):</font></b> If three judges sat to 
          validate a document and two of them recognize the 
          signatures, before the two sign they testify about the 
          signatures in front of the third judge. Then, all three 
          sign the validation;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If the two judges signed before testifying, they may not 
          testify to enable the third judge to sign.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Inference:</font></b> The <i>text</i> of the validation may be written 
          before the testimony.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> Rav Papi taught that a validation that was 
          written before testimony on the signatures is invalid, 
          since it appears false;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here too, it appears false (to write that all three 
               judges knew the signatures before the third heard 
               testimony)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Correction:</font></b> Rather, the two judges testify before writing 
          the validation. If it was already written, they may not 
          testify to enable the third judge to sign.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  We learn three laws from this teaching;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A witness can act like a judge after testifying.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the judges recognize the signatures, there is no 
               need to testify in front of them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If the judges do not recognize the signatures, 
               testimony must be given in front of all of them.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Objection (Rav Ashi):</font></b> I agree that we learn that a 
          witness can become a judge (1);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, we cannot learn that if the judges 
               recognize the signatures, there is no need to 
               testify in front of them (2). In R. Aba's case, 
               there is some testimony in front of the third judge!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also, we cannot learn that if the judges do not 
               recognize the signatures, testimony must be given in 
               front of all of them (3). R. Aba's case is 
               different. If we do not testify in front of the 
               third judge, no testimony is given at all!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Rav Safra to R. Aba - Mishnah):</font></b> If three 
          members of the Beis Din that determines Rosh Chodesh saw 
          the new moon, two of them stand. They seat two other 
          judges of the Beis Din by the third, and the first two 
          testify in front of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An individual cannot declare the new month. Rather, 
               all three declare it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a witness could become a judge, (they would not 
               need two more judges. Two would testify in front of 
               the third, and) the three who saw could declare the 
               new month!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer (R. Aba citing Rav):</font></b> Declaration of the new month 
          is mid'Oraisa, so for this a witness cannot become a 
          judge. Validation of documents is mid'Rabanan, so for 
          this a witness can become a judge.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A PROTEST ABOUT A JUDGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (R. Aba):</font></b> If three judges sat to validate a document and 
          there was an objection that one of them is invalid:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they did not yet sign, the other two may testify 
               that the third is valid, then all may sign;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they already signed, they may not. (Their 
               testimony is biased, for it is shameful to be on a 
               Beis Din with an invalid judge.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What was the accusation?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> They say that he stole.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> After the other judges defend him, there are 
          two witnesses who say that he is valid, and two who 
          disagree. (He is Safek Pasul. Such a judge may not be 
          used!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2:</font></b> They say that his lineage disqualifies him (he 
          is a slave).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  This is easily verifiable. (They should be able to defend 
          him even after they signed!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Defense of Answer #1:</font></b> Really, they say that he stole. The 
          other judges testify that he did Teshuvah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MAKING IT CLEAR THAT THERE WERE THREE JUDGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (R. Zeira):</font></b> If three judges sat to validate a document 
          and one died, they must write 'three of us sat, and one 
          is no longer.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Rav Nachman bar Yitzchak):</font></b> It suffices if it says 'this 
          document came before Beis Din.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps it was an impudent Beis Din (of two)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If two judged the verdict stands, just it 
               is called a brazen Beis Din.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> It says 'the Beis Din of Rav Ashi.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps Rabanan of Rav Ashi's academy hold like 
          Shmuel!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> It says 'Rav Ashi told us to validate this 
          document.' (Surely, he told three.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ONE WHO FORBIDS IS BELIEVED TO PERMIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a woman says 'I was married and divorced', 
          she is believed. The one who forbids is believed to 
          permit;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If there are witnesses that she was married, and she says 
          that she was divorced, she is not believed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  If a woman says 'I was taken captive, but I am Tehorah (I 
          was not defiled)', she is believed. The one who forbids 
          is believed to permit;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If there are witnesses that she was taken captive and she 
          says that she is Tehorah, she is not believed;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  If witnesses come after she married, she may remain 
          married.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Gemara - R. Asi):</font></b> The Torah teaches that the one who 
          forbids is believed to permit - 'I gave my daughter to 
          this man for a wife'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Once he said 'I gave her', he forbade her (to all 
               men). By saying 'to this man', he permits her to 
               him.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Objection:</font></b> Why must a verse teach this? Logic dictates 
          that since he forbade her, he can permit her!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Retraction:</font></b> Rather, the verse teaches Rav Huna's law:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> 'I gave my daughter' teaches that a man 
               can forbid his daughter.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Why does it say 'to <i>this</i> man'?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> This teaches the following law:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yonah - Beraisa):</font></b> 'To this man', not to a Yavam 
               (Motzi Shem Ra does not apply to a brother who did 
               Levirate marriage).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If a woman said 'I am married' and later she 
          said 'I am single'; she is believed.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> She declared herself to be forbidden. How can 
          she retract this?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer (Rava bar Rav Huna):</font></b> She gave an Amasla (a 
          plausible reason why she lied).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support (Beraisa):</font></b> If a woman said 'I am married' 
               and later she said 'I am single'; she is not 
               believed. If she gave an Amasla, she is believed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A case occurred in which many men were proposing to 
               be Mekadesh an important, beautiful woman. She said 
               'I am Mekudeshes.' Days later, she accepted 
               Kidushin.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chachamim:</font></b> Why did you do this?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> The woman:</font></b> At first, improper men came to me, so I 
               said that I was Mekudeshes (to divert them). Now 
               that proper men came, I was Mekadesh myself.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  Rav Acha said this law in front of the Chachamim in Usha. 
          They said that if she gives an Amasla, she is believed.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question (Shmuel):</font></b> If a woman tells her husband that she 
          is Nidah and later she says that she is Tehorah, what is 
          the law?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer (Rav):</font></b> Also here, she is believed to give an 
          Amasla.
<br>
<br>

sjt:
<font><b>1) THE PRINCIPLE OF 'HA'PEH SHE'ASAR, HU HA'PEH SHE'HITIR'</b></font><b>
<br>QUESTIONS:</b> The Mishnah discusses various cases in which Rebbi Yehoshua agrees with Raban Gamliel that a person is believed with a 'Ta'anas Bari' (a claim of certainty) based on a 'Migu.' The Mishnah states, however, that if there are witnesses who remove the Migu, the person is not believed.
</p><p>
The Mishnah mentions this in three places with regard to three different cases. The first Mishnah (15b-16a) says that when the present owner of a field says to the son of the original owner, 'This field belonged to your father, and I purchased it from him,' he is believed because he could have remained silent and never said that the field belonged to the other man's father. It was 'his mouth that prohibited [the field to him], and his mouth that permitted it.' The Mishnah there adds that 'if there are witnesses that the field belonged to the other person's father, <i>and this one says that he bought it from him</i>, he is not believed.'
</p><p>
The second Mishnah (18b) presents a similar case in which witnesses attempt to invalidate the Shtar on which they are signed. When two witnesses say that it is indeed their signatures on the Shtar, but they add that they signed the Shtar under duress (and the information contained therein is false), they are believed. 'But if there are [other] witnesses that this is their handwriting... then they are not believed' to disqualify themselves.
</p><p>
Finally, the Mishnah here (22a) teaches that 'a woman who says, 'I was an Eshes Ish and now I am divorced,' is believed because 'the mouth that prohibited her is the mouth that permitted her.'' The Mishnah continues, 'But if there are witnesses that she was an Eshes Ish, <i>and she says that she is divorced</i>, she is not believed,' because she no longer has the support of the 'Peh she'Asar' principle. The same applies in a case of a woman who says that she was taken captive as a Shevuyah but she was not defiled and is still Tehorah; she is believed because of 'Peh she'Asar.' If, however, two witnesses say that she was taken captive, '<i>and she says that she is Tehorah</i>,' she is not believed because she no longer has a 'Peh she'Asar.'
</p><p>
<b>REBBI AKIVA EIGER</b> (in <b>TOSFOS REBBI AKIVA EIGER</b> on the Mishnayos) asks two very strong questions on the wording of the Mishnah here (22a).
</p><p>
1. Why does the Mishnah say that a woman who says 'I was an Eshes Ish and now I am divorced,' or 'I was taken captive but I am Tehorah,' is believed because of a 'Peh she'Asar'? The principle of 'Peh she'Asar' is a special Halachah derived from a verse (cited by the Gemara here) which teaches that a person is able to remove an Isur that he created himself. Here, however, the woman did not create any Isur in the first place! Normally, when a woman says that she is an Eshes Ish, or she says that she was a Shevuyah, she becomes Asurah because 'Shavyah a'Nafshah Chatichah d'Isura' -- a person is entitled, and believed, to make herself Asurah. When she claims that she is Asurah, she is believed with regard to herself and she must abide by what she claims. Here, though, she never said that she was Asurah. She said, 'I <i>was</i> an Eshes Ish and now I am divorced.' She never claimed to have a status of Isur. Why, then, does the Mishnah say that she is believed to create her Heter because she created her Isur? She never made herself Asurah, and there is no need for a 'Peh she'Asar'!
</p><p>
This question is especially problematic in the case in which she says, 'I was taken captive but I am Tehorah.' In that case, she does not say that she was Teme'ah originally but later became Tehorah. On the contrary, she says that although she was captured she was <i>never</i> defiled. Why, then, does the Mishnah need to say that she is believed to say that she is Tehorah because of a 'Peh she'Asar' when she never made herself Asurah in the first place? 'Shavyei a'Nafshah' does not apply when she says that she was taken captive but asserts that she is Tehorah!
</p><p>
Some Acharonim (<b>KOVETZ SHI'URIM</b> #58) attempt to answer this question by saying that it depends on how the Halachah of 'Shavyei a'Nafshah' works. The <b>KETZOS HA'CHOSHEN</b> (34:4) cites the <b>MAHARIT</b> who explains that 'Shavyei a'Nafshah' works through the mechanism of a <i>Neder</i>: when a woman says that she is prohibited to a certain person or thing, it is as if she prohibited that thing upon herself through a Neder. The Ketzos ha'Choshen argues and proves that 'Shavyei a'Nafshah' does <i>not</i> work through a Neder, but it is a Halachah derived from the principle of 'Hoda'as Ba'al Din k'Me'ah Edim Dami' -- self-admission is as good as [or better than] one hundred witnesses. The Torah teaches that when a person admits he owes money, he must pay regardless of how many witnesses say he is exempt, because when one testifies about himself he is trusted more than any number of witnesses to say that he owes money. 'Shavyei a'Nafshah' is an extension of that Halachah as applied to the category of Isur and not just to monetary matters.
</p><p>
Perhaps Rebbi Akiva Eiger understands that 'Shavyei a'Nafshah' works like a Neder, as the Maharit says. Accordingly, he is justified in saying that when a woman says, 'I was an Eshes Ish and now I am divorced,' she never made a Neder to make herself Asurah. 
</p><p>
Others point out that it is not so simple to say that Rebbi Akiva Eiger understands 'Shavyei a'Nafshah' like the Maharit. In his comments to Yoreh De'ah (1:12), Rebbi Akiva Eiger quotes the <b>BECHOR SHOR</b> in Yevamos (87b) who discusses a person who makes an item prohibited to himself with 'Shavyah a'Nafshei Chatichah d'Isura,' but he knows that it was a mistake and the item is really permitted to him. For some reason, he cannot give a good enough excuse (Amasla) to Beis Din in order to permit it to him. Is he permitted to eat from that object as long as Beis Din is not watching, since he knows that it is really Mutar, or does it remain Asur to him completely (see <b>TESHUVAS REMA</b> quoted in the margin to YD 185:2). The Bechor Shor concludes that according to the letter of the law, the item is Mutar, but nevertheless one should conduct himself stringently (because 'anything that the Chachamim prohibited from being done in the eye of the public is prohibited even in the inner chambers of one's home'). If Rebbi Akiva Eiger agrees with the Bechor Shor, then he clearly does not hold that 'Shavyei a'Nafshah' works like a Neder, because then the item would be Asur even in private because of the <i>Neder</i>.
</p><p>
In fact, most of the Acharonim reject the Maharit's explanation of 'Shavyei a'Nafshah' as a function of a Neder, and say that a person is believed to create an Isur upon himself just as he is believed to obligate himself in monetary matters (as the Ketzos ha'Choshen explains), since he alone loses through his admission (see <b>NODA B'YEHUDAH</b>, end of EH 2:43, Kovetz Shi'urim ibid.). Rebbi Akiva Eiger, however, asks that even if we understand 'Shavyei a'Nafshah' to work because of 'Hoda'as Ba'al Din,' that a person is believed to prohibit himself, why should we consider the woman to be prohibiting herself? She is <i>not</i> saying that she is prohibited.
</p><p>
2. Rebbi Akiva Eiger asks that the Mishnah writes (in both the case of Gerushah and the case of Shevuyah) that if witnesses come and say that she was married (or taken captive) 'and she says that she is no longer married (or is Tehorah),' she is <i>not</i> believed. This wording implies that the Mishnah is discussing a new case in which the witnesses first testified before she said anything, and then she replied that she is divorced or Tehorah (see Tosfos to 15b, DH u'Modeh). 
</p><p>
Why does the Mishnah mention such a case? All the Rishonim write that even if the witnesses come <i>after</i> she says that she was married and is now divorced (after her 'Peh she'Asar'), she also is not believed because she no longer has her 'Peh she'Asar' -- because we know that she was married not from her words but from the words of the witnesses. The Mishnah should not give a completely new case, in which witnesses come first and say that she was married, and then she says that she was married but is now divorced. The Mishnah should continue the first case and say that if, after she says that she was married and is now divorced, witnesses come and say that she was married, her Heter is revoked because she no longer has a 'Peh she'Asar'! 
</p><p>
In fact, this is exactly how the Mishnah sets up the situation when it discusses the case of verifying the signatures of witnesses in a Shtar. The Mishnah says that if two witnesses testify that they signed the Shtar but that they were forced to sign, <i>and then</i> a second group of witnesses come and say that they recognize the signatures of the first two witnesses in the Shtar, the first pair is no longer believed to say that they were forced to sign. Why in the cases of the Gerushah and Shevuyah does the Mishnah present the case where 'Peh she'Asar' no longer works as a completely separate case? (Rebbi Akiva Eiger concludes this question with the words, ''v'Tzarich Iyun Gadol.')
</p><p>
Actually, it is unclear why Rebbi Akiva Eiger does not ask both of his questions on the <i>first</i> Mishnah of the Perek. Both questions seem applicable to the first Mishnah (15a) which discusses the ownership of a field: Why is 'Peh she'Asar' necessary if there never was a 'Hoda'as Ba'al Din' in the first place that the field belongs (at present) to another party? Also, why does the Mishnah conclude that if witnesses testify that the field once was another party's <i>and then</i> another person says 'I bought it from him,' the second person is not believed? The Mishnah should say that even if witnesses come <i>after</i> the 'Peh she'Asar,' the 'Peh she'Asar' is revoked upon their testimony.
</p><p>
<b>ANSWERS: RASHI</b> and <b>TOSFOS</b> (16a DH Hasam Shor Shachut, 15b DH u'Modeh) present differing explanations for why Rebbi Yehoshua agrees with the 'Migu's of these Mishnayos. Accordingly, the answers to these questions according to Rashi will differ from the answers according to Tosfos. 
</p><p>
Rashi writes that Rebbi Yehoshua agrees in these cases that the logic of Migu applies because there is no claim; no one is challenging the landowner such that he needs to make any response that the field is his. He came forth of his own accord and said that the field belonged to the father of the other person. Tosfos, in contrast, maintains that Rebbi Yehoshua agrees with the logic of Migu under any circumstances. Rebbi Yehoshua argues with Raban Gamliel only when there is no real Migu. (See Insights to 16a.)
</p><p>
Tosfos may answer Rebbi Akiva Eiger's questions as follows:
</p><p>
(a) The wording of the Mishnah provides proof for Tosfos' assertion that Rebbi Yehoshua agrees with any Migu because  The wording of the Mishnah implies that there <i>was</i> a 'Ta'anah' -- that is, someone <i>did</i> come and challenge the ownership of the field. The Mishnah relates that the landowner says, 'This field was your father's and I bought it from him.' Why does he need to say an independent statement that 'this field was your father's' and then say a second statement that 'I bought it from him'? Let him just say one statement, 'I bought the field from your father'! The fact that he introduces his claim by saying that 'this field was your father's' implies that someone is challenging his ownership of the field and he is <i>responding</i> to that challenge by admitting that the field once belonged to the other person's father, but that it was bought from him (as Tosfos himself explains on 15b, DH u'Modeh, with regard to a similar terminology on 17b).
</p><p>
Tosfos cites support for his interpretation from the end of the Mishnah (16a). When the Mishnah says that 'when there are witnesses who say that the field belongs to the other person's father and the present owner says 'I bought it from him' he is not believed,' the Mishnah clearly refers to a case in which one is making a claim against the person with the 'Peh she'Asar.' Who brought witnesses if not the person making a claim against the present owner? It is apparent that a claim is not enough to counteract a Migu; the Migu is uprooted only by witnesses.
</p><p>
According to the approach of Tosfos, both questions of Rebbi Akiva Eiger may be answered as follows. In the Mishnah's case of a woman who says, 'I was an Eshes Ish but now I am divorced,' why does the woman first say the words 'Eshes Ish Hayisi'? The words 'Gerushah Ani' already imply that she was once married! The Mishnah must be teaching that there was a claim against her -- someone is challenging her status and saying that she cannot remarry because he knows that she is an Eshes Ish. (Since he is a single witness and not a pair of witnesses, she still has a Migu.) She is responding to the allegation by admitting that it is true that she was once an Eshes Ish, but now she is divorced.
</p><p>
If this is the case, then it is clear why the logic of 'Shavyei a'Nafshah' would have prohibited her from remarrying had it not been for 'Peh she'Asar.' The statement of 'I was an Eshes Ish' is not a prelude to her statement of 'but now I am divorced,' but rather it is a response to someone's claim that she is an Eshes Ish. She is admitting to the challenge against her that she is an Eshes Ish, but in order to permit herself she is adding 'now I am divorced.' Accordingly, 'Shavyei a'Nafshah' indeed should apply: she admits to the claim of the other person, which was a claim to prohibit her from remarrying, and then she adds additional information to permit herself to marry! The same applies to the Mishnah which discusses the ownership of a field, in which case there is a bona fide 'Hoda'as Ba'al Din' as soon as the present owner replies in the affirmative to the claim against him.
</p><p>
The second question may be answered as follows. According to Tosfos, the reason why the Mishnah concludes that witnesses say she was an Eshes Ish 'and then she says that she is divorced' is to teach that a claim alone is not enough to remove the Migu according to Rebbi Yehoshua (in contrast to Rashi's view). Only the testimony of witnesses can remove the Migu. The Mishnah intends to teach that a claim that comes <i>before</i> the statement of 'now I am divorced' will <i>not</i> refute the Migu, but witnesses <i>will</i> refute it. The same applies to the Mishnah earlier (16a). The Mishnah there says that witnesses came first and then the landowner said 'I bought it from your father.' This shows that only witnesses can refute a Migu when they precede the claims of the litigant, but a claim cannot refute a Migu, as Tosfos proved from these very words in the Mishnah.
</p><p>
(It is possible that Rebbi Akiva Eiger himself considered this answer, and that is why he did not ask his question on the first Mishnah of the Perek. With regard to monetary matters, it is clear that a Ta'anah forces a person to reply, and therefore an affirmative reply constitutes 'Hoda'as Ba'al Din.' In addition, since the person must reply it is possible to presume, as Rashi indeed suggests, that a Migu will not work when there is a Ta'anah forcing a reply. With regard to matters of Isur (such as Eshes Ish or Shevuyah), however, Rebbi Akiva Eiger understands that a Ta'anah does not force a response since the person who makes the Ta'anah (that she is an Eshes Ish or Shevuyah) is not demanding to receive something for himself from the woman, unlike the previous owner of the field.)
</p><p>
Why does the Mishnah of Kiyum Shtaros (18b) not give a similar case for where witnesses upset the Migu? It should say that if a second set of witnesses comes and verifies the signatures of the witnesses in the Shtar, <i>and then</i> those witnesses said that they signed the Shtar under duress, they are not believed. Why does the Mishnah teach that they are not believed in a case in which the second set of witnesses come <i>after</i> they say that they signed under duress? 
</p><p>
The answer is that in this case it is an obvious fact, even according to Rashi, that a Ta'anah prior to the Migu will not remove the Migu. If someone says, 'This is your handwriting,' and the witnesses respond, 'Yes, it is our handwriting, but we were forced to sign,' the person's Ta'anah will <i>not</i> ruin their Migu (see <b>BEIS YAKOV</b> to 16a, on Rashi DH Hacha). The reason for this is as follows. Normally, a Ta'anah ruins a Migu because it forces the person to make a counter-claim, and a Migu works only when the person could have remained silent and still have won the case ('Iy Ba'i Shasik,' Tosfos ibid., Rashi to 16a, DH Iy Amart). Here, however, if a person challenges the witnesses who claim that this is their handwriting on the Shtar, they have no need to respond since nothing of theirs -- neither money nor freedom to marry whom they choose -- is at stake. Since it is obvious that a Ta'anah does not upset this Migu, the Mishnah does not need to teach that witnesses who come prior to the Migu upset a Migu in order to infer that a Ta'anah before the Migu does not upset the Migu. Therefore, the Mishnah mentions a case in which the witnesses come after the Migu!
</p><p>
(b) The above answers are valid only according to the way Tosfos explains the Sugya, because Tosfos says that a Ta'anah alone will not ruin a Migu. According to Rashi, however, a Ta'anah <i>does</i> ruin a Migu, and thus it is obvious that the Mishnah of Gerushah does not refer to a case in which one challenged the woman with a Ta'anah claiming that she was an Eshes Ish. Rebbi Akiva Eiger's question returns: she never said anything to prohibit herself as an Eshes Ish through 'Shavyei a'Nafshah'; why does she need a 'Peh she'Asar' to be permitted to remarry? She says that she is a Gerushah and thus she should be permitted to remarry!
</p><p>
Perhaps the answer may be derived from the Gemara later (23b). Rashi there explains that the reason why the Mishnah gives so many examples of 'Peh she'Asar' is that they are progressively larger Chidushim. Had the Mishnah taught only the first case, one might have thought that in the second case (of witnesses who verify their signatures on a Shtar) 'Peh she'Asar' does not apply. In the case of the first Mishnah, where the person's first statement (if accepted alone) would cause him to lose the field, he certainly would not say that it is the field of the other person's father unless he meant to finish his statement and say 'and now it is mine.' However, in the case of Kiyum Shtaros, perhaps the witnesses <i>changed their mind</i>. It is possible that they first said that it is their signatures with intention to authenticate the Shtar, and then they changed their mind and said that they were forced to sign. Perhaps 'Peh she'Asar' does not apply in that case.
</p><p>
Rashi's intention may be as follows. The reason the Mishnah does not give a simple case in which the landowner says one statement ('I bought this field from your father') but it separates it into two statements ('This field was your father's, and I bought it from him') is to teach a Chidush. One might have thought that since he split his statement into two, his second statement is a <i>retraction</i> of the first and he actually changed his mind. Perhaps he intended to say 'this is your father's field, and it is still his field,' and now he is changing his mind about what he wants to say. The Mishnah therefore teaches that we do <i>not</i> assume that he was changing his mind, because he has a 'Peh she'Asar.' He is believed to say that it is all one statement and that he intended from the start to say that the field is now his. (The principle of 'Peh she'Asar' itself teaches that he may claim that he never intended to change his mind, even though his wording implies differently.)
</p><p>
This logic refutes the proof cited above (at the beginning of answer (a)) to Tosfos' interpretation of the Mishnah.
</p><p>
This is also the Chidush in the case of the woman who says that she was married and is now divorced. The Mishnah means that the wording itself implies that there are two separate statements and that she is <i>changing her mind</i>. Her words imply that she first meant to admit that she was Asurah, and immediately afterwards she regretted it and added that she is now permitted to marry because she is divorced. There indeed seem to be <i>two</i> statements -- not like Rebbi Akiva Eiger asserts that it is all one statement and that she intended from the very start to complete her statement and say that she is divorced. The Mishnah is teaching that since she added the explanation of her first statement immediately ('Toch Kedei Dibur'), 'Peh she'Asar' allows her to remove the Isur that she seemingly made with the first half of her statement by insisting that it was indeed a single statement. This explains why 'Shavyei a'Nafshah' would apply if not for the 'Peh she'Asar.' This answers Rebbi Akiva Eiger's first question.
</p><p>
According to this approach, Rebbi Akiva Eiger's second question according to Rashi may be answered as follows.
</p><p>
Rebbi Akiva Eiger asks, why does the Mishnah say that witnesses come before the 'Peh she'Asar' is activated? Even if they come afterwards, the woman should not be believed! In order to answer this question, it is necessary to explore how Rashi might answer Tosfos' second challenge to his explanation. Tosfos asks: Why does the Mishnah (16a) state that witnesses come, and not simply that the original owner has a claim (Ta'anah) that it was his father's?
</p><p>
The answer to this question may be that the end of the Mishnah there (which discusses a case in which witnesses come) expresses not only Rebbi Yehoshua's opinion, but it means that <i>even Raban Gamliel</i> agrees with this ruling (see Insights to 16a). This is why the Mishnah says that witnesses come, and it does not say that the original owner makes a Ta'anah; the Mishnah wants to present a case in which Raban Gamliel also maintains that there is no Migu (and Raban Gamliel maintains that there <i>is</i> a Migu in the face of a Ta'anah). This explains why the Mishnah splits the case into two separate cases. The first case (where there is a Migu) expresses exclusively the opinion of Rebbi Yehoshua, while the second case (where there is no Migu) expresses an uncontested Halachah with which even Raban Gamliel agrees.
</p><p>
This approach answers Rebbi Akiva Eiger's question. Had the Mishnah merely continued with the first case and added that there is no Migu when witnesses come later, we would not have known that the Mishnah is no longer discussing Rebbi Yehoshua's opinion but rather an uncontested Halachah.
</p><p>
In the case of Kiyum Shtaros, the Mishnah does not make two separate cases, because there Rebbi Yehoshua and Raban Gamliel do not argue. In that case, even though there is a Ta'anah Rebbi Yehoshua agrees that a Migu works. Thus, that entire Mishnah, the Reisha and the Seifa, is the uncontested opinion of both Rebbi Yehoshua and Raban Gamliel. (M. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel learned this teaching from Rav 40 times. 
               Still, he himself did not rely on it in practice.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A DISPUTE ABOUT WHETHER OR NOT A WOMAN IS MARRIED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If two witnesses say that a woman's husband 
          died or divorced her and two say that he did not, she may 
          not remarry. If she remarried, she may remain married;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Menachem bar Yosi says, she must leave her husband;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if witnesses (the ones who forbid) came 
               before she remarried. If she remarried before they 
               came, she may remain married.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> We have contradictory testimony. Perhaps she is 
          still married to the first man! One who has Bi'ah with 
          her must bring a Korban Asham Taluy (for a Safek Chiyuv 
          Kares. How can we let her stay married to the second 
          man?)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> She married one of the witnesses 
          who say that she was widowed or divorced.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> She (who is in doubt) must bring an Asham. How 
          can we let her stay married?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, she is sure.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (R. Yochanan):</font></b> If two witnesses say that a man died and 
          two say that he did not die, his wife may not remarry. If 
          she remarried, she may remain married;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  If two say that she was divorced and two say that she was 
          not divorced; she may not remarry. If she remarried, she 
          must leave.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Why is the law different in the two cases?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> Really, only one witness says that she 
          was widowed or divorced and one contradicts him. 
          Chachamim believe one witness who says that a man died to 
          permit his wife to remarry, like Ula taught;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ula):</font></b> Wherever the Torah believes one witness, he 
               is believed like two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The witness who says that he didn't die is like one 
               witness against two, so we ignore him. (She may 
               remain married.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If so, she should be allowed to get 
               married!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Asi):</font></b> 'Divert from yourself harsh talk 
               and distance from yourself accusations.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> In the second case of R. Yochanan, both testify that 
               she <i>was</i> married, but only one says that she was 
               divorced. We do not believe one against two.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> Really, there are two witnesses on each 
          side. R. Yochanan holds like R. Menachem regarding 
          divorce, but not regarding death.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that she checks carefully about his death, 
               for if he returns she cannot refute that he never 
               died;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> She does not check carefully about divorce. If he 
               contradicts her, people will not know what truly 
               happened.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Does a wife have the nerve to lie to her 
               husband about this?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Hamnuna):</font></b> If a woman told her husband 'you 
                    divorced me', she is believed. There is a 
                    Chazakah that a wife lacks the audacity to lie 
                    to him about this!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> That is when witnesses do not support her. 
               In R. Yochanan's case, two witnesses say that she 
               was divorced.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #3 (Rav Asi):</font></b> The witnesses say that just now she 
          was widowed or divorced.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding death, we cannot clarify which witnesses 
               are lying;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding divorce, if she really was divorced she 
               would be able to show her Get!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If two witnesses say that a woman became 
          Mekudeshes and two deny it; she may not marry (someone 
          else). If she married, she may remain married;
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  If two say that she was divorced and two say that she was 
          not, she may not remarry. If she remarried, she may not 
          remain married.
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A DISPUTE ABOUT WHETHER OR NOT A WOMAN IS MARRIED (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Why is the law different in the two cases?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> Really, only one witness says that she 
          is Mekudeshes or divorced, and one contradicts him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Reisha, both testify that she was single. 
               Only one of them says that she became Mekudeshes. 
               One is not believed against two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In the Seifa, both testify that she was married. 
               Only one of them says that she was divorced. One is 
               not believed against two.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> Really, there are two witnesses on 
          each side, but we must switch the laws of the two cases 
          to say as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If two witnesses say that a woman accepted Kidushin 
               and two say that they did not see it, she may not 
               marry (anyone else). If she married, she may not 
               remain married;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Interjection:</font></b> This is obvious. Not seeing something 
               does not prove that it didn't happen!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, they live in the same 
               courtyard;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One might have thought that since Kidushin is 
                    publicized, they certainly would have known 
                    (and we consider the testimonies to be 
                    contradictory).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The Beraisa teaches that this is not so. Some 
                    people have Kidushin quietly.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Corrected version of Seifa):</font></b> If two say that she 
               was divorced and two say that they did not see her 
               divorced, she may not remarry. If she remarried, she 
               may remain married.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Does this teach that even if they live in 
               the same courtyard, (b'Di'eved) we are not concerned 
               for the witnesses who did not see? We learned this 
               from the Reisha! (It is not a Chidush that 
               l'Chatchilah she may not remarry. Surely, one must 
               avoid accusations!)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that Kidushin is done 
               quietly, but divorce is publicized, so certainly 
               they would have known;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Seifa teaches that also divorce can be done 
                    quietly.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO FORBIDS IS BELIEVED TO PERMIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If witnesses come after she was married, she 
          may remain married.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  R. Oshaya learned that this applies to the Reisha (a 
          woman who said she was married and divorced); Rabah bar 
          Avin learned that it applies to the Seifa (a woman who 
          says that she was captured but not defiled).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The one who says that it applies to the Reisha, all 
               the more so it applies to the Seifa. We are lenient 
               about a captured woman.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The one who says that it applies to the Seifa holds 
               that it would not apply to the Reisha.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Suggestion:</font></b> They argue about Rav Hamnuna's law (if a 
          woman told her husband 'you divorced me', she is 
          believed):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The one who permits her to remain married even when 
               she says that she was married and divorced holds 
               like Rav Hamnuna. The one who argues disagrees with 
               Rav Hamnuna.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> All agree with Rav Hamnuna. The first opinion 
          says that the law applies even when she is not in front 
          of her husband. The other holds that it applies only in 
          front of him.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If witnesses come after she was married...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Shmuel's father):</font></b> This does not literally mean after she 
          married. Rather, it is after Beis Din permitted her to 
          marry, even if she didn't marry yet.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Mishnah):</font></b> She does not leave (her husband, if 
          she already remarried. If she was still permitted to 
          remarry, it should have taught this bigger Chidush!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> It means, she does not leave her permission to 
          remarry.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If a woman says 'I was captured but I am 
          Tehorah, and witnesses know this', we do not wait for 
          them to come. She may marry immediately;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  If we permitted her to marry and later the witnesses 
          came, and they did not know whether or not she was 
          defiled, she does not leave;
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  If witnesses say that she was defiled, even if she has 
          several children from her husband (a Kohen), she must 
          leave him.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  A case occurred in which captive women arrived in 
          Nehardai. Shmuel's father put guards by them so they 
          would not be defiled.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Objection (Shmuel):</font></b> Who guarded them until now?! 
          (Guarding now will not permit them to a Kohen!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Shmuel's father:</font></b> If they were your daughters, would you 
          treat them so lightly?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This response prompted this to happen.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel's daughters were captured and taken to Eretz 
               Yisrael. They asked the captors to remain outside 
               while they entered the Beis Medrash of R. Chanina. 
               Each said 'I was captured but I am Tehorah.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Chanina permitted them to marry Kohanim. The 
               captors walked in.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Chanina:</font></b> These must be the daughters of a 
               brilliant Chacham (to know how to permit themselves 
               in this way)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It became known that they were Shmuel's 
                    daughters.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R Chanina (to Rav Shemen bar Aba, a Kohen):</font></b> Go marry 
               one of your relatives (Shmuel's daughters).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Shemen:</font></b> There are witnesses overseas (who know 
               they were captured)!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> R. Chanina:</font></b> They are not here now. Will we forbid a 
               woman because we heard that there are witnesses in 
               the north?!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Inference:</font></b> If the witnesses were here, the girls would be 
          forbidden.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> This is unlike Shmuel's father, who said that 
          if witnesses come after Beis Din permitted them to marry, 
          the permission stands!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> Rav Shemen heard that there were 
          witnesses that they had been <i>defiled</i>.
<br>
<br>

sjt:
<font><b>1) 'SHEVUYAH' AND 'ED ECHAD NE'EMAN B'ISURIM'</b></font><b>
<br>QUESTION:</b> The Mishnah states that two women who were captured (Shevuyos) may testify that the other was not defiled and is permitted to marry a Kohen. <b>RASHI</b> writes that the Chachamim were lenient in the case of a Shevuyah to accept the testimony of one witness, even a woman.
</p><p>
Why does Rashi say that the Chachamim were lenient in the case of a Shevuyah? There is a general rule that 'one witness is believed in matters of prohibitions' ('Ed Echad Ne'eman b'Isurim'), even when the witness is not valid for testimony in court (such as a woman or a relative). The case of Shevuyah involves a question of Isur (whether or not the woman is permitted to marry a Kohen), and thus the normal rule of 'Ed Echad Ne'eman b'Isurim' should permit us to accept the testimony of a single witness! Why does Rashi say that there is a special leniency in the case of Shevuyah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>TOSFOS RID</b> in Kidushin (66a, cited by the <b>SHEV SHEMAITSA</b> 6:15) proves from the Gemara there (see Shev Shemaitsa) that judging whether or not a woman is a Shevuyah, or whether she is prohibited from marrying a Kohen for another reason (such as Gerushah or Chalutzah), is considered a 'Davar sheb'Ervah' and therefore two witnesses are required. Accordingly, it is clear why a special leniency is needed in the case of Shevuyah to accept the testimony of a single witness.
</p><p>
The source for the requirement of two witnesses in the case of a 'Davar sheb'Ervah' is the verse which discusses a woman who becomes prohibited to her husband because she committed adultery (Devarim 24:1). According to the Tosfos Rid, the verse apparently refers not only to an adulteress (who transgressed an Isur Kares) but to any testimony that causes a woman to become prohibited (or permitted) to certain men. According to this logic, two witnesses should be required even to prove that a person is, or is not, a Mamzer or Mamzeres. (One might distinguish, however, between Isurim that can take effect only upon a woman -- such as Pesulei Kehunah and Z'nus, which require two witnesses -- and those that can apply to men as well -- such as Mamzer, which is not a 'Davar sheb'Ervah' and requires only a single witness.)
</p><p>
(b) <b>REBBI AKIVA EIGER</b> and the <b>NESIVOS HA'MISHPAT</b> (both cited in <b>TESHUVOS REBBI AKIVA EIGER</b> #124, 125) posit based on the <b>MORDECHAI</b> in Yevamos that a court case is considered to be a 'Davar sheb'Ervah' only if it creates (or removes) an Isur on the woman which prevents the enactment of Kidushin with that woman (similar to the Isur of Eshes Ish).
</p><p>
This explanation of the Mordechai needs clarification. The Isur of an adulteress to her husband does not preclude 'Tefisas Kidushin'; it is simply an Isur Lav. Similarly, the Isur of Shevuyah to a Kohen is only a Lo Ta'aseh (a normal negative commandment) which does not prevent Kidushin from taking effect, but it is clear from the Gemara here and in Kidushin (ibid.) that two witnesses are required to prohibit a Shevuyah.
</p><p>
The Nesivos ha'Mishpat explains that according to the Mordechai there are two acts which are considered 'Davar sheb'Ervah': one is an act which <i>creates</i> an Isur which precludes the enactment of Kidushin, and the other is an act in which a woman becomes prohibited to others because she <i>had relations with</i> a man with whom Kidushin could not take effect. A Shevuyah (who is suspected of being raped by her non-Jewish captors) and an adulteress fit into the second category.
</p><p>
However, Rebbi Akiva Eiger asserts that this is not the Mordechai's intention. He suggests instead that prohibiting an adulteress to her husband is considered a 'Davar sheb'Ervah' even though it does not prevent Kidushin from taking effect with her, because the Torah refers to that particular Isur as 'Tum'ah' (see Yevamos 11a) just as it refers to the Isurim of Arayos. Shevuyah is considered a 'Davar sheb'Ervah' for the same reason; the Gemara in Yevamos (56b) teaches that the wife of a Kohen who was raped is prohibited to her husband because of an Isur of 'Tum'ah.' However, this is true only in the case of a married woman who was raped (see Teshuvos Rebbi Akiva Eiger #125, and <b>TESHUVOS V'CHIDUSHEI REBBI AKIVA EIGER</b> 20:3). If a single woman is captured and raped, testimony about her would not be considered a 'Davar sheb'Ervah' at all according to this logic. According to Rebbi Akiva Eiger, there must be another reason for why any Shevuyah, even a single woman, would have required two witnesses without the special leniency. 
</p><p>
This also appears to be the opinion of the <b>RAMBAM</b> (Hilchos Sanhedrin 16:6, see Shev Shemaitsa ibid.), who writes that only one witness is necessary to determine whether or not a woman is a Zonah or Gerushah and prohibited to a Kohen. Similarly, <b>TOSFOS</b> in Gitin (2b, DH Midi) writes that the law that a 'Davar sheb'Ervah' requires two witnesses applies only to testimony concerning marriage, divorce, and Z'nus that prohibits a woman to her husband. 
</p><p>
(c) <b>TOSFOS</b> (Gitin 2b, DH Ed Echad) writes that one witness is not believed even in order to <i>remove</i> an ordinary Isur that has already been established ('Ischazek Isura,' or a 'Chezkas Isur'). Accordingly, since the Chachamim assume that a Shevuyah definitely was defiled until proof is brought otherwise (see Kesuvos 13b), she is considered to have a 'Chezkas Isur' and thus a single witness would not be believed to remove that Isur if not for the special leniency the Chachamim instituted in the case of a Shevuyah.
</p><p>


lvr: 32
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>'SHEVUYOS' WHO TESTIFY ABOUT EACH OTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If two women were captured and each says 'I 
          was captured but I am Tehorah', they are not believed;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If each testifies that the other is Tehorah, they are 
          believed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - Beraisa):</font></b> If a woman says 'I am Temei'ah but my 
          friend (who was also captured) is Tehorah', she is 
          believed;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If she says 'I am Tehorah and my friend is Temei'ah', she 
          is not believed;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  If she says 'both of us are Temei'os', she is believed 
          about herself, but not about her friend;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  If she says 'Both of us are Tehoros', she is believed 
          about her friend, but not about herself.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Second clause):</font></b> If she says 'I am Tehorah and my friend 
          is Temei'ah', she is not believed.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> There are no witnesses that they were 
               captured.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, she would be believed about 
               herself!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah (22a):</font></b> A woman is believed to say that 
                    she was captured but is Tehorah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> We must say that there are witnesses.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Third clause):</font></b> If she says 'both of us are Temei'os', 
          she is believed about herself, but not about her friend.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> If there are witnesses, why is she not believed 
          about her friend?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> We must say that in this clause there are no 
          witnesses.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Fourth clause):</font></b> If she says 'Both of us are Tehoros', 
          she is believed about her friend, but not about herself.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> If there are no witnesses, she should be 
          believed about herself!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer:</font></b> We must say that in this clause there are 
          witnesses.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> Do the he second and fourth clauses discuss 
          when there are witnesses, and in the third clause there 
          are no witnesses?!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> Yes!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer #2 (Rav Papa):</font></b> No. In the entire Beraisa there are 
          witnesses that they were captured, and one witness who 
          contradicts her claims of who is Tehorah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reisha):</font></b> If she says 'I am Temei'ah but my friend 
               is Tehorah', she is believed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  She admitted that she is forbidden (one is 
                    believed to forbid himself). Her testimony 
                    permits her friend. (One witness  who says that 
                    a captive is Tehorah is believed  like two.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Second clause):</font></b> If she says 'I am Tehorah and my 
               friend is Temei'ah', she is not believed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since witnesses know that she was captured, she 
                    cannot permit herself. Her friend is permitted 
                    through the witness;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Third clause):</font></b> If she says 'both of us are 
               Temei'os', she is believed about herself, but not 
               about her friend;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  She admitted that she is forbidden. The witness 
                    permits her friend.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Why was this taught? The Reisha teaches 
               this!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that really, both are 
               Tehoros. She claimed that they are both Temei'os to 
               forbid her friend, even though she knew that it 
               would also harm herself.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Fourth clause):</font></b> If she says 'Both of us are 
               Tehoros', she is believed about her friend, but not 
               about herself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since witnesses know that she was captured, she 
                    cannot permit herself. She permits her friend.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Why was this case taught? (The first point 
               is known, and) we already know (the second point) 
               from the first clause!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that she is believed 
               to permit her friend only when she admits that she 
               is Temei'ah. This case teaches that even when she 
               tries to permit herself, she is believed.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MEN WHO CLAIM TO BE 'KOHANIM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Similarly, if each of two men says 'I am a 
          Kohen', they are not believed. If they also testify about 
          each other, they are believed;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  R. Yehudah:</font></b> We do not establish one to be a Kohen based 
          on one witness.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  R. Elazar:</font></b> This applies when there are protests. When 
          there are no protests, one witness suffices.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  R. Shimon ben Gamliel says, we establish a Kohen through 
          one witness.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Gemara - Question):</font></b> Why do we need all these Mishnayos 
          (teaching that ha'Peh she'Asar Hu ha'Peh she'Hitir)?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> All are needed;
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT WE LEARN FROM EACH 'MISHNAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Had we only learned the Mishnah (15b) in which R. 
          Yehoshua admits (that we believe one who says 'this field 
          was your father's and I bought it from him'), one might 
          have thought that there the one who forbids can permit, 
          because he stands to lose money (Tosfos - he is Muchzak ; 
          Rashi  - if he was not sure, he would not have admitted);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This would not apply to witnesses (18b, who say 
               'these are our signatures, but we were invalid 
               witnesses at the time') since <i>they</i> do not stand to 
               lose money.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Had we taught only about witnesses, one might have 
          thought that we believe them because <i>they</i> will not gain 
          from lying, but we do not believe one who helps himself;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Had we taught only these two Mishnayos, one might have 
          thought that they are believed only regarding money, but 
          not regarding Isurim, such as a married woman (who claims 
          that she was divorced - 22a).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Why must we teach (22a) 'I was captured but I 
          am Tehorah'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1:</font></b> We need to teach that if witnesses come after 
          they were (permitted to be) married, they do not leave 
          (the permission).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> This is like Rabah bar Avin (23a), who says 
          that this clause applies only to a captive;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Oshaya holds that this clause applies also to one 
               who claims that she was divorced. How can he answer?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #2:</font></b> We need to teach the case of two women who 
          were captured (23b).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need this case?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that we should suspect 
          that they are conspiring to falsely testify to help each 
          other. The Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need the case of two men (our 
          Mishnah)?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> We need to teach the argument of R. Yehudah and 
          Chachamim.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE CONCERN LEST TWO SCHEME TO HELP EACH OTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If Reuven said 'I am a Kohen, and so is 
          David', we rely on him to let David eat Terumah, but not 
          regarding lineage (for David to marry);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If a third man is with them, and each Kohen has two 
          others testifying that he is a Kohen, this establishes 
          them to have proper lineage;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  R. Yehudah says, even regarding Terumah Reuven is not 
          believed unless there is a third man.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> This shows that R. Yehudah is concerned lest 
          two lie to help each other, and Chachamim are not 
          concerned for this. Elsewhere, they hold contrary to 
          this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If two merchants (Levi and Shimon) 
               entered a city, and Levi said 'my produce is new and 
               my friend's is old. Mine is Tevel and my friend's is 
               tithed', he is not believed;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, he is believed.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (Rav Ada bar Ahavah):</font></b> The opinions (in the 
          Beraisa) must be switched.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (Abaye):</font></b> R. Yehudah is lenient regarding Demai 
          (doubtfully tithed produce), because most people tithe.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Rava):</font></b> We must also resolve the contradiction 
          in Chachamim!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #3 (Rava):</font></b> We resolve R. Yehudah like Abaye did. 
          We resolve Chachamim like Rav Chama bar Ukva answered (a 
          different question), 'he is holding tools of the trade'.
<br>
<br>

sjt:
<font><b>1) HALACHAH: A NON-KOHEN WHO RECITES THE PRIESTLY BLESSING</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether the fact that a person recited Birkas Kohanim may be used as proof that he is a Kohen. The Gemara says that if a non-Kohen recites Birkas Kohanim, he transgresses an Isur Aseh. <b>RASHI</b> explains that the source for this is the verse which says that '<i>they</i> shall bless' the people, implying that only Kohanim may bless the people. 
</p><p>
There is a widespread custom for a father to bless his children with the text of the Birkas Kohanim every Friday night and on Erev Yom Kippur. Why is this permitted? The Halachah is that one who is not a Kohen is not permitted to bless others with the priestly blessing.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>BI'UR HALACHAH</b> (OC 128) offers two answers. He cites the <b>BACH</b> who says that the Isur applies only when the blessing is recited with outstretched hands. Therefore, a non-Kohen is permitted to bless his child without outstretched hands.
</p><p>
(This implies that blessing one's child with outstretched hands is prohibited. It is said in the name of the <b>VILNA GA'ON</b> that one should bless his child with only one hand outstretched, but not two, since only Kohanim are permitted to bless with two hands outstretched.)
</p><p>
(b) Alternatively, the recitation of Birkas Kohanim was established as part of the prayer service. When one recites the verses of Birkas Kohanim outside of the context of Tefilah, he does not have intention to fulfill the Mitzvah of Birkas Kohanim and thus he is permitted to recite the verses. 
</p><p>


<font><b>2) USING A DOCUMENT AS A WITNESS</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether a document (Shtar) may be used as proof that one is permitted to marry a full-fledged Kohen (a 'Kohen Meyuchas').
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (28:6) asks that there is a rule that testimony must be verbally stated and not written. How, then, can a document be used as testimony that one is a Kohen? The Ketzos ha'Choshen adds that although documents are legally valid, that status does not apply here to permit the document to serve as testimony.
</p><p>
(The Rambam explains that a Shtar is an enactment instituted by the Rabanan to help a person in need borrow money. (Without a Shtar, lenders would be very reluctant to lend money.) This power of a Shtar obviously does not apply to allow a Shtar to serve as testimony that a person is a Kohen, because such a case has nothing to do with borrowing money. Moreover, even according to the other Rishonim who say that a Shtar's power is mid'Oraisa, this applies only when the information in the Shtar was given to the witnesses by the writer of the document to establish a legal status based on the document. Here, though, the Shtar was given as proof that a loan transpired and not as proof that the lender is a Kohen (as that piece of information is irrelevant to the transaction).)
</p><p>
<b>ANSWER:</b> The Ketzos ha'Choshen answers that according to <b>TOSFOS</b> (24a) who says that mid'Oraisa normal families (Stam Mishpachos) are permitted to marry into the families of Kohanim as they are assumed to have valid Yichus, the entire need for testimony is only mid'Rabanan. Therefore, we may rely on written testimony (like in the case of Kiyum Shtaros, which is also only mid'Rabanan).
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here also, when he is holding tools of the trade we 
               are concerned that he is lying to help his friend. 
               (Levi will not sell his produce by degrading it. 
               Perhaps they conspire, and in another city Shimon 
               will degrade his own produce and praise Levi's!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  Rav Chama answered the following question:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a potter (who is careful about 
               Taharah) left his pots and went to drink, the inner 
               ones are Tehorim and the outer ones are Temei'im.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Contradiction (Beraisa #1):</font></b> Both of them are 
               Temei'im.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Chama bar Ukva):</font></b> (The Beraisa discusses 
               when) he has his tools of the trade, so everyone 
               touches the pots (since they know that they are for 
               sale).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Contradiction (Beraisa #2):</font></b> Both are Tehorim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (R. Chama bar Ukva):</font></b> (This is when) he does 
               not have his tools of the trade.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says that only the outer pots 
               are Temei'im. What is the case?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> The pots are close to a major road with 
               obstacles to distance wagons from the walls on the 
               sides. (Clothing of ignoramuses is Tamei, and it 
               touches or enters the airspace of outer pots near 
               the obstacles.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #4:</font></b> R. Yehudah and Chachamim argue about whether 
          or not we establish a person to have proper lineage based 
          on seeing him eat Terumah. (R. Yehudah says that we do, 
          so he always requires two witnesses to establish a person 
          to be a Kohen to eat Terumah. However,. in a case where 
          one witness suffices, he is not concerned lest two 
          conspire to testify falsely for each other.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT ESTABLISHES A PERSON TO HAVE PROPER LINEAGE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Can we establish that a person has proper 
          lineage based on a document?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it says, 'I, Ploni the Kohen, sign as a 
                    witness', no one testifies about him!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it says 'I, Ploni the Kohen 
               borrowed... ', and witnesses signed below.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Do witnesses testify only about the loan, or about 
               everything in the document?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Huna and Rav Chisda argued. One said that 
          documents establish lineage, and the other said that they 
          do not.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> If we see a man Duchan (bless Birkas Kohanim), 
          does this establish him to have proper lineage?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This does not depend on whether or not we establish 
               lineage based on eating Terumah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Perhaps the one who establishes based on eating does 
               so because a Zar (non-Kohen) who eats Terumah is 
               liable to death at the hands of Shamayim (so surely 
               he must be a proper Kohen). For a Zar to Duchan is 
               only an Isur inferred from an Aseh, perhaps he would 
               agree that it is not a proof of proper lineage. Or, 
               perhaps we do not distinguish;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Perhaps the other opinion does <i>not</i> establish based 
               on eating because Terumah is eaten in private. 
               Birkas Kohanim is done in public, so a Zar would not 
               be so brazen to Duchan, so it is a proof. Or, 
               perhaps we do not distinguish.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Rav Chisda and R. Avina argued. One said that 
          Birkas Kohanim establishes lineage, and the other said 
          that it does not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rav Nachman bar Yitzchak):</font></b> May we establish 
          lineage based on Birkas Kohanim?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> Rav Chisda and R. Avina argued about this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question (Rav Nachman bar Yitzchak):</font></b> What is the final 
          ruling?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #1 (Rava):</font></b> I know a Beraisa (which says that we do 
          not).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yosi):</font></b> Chazakah is great! 'Among the 
               Kohanim... they could not find their documents of 
               lineage, and were spurned from Kehunah. Ha'Tirshasa 
               told them that they will not eat Kodshei Kodoshim 
               (Korbanos permitted only to Kohanim) until 
               (Mashi'ach will come and) a Kohen (Gadol) will wear 
               the Urim v'Tumim (to rule about them)';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He said that they keep their Chazakah. Just 
                    like they ate Terumah in Bavel, they may eat 
                    Terumah in Eretz Yisrael. (Likewise, they may 
                    continue to Duchan.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we establish lineage based on Birkas Kohanim, 
               people would come to approve of the lineage of these 
               disqualified Kohanim!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Objection (Rav Nachman bar Yitzchak):</font></b> There it is 
          different, since people see a weakness in their Chazakah 
          (they may not eat Kodshei Kodoshim).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Support (for Objection):</font></b> If we would not say so, how 
          would the opinion that establishes lineage from eating 
          Terumah address this concern?!
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE POWER OF 'CHAZAKAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If so (there is no concern), why did R. Yosi 
          say that Chazakah is great?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1:</font></b> In Bavel, they ate only Terumah mid'Rabanan. 
          Now, they may eat Terumah mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2:</font></b> Also now they may eat only Terumah 
          mid'Rabanan; lineage is established only by eating 
          Terumah mid'Oraisa. Chazakah is great, for even though 
          now (in Eretz Yisrael) there is reason to decree against 
          Terumah mid'Rabanan, lest they eat Terumah mid'Oraisa, no 
          decree was made.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> They did eat Terumah mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'They will not eat from Kodesh ha'Kodoshim' - from 
               Kodshei Kodoshim they will not eat, but they will 
               eat Terumah mid'Oraisa!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> Expound the verse to say 'They will not eat 
          something called Kodesh (Terumah), nor something called 
          Kodshim (Kodshei Kodoshim).'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAN WE ESTABLISH LINEAGE FROM 'BIRKAS' 'KOHANIM'?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #2 (to Question 3:g, 24b - Beraisa):</font></b> Any of the 
          following is a Chazakah (of Kehunah):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Birkas Kohanim in Bavel;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Eating Chalah in Surya;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Receiving Matanos (the foreleg, jaw and stomach from 
               a slaughtered animal) in big cities.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Birkas Kohanim is a Chazakah of Kehunah 
               for lineage.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Rejection:</font></b> No, it is for Terumah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Presumably, Birkas Kohanim in Bavel is a 
          Chazakah just like eating Chalah in Surya (which is 
          taught with it). The latter must be for lineage. (Chalah 
          is just like Terumah, so we would not say that eating 
          Chalah is a Chazakah for Terumah.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> The Tana holds that Chalah is mid'Rabanan 
          nowadays, but Terumah is mid'Oraisa. Eating Chalah 
          mid'Rabanan is a Chazakah for Terumah mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rav Huna brei d'Rav Yehoshua will say 
               below.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #3 (Beraisa):</font></b> Any of the following is a Chazakah 
          (of Kehunah):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In Eretz Yisrael, Birkas Kohanim or receiving 
               Terumah at the granaries;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In Surya or any place where Sheluchim arrive to 
               inform which day was declared Rosh Chodesh, Birkas 
               Kohanim is a Chazakah, but receiving Terumah is not.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Bavel is considered like Surya.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon ben Gamliel says, even Alexandria used to 
               be like Surya, since Beis Din was Kavu'a there.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> Birkas Kohanim is a Chazakah for 
               lineage.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> No, it is for Chalah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Presumably, it is a Chazakah like receiving 
          Terumah, and there it must be for lineage!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> The Tana holds that Terumah is mid'Rabanan 
          nowadays, but Chalah is mid'Oraisa. Eating Terumah 
          mid'Rabanan is a Chazakah to eat Chalah mid'Oraisa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rabanan:</font></b> Even the opinion that says that Terumah is 
               mid'Rabanan nowadays agrees that Chalah is 
               mid'Oraisa. We find that during the seven years of 
               conquering Eretz Yisrael, and the seven years of 
               dividing it among the tribes, there was an 
               obligation to take Chalah, but not Terumah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Rejection (Rav Huna brei d'Rav Yehoshua):</font></b> Just the 
          opposite! Even the opinion that Terumah is mid'Oraisa 
          today says that Chalah is only mid'Rabanan!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'When <i>you</i> (plural) will come to the 
               land' - when all of you come, not when a minority 
               comes.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Only a minority of those exiled to Bavel returned 
               with Ezra to Eretz Yisrael.
<br>
<br>

sjt:
<font><b>1) ACCEPTING THE TESTIMONY OF A RELATIVE</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which a person claims, 'This is my son, and he is a Kohen.' Rebbi says that he is believed inasmuch as we may give the son Terumah to eat, but we may not permit him to marry the daughter of a Kohen Meyuchas. Rebbi Chiya says that if we accept his testimony with regard to Terumah, we must also accept his testimony with regard to Yichus, and if we do not accept his testimony with regard to Yichus, we should not accept it at all. (The Gemara understands that Rebbi Chiya maintains that the testimony is not accepted at all.)
</p><p>
Why is a father not believed to testify that his son is a Kohen? The issue of Kehunah is a matter of Isur, for which a single witness is believed ('Ed Echad Ne'eman b'Isurim').
</p><p>
<b>ANSWER:</b> The <b>ROSH</b> in Gitin (5:12) writes that a person is not believed to testify about himself that he is a Kohen in order to be permitted to eat Terumah, because accepting his claim that he is a Kohen would provide him and his descendants with a great benefit, and therefore a person who makes such a claim is suspected of lying. The Rosh apparently understands that the only reason why one is not believed to testify that he is a Kohen is the concern that he is lying for personal gain. This may also be the reason why a father is not believed to say that his son is a Kohen.
</p><p>
<b>TOSFOS</b> here points out that the statement, 'This is my son, and he is a Kohen,' implies that there are two details which are unknown and which the father is revealing: the first is that the child is his son, and the second is that the child is a valid Kohen. Tosfos asks that if it is not known that the child is his son, why is the father not believed when he says that his son is a valid Kohen with a 'Migu' that he could have said that the child is <i>not</i> his son and is a Kohen? Had he made that claim, he would have been believed because he would have no ulterior motive, as he would not be claiming to be the child's father. He would be testifying about an unrelated person for whom he is believed to testify.
</p><p>
Tosfos answers that he is not believed even though he has a 'Migu' because, according to his present statement, he is a relative and one is not believed to say that his relative is a Kohen.
</p><p>
This logic seems flawed. According to the Rosh, the only reason why a relative is not believed for Kehunah is because he might be lying. If there is a 'Migu,' however, that 'Migu' provides reason to believe that he is <i>not</i> lying. Why, then, is he not believed even though he is a relative of the one for whom he testifies? Apparently, Tosfos understands that there is some other reason for why a relative is not believed. (The <b>TOSFOS HA'ROSH</b> rejects Tosfos' logic and suggests another answer to Tosfos' question. See <b>KOVETZ HE'OROS</b> #65, who suggests a Chidush with regard to the Pesul of a Karov (relative) who testifies, which may be applied here.)
</p><p>
Perhaps the answer is that although with regard to Kehunah a relative is not accepted as a witness because he is suspected of lying, there is a different reason for why his testimony is not accepted even when there is no suspicion that he is lying (such as when he has a 'Migu'). Since a relative is not valid as a witness when <i>two</i> witnesses are necessary even though he is <i>not</i> suspected of lying, the Chachamim made a general decree that a relative is not accepted as a witness for Kehunah just as he is not accepted for normal, two-witness testimony. Therefore, even in a case where there is a 'Migu' (and thus there is reason to assume that he is not lying), the testimony of a relative is not accepted. (E. Kornfeld)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #4 (Beraisa):</font></b> Any of the following is a Chazakah 
          of Kehunah: Birkas Kohanim, receiving Terumah at the 
          granaries, and testimony.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Testimony is not a Chazakah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Beraisa teaches that Birkas Kohanim 
               is like testimony, i.e. it establishes lineage!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rejection:</font></b> No, it teaches that testimony that is based on 
          a Chazakah is like a Chazakah (like we will now 
          describe).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A 'CHAZAKAH' BASED ON READING IN THE 'TORAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  A man (to R. Ami):</font></b> I know that Ploni is a Kohen, because 
          he read first in the Torah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (R. Ami):</font></b> Perhaps he is not a Kohen, but he was 
          the greatest person in the Shul!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> A Levi read after him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Ami established Ploni to be a Kohen based on 
               this.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  A man (to R. Yehoshua ben Levi):</font></b> I know that David is a 
          Levi, because he read second in the Torah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (R. Yehoshua ben Levi):</font></b> Perhaps he is not a 
          Levi, but he is a great person!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> A Kohen read before him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehoshua ben Levi established David to be a Levi 
               based on this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  A man (to Reish Lakish):</font></b> I know that Reuven is a Kohen, 
          because he read first in the Torah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Reish Lakish:</font></b> Did you see him receive Terumah at the 
          granaries?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  R. Elazar:</font></b> Do you hold that if there are no granaries, we 
          cannot establish anyone to be a Kohen?! (Certainly, it 
          suffices that he read first in the Torah!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  A similar episode occurred when they were in front of R. 
          Yochanan.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Reish Lakish:</font></b> Did you see him receive Terumah at the 
          granaries?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  R. Yochanan:</font></b> If there are no granaries, can no one be 
          established to be a Kohen?!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Reish Lakish (angrily, to R. Elazar):</font></b> You heard these 
          words from R. Yochanan, and did not say them in his 
          name?!
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ESTABLISHING A PERSON THROUGH RELATIVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Rebbi or R. Chiya established Shimon to be a Kohen from 
          Shimon's father's testimony. The other (of Rebbi and R. 
          Chiya) established Yakov to be a Levi from Yakov's 
          brother's testimony.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  We must say that t Rebbi established Shimon to be a Kohen 
          from his father's testimony:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> If one said 'This is my son. He 
               is a Kohen', he is believed for Terumah, but not for 
               lineage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chiya:</font></b> If he is believed for Terumah, he should 
               also be believed for lineage. If he is not believed 
               for lineage, he should not be believed for Terumah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rebbi:</font></b> I believe him for Terumah, since he can feed 
               to his son Terumah. I do not believe him to let his 
               son marry, since this is not in his control (perhaps 
               the son is a Mamzer)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Since Rebbi established a man to be a Kohen based on his 
          father's testimony, it must be that R. Chiya established 
          a man to be a Levi from his brother's testimony.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> What is the difference? Just like one cannot 
          testify about his son, the same should apply to his 
          brother!
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>'CHAZAKOS' FOR 'KEHUNAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer:</font></b> He believed the brother because he spoke l'Fi 
          Tumo (unaware of the consequences of his words):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> A man said l'Fi Tumo 'I remember when 
               I was a child... they took me out of school... and 
               immersed me to eat Terumah';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Chiya says that he concluded 'my friends avoided 
               touching me, and called me 'Yochanan who eats 
               Chalah'.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi established him to be a Kohen based on this.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Beraisa - R. Shimon ben Elazar):</font></b> Ma'aser Rishon 
          establishes a man to be a Kohen, just like Terumah does. 
          If he takes a portion in Beis Din, this does not 
          establish him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Ma'aser Rishon is given to a Levi!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Our Tana holds like R. Elazar ben Azaryah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Akiva):</font></b> We give Terumah to a Kohen and 
               Ma'aser Rishon to a Levi;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Elazar ben Azaryah says, Ma'aser Rishon is given 
               even to a Kohen.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Even R. Elazar ben Azaryah agrees that Ma'aser 
          may be given to a Levi! (How can we establish the man to 
          be a Kohen?)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> R. Elazar ben Azaryah holds that after Ezra fined 
          the Leviyim (for not returning to Eretz Yisrael), Ma'aser 
          Rishon is given only to a Kohen.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps it happened to be given to a Levi!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Rav Chisda):</font></b> We knew that Yochanan's father was a 
          Kohen. There was a rumor that Yochanan was Pasul for 
          Kehunah because his mother was divorced or did Chalitzah. 
          People saw Yochanan receiving Ma'aser Rishon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is certainly not a Levi! If he was truly a Pasul 
               Kohen, he would not receive Ma'aser.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even the opinion that permits anyone to <i>eat</i> 
               Ma'aser Rishon agrees that it is <i>distributed</i> only 
               to a Levi or Kohen.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If he takes a portion in Beis Din, this does 
          not establish him.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> If distribution in Beis Din does not establish 
          him, what does?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> The Beraisa means: one who receives 
          a share of Terumah with his brothers from his father's 
          estate is not established to be a Kohen.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> One might have thought that just like the others 
          receive Terumah to eat, also this son;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, it is possible that he receives Terumah to 
               sell it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A PROTEST THAT A MAN IS NOT A 'KOHEN'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Yehudah):</font></b> We do not establish Ploni to be a 
          Kohen based on one witness... (R. Elazar says, when there 
          are no protests, one witness suffices. R. Shimon ben 
          Gamliel says, we establish a Kohen through one witness.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> R. Shimon ben Gamliel says the same thing as R. 
          Eliezer!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Eliezer holds that even one 
               witness can protest, and R. Shimon ben Gamliel 
               requires two.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Yochanan taught that all agree that a 
               protest requires at least two!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> The case is, we know that Ploni's father is a 
          Kohen. There was a rumor that Ploni is Pasul (due to his 
          mother), so we demoted him from Kehunah. One witness 
          testified that he is a proper Kohen, and we reinstated 
          him;
<br>
<br>

sjt:
<font><b>1) A WOMAN WHO WAS JAILED BY NOCHRIM</b></font><b>
<br>QUESTIONS:</b> The Mishnah states that a woman who was jailed ('Nechbeshah') for monetary reasons is permitted to live with her husband afterwards, but if she was 'Nechbeshah' for the death penalty she is prohibited to her husband if she is released. <b>RASHI</b> and <b>TOSFOS</b> explain that when she was jailed for monetary reasons she is permitted to her husband even if he is a Kohen, because the captors are afraid to do anything to her lest they lose their money. When she was jailed for the death penalty, however, the captors treat her like Hefker and there is a concern that she willingly has relations with them (in order to save her life), and thus she is prohibited to return to her husband even if he is a Yisrael.
</p><p>
(a) The Mishnah earlier (22a), however, states that a woman who was captured ('Shevuyah') is prohibited to return to her husband only if he is a Kohen, because we are concerned only that she might have been raped. Why, in the case of a 'Shevuyah,' are we concerned only that she was raped (and therefore Asurah only to a Kohen), while in the case of 'Nechbeshah' we assume either that <i>nothing</i> happened or that she had relations with her captors <i>willingly</i>?
</p><p>
(b) In the Gemara, Rav Shmuel bar Rav Yitzchak says in the name of Rav that when a woman was 'Nechbeshah' for monetary reasons she is permitted to return to her husband only when the power of the Jewish authority is dominant over the Nochrim. When, however, the power of the Nochrim is dominant, the woman is prohibited to her husband (see Tosfos, DH Al Yedei Mamon, who says that she is prohibited only if her husband is a Kohen).
</p><p>
If the reason why she is permitted to return to her husband is because the captors are afraid that they will lose their money if they mistreat her, then why does this reason apply when the Jewish authority is dominant over them? The Jews simply could have her freed without giving in to their demands, and thus the captors have nothing to lose if they rape her, since they will not get their money anyway!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that only when she was 'Nechbeshah' for the death penalty is there reason to be concerned that she had relations with her captors willingly -- for by doing so she thinks that she might save herself from imminent death. In contrast, when she was 'Nechbeshah' for monetary reasons or when she was kidnapped ('Shevuyah'), there is no threat to her life and therefore there is no concern that she willingly had relations with her captors.
</p><p>
This view of Tosfos is disputed by <b>RABEINU CHANANEL</b> (see <b>TOSFOS RID</b>) and the <b>RAMBAM</b> (Hilchos Isurei Bi'ah 18:30) who equate 'Nechbeshah' with 'Shevuyah' and rule that even when she was 'Nechbeshah' for the death penalty, she is prohibited to her husband only when he is a Kohen. When she was 'Nechbeshah' for monetary reasons, and the Jews are in power, she is permitted to her husband (as explained above).
</p><p>
(b) <b>RASHI</b> in Avodah Zarah (23a) explains that the case of a woman who is 'Nechbeshah' for monetary reasons refers to a woman who owes money to the Nochrim, who take her captive in order to force her to pay her debt. Since they have a <i>legal right</i> to the money, it is assumed that the Jews would make her pay her debt even though the Jews are in control. Hence, only if the captors mistreat her would they lose their claim to the money, and therefore we can be certain that nothing inappropriate was done to her.
</p><p>
This is true only when the Jews have power over the Nochrim. When the Jews are not in control, the captors are not afraid that they will lose their claim to the money if they mistreat her, and thus we must be concerned that she was raped.
</p><p>


<font><b>2) A WOMAN WHO WAS TAKEN CAPTIVE WITH NO APPARENT MOTIVE</b></font><b>
<br>QUESTION:</b> The Mishnah states that a woman who was jailed ('Nechbeshah') for monetary reasons is permitted to live with her husband afterwards, but if she was 'Nechbeshah' for the death penalty she is prohibited to her husband if she is released. <b>RASHI</b> and <b>TOSFOS</b> explain that when she was jailed for monetary reasons she is permitted to her husband even if he is a Kohen, because the captors are afraid to do anything to her lest they lose their money. When she was jailed for the death penalty, however, the captors treat her like Hefker and there is a concern that she willingly has relations with them (in order to save her life), and thus she is prohibited to return to her husband even if he is a Yisrael.
</p><p>
What is the Halachah in a case in which the captors neither demand any money nor threaten her life?
</p><p>
<b>ANSWER:</b> The Gemara in Avodah Zarah (23a) concludes that she is permitted to return to her husband only when the captors fear losing their money if they mistreat her. If they have no fear of losing money, then we must be concerned that she was raped.
</p><p>
According to this logic, it is possible that the wife of a Kohen who secluded herself (Yichud) with a Nochri should be prohibited to return to her husband.
</p><p>
The <b>REMA</b> (EH 7:11) explains that although Yichud is always prohibited, if a woman transgressed and secluded herself with a Nochri, she is permitted to her husband. We do not derive from the case of 'Nechbeshah' that she is prohibited, because in the case of 'Nechbeshah' the captor is in complete control and the woman cannot cry out for help and be saved, and thus we must assume that she was raped. In contrast, when she willingly secluded herself in a room with a Nochri, she is able to cry out for help, and thus we do not assume that she was raped. 
</p><p>
(The <b>BEIS SHMUEL</b> there (#33) quotes the <b>MORDECHAI</b> who writes that whenever there is Yichud for an extended period of time, the woman indeed becomes prohibited to her husband.)
</p><p>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Two witnesses came and said that he is Pasul, so we 
          demoted him. Now, a second witness testified that he is a 
          proper Kohen;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> All agree that we join witnesses who did not testify 
               together. The question is whether or not we are 
               concerned for disgrace to Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The first Tana (R. Eliezer) does not allow a 
               disgrace of Beis Din. Since we demoted him, we do 
               not reinstate him;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon ben Gamliel says that we reinstate him. We 
               are not concerned for the disgrace of Beis Din.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Objection (Rav Ashi):</font></b> If so, they would argue even if 
          both witnesses that he is a Kohen came after the two who 
          protested!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (Rav Ashi):</font></b> They argue about whether or not we 
          join witnesses who testified separately;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Other Tana'im (R. Nasan and Chachamim) also argue 
               about this:
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Two witnesses do not join unless they saw 
               the testimony together;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehoshua ben Korchah says, they join even if they 
               saw the testimony at different times.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Two witnesses join only if they testify together;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Nasan says, one can testify today and the other 
               on another day.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A WOMAN TAKEN FOR MONETARY REASONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If Nochrim took a woman captive for money 
          (they intend to charge ransom to release her), she is 
          permitted to her husband;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If she was taken for a capital offense, she is forbidden 
          to her husband.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - Rav Shmuel bar Rav Yitzchak):</font></b> This applies only 
          when Yisrael are in control. If the Nochrim are in 
          control, even when taken for money she is forbidden to 
          her husband.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Version #1 - Question (Rava - Mishnah):</font></b> R. Yosi ha'Kohen 
          and R. Zecharyah ben ha'Katzav testified about a girl who 
          was taken for collateral for a loan in Ashkelon. Her 
          family distanced themselves from her, even though the 
          witnesses about her abduction said that she was never 
          secluded.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Chachamim:</font></b> If you believe the witnesses that she was 
               taken for collateral, believe them that she was not 
               secluded! If you do not believe them that she was 
               not secluded, do not believe them that she was 
               abducted!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Nochrim are in control in Ashkelon, and 
               it was a problem only because she was taken for 
               collateral. Had she been taken merely for ransom, 
               she would be permitted (even without witnesses that 
               there was no seclusion)!
<br>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A WOMAN TAKEN FOR MONETARY REASONS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer:</font></b> No, the same applies even to one taken for 
          ransom. The case happened to be that she was taken for 
          collateral.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Version #2 - Support (for Rav Shmuel - Rava - Mishnah):</font></b> 
          R. Yosi ha'Kohen and R. Zecharyah ben ha'Katzav testified 
          about a girl who was taken for collateral for a loan in 
          Ashkelon. Her family distanced themselves from her, even 
          though witnesses say that she was never in seclusion;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Chachamim:</font></b> If you believe the witnesses that she was 
               taken for collateral, believe them that she was not 
               secluded. If you do not believe them that she was 
               not secluded, do not believe them that she was taken 
               for collateral!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> She was taken for money, and she was permitted only 
               due to the witnesses. Without witnesses, she would 
               be forbidden!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> We do not distinguish between being 
               taken for collateral and being taken for ransom.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> No, we distinguish. Being taken for collateral 
          is more stringent.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Version #3 - Question (Mishnah):</font></b> If she is taken for 
          money, she is permitted;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Contradiction (Mishnah):</font></b> R. Yosi testified...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though she was taken for money, if not for the 
               witnesses she would have been forbidden!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Rav Shmuel bar Nachmani):</font></b> When Yisrael are in 
          control she is permitted. When Nochrim are in control, 
          even when taken for money, she is forbidden.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If she was taken for a capital offense...
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Opinion #1 (Rav):</font></b> An example is the wife of a thief.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Opinion #2 (Levi):</font></b> An example is the wife of ben Dunai (a 
          murderer).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Opinion #1 (Chizkiyah):</font></b> This applies only when there was 
          a verdict for death.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Opinion #2 (R. Yochanan):</font></b> It is even if there was no 
          verdict.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A BESIEGED CITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> If a besieged city was captured, all wives of 
          Kohanim are forbidden to their husbands;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If they have witnesses, even a male or female slave, they 
          are believed;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  A person is not believed about himself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  (Gemara - Contradiction - Beraisa):</font></b> If an army entered a 
          city in peacetime, open barrels of wine are forbidden and 
          closed barrels are permitted;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it was wartime, both are permitted, because the 
               soldiers have no time to pour it to idolatry.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (Rav Mari):</font></b> They find time to rape women (for 
          there is a great lust for this), but not to serve 
          idolatry.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Version #1 (Tosfos) Answer #2 (R. Yitzchak bar Elazar):</font></b> 
          We distinguish the army of the country from an invading 
          army. (The home army has time, but an invading army does 
          not.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Even when the home army entered, certainly one 
          woman escaped. (Why are all forbidden?)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Version #2 (Rashi, according to Tosfos) (R. Yitzchak bar 
          Elazar):</font></b> We distinguish the home army (it does not do any 
          damage) from an invading army.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Even when the home army entered, certainly one 
          soldier escaped (to rape a woman. Why are all permitted?) 
          (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #1 (Rav Yehudah):</font></b> There are guards that see 
          everyone.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> Certainly, guards sometimes doze!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #2 (R. Levi):</font></b> The city is surrounded by iron 
          chains, dogs, sticks, thorns and geese (it is very hard 
          to leave, and one who tries will surely be detected).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (R. Aba bar Zavda):</font></b> R. Yehudah Nesi'ah and Chachamim 
          argued about how to resolve the Mishnah and the Beraisa. 
          One distinguished between the host army and an invading 
          army, and had no difficulty (he was not concerned lest 
          one escaped). The other (did not distinguish and) had 
          difficulty, and answered that the city is surrounded by 
          chains, etc.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A HIDING PLACE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Idi bar Avin):</font></b> If there is a hiding place in the 
          city, all wives of Kohanim are permitted.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question (R. Yirmiyah):</font></b> Is this even if it can hold only 
          one woman?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say about each woman that she hid there, or 
               not?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> This is like the case of two paths:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yehudah):</font></b> There are two paths; one is 
               Tahor and the other is Tamei. (We do not know which 
               is which.) Reuven walked on one path and touched 
               Taharos (Tahor Kelim or food). Shimon walked on the 
               other path and touched Taharos. If they ask at 
               different times, we tell each that his Taharos are 
               Tehorim. If they ask together, we tell them that 
               their Taharos are Temei'im;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, in either case their Taharos are 
               Temei'im.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rava):</font></b> If they ask at the same time, all agree that 
               their Taharos are Temei'im. If they ask at different 
               times, all agree that the Taharos are Tehorim. They 
               only argue when one comes to ask for himself and his 
               friend;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehudah equates this to asking at different 
                    times. R. Yosi equates this to asking at the 
                    same time.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Here too, we decide the law of all the women 
               together! (The Halachah follows R. Yosi against R. 
               Yehudah.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Rejection:</font></b> The comparison is no good. There, one path is 
          certainly Tamei. Here, perhaps all the women are Tehoros!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rav Ashi):</font></b> If she says that she did not hide 
          there but she is Tehorah, is she believed?
<br>
<br>

sjt:
<font><b>1) A 'SAFEK' THAT INVOLVES MORE THAN ONE PERSON</b></font><b>
<br>OPINIONS:</b> The Mishnah states that if a city was under siege and conquered by Nochrim, all of the wives of Kohanim in the city are prohibited to their husbands. In the Gemara, Rav Idi bar Avin states that if there is a place in the city where the women could hide, they are permitted to return to their husbands. Rebbi Yirmeyah inquires what the Halachah is in a case in which the hiding place is large enough for only one woman. Do we rule that since some of the women have nowhere to hide and are prohibited to their husbands, all of them are prohibited out of doubt, or do we rule that even though only one woman can hide, each woman is permitted when she comes to Beis Din by herself to ask if she is permitted to her husband, since we may assume that it was she who hid in the hiding place?
</p><p>
The source of such a leniency is the case of 'two people and two paths,' where one path is Tamei (there is an item of Tum'ah in it) and one path is Tahor, and one person walked on each path. If each person asks Beis Din about his status (whether he is Tamei or Tahor) independently of the other, they are both Tahor. If, however, they come together and ask, they are both Tamei. If one of them asks for both of them, there is a Machlokes between Rebbi Yosi and Rebbi Yehudah whether they are Tahor or Tamei (Rebbi Yehudah says that they are both Tahor, and Rebbi Yosi says that they are both Tamei).
</p><p>
The logic behind this Halachah is the principle, 'Safek Tum'ah b'Reshus ha'Rabim Tahor' -- when there is a doubt about Tum'ah in Reshus ha'Rabim, the subject in question is Tahor. (This is a Halachah l'Moshe mi'Sinai and is not based on a logical reason for resolving the Safek, but is a tool which instructs Beis Din how to approach the Safek: as long as the case which Beis Din is addressing involves a question of Tum'ah in Reshus ha'Rabim, they are to rule that it is Tahor.) Since each person has a different, independent question (that is, his walk through one of the paths), Beis Din rules that each one is Tahor. Only when they both come to Beis Din and present their cases together does Beis Din treat the question as one general case involving both persons, in which it is impossible to say that both are Tahor since one of the two is definitely Tamei.
</p><p>
<b>TOSFOS</b> in Pesachim (10a) writes that when the Gemara rules that both persons are deemed Tamei when they come together to ask about their status, it means that they are Tamei only <i>mid'Rabanan</i>. Tosfos explains that the logic behind this is that even if they both come together, mid'Oraisa the two questions are viewed as two independent cases, since each Safek involves only one of the two people (was this path Tamei, or was the other path Tamei). Tosfos in Nidah (60a) adds that the reason why the Rabanan were stringent to make them both Tamei is that it would look very odd for Beis Din to issue a self-contradictory ruling (that both are Tahor). (When they come separately, however, this is not a concern, because there is no single verdict which involves both of them but rather two completely separate verdicts.)
</p><p>
According to the logic of Tosfos, it is difficult to understand why Rebbi Yehudah rules that if one person asks on behalf of both, they are both deemed Tahor -- in this case, too, the Beis Din is issuing a self-contradictory ruling that they are both Tahor! Tosfos here (DH b'Ba) answers this question by saying that Rebbi Yehudah refers only to where one person asked about himself, and only after he received his ruling did he ask about his friend. Since both questions were posed separately, there is reason to say that Beis Din may make both of them Tahor and it does not appear to be a single, self-contradictory ruling.
</p><p>
(a) Tosfos understands that the Gemara concludes that the case of the women in a besieged city where there is a hiding place for only one is comparable to two women who come to Beis Din together to ask whether they are permitted to their husbands. Accordingly, <i>all</i> of the women should be prohibited, but since there is no certainty that <i>any</i> of them was raped Beis Din may rule that they are permitted. Tosfos learns that the case is equivalent to two women who ask at the same time, and therefore even according to Rebbi Yehudah the women should be prohibited.
</p><p>
(b) Rashi disagrees with Tosfos. Rashi understands that our case is comparable to the case of <i>one</i> person who asks on behalf of both, in which case they would all be prohibited only according to Rebbi Yosi.
</p><p>
It is possible to explain the Machlokes between Rashi and Tosfos about how to understand the Gemara in the following manner. Tosfos learns that as long as Beis Din is presented with a case that involves both parties, they may not issue a ruling that permits either one of them since it might be inferred from that ruling that the other one is also permitted, and that would be a self-contradictory ruling (as it is impossible for both of them to be permitted). Therefore, there is no difference between whether both people involved in the question come together and present their Safek, or whether one person presents the question on behalf of both of them. Therefore, Tosfos explains that Rebbi Yehudah is lenient only because the person did not present both persons' Sfeikos at the same time. Tosfos also explains that the case of the besieged city is comparable to when both persons come to Beis Din together.
</p><p>
Rashi (Pesachim 10a), on the other hand, explains that Rebbi Yehudah is lenient even in a case in which one person presented both of their Sfeikos together. Rashi explains that Rebbi Yehudah agrees that when both come to Beis Din together, Beis Din cannot <i>issue a ruling</i> that both are Tahor (or permitted to their husbands, in the case of the Gemara here). When the second person does not come personally to Beis Din to present his question, and his question is brought up merely as part of the first person's question, Beis Din does not have to <i>issue a ruling</i> that involves both of them. Beis Din simply says that the first person is Tahor, and <i>we may infer</i> that the second one is also Tahor. According to this approach, it is clear that in the case of the besieged city, when not all of the women come to Beis Din together, only Rebbi Yosi rules that all of the women are prohibited to their husbands.
</p><p>
The Gemara in Pesachim (10a) discusses a case in which a rodent brought Chametz into one of two houses just before Pesach, and it is not known which of the house now needs another Bedikas Chametz. The Gemara there says that this case is the same as the case of 'two paths.' The <b>TUR</b> derives from this comparison that if the owners of both houses come to the Rav together and ask if they are required to search their houses for the Chametz, the Rav must rule that both must perform another Bedikah. If they come to the Rav separately, the Rav rules that <i>neither</i> one needs to perform another Bedikah. The <b>RAMBAM</b> does not differentiate between when they come together and when they come separately, a view which the Tur questions from the Gemara in Pesachim which equates this case with the case of 'two paths.' The <b>MISHNEH L'MELECH</b> answers that the Rambam's opinion is based on the Gemara here in Kesuvos, which teaches that since it is not certain that any of the women were actually raped, they are all permitted to their husbands even though they come together to Beis Din. Likewise, in the case of the Chametz, it is possible that the rodent ate the Chametz and thus neither house has any Chametz in it.
</p><p>
According to Tosfos here, who explains that whenever Beis Din is asked a Safek that involves both persons, both Rebbi Yosi and Rebbi Yehudah agree that Beis Din must rule stringently for both persons, in the case of the Chametz the Halachah should be that even if only one of the homeowners comes to ask the question he is required to perform another Bedikah. This is in contrast to the Tur who differentiates between where they come to ask together and where they come separately. It seems that the Tur follows the approach of Rashi.
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we believe her because she did not need to lie? 
               (She could have claimed that she hid there, so 
               surely she tells the truth!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we not say this?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> This is like when Reuven rented his donkey to 
          Shimon and told him not to lead it near the river, since 
          it is wet. Shimon led it by the river, and it died.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> I led it by the river, but it was dry!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rabah:</font></b> He is believed. He did not need to lie, for 
               he could have said that he didn't lead it by the 
               river!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Abaye:</font></b> This reasoning does not override witnesses. 
               (Rashi Bava Metzia 81b - we can testify that it was 
               wet by the river. Teshuvas Rosh 82:1 - we know that 
               it is usually wet.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Rejection:</font></b> The comparison is no good. There, (it is as 
          if) witnesses know that it was wet. Here, we have no 
          witnesses that she is Temei'ah. It is merely a suspicion!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We do say 'why should she lie?' to overcome a 
               suspicion.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CAN A SLAVE TESTIFY ABOUT HER MASTER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Even a male or female slave is believed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Even her Shifchah (female slave) is believed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Contradiction (Mishnah):</font></b> (If a man divorced his wife on 
          condition that he die from his current illness,) they may 
          not be secluded together without witnesses. It suffices 
          even if a male or female slave is with them, except for 
          her Shifchah, for she is uninhibited in front of her 
          Shifchah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Rav Papi):</font></b> We are more lenient about a 
          captured woman.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #2 (Rav Papa):</font></b> We believe his Shifchah, not hers.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> We do believe her Shifchah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A person is not believed about himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> Her Shifchah is believed!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> No, her Shifchah is like herself.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #3 (Rav Ashi):</font></b> Both Mishnayos discuss her 
          Shifchah. (Normally,) her Shifchah sees and is silent;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Her Shifchah cannot be a chaperon, for we permit 
               (seclusion) when the chaperon is silent (perhaps she 
               will see Bi'ah and be silent);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We forbid a captive if the witness is silent. If the 
               Shifchah testifies, she is believed.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> (Just like her Shifchah would see the divorced 
          couple have Bi'ah and be silent,) we should be concerned 
          lest she lie (about a captive)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> Keeping silent (when seeing her sin) is one sin. 
          She would not do a second sin of testifying falsely, like 
          we find in the case of Mari bar Isak:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Mari's brother Ploni came after being away for a 
               long time. He asked for half the inheritance of 
               their father.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Mari:</font></b> I don't recognize you.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> Mari's claim is plausible. We find that 
               Yosef's brothers did not recognize him because he 
               left them before he had a full beard! Ploni must 
               bring witnesses to testify that he is Mari's 
               brother.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Ploni:</font></b> I have witnesses, but they are afraid to 
               testify because Mari is powerful.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Chisda (to Mari):</font></b> Get the witnesses to testify 
               that he is not your brother.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mari:</font></b> Is this the law? The one who seeks to take 
               money from its owner must bring proof!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> I rule thusly to you and your fellow 
               strong-arms.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> We should be concerned lest the witnesses 
               (fear Mari and) lie for him!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> They would not do a second sin, to testify 
               falsely.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Suggestion:</font></b> Tana'im argue about whether or not her 
          Shifchah can testify for her:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> We accept testimony that a captive is 
               Tehorah from a man, woman, boy, girl, her father, 
               mother, brother or sister, but not from her son, 
               daughter, slave or Shifchah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> All are believed to testify for her, 
               except herself and her husband.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  Rav Papi and Rav Ashi must say that the Tana'im argue 
          (Beraisa #1 contradicts them).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> Must Rav Papa say that they argue?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer:</font></b> No. Beraisa #2 discusses when they speak l'Fi 
          Tumo;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Dimi):</font></b> A man was talking l'Fi Tumo in front of 
               Rebbi, about when he and his mother were captured.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The man:</font></b> When I went to draw water... or gather 
               wood, my mind was (always) on my mother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Based on this, Rebbi allowed her to marry a Kohen.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>A WOMAN WHO BECAME FORBIDDEN TO HER HUSBAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah - R. Zecharyah ben ha'Katzav (a Kohen)):</font></b> I swear 
          that my wife didn't leave my side from the time the 
          invaders entered Yerushalayim until they left!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Chachamim:</font></b> A man cannot testify for himself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - Beraisa):</font></b> (Even though Chachamim forbade her to 
          him,) he designated a house for her in his courtyard. She 
          would leave before her children and enter after her 
          children (to avoid seclusion with him).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> Is this set-up acceptable for a 
          divorced woman?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps we are lenient only for a captive. Or, 
               perhaps there is no difference!
<br>

sjt:
<p>
<font><b>2) TRUSTING A WOMAN'S OWN MAIDSERVANT TO TESTIFY ABOUT HER</b></font><b>
<br>QUESTION:</b> The Mishnah (27a) states that if a woman was captured, even a slave or maidservant is believed to testify that she was not defiled and she is permitted to marry a Kohen. The Gemara here infers from the Mishnah that even her own maidservant is believed to testify to her benefit. The Gemara challenges this from a Mishnah (Gitin 73a) that states that a divorced woman 'may not seclude herself (Yichud) with her former husband unless there are witnesses present, even a slave or a maidservant, <i>except for her own maidservant</i>.' The Mishnah there clearly states that her own maidservant is <i>not</i> believed to testify about her.
</p><p>
What is the Gemara's question from the Mishnah in Gitin? The reason her own maidservant is not trusted is because a woman is not embarrassed to sin in front of her own maidservant. It is <i>not</i> because her maidservant has no trustworthiness. Why, then, does the Gemara assume that since Yichud in her maidservant's presence is prohibited, her maidservant is not believed to testify that the woman was not defiled by her captors? One case is unrelated to the other! (<b>RASHBA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> answers that if there is a chance that the maidservant would reveal to others what her owner did, there would be no Isur of Yichud when she is present since her owner would be afraid that her maidservant will tell others what happened in private. Since the Mishnah in Gitin states that there <i>is</i> an Isur of Yichud in her presence, it must be that the maidservant would never reveal that her owner did anything wrong, even when questioned in court. For this reason, the Gemara assumes that the maidservant would not be believed to say that her owner was not defiled, since she would never admit it if something really happened.
</p><p>
Rav Ashi's answer in the Gemara is also in agreement with this premise. Although he says that the maidservant will not reveal what happened, this means that she will only be silent but not that she will <i>lie</i> and say that nothing happened when something did happen to her owner.
</p><p>
(b) Perhaps another approach may be suggested. The Gemara understands that if there is no Isur of Yichud in the presence of her maidservant, it must be that the maidservant is viewed not as a separate entity but as part of her owner, as the Gemara itself suggests in Rav Papa's answer, 'her maidservant is like her.' Accordingly, it makes sense that she may not testify for her owner, since the Mishnah (27a) says that 'a person is not believed [to testify] about himself.' (See Insight #4 below for a similar discussion with regard to a woman's husband.) When Rav Papa answers that the Mishnah agrees that her maidservant is not believed, he understands that the Mishnah agrees that her maidservant is a 'part' of herself and thus she may not testify for 'herself.' (Indeed, the <b>SHITAH MEKUBETZES</b> cites the <b>SHITAH YESHANAH</b> who explains that this is the Gemara's intention when it says 'her maidservant is like her.')
</p><p>
Further support for this approach is found in the <b>RAMBAM</b>. The Rambam (Hilchos Isurei Bi'ah 18:19) writes that a husband is not believed to testify for his wife since 'one may not testify for himself, and so, too, her maidservant may not testify for her.' The words of the Rambam imply that the reason the maidservant is not believed is because she is considered to be 'part' of her owner.
</p><p>


<font><b>3) WHY THE RABANAN WERE LENIENT WITH REGARD TO A 'SHEVUYAH'</b></font><b>
<br>QUESTION:</b> The Mishnah teaches in various places that the Rabanan were lenient with regard to a woman who was taken captive ('Shevuyah'). (For example, the Rabanan ruled that even a minor and a woman's servants are believed to testify that she was not defiled by her captors.) What is the reason for this leniency?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (36b, DH v'Elu) writes that mid'Oraisa she does not have a 'Chezkas Be'ulah' -- it is <i>not</i> assumed that she was defiled. The Isur of a Shevuyah to a Kohen is mid'Rabanan, and therefore the Rabanan were lenient when they applied their laws in the case of a Shevuyah. This is also the intention of Tosfos (27b, DH b'Mesichah, according to the Girsa of <b>MAHARI LANDAU</b> in the margin of the Gemara, and Tosfos to Kidushin 12b, DH Im) who writes that the Rabanan were lenient and permitted relying on the testimony of a person who is 'Mesi'ach l'Fi Tumo' since the Isur of Shevuyah is mid'Rabanan. 
</p><p>
(The <b>NODA B'YEHUDAH</b> (EH 1:66) explains that although a Shevuyah does <i>not</i> have a Chezkas Kashrus because Ovdei Kochavim are steeped in immorality (13b), the Rabanan were lenient with a Shevuyah because of the logic that a woman makes herself disgusting so that they will not be attracted to her ('Menavlah Nafshah'), as the Gemara says in Kidushin (13b). The Rambam, quoted below (b), also treats her situation as a Safek, without a Chezkas Kashrus. However, the <b>MAHARSHA</b> in Bava Kama (114b) writes that the Chezkas Kashrus alone allows Beis Din to be lenient in the case of Shevuyah.)
</p><p>
Tosfos (36b) questions this approach. If, mid'Oraisa, the Shevuyah is assumed to be a Besulah, why does a man who rapes her not have to pay a Kenas? Tosfos answers that mid'Rabanan she is treated like a Be'ulah in <i>all</i> respects, so that she will not think that she may marry a Kohen. Similarly, she does not receive the Kesuvah of a Besulah; the Rabanan enacted that she has the status of a Be'ulah with regard to all Halachos so that she will not come to marry a Kohen.
</p><p>
(The <b>SHA'AR HA'MELECH</b> (Hilchos Isurei Bi'ah 18:24) cites <b>RASHI</b> in Bava Kama (114b) who seems to disagree with Tosfos and maintains that the Safek of the status of a Shevuyah is a Safek <i>d'Oraisa</i>. However, Rashi's comments there refer to the Havah Amina of the Gemara. From his explanation of the Gemara's conclusion there it seems that the Gemara retracts this view and maintains that a Shevuyah indeed is only a Safek d'Rabanan. See Maharsha there.)
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Isurei Bi'ah 18:17) writes that the reason why the Rabanan are lenient in the case of a Shevuyah is because the Isur created by a Safek is only mid'Rabanan. The Rambam apparently maintains that the Safek whether or not she was defiled is even a Safek <i>d'Oraisa</i>, but that the principle that a Safek d'Oraisa is deemed Asur is only <i>mid'Rabanan</i>. The Rambam follows his well-known view (Hilchos Avos ha'Tum'os 16:1, Hilchos Kil'ayim 10:27, Hilchos Tum'as Mes 9:12) that all Sfeikos d'Oraisa are Asur only 
<br>mid'Rabanan.
</p><p>
According to the Rambam, it is clear why she is treated like a Safek Be'ulah even with regard to monetary matters, and she does not receive a Kenas if she is raped, and she does not receive the Kesuvah of a Be'ulah.
</p><p>


<font><b>4) A PERSON MAY NOT TESTIFY ABOUT HIS WIFE</b></font><b>
<br>OPINIONS:</b> The Mishnah says that Rebbi Zecharyah ben ha'Katzav testified that his wife was not defiled by Nochrim during their siege on Yerushalayim. The Chachamim did not accept his testimony, and they asserted that 'a person may not testify about himself.' In this case, Rebbi Zecharyah was not the subject of the testimony, so why was he not believed?
</p><p>
There are two basic approaches for understanding why a man in such a situation is not believed. The first approach is that the testimony of the woman or the testimony of her husband is not accepted simply because of the concern that each one might lie in order to prevent becoming prohibited to the other (that is, the husband is 'Noge'a b'Davar'). According to this approach, the Mishnah says that the husband may not testify for his wife because he stands to benefit from the testimony and therefore he might be lying.
</p><p>
The second approach is that even in a case where the husband is <i>not</i> 'Noge'a b'Davar,' he still may not testify about his wife because of the rule that testimony must come from an external witness, an outside party, and not from the actual subject of the testimony (the 'Ba'al Davar'). When the Mishnah says that a husband is not believed because one may not testify for himself, it may mean that he is not believed since the husband and wife are considered to be one unit ('Ishto k'Gufo'). Hence, the Mishnah means that his testimony about his wife is considered testimony for himself, since he and his wife are one (and the husband is the 'Ba'al Davar').
</p><p>
This issue seems to be the subject of a dispute among the Rishonim.
</p><p>
(a) The <b>RASHBA</b> here and the <b>MAGID MISHNEH</b> (Hilchos Isurei Bi'ah 18:19) write that the husband and the wife are not believed even when they are 'Mesi'ach l'Fi Tumo' (they randomly mention what happened in casual conversation, and not as testimony in court). They are not believed because they are suspected of attempting to trick Beis Din and are just pretending to be 'Mesi'ach l'Fi Tumo' so that Beis Din will believe them. (The Rashba explains that although a person is believed when he says while 'Mesi'ach l'Fi Tumo' that he is a Kohen (see 25b), Beis Din is particularly concerned that a Shevuyah might be lying since she was originally permitted to marry a Kohen and now she becomes prohibited to marry him.) They do not mention the additional possibility that the husband and his wife are considered to be a single entity.
<br> 
<br>(b) The <b>SHITAH MEKUBETZES</b> writes that the husband and wife are considered a single entity ('Ishto k'Gufo'), and therefore he is not believed to testify about her just as she is not believed to testify about herself.
</p><p>
The Mishnah states that Rebbi Zecharyah ben ha'Katzav was not believed to testify that his wife was not defiled. <b>REBBI AKIVA EIGER</b> in his commentary on the Mishnah points out that Rashi on the Mishnah does not mention that Rebbi Zecharyah was a Kohen. Only later in the Gemara does Rashi mention that Rebbi Zecharyah was a Kohen! Rebbi Akiva Eiger explains that from the Mishnah there is no proof that he was a Kohen because the Mishnah might simply be teaching that a husband is not believed to testify about his wife since she is considered part of him, 'Ishto k'Gufo.' Even though his testimony is not relevant to himself since she would be permitted to live with him even if she was defiled (if he is not a Kohen), he is not believed because he is the 'Ba'al Davar,' as he and his wife are one. (His testimony is relevant in case he dies and she wants to marry a Kohen.) Hence, there is no proof from the Mishnah that Rebbi Zecharyah was a Kohen since the Halachah of the Mishnah applies just the same even if the husband is not a Kohen. Only later, when the Gemara mentions that the Chachamim prohibited his wife from living with him, does Rashi need to explain that he was a Kohen!
</p><p>
According to the explanation of the Rashba who says that the husband's testimony is not accepted because of the concern that he is lying in order to permit his wife to live with him, perhaps a woman's husband who is <i>not</i> a Kohen <i>would</i> be believed since he has nothing to gain by lying (see <b>HAGAHOS REBBI AKIVA EIGER</b> to Even ha'Ezer 7:2). It seems that Rashi does not agree with the Rashba's explanation and maintains that the husband is not believed because of 'Ishto k'Gufo.'
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>KEEPING A DIVORCED COUPLE APART</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> A divorcee may not get married (and 
          live) in her ex-husband's neighborhood;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he is a Kohen, she may not live in the same Mavoy 
               (alleyway, even if she did not remarry).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A small village is considered like a neighborhood 
               (Bach's text - Mavoy).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Which of them must move away from the other?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> She must move from him. He need not 
          move from her unless it is her courtyard.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> What is the law if they jointly own the 
          courtyard?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> She must move from him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This cannot discuss his courtyard, for this would be 
               obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It cannot discuss her courtyard, for then he must 
               move!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> We must say that they jointly own it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Rejection:</font></b> Perhaps he is renting it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> What was the final ruling?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> Rav expounded 'Hash-m will move you like a man 
          moves' to teach that moving is harder for a man than for 
          a woman.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (Beraisa):</font></b> If he (a Kohen) had borrowed things that she 
          received from her father, she makes a Shali'ach to 
          receive payment.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  (Rav Sheshes):</font></b> If they come to Beis Din together, we do 
          not accept their case.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Rav Papa):</font></b> We excommunicate them.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Rav Huna brei d'Rav Yehoshua):</font></b> We also lash them.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  (Rav Nachman):</font></b> This applies to divorce from Nisu'in. If 
          he divorced her from Eirusin he may pay her directly, 
          since they are not intimate with each other.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  A couple divorced from Eirusin came in front of Rava.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Version #1:</font></b> Rava set up a middleman, so they would not 
          deal with each other.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Ada bar Masna:</font></b> Rav Nachman taught... !
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> I saw that they are intimate with each other.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Version #2:</font></b> Rava did not set up a middleman.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Ada bar Masna:</font></b> Set up a middleman!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> But Rav Nachman taught... !
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Ada:</font></b> That is when they are not intimate with 
               each other. Here, we see that they are intimate.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN ONE CAN TESTIFY ABOUT WHAT HE SAW AS A CHILD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> A man may testify about the following things 
          that he saw when he was a minor:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is the signature of my father, Rebbi or 
               brother;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When Plonis was married she went out with a Hinuma 
               and uncovered hair (like the custom of virgins);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> When Ploni left school he would immerse in a Mikvah 
               to eat Terumah;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Ploni used to receive Terumah with us at the 
               granaries;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This area is a Beis ha'Pras (a field in which a plow 
               may have scattered bones from a Mes);
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> We used to walk this far on Shabbos (it is within 
               the Techum in which one may walk);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  One may not testify about seeing the following when he 
          was a minor:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ploni owned a path to his field here;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ploni owned the place where they pause during 
               funeral processions.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - Rav Huna brei d'Rav Yehoshua):</font></b> He is believed 
          only if an adult testifies with him. (Tosfos - this does 
          not apply to Terumah.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  All three cases of signatures must be taught:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had it taught only that he is believed about his 
               father's signature, we would have thought that he is 
               not believed about others, since he is not with them 
               as much.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had it taught only that he is believed about his 
               Rebbi's signature, we would have thought that he is 
               not believed about others, since he does not fear 
               them as much.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Had it taught only about his Rebbi and father, we 
               would have thought that he is believed about their 
               signatures because he fears him or is often with 
               him, but he is not believed about his brother.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rather, since validation of documents is 
               mid'Rabanan, Chachamim chose to believe him.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Mishnah):</font></b> He is believed to say that Plonis went out 
          with a Hinuma and uncovered hair.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  Since most girls are virgins when they marry, this is a 
          mere Giluy Milsa (proper testimony is not required).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ESTABLISHING A PERSON TO BE A 'KOHEN'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> When Ploni left school he would immerse to eat 
          Terumah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps Ploni is a Kohen's slave!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> This supports R. Yehoshua ben Levi, who forbids 
          teaching Torah to a slave.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Even so, this does not prove that he is not a 
          slave!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> The following do not prove that a master 
               freed his slave:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The master borrowed money from his slave;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> He made the slave an overseer on his property;
<br>
<br>

sjt:
<font><b>1) TESTIFYING ABOUT SOMETHING ONE SAW WHILE HE WAS A MINOR</b></font><b>
<br>QUESTION:</b> The Mishnah lists the topics about which a person may testify when he is an adult even though he witnessed them when he was a Katan. If a person is trusted to testify about these things that he witnessed when he was a Katan, why does he have to be an adult to testify about them? He should be able to testify about them while he is a Katan!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> and <b>TOSFOS RID</b> explain that the Mishnah is teaching that although normally a witness must be a valid witness both at the time that he sees the event and at the time that he testifies about it, in the cases mentioned in the Mishnah (such as Kiyum Shtaros) it suffices that the witness be a valid witness only at the time he testifies, because these topics are all mid'Rabanan. (See also <b>RAMBAM</b>, Hilchos Edus 14:2.)
</p><p>
The Tosfos Rid adds that his testimony is accepted only when he is an adult because once it is clear that he, as an adult, personally relies on what he saw as a child, it may be assumed that he indeed carefully examined it as a child and recognizes it well. This explains why the Rabanan were not lenient to accept his testimony when he says it as a Katan.
</p><p>
(b) The <b>RAMBAN</b> (in <b>MILCHAMOS</b>, 8b of the pages of the Rif) explains that testimony about the veracity of a Shtar differs from other types of testimony. In other cases, the witness is testifying about what he previously saw. If he was not a valid witness at the time that he saw the event, Beis Din cannot accept his testimony even though he is a valid witness when he testifies. In contrast, when he testifies about the veracity of a Shtar, the witness is testifying that he <i>presently</i> recognizes the signature, and it does not matter when he first saw the signature since his testimony involves only what he sees now.
</p><p>
The Gemara states that he is believed to testify about what he saw when he was a Katan only because Kiyum Shtaros is mid'Rabanan. According to the Ramban, it is unclear why this reason is necessary. Since he is a valid witness who testifies about what he sees now, even if Kiyum Shtaros would be mid'Oraisa he should be believed.
</p><p>
It must be that although the witness himself is a valid witness, there is another problem with testimony that a witness says based on what he saw as a Katan. Since a Katan does not carefully examine what he sees, even though he now testifies as an adult on what sees now (the signatures of witnesses), his testimony cannot be accepted for any d'Oraisa purpose because it is based on what he saw without careful examination when he was a Katan. This idea is implied by the Gemara when it suggests that a witness is believed to testify about something he saw when he was a Katan only when he testifies about his own father's or Rebbi's signature, since he indeed is more careful to study their signatures and to recognize them than other signatures.
</p><p>


<font><b>2) A MINOR'S TESTIMONY ABOUT AN ISUR D'RABANAN</b></font><b>
<br>QUESTION:</b> The Mishnah implies that a person may not testify when he is an adult for something he saw when he was a Katan, even for an Isur that is only d'Rabanan. <b>TOSFOS</b> asks that the Gemara in Pesachim (4b) contradicts this when it says that a Katan is believed when he says that Bedikas Chametz (which is d'Rabanan) was performed in a certain house. How are the two Gemaras to be reconciled?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the Rabanan permitted a Katan to testify in the case of Bedikas Chametz because it is in his ability to search the house for Chametz himself. In the cases of the Mishnah, however, the subject of his testimony (such as Kehunah or Techum Shabbos) is not within his control, it is not 'b'Yado.' 
</p><p>
(b) The <b>RASHBA</b> adds that in the case of Bedikas Chametz, the Katan says that he himself searched for Chametz. He is believed when he says something that he did himself because he is more careful about it and takes it more seriously.
</p><p>
(c) The <b>RASHBA</b> answers further that Bedikas Chametz is a procedure that is performed every year and it involves everyone. Therefore, a child knows what he is talking about when he testifies that Bedikas Chametz was done (in contrast to testimony about signatures and the like). (See also <b>REMA</b>, end of YD 127.)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>The slave put on Tefilin in front of the master 
                    or read three verses in the Beis ha'Keneses.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> There, the slave chose to do so. The master did 
          not treat him like a son.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Mishnah):</font></b> ...He would immerse to eat Terumah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  This testimony permits Ploni to eat Terumah mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Mishnah):</font></b> Ploni used to receive a share of Terumah with 
          us at the granaries.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Perhaps Ploni is a Kohen's slave!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> Our Tana holds that we do not give Terumah to a 
          slave unless his master is there.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> (If a Kohen and his slave 
               were mixed up at birth and we do not know who is the 
               Kohen,) we do not give Terumah to a slave unless his 
               master is there (i.e. they must come together to 
               receive);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, either can receive alone. He receives 
               for himself (if he is the Kohen) or for his master 
               (if he is the slave).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> In R. Yehudah's area, receiving Terumah was a proof 
               of proper lineage. In R. Yosi's area, it was not.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  (Beraisa - R. Elazar b'Ribi Yosi):</font></b> I testified only once, 
          and through my testimony a slave was established to be a 
          Kohen!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Objection:</font></b> This cannot be! Hash-m does not allow a mishap 
          to occur through a Tzadik's animal, all the more so 
          through a Tzadik himself!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Correction:</font></b> They sought to establish a slave to be a 
          Kohen through his testimony.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He saw the slave receive Terumah in R. Yosi's area, 
               and testified in R. Yehudah's area.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>OTHER TESTIMONIES SEEN BY A CHILD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> This area is a Beis ha'Pras.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  He is believed because Beis ha'Pras is only a stringency 
          mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> A person may crouch down and blow on 
               the dirt of a Beis ha'Pras and (if no bones are 
               seen) walk across.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah bar Ami):</font></b> A Beis ha'Pras which has been 
               walked on greatly is Tahor.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Any bone the size of a barley seed has surely 
                    been crushed (to less than this, so it is not 
                    Metamei).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Mishnah):</font></b> We used to walk this far on Shabbos.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  The Tana holds that the Isur to leave the Techum is only 
          mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Mishnah):</font></b> He is <i>not</i> believed to say that Ploni owned a 
          path to his field here, or that Ploni owned the place 
          where they pause during funeral processions.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  This is because these cause a monetary loss to someone.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  (Beraisa):</font></b> One is believed (after he matures) about the 
          following things he remembers from when he was a minor:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Father told me that this family is Tahor and this 
               one is Tamei.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Objection:</font></b> 'Tahor' and 'Tamei' do not apply to 
                    families!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Correction:</font></b> Rather, this family has proper 
                    lineage and this one does not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We ate at the Katzatzah (explained below) when 
               Ploni's daughter married Ploni.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We used to bring Chalah and Matanos (foreleg, jaw 
               and stomach from a slaughtered Chulin animal) to 
               Ploni the Kohen.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He is believed only if he himself took them, 
                    but not if others took them.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  In all these cases, a Nochri or slave who converted or 
          was freed is not believed.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  He is <i>not</i> believed to say that Ploni owned a path to 
          his field here, or that Ploni owned the place where they 
          pause during funeral processions;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  R. Yochanan ben Berokah says, they are believed.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> In which case(s) does R. Yochanan argue?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It cannot be the last cases. These cause a monetary 
               loss!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, he argues in the Reisha;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana says that a Nochri or slave who 
               converted or was freed is not believed, for he was 
               not careful to observe precisely. R. Yochanan holds 
               that since he planned to convert, he was precise.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> What is Katzatzah?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> If a man married a woman of improper 
          lineage, his family takes a barrel of produce and breaks 
          it in the middle of the street;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They say 'Hear, our brothers Yisrael! Our brother 
               Ploni married a woman of improper lineage. We fear 
               lest our seed will be mixed with his. Come take some 
               produce for a commemoration, so our seeds will not 
               get mixed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is Katzatzah about which a child (after he 
               matures) is believed.
<br>

sjt:
<p>
<font><b>3) A MINOR'S TESTIMONY THAT A FAMILY IS 'PESULAH'</b></font><b>
<br>QUESTION:</b> The Gemara cites a Tosefta that states that a child is believed to testify that his father said a certain family is Kesherah and that another family is Pesulah.
</p><p>
Why is the child's testimony accepted? The Mishnah states that a Katan is believed to testify about certain things only after he becomes an adult!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> and the <b>RASHBA</b> explain that the Tosefta also refers to when the Katan testifies after he becomes an adult. (The words of the Tosefta, 'Ne'eman Tinok...,' are not consistent with this explanation.)
</p><p>
(b) The <b>RITVA</b> and <b>RAN</b> in the name of the <b>RA'AVAD</b> explain that the Tosefta indeed refers to a case in which the Katan testifies when he is a Katan. Beis Din does not <i>accept</i> his testimony absolutely, but merely takes his words into consideration.
</p><p>
(c) The <b>RITVA</b> explains further that the Tosefta refers to a case in which it is already known that one of the two families mentioned by the Katan is Pesulah, but it is not known which family. The Katan's testimony merely clarifies to Beis Din which one is Pesulah. Since he is merely clarifying a situation which is already known, Beis Din may accept what he says. However, he is not believed when he testifies that one of two families is Pesulah when it was not known heretofore that either family was Pesulah.
</p><p>
The Ran suggests a similar explanation but limits the trustworthiness of the Katan. The Katan is believed only for those whom he says are Kasher, but not for those whom he says are Pasul.
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FOR WHICH GIRLS IS A RAPIST FINED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> There is a fine for (raping or seducing) any 
          of the following Na'aros (girls in the first six months 
          of adulthood):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Mamzeres, Nesinah or Kusis;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A convert, captive or slave who converted, was 
               redeemed or was freed below the age of three;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The rapist's sister, paternal or maternal aunt, his 
               wife's sister, his brother's wife, his paternal 
               uncle's wife, or a Nidah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even though these are punishable by Kares 
                    (excision), they are not capital offenses.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  (Gemara) Question:</font></b> Is there a fine only for Pasul women, 
          but not for regular women?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The Mishnah teaches that there is a fine for 
          these Pasul women: a Mamzeres...
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Inference:</font></b> There is a fine for a Na'arah, but not for a 
          minor.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rav Yehudah):</font></b> Our Mishnah is like R. Meir:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> From the day a girl is born 
               until she brings two hairs (after 12 years), she can 
               be sold (to be a slave), but there is no fine for 
               her. From when she brings two hairs until she 
               becomes a Bogeres (six months later), she has a fine 
               but cannot be sold;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The rule is, she can be sold if and only if 
                    there is no fine for her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that there is a fine for her from the 
               age of three years and one day until she becomes a 
               Bogeres.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Does she have a fine, but she cannot be 
               sold?
<br>
<br>

sjt:
<font><b>1) THE PROHIBITION AGAINST MARRYING A 'NESINAH'</b></font><b>
<br>OPINIONS:</b> The Mishnah discusses the penalty a man must pay to the father of the girl he raped (Devarim 22:28-9). The Mishnah lists girls ('Na'aros') for whom a man is fined even though they are prohibited for him to marry. Included in the list is a 'Nesinah.'
</p><p>
Who is a 'Nesinah' and why is she prohibited?
<br> 
<br>(a) <b>RASHI</b> (DH Nesinah) explains that a Nesinah is a girl from the nation of Giv'on, the members of which are forbidden to marry into the Jewish people due to a prohibition enacted by David ha'Melech. They are called 'Nesinim' (literally, 'those who are given over') based on the verse, 'Yehoshua gave them over (va'Yitnem) as hewers of wood' (Yehoshua 9:27). In the times of Yehoshua, the Giv'onim (members of the Chivi nation, one of the seven nations whom the Jewish people were commanded to destroy upon their entry into Eretz Yisrael) presented themselves to Yehoshua as though they had come from a far-away land. Under the pretense that they were not native residents of Eretz Yisrael, they requested to make peace with, and to join, the Jewish people. After Yehoshua agreed to accept them, it was discovered that they indeed were one of the seven nations prohibited from joining the Jewish people. Since he had already agreed to accept them, Yehoshua did not want to violate his word (even though they tricked him and his oath was uttered in error) so as not to cause a Chilul Hash-m. Yehoshua accepted them as converts but appointed them as woodchoppers and water-drawers to supply the provisions for the sacrificial service on the Mizbe'ach (Yehoshua 9:3-27).
</p><p>
Rashi clearly maintains that the Isur of Nesinah is an Isur d'Rabanan. Rashi's opinion is based on the Gemara in Yevamos (78b-79a) which states that Moshe Rabeinu <i>decreed</i> a prohibition against marrying the Nesinim of his generation, and Yehoshua extended the <i>decree</i> to last as long as the Mishkan or Beis ha'Mikdash would stand. David ha'Melech later extended the <i>decree</i> to include all subsequent generations, even when the Beis ha'Mikdash would not be standing.
</p><p>
(b) <b>TOSFOS</b> challenges Rashi's opinion that the Nesinim are prohibited only mid'Rabanan. The Gemara later (29b) cites a Beraisa which explains the verse in Devarim (22:29), 'And she will be (Tiheyeh) to him for a wife,' which refers to the rapist's obligation to marry his victim. Shimon ha'Timni derives from the word 'Tiheyeh' that the rapist is obligated to pay the fine only to a victim with whom 'Havayah' -- marriage -- would take effect b'Di'eved. Rebbi Shimon ben Menasya limits the obligation further and derives from the word 'Tiheyeh' that one is obligated to pay the fine only to a woman whom he is allowed to marry l'Chatchilah. Rebbi Zeira explains that the difference between the two teachings is a case of a man who rapes a Mamzeres or a Nesinah. According to Shimon ha'Timni, he must pay the fine in such a case because Kidushin with a Mamzeres or Nesinah is binding b'Di'eved, even though he is prohibited from marrying her l'Chatchilah. According to Rebbi Shimon ben Menasya, he pays no fine in such a case because he is prohibited from marrying her l'Chatchilah. The fact that the Gemara discusses the prohibition against marrying a Nesinah in the context of its discussion about a verse in the Torah clearly indicates that the prohibition against marrying a Nesinah is an Isur d'Oraisa. Tosfos cites other sources which clearly indicate that the prohibition is an Isur d'Oraisa.
</p><p>
(According to Tosfos, the 'decrees' (Yevamos 79a) against the Nesinim were not prohibitions against marriage, as Tosfos maintains that marriage with the Nesinim is prohibited mid'Oraisa. Rather, they were decrees of servitude.)
</p><p>
How does Rashi understand the sources which imply that the prohibition against marrying Nesinim is an Isur d'Oraisa?
</p><p>
1. Tosfos suggests, in an attempt to explain the view of Rashi, that the Gemaras which he cites as proof against Rashi's opinion may be referring only to a Mamzeres, not to a Nesinah. Perhaps only the Isur of Mamzeres is mid'Oraisa, while the Isur of Nesinah is mid'Rabanan.
</p><p>
Tosfos questions this approach. Even if it was David ha'Melech who enacted the prohibition against marrying a Nesinah, she still should be prohibited <i>mid'Oraisa</i>. David ha'Melech's enactment gave them the status of slaves (through the mechanism of 'Hefker Beis Din Hefker'), and the Torah prohibits a Jew from marrying a slave (Devarim 23:18). Tosfos concludes that Rashi maintains that David ha'Melech did not give them the full status of slaves, and thus they are not included in the Torah's prohibition against marrying slaves.
</p><p>
2. The <b>PNEI YEHOSHUA</b> asks that Rashi himself writes in Sanhedrin (51a, DH Kusi) that the verse, 'Lo Sischaten Bam' -- 'Do not marry them' (Devarim 7:3), applies to Nesinim. The Pnei Yehoshua explains that the verse forbids only <i>marrying</i> a Nesinah; it does not forbid promiscuous relations with her. Since that Mishnah refers to a man who rapes a Nesinah, Rashi does not mention the Isur d'Oraisa against <i>marrying</i> a Nesinah, but only the Isur d'Rabanan (enacted by David ha'Melech) against promiscuous relations with her. (The Pnei Yehoshua agrees with the suggestion of Tosfos that, according to Rashi, David ha'Melech did not decree that Nesinim should have the status of full-fledged slaves.)
</p><p>
3. In his second explanation of the words of Rashi, the Pnei Yehoshua points out that whenever Rashi discusses the Nesinim throughout Tanach and Shas he never mentions the verse which prohibits marriage with slaves (Devarim 23:18). The Pnei Yehoshua proposes that Rashi maintains that the verse of 'Lo Sischaten' (Devarim 7:3) forbids one from marrying a Nesinah who <i>herself</i> was a member of the Giv'onim and converted; no verse forbids one from marrying her <i>descendants</i>. David ha'Melech's decree prohibited even the descendants of the Nesinim from becoming part of the Jewish people. The result of his decree was that even marriage with a descendant of a converted Nasin constitutes a violation of the Torah commandment of 'Lo Sischaten.' Accordingly, when Rashi here mentions the decree of David ha'Melech, he does not mean that the Nesinim are prohibited only mid'Rabanan, but rather that their descendants are prohibited mid'Oraisa since they never had the opportunity to become full-fledged Jews. (This explanation is consistent with the opinion of Rashi in Sanhedrin that Nesinim indeed are prohibited mid'Oraisa by the prohibition of 'Lo Sischaten.')
</p><p>
The Pnei Yehoshua cites support for this explanation from the words of Rashi in Yevamos. Rashi there (78b, DH David) explains that the verse, 'And the Giv'onim are not from the children of Yisrael' (Shmuel II 21:2), means that the Nesinim are not fit to become members of the Jewish people. Moreover, Rashi in Yevamos (79a, DH me'Chotev) writes that the Nesinim 'are not included in [the category of] Yisrael, and they are not considered converts.' What is the intent of Rashi's apparent repetitiveness? The Pnei Yehoshua suggests that Rashi there means as follows: 'They are not included in Yisrael' refers to the first generation of Giv'onim that converted. 'They are not considered converts' refers to their offspring born afterwards, who are not considered valid converts due to the decree of David ha'Melech. (See <b>ME'IRI</b> here and the <b>RA'AVAD</b> cited by the <b>CHIDUSHEI HA'RAMBAN</b> in Yevamos 78b. The Pnei Yehoshua was not in possession of those commentaries but nevertheless merited to reach the same conclusion as they did. See also <b>CHIDUSHEI CHASAM SOFER</b> here.) (D. Bloom) (See Insights to Yevamos 76:2.)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, there is a fine for her even 
               when she can be sold.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A FINE FOR WOMEN WHO MAY NOT MARRY THE MAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Why is there a fine for these women?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'She will be his wife' - she must be permitted to be 
               his wife!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Reish Lakish):</font></b> We expound (in the Parashah of 
          a rapist) 'Na'arah', '(ha')<i> Na'arah</i>', and 
          '<i>ha</i>'Na'arah'. (Since the entire word 'ha'Na'arah' is 
          extra, we expound two laws from it, for the word itself 
          and for the 'Hei'.) One teaches the simple meaning (she 
          must be a Na'arah), one teaches about (a fine for) 
          Chayavei Lavin (women forbidden by a Lav), and one 
          teaches about (a fine for) Chayavei Krisos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (Rav Papa):</font></b> We expound (in the Parashah of a 
          seducer) 'Besulah', '(ha)'<i>Besulos</i>', and '<i>ha</i>'Besulos'. 
          One teaches the simple meaning, one teaches about 
          Chayavei Lavin, and one teaches about Chayavei Krisos.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Papa did not learn like Reish Lakish, because he 
               uses 'ha'Na'arah' to teach Abaye's law:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Abaye):</font></b> If she died before the rapist was 
                    brought to trial, he is exempt. 'He will give 
                    to the father of ha'Na'arah', not to the father 
                    of the deceased.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reish Lakish did not learn like Rav Papa, because he 
               uses 'ha'Besulos' for a Gezeirah Shavah:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'Kesef Yishkol (he will pay) k'Mohar 
                    ha'Besulos' - the fine of a seducer should be 
                    like the Mohar of a Besulah (50, the fine 
                    specified for a rapist), and the Mohar of a 
                    Besulah should be like the fine of a seducer 
                    (in Shekalim).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> Reish Lakish also needs to learn Abaye's law, 
          and Rav Papa also needs the Gezeirah Shavah!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #3:</font></b> Rather, we expound six words or letters: 
          Na'arah, (ha')<i> Na'arah</i>, <i>ha</i>'Na'arah, Besulah, 
          (ha')<i> Besulos</i>, <i>ha</i>'Besulos. We need two for the simple 
          meaning. One is used for Abaye's law, one is used for the 
          Gezeirah Shavah, one teaches about Chayavei Lavin, and 
          one teaches about Chayavei Krisos.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  The Tana of our Mishnah disagrees with the following 
          Tana'im.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Shimon ha'Teimani):</font></b> 'She will be his 
               wife' refers to a woman with whom Kidushin is Tofsin 
               (takes effect);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Menasya says, it refers to a woman 
               whom he may keep.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> What do these Tana'im argue about?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about a Mamzeres or Nesinah (Chayavei 
          Lavin);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Kidushin is Tofsin with them, but a Yisrael may not 
               stay married to them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> According to R. Akiva, who says that Ein 
          Kidushin Tofsin b'Chayavei Lavin, what do they argue 
          about?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about a Kohen Gadol who raped a widow, 
          like R. Simai taught.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Simai):</font></b> R. Akiva says that children of 
               any marriage of Chayavei Lavin are Mamzerim, except 
               for a widow married to a Kohen Gadol;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah forbids him to marry her and 'YeCHaLeL 
               (profane) his children' - he makes his children 
               CHaLaLiM (profane), not Mamzerim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> R. Yesheivav says that R. Akiva holds that the 
          child of any forbidden Bi'ah is a Mamzer. According to 
          him, what do Shimon ha'Teimani and R. Shimon ben Menasya 
          argue about?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about Chayavei Aseh, such as a Mitzris 
          or Edomis (Kidushin is Tofsin, but it is forbidden).
<br>

sjt:
<p>
<font><b>2) THE PENALTY FOR RAPING A MINOR</b></font><b>
<br>QUESTION:</b> The Mishnah lists girls ('Na'aros') for whom a man is fined even though he is prohibited from marrying them. The Gemara questions why a man who rapes or seduces such Na'aros is fined. The Torah obligates the rapist either to pay a fine or to marry his victim, but the Na'aros listed in the Mishnah are prohibited from marrying into the Jewish people. The verse states, 'And she will be to him for a wife' (Devarim 22:29), which implies that the requirement to marry his victim (or to pay a fine) applies only to a girl who is fit to be his wife. It should not include the Na'aros listed in the Mishnah. Since the man cannot fulfill the requirement to marry his victim, he also should be exempt from the fine.
</p><p>
Reish Lakish answers that the two words 'Na'arah' and 'ha'Na'arah' in the verses teach three separate categories of Na'aros to whom one must pay a fine: a Na'arah whom one is permitted to marry, a Na'arah whom one is prohibited from marrying due to a Lo Ta'aseh, and a Na'arah whom one is prohibited from marrying due to an Isur Kares.
</p><p>
<b>RASHI</b> explains that the first occasion of the word 'Na'arah' in the verse (22:28) teaches the law with regard to a man who rapes a Na'arah whom he is permitted to marry. In the verse that follows, the word 'ha'Na'arah' seems extra: 'He shall give to the father of the Na'arah...' (22:29) -- the verse could have said instead, 'He shall give to the father,' without the word 'ha'Na'arah.' The extra word 'Na'arah' teaches the law in the second case, in which a man rapes a Na'arah whom he is prohibited from marrying due to a Lo Ta'aseh. The extra prefix 'the' ('Ha') in the word 'ha'Na'arah' teaches the law in a case in which a man rapes a Na'arah whom he is prohibited from marrying due to an Isur Kares.
</p><p>
If the Torah teaches that a man must pay a fine even when he rapes a Na'arah whom he is prohibited from marrying, why does the Torah state in the first place, 'And she will be to him for a wife'? That verse implies that one is fined only when he rapes a Na'arah whom he is permitted to marry. If the Torah would have omitted that verse, it would have had no need to write the extra word 'ha'Na'arah' to include even Na'aros whom he is forbidden from marrying.
</p><p>
<b>ANSWERS:</b> 
<br>(a) <b>TOSFOS</b> (DH v'Chad) answers that the verse, 'And she will be to him for a wife,' is necessary for a different reason, as the Gemara later (39b) describes. The verse does not teach that the man must pay a fine only when he is permitted to marry the Na'arah. Rather, it teaches that he may marry the Na'arah only with her consent. She is entitled to refuse to marry him if she so chooses. <b>RASHI</b> (39b, DH Tiheyeh) writes that the word 'Tiheyeh' implies that she must 'make herself be' to him. (The term 'Mehavah' implies marriage through Kidushin, as the Gemara later (46b) derives from the verse, 'She will marry (v'Hayesah) another man' (Devarim 24:2). As a formal legal transaction, Kidushin takes effect only with the consent of both parties.) Since the verse which teaches the requirement for consent also implies that a man is required to pay a fine only when the Na'arah is permitted to him in marriage, it is necessary for the Torah to write 'ha'Na'arah' in the next verse to include Na'aros whom the man is not permitted to marry.
</p><p>
(b) <b>REBBI AKIVA EIGER</b> explains that the verse, 'And she will be to him for a wife,' is necessary for a different reason. Rebbi Meir maintains that one who rapes or seduces a Ketanah (a girl under the age of twelve) pays no fine. Rav Chisda (40b) explains that this law is derived from the word 'Tiheyeh': the Torah fines the man only when his victim is old enough to accept Kidushin (to be 'Mehavah' herself). The verse excludes a man who rapes a Ketanah from the requirement to pay a fine, since a Ketanah is unable to accept Kidushin for herself. Rebbi Akiva Eiger adds that even the Chachamim -- who disagree with Rebbi Meir and maintain that a man who rapes a Ketanah is fined even though the Ketanah cannot accept Kidushin -- maintain that the verse is needed to teach a different Halachah. The verse is needed to teach that one who rapes a Shifchah (maidservant) is not fined (see Mishnah, 29a) unless she was emancipated when she was under the age of three years and one day, after which time he had relations with her.
</p><p>
One might ask that if Rebbi Meir exempts a man from a fine when he rapes a girl who is not old enough to accept Kidushin for herself, why does he not argue with the Mishnah which imposes a fine on a man who rapes a Na'arah whom he is prohibited from marrying due to an Isur Kares? A Na'arah who is forbidden to him with an Isur Kares is like a Ketanah, as no bond of Kidushin takes effect with her.
</p><p>
Rebbi Akiva Eiger answers that although neither a Ketanah nor the Na'aros listed in the Mishnah are able to marry the man, the Na'aros who are forbidden to him with an Isur Kares nevertheless <i>are</i> able to marry <i>other</i> men, and therefore the fine applies to one who rapes them. In contrast, a Ketanah is unable to marry <i>any</i> man.
</p><p>
Do the Chachamim, who maintain that a man who rapes a Ketanah is fined even though the Ketanah cannot accept Kidushin, also maintain that a man who rapes a Shifchah is fined? Rebbi Akiva Eiger suggests that they agree that a man who rapes a Shifchah is <i>not</i> fined. The difference between a Ketanah and a Shifchah is that although the Ketanah cannot accept Kidushin for herself, her father can accept Kidushin on her behalf and marry her off. In contrast, the Shifchah is absolutely unable to accept Kidushin. Therefore, the Chachamim maintain that the fine applies to a Ketanah but not to a Shifchah, as derived from the verse, 'And she will be to him for a wife.' (D. Bloom)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FOR WHICH WOMEN IS THERE A FINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  This answer is valid if R. Yesheivav merely came to 
          disagree with R. Simai (he did not really mean <i>every</i> 
          forbidden Bi'ah. He only wanted to include a widow to a 
          Kohen Gadol.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> If R. Yesheivav said an independent statement, 
          even Chayavei Aseh produce Mamzerim, and Ein Kidushin 
          Tofsin. What do Shimon ha'Teimani and R. Shimon ben 
          Menasya argue about?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about a Kohen Gadol who married a 
          non-virgin (Kidushin is Tofsin).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> Why is this different than other Chayavei Aseh?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> This Isur does not apply to everyone.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAPITAL OFFENSES EXEMPT FROM PAYMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> All (i.e. both Tana'im of the Beraisa) 
          agree that a man who raped a Nidah pays a fine.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Kidushin is Tofsin with her. He may marry her (and 
               have Bi'ah with her after she becomes Tehorah).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  He (Rashi - the Tana of our Mishnah) teaches unlike R. 
          Nechunya ben Hakanah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Nechunya ben Hakanah):</font></b> Yom Kipur is 
               like Shabbos regarding paying (for obligations 
               incurred while doing a Melachah);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> On Shabbos, since he is liable to death for the 
               Melachah, he is exempt from payment. The same 
               applies to Yom Kipur (Kares includes Misah b'Yedei 
               Shamayim).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Why does he learn this way?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> It says 'Ason (fatality)' regarding 
          acts of man (fighting) and regarding acts of Shamayim 
          (Yakov's concern for Binyamin).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like liability to die through man (Beis Din) 
               exempts (from paying for obligations incurred at the 
               time he transgressed), liability to die b'Yedei 
               Shamayim exempts.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rav Ada bar Ahavah):</font></b> Why do you assume that 
          Yakov was concerned for colds and heatstroke, i.e. acts 
          of Shamayim? Perhaps it refers to thieves and lions, acts 
          of man!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> Yakov was certainly concerned for both!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Objection #1:</font></b> Colds and heatstroke are not in the hands 
          of Heaven!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> All is in the hands of Heaven, except for 
               colds and heatstroke.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection #2:</font></b> Lions and thieves are not in the hands of 
          man!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> Even though the Sanhedrin ceased after 
               Churban Beis ha'Mikdash, the four death penalties 
               did not cease.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> They did cease!
<br>
<br>

sjt:
<font><b>1) MAY A KOHEN GADOL MARRY A 'BE'ULAH'? </b></font><b>
<br>QUESTION:</b> The Gemara (29b) cites a Beraisa which explains the verse in Devarim (22:29), 'And she will be to him for a wife,' which refers to the rapist's obligation to marry his victim. Shimon ha'Timni derives from the word 'Tiheyeh' ('she will be') that the rapist is obligated to pay the fine only to a victim with whom 'Havayah' -- marriage -- would take effect, even if it would take effect only b'Di'eved. Rebbi Shimon ben Menasya limits the obligation further and derives from the word 'Tiheyeh' that one is obligated to pay the fine only to a woman whom he is allowed to marry l'Chatchilah. The Gemara continues with a discussion of the practical difference between the view of Shimon ha'Timni and that of Rebbi Shimon ben Menasya. The Gemara first explains that the difference between them is a case of a man who rapes a Mamzeres or a Nesinah. According to Shimon ha'Timni, he must pay the fine in such a case because Kidushin with a Mamzeres or Nesinah is binding b'Di'eved, even though he is prohibited from marrying her l'Chatchilah. According to Rebbi Shimon ben Menasya, he pays no fine in such a case because he is prohibited from marrying her l'Chatchilah.
</p><p>
The Gemara asks that the case of a Mamzeres or Nesinah is not a practical difference according to Rebbi Akiva, who maintains that Kidushin does not take effect with a woman to whom one is prohibited with a Lo Ta'aseh. Rebbi Akiva would rule that a man who rapes a Mamzeres or Nesinah is exempt from the fine according to both Shimon ha'Timni and Rebbi Shimon ben Menasya, since Kidushin cannot take effect at all with such a woman. According to Rebbi Akiva, what is the difference between them?
</p><p>
The Gemara answers that the practical difference is in a case of a Kohen Gadol who marries a widow. Rebbi Akiva agrees that in such a case the Kidushin takes effect b'Di'eved.
</p><p>
This answer does not suffice according to Rebbi Yeshevav, who says that Rebbi Akiva maintains that the children of <i>any</i> forbidden marriage are Mamzerim (and Kidushin does not take effect). According to Rebbi Yeshevav's interpretation of Rebbi Akiva's opinion, what is the difference between Shimon ha'Timni and Rebbi Shimon ben Menasya?
</p><p>
The Gemara answers that the difference is in a case of a Chiyuv Aseh, such as a man who rapes a Mitzri or Edomi woman. In such a case, Kidushin takes effect b'Di'eved even though he is prohibited from marrying her.
</p><p>
However, the Gemara is unsure whether Rebbi Yeshevav maintains that Kidushin with a woman who is forbidden with a Chiyuv Aseh takes effect. Perhaps he maintains that it does <i>not</i> take effect, and the child born from a union between a man and a woman who is forbidden to him with a Chiyuv Aseh is a Mamzer. What, then, is the difference between Shimon ha'Timni and Rebbi Shimon ben Menasya?
</p><p>
The Gemara answers that the difference is in a case of a Kohen Gadol who rapes a Be'ulah. The Kohen Gadol is commanded to marry a Besulah (Vayikra 21:14). This Chiyuv Aseh forbids him from marrying a Be'ulah. Everyone agrees that when a Kohen Gadol transgresses and marries a Be'ulah, the offspring is not a Mamzer. According to Shimon ha'Timni, the Kohen Gadol is obligated to pay the fine to a Be'ulah he raped because the Kidushin with her would take effect b'Di'eved. According to Rebbi Shimon ben Menasya, the Kohen Gadol is not obligated to pay the fine because l'Chatchilah he is not permitted to marry her.
</p><p>
Why does the Chiyuv Aseh which forbids a Kohen Gadol from marrying a Be'ulah differ from any other Chiyuv Aseh which forbids a certain union? Why is the child of a union between a Kohen Gadol and a Be'ulah <i>not</i> considered a Mamzer, while the child of a union between a Jew and a Mitzri or Edomi woman <i>is</i> considered a Mamzer? Both unions are prohibited only as Chiyuvei Aseh.
</p><p>
The Gemara answers that the difference between the Chiyuv Aseh which forbids a Kohen Gadol from marrying a Be'ulah and all other Chiyuvei Aseh (which, according to Rebbi Akiva, do result in illegitimate offspring), is that the Mitzvah for a Kohen Gadol to marry a Besulah does not apply equally to all Jews ('Aseh she'Eino Shaveh ba'Kol'). This commandment applies only to a Kohen Gadol, while the commandment not to marry a Mitzri or Edomi woman applies to all Jews.
</p><p>
The Gemara clearly states that the child of a union prohibited by a Chiyuv Aseh which is not 'Shaveh ba'Kol' is not a Mamzer, even according to Rebbi Yeshevav's understanding of Rebbi Akiva. Why, then, is the child of a union prohibited by a Lo Ta'aseh which is not 'Shaveh ba'Kol' considered a Mamzer according to Rebbi Akiva (such as the child of a union between a Kohen Gadol and an Almanah (widow), or the child of a union between an ordinary Kohen and a Gerushah (divorcee)? What is the difference between a Chiyuv Aseh which is not 'Shaveh ba'Kol' and a Lo Ta'aseh which is not 'Shaveh ba'Kol'?
</p><p>
Moreover, there is strong reason <i>not</i> to differentiate between a Chiyuv Aseh and a Lo Ta'aseh in this regard. Rebbi Akiva's source that the offspring of a forbidden union is considered a Mamzer is the proximity of the verse, 'A man shall not take the wife of his father' (Devarim 23:1), to the verse, 'A Mamzer shall not come into the congregation of Hash-m' (Devarim 23:3). This proximity teaches that the offspring of any forbidden union -- and not specifically the one listed in verse 1 -- is considered a Mamzer. Rebbi Yeshevav derives from the extra letter 'Vav' in 'v'Lo' (23:1) that the offspring of a union forbidden by a positive commandment is also a Mamzer. Since the same source teaches that both the offspring of a union forbidden by a Chiyuv Aseh and the offspring of a union forbidden by a Lo Ta'aseh is a Mamzer, there should be no difference between the two categories of prohibited unions. Why, then, is a child born to a Kohen and divorcee (a Lo Ta'aseh) considered a Mamzer, while a child born to a Kohen Gadol and Be'ulah (a Chiyuv Aseh) is not?
</p><p>
<b>ANSWER: REBBI AKIVA EIGER</b> offers a novel explanation to answer this question. He suggests that although a positive commandment forbids the <i>Kohen Gadol</i> from marrying a Be'ulah, no positive commandment forbids a <i>Be'ulah</i> from marrying the Kohen Gadol. The Torah states, 'v'Hu Ishah vi'Vesuleha Yikach' -- 'And he shall take a wife in her virginity' (Vayikra 21:13), which implies that if the Kohen Gadol marries a Be'ulah, only <i>he</i> transgresses a positive commandment, and not the Be'ulah. In contrast, the Gemara later (84b) derives from the repetition of the words, 'They shall not take [as wives]' (Vayikra 21:7), in the verse which prohibits a Kohen from marrying a Zonah, Chalalah, and Gerushah, that the Torah applies two prohibitions -- one on the Kohen and one on the woman -- against entering such a relationship. Accordingly, when the Gemara states that the child born to a Kohen Gadol and a Be'ulah is not a Mamzer because it is 'Eino Shaveh ba'Kol,' it refers to the fact that only the Kohen Gadol and <i>not his wife</i> is commanded to refrain from such a relationship. (Rebbi Akiva Eiger asserts, based on Tosfos to Yevamos 5a, DH v'Akati, that this is a more accurate description of 'Eino Shaveh ba'Kol' than saying that it applies to Kohanim <i>and not Yisraelim</i>.) Accordingly, the verses expounded by Rebbi Yeshevav later (49a) do not prove that the child should be considered a Mamzer in both a case of a Lo Ta'aseh 'she'Eino Shaveh ba'Kol' and a Chiyuv Aseh 'she'Eino Shaveh ba'Kol.')
</p><p>
(The <b>RASHASH</b> challenges the answer of Rebbi Akiva Eiger. One question he asks is from the words of Tosfos in Chagigah (14b, DH Besulah) who states explicitly that a Be'ulah is commanded not to marry the Kohen Gadol. See Tosfos to Nedarim 90b (DH v'Chazru) in the name of Rabeinu Eliezer who states that a Zonah is not prohibited from marrying a Kohen, even though a Kohen is prohibited from marrying her.) (D. Bloom)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The penalties are still meted out;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Someone liable to be stoned (the first step is 
                    to through him to the ground) falls off a roof 
                    or is trampled by an animal;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Someone liable to be burned falls into a fire 
                    or is bitten by a snake;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Someone liable to death by the sword is killed 
                    by the government or bandits;
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b> Someone liable to be strangled dies of croup or 
                    drowns.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Retraction:</font></b> Rather, lions and thieves are b'Yedei 
          Shamayim. Colds and heatstroke are due to man.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer #2 (to question (c) - Rava):</font></b> R. Nechunya ben 
          Hakanah learns from 'If people will ignore (and not 
          execute)... one who gives his seed to Molech... I will 
          give him Kares';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This equates Kares from Shamayim to our death 
               penalties. Just like our death penalties exempt from 
               payment, also Kares.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> What do Rava and Abaye argue about?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer:</font></b> They argue about a Zar who eats Terumah (it is 
          punishable by death b'Yedei Shamayim, but not Kares).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye exempts (from payment), and Rava obligates.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> Does Abaye really exempt?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> R. Nechunya ben Hakanah agrees that if 
               Reuven eats Shimon's Chelev, he must pay!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  When Reuven picked it up, he became a thief and 
                    was obligated to return it. The exemption due 
                    to the Chiyuv Kares does not apply until he 
                    eats it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Also here, he is liable (to return or pay) for 
                    the Terumah once he picks it up. He is not 
                    Chayav Misah b'Yedei Shamayim until he eats it!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #1:</font></b> The case is, someone else put the Terumah in 
          Reuven's mouth (Reuven never picked it up).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Objection:</font></b> Still, he is liable for it once he chews it, 
          but is not Chayav Misah until he swallows it!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer:</font></b> It was stuck down his throat.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Question:</font></b> How far down was it stuck?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he could have spit it out, he should have (he 
               must pay for not doing so)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he could not spit it out, why is he liable to die 
               (he had no choice)!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer:</font></b> He could have spit it out with great difficulty.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer #2 (to Question (m) - Rav Papa):</font></b> Someone else put 
          Terumah liquids in Reuven's mouth.
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  Answer #3 (Rav Ashi):</font></b> The case is, a Zar ate his own 
          Terumah and tore someone else's silk at the same time.
<br>

sjt:
<p>
<font><b>2) ONE WHO IS LIABLE FOR BOTH KARES AND MALKUS</b></font><b>
<br>QUESTION:</b> The Gemara (30a) cites Rebbi Nechunya ben Hakanah who equates the laws of Yom Kippur with the laws of Shabbos with regard to the punishment one receives for desecration of Shabbos and Yom Kippur. One who willfully performs a Melachah on Shabbos (for which he is punished with death) and simultaneously incurs a monetary obligation (for example, he lights a fire and destroys his neighbor's property on Shabbos; see Bava Kama 34b) is exempt from the monetary obligation. The principle of 'Kam Lei bid'Rabah Minei' teaches that when a person becomes liable for two punishments (such as Misah and a monetary payment) at one time, he receives only the 'larger,' more severe punishment (in this case, Misah). Similarly, one who desecrates Yom Kippur and simultaneously incurs a monetary obligation is exempt from payment.
</p><p>
Abaye explains that Rebbi Nechunya derives this law from the appearance of the word 'Ason' in the verse which requires a man to pay monetary compensation for harming (but not for killing) a pregnant woman and causing the loss of her fetus (Shemos 21:22), and the appearance of the same word in the verse which describes the concern of Yakov Avinu that harm might befall Binyamin if he is taken to Mitzrayim (Bereishis 42:4). Abaye explains that just as the verse in Shemos, which discusses an 'Ason' (tragedy) carried out by man (i.e. death at the hands of Beis Din), exempts a man who kills a pregnant woman (for which he is punished with Misah) from a monetary obligation for the loss of the fetus, similarly an 'Ason' carried out by Hash-m (i.e. the punishment of Kares for desecration of Yom Kippur) exempts one from a simultaneous monetary obligation. 
</p><p>
Rava (30b) cites a different source for the law of Rebbi Nechunya. The verse states, 'If the men of the land (the Sanhedrin) hide their eyes from that man (and fail to punish him appropriately)... I will cut him off (Kares)' (Vayikra 20:4-5). Rava infers from the verse that Kares is comparable to the death penalty administered by Beis Din. Just as one who is liable for death at the hands of Beis Din is exempt from any monetary obligation he incurred at the moment he became Chayav Misah, so, too, one who is Chayav Kares is not obligated to pay if he incurred a monetary obligation at the same time he became liable for Kares.
</p><p>
The Gemara mentions practical differences between the Abaye's source and Rava's source for the law of Rebbi Nechunya. However, the Gemara omits an apparently obvious difference. The Gemara later (37a) questions the statement of the Mishnah that the principle of 'Kam Lei bid'Rabah Minei' is derived from the verse, 'v'Lo Yiheyeh Ason...' (Shemos 21:22). The Gemara asks that the Mishnah should derive this principle from a different verse: 'Kedei Rish'aso' -- 'according to his wickedness' (Devarim 25:2), which teaches that a transgressor is punished for only one violation ('Rish'ah Achas') and not for two. The Gemara answers that both verses are necessary. One verse (Shemos 21:22) teaches that Beis Din does not execute a transgressor and obligate him to pay, while the other verse (Devarim 25:2) teaches that Beis Din does not administer lashes and obligate him to pay.
</p><p>
Accordingly, the Gemara here should say that the difference between Abaye and Rava is whether a person is punished with both Kares and Malkus for one transgression. Abaye's source addresses only Kares and payment; it does not teach that one who is Chayav Kares and Chayav Malkus is exempt from the less severe punishment. Rava's source, in contrast, equates Kares with Misah in a case in which one is liable for two punishments. Since the Gemara (37a) teaches that one does not receive both Misah and Malkus for one action, Rava's source should teach that one does not receive both <i>Kares</i> and Malkus for one action. Why does the Gemara not mention this case as a difference between Abaye and Rava? (<b>HAFLA'AH</b>)  
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>HAFLA'AH</b> answers that even Abaye would agree that one does not receive both Kares and Malkus for one action. Once the verse in Devarim (25:2) teaches that one does not receive both Misah and Malkus for one action, this law is also included in the Gezeirah Shavah of 'Ason' (30a) which teaches that Kares is similar to Misah with regard to multiple punishments for one action (and, therefore, one is not punished with both Kares and Malkus). Although the verse 'Ason' (Shemos 21:22) specifically exempts one who is liable for Misah and for a monetary obligation, it also exempts one in a case of Kares and Malkus due to the principle of 'Ein Gezeirah Shavah l'Mechetzah.' Therefore, both Abaye and Rava would agree that one is not punished with both Kares and Malkus. (See Hafla'ah for another answer.)
</p><p>
(b) The <b>BEIS YAKOV</b> (by the author of <b>NESIVOS HA'MISHPAT</b>) proposes the opposite logic of the Hafla'ah's answer. Everyone agrees that even when a person is liable for Kares, he also receives Malkus. The law that one does not receive both Misah and Malkus is derived from the verse, 'Kedei Rish'aso' (Devarim 25:2). This verse addresses Beis Din. It warns Beis Din not to punish a transgressor twice (with Misah and Malkus) for one action. The verse implies that when one of the punishments is the type administered not by Beis Din but by Shamayim (i.e. Kares), the transgressor indeed receives the second punishment (Malkus). In such a case, Beis Din is in compliance with the verse, because Beis Din administers only one punishment (Malkus). Since the verse itself implies that Kares and Misah are not similar, even Rava would agree that no comparison can be made from Misah to Kares. (D. Bloom)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A CAPITAL OFFENSE EXEMPTS FROM PAYMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Chisda):</font></b> R. Nechunya ben Hakanah agrees that one who 
          stole Chelev and ate it must pay;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is liable to pay once he picks it up. He is not 
               Chayav Misah until he eats it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Suggestion:</font></b> Rav Chisda disagrees with R. Avin:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Avin):</font></b> If one threw an arrow four Amos (in a 
               Reshus ha'Rabim on Shabbos) and it tore silk along 
               the way, he is exempt from paying. An arrow cannot 
               land unless it was thrown (his Chiyuv Misah starts 
               with the throwing).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here too, R. Avin would also say that one cannot eat 
               Chelev unless he lifts it!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> The cases are different;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reason #1:</font></b> An arrow cannot land without being 
               thrown. One can eat without lifting the Chelev. He 
               can bend down and eat!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reason #2:</font></b> One cannot retrieve an arrow after 
               shooting it. One can return the Chelev after picking 
               it up.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  These reasons argue about one who carries a knife four 
          Amos in a Reshus ha'Rabim (on Shabbos) and tears silk 
          along the way;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to reason #1, also here the Chiyuv Misah 
               starts with setting the knife in motion, so he 
               should be exempt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to reason #2, here he could stop the knife 
               in the middle, so he should pay.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (R. Avin):</font></b> If one threw an arrow four Amos and it tore 
          silk along the way, he is exempt because an arrow cannot 
          land unless it was thrown.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (R. Bivi bar Abaye - Beraisa):</font></b> One who steals a 
          wallet on Shabbos must pay, because the theft precedes 
          the desecration of Shabbos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was dragging the wallet he is exempt, because 
               the theft and the Chilul Shabbos come 
               simultaneously.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, too, we should say that he cannot put the 
               wallet down unless he picked it up (and the Chiyuv 
               Misah started then)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1:</font></b> The case is, he picked up the wallet intending 
          to hide it (so the Chiyuv did not start then), then 
          reconsidered to take it out.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection:</font></b> One is not liable for Chilul Shabbos in such a 
          case!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If one was moving things from one 
               corner to another and reconsidered to take them out, 
               he is not liable for Chilul Shabbos because his 
               initial intention was not to take them out.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>OTHER WAYS TO EXPLAIN THE 'BERAISA'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #2:</font></b> He intended to take it out from the start, but 
          he stopped in the middle.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> If he stopped to adjust the load, this is 
          normally done while carrying (so still, the Chilul 
          Shabbos starts with picking it up)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, he stopped to rest (the Chilul Shabbos 
          starts when he resumed walking).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Inference:</font></b> Had he stopped to readjust the load, he would 
          be exempt.
<br>
<br>

sjt:
<font><b>1) ONE WHO DRAGS AN OBJECT FROM ONE DOMAIN TO ANOTHER ON SHABBOS</b></font><b>
<br>QUESTION:</b> The Gemara cites a Beraisa which states that a thief who stole a wallet on Shabbos is liable for the theft. The principle of 'Kam Lei bid'Rabah Minei' does not exempt him even though he carried the wallet from Reshus ha'Yachid to Reshus ha'Rabim (an act of Shabbos desecration for which he is liable for Sekilah), because 'Kam Lei bid'Rabah Minei' applies only when both transgressions are committed at the same moment. Since, in this case, the transgression of thievery occurred before the transgression of Hotza'ah on Shabbos, the offender is obligated to pay and to be put to death.
</p><p>
<b>RASHI</b> (DH ha'Gonev) explains that in the case of the Beraisa, the thief lifted the wallet in the owner's domain and brought it out to Reshus ha'Rabim. Rashi (DH she'Kevar) explains further that Hagbahah (the act of lifting an object in order to acquire it) is effective wherever it is done (even when done in the domain of the original owner).
</p><p>
The Beraisa continues and says that if the thief dragged the wallet upon the ground without lifting it, he is exempt from liability for compensation. <b>RASHI</b> (DH Hayah Megarer) explains that since he did not lift the wallet, he acquired it only at the moment he removed it from the owner's Reshus ha'Yachid. At that moment he also carried the wallet from Reshus ha'Yachid to Reshus ha'Rabim. Since the two transgressions, theft and Shabbos desecration, occurred simultaneously, the principle of 'Kam Lei bid'Rabah Minei' applies and the thief is exempt from payment.
</p><p>
Why is one liable for Hotza'ah on Shabbos when he drags a wallet from Reshus ha'Yachid to Reshus ha'Rabim? The laws of Hotza'ah state that one is not liable unless he performs an act of 'Akirah' (lifting up the object) in Reshus ha'Yachid and an act of 'Hanachah' (placing it down) in Reshus ha'Rabim. If the thief dragged the wallet from Reshus ha'Yachid to Reshus ha'Rabim, what act of Akirah did he do? Dragging an object out of a Reshus is not considered an act of Akirah, as is evident from the Gemara in Shabbos (8b) which requires that an object be lifted from the ground in order for the act to constitute an Akirah. Why, then, does the Gemara here rule that the thief is liable for Hotza'ah on Shabbos when he dragged the wallet from Reshus ha'Yachid to Reshus ha'Rabim, if he performed no act of Akirah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>CHIDUSHEI HA'RASHBA</b> answers that the Gemara refers to a case in which the ground level of the Reshus ha'Yachid is higher than the ground level of the Reshus ha'Rabim adjacent to it. When the thief drags the wallet out of the Reshus ha'Yachid, he necessarily performs an act of an Akirah.
</p><p>
(b) In his second answer, the <b>CHIDUSHEI HA'RASHBA</b> suggests that it is <i>not</i> necessary to lift an object in order for the act to constitute Akirah. Although the Gemara in Shabbos (8b) requires that an object be lifted from the ground in order for the act to constitute an Akirah, the case of the Gemara there differs from the case of the Gemara here. The Gemara in Shabbos discusses a case in which one moves long reeds by lifting up one end and moving it over and above the second, stationary end, placing it down, and then lifting up the other side and moving it in the same manner. In that case, one end of the reeds does not move from its place when the other end of the reeds is lifted and moved, and thus that act does not constitute an Akirah. In contrast, in the case of the Gemara here, the <i>entire</i> wallet moves as the thief drags it. No part of it remains stationary as another part of it moves. This act suffices to constitute an Akirah even though the object is not lifted from the ground.
</p><p>
(c) The <b>CHIDUSHEI HA'RAMBAN</b> quotes the <b>RA'AVAD</b> who explains that an act of Akirah is an essential component of the Melachah of Hotza'ah on Shabbos only when one transports an object four Amos in Reshus ha'Rabim. In contrast, when one carries from Reshus ha'Yachid to Reshus ha'Rabim he may be liable even if he does not lift the object. The mere fact that he transports the object out of Reshus ha'Yachid and into Reshus ha'Rabim (an act the Ra'avad calls 'Akiras Reshus') is considered enough of an act of Akirah to obligate him for Hotza'ah on Shabbos.
</p><p>
The Ramban questions the Ra'avad's explanation from another Gemara in Shabbos. The Gemara in Shabbos (8b) teaches that when one lifts an object in Reshus ha'Yachid with intent to put it down in another place in the same domain and then he consciously decides to take it out to Reshus ha'Rabim, he does not transgress the Melachah of Hotza'ah on Shabbos mid'Oraisa (since his first Akirah was not done with intent to carry the object to Reshus ha'Rabim). According to the Ra'avad, why should the concept of 'Akiras Reshus' in this case not qualify as an Akirah to obligate him? The Ramban quotes the Ra'avad who explains that the concept of 'Akiras Reshus' applies only when the object is resting physically in Reshus ha'Yachid, but not when it is resting in a person's hand. The Ramban rejects the explanation of the Ra'avad and sides with the first answer of the Rashba (in (a) above). (D. Bloom, Y. Montrose)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> If so, the Beraisa should distinguish between 
          stopping to rest and to readjust, rather than between 
          carrying and dragging!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> The Beraisa is like Ben Azai, who says that each 
          step a person takes is considered to be resting (so the 
          Chilul Shabbos starts only when he steps outside).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Inference:</font></b> This would not apply if he threw the wallet. 
          If so, he should be exempt!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> If so, the Beraisa should distinguish between 
          carrying and throwing, rather than between carrying and 
          dragging!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> We must teach the case of dragging so one will 
          not think that this is not a normal way to carry a 
          wallet, and he would not be liable for Chilul Shabbos.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> What size is the wallet?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is small, dragging is not normal!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is big, obviously dragging it is normal!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, it is a medium size wallet.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> To where did he take it?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he took it to a Reshus ha'Rabim he is liable for 
               Chilul Shabbos, but he is not yet liable for theft 
               (Meshichah does not acquire there)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he took it to his own domain, he is liable for 
               theft, but not for Chilul Shabbos!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> Rather, he brought it to a shoulder of a Reshus 
          ha'Rabim.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> What is the Tana's opinion about a shoulder of 
          a Reshus ha'Rabim?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he holds like R. Eliezer, who says that it is 
               like a Reshus ha'Rabim, he is liable for Chilul 
               Shabbos, but not (yet) for theft!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he holds like Chachamim, who say that it is not 
               like a Reshus ha'Rabim, he is liable for theft, but 
               not for Chilul Shabbos!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer:</font></b> He holds like R. Eliezer. R. Eliezer considers it 
          like a Reshus ha'Rabim regarding Shabbos, because the 
          road is often congested and people are pushed to the 
          shoulder;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding acquisitions, it is not like Reshus 
               ha'Rabim, since people are not often there.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Answer #3 (Rav Ashi):</font></b> He put his hand (that he was not 
          dragging it with) within three Tefachim of the ground and 
          received the wallet.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rava's law.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> A man's hand is considered like a place four 
               Tefachim by four Tefachim (to be liable for Hanachah 
               on Shabbos. Likewise, it can acquire.)
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  Rav Acha learned like Rav Ashi.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer #4 (Ravina):</font></b> Really, he took the wallet to a 
          Reshus ha'Rabim. A theft is acquired even in a Reshus 
          ha'Rabim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ACQUIRING IN A 'RESHUS' 'HA'RABIM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  Rav Acha and Ravina argue about what we infer from the 
          following Mishnah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a man was dragging an ox to steal it 
               and it died before he left the owner's premises, he 
               is exempt. If he lifted it or took it out of the 
               premises before it died, he must pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Ravina learned from the Reisha. He is exempt because he 
          did not yet leave the premises. Had he left, even to a 
          Reshus ha'Rabim, he would have to pay.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  Rav Acha learned from the Seifa, which discusses lifting 
          and taking it out. This shows that they are the same;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like lifting it brings it to his domain, also 
               taking it out must be to his domain.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> The Reisha contradicts Rav Acha, and the Seifa 
          contradicts Ravina!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer #1 (for Rav Acha):</font></b> Until the thief reaches his 
          domain, he is considered to be in the owner's premises.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2 (for Ravina):</font></b> We do not equate taking it out to 
          lifting it.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>DOES ONE PAY OR SUFFER LASHES?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> One who raped or seduced his sister (pays a 
          fine).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Contradiction (Mishnah #1):</font></b> The following are lashed: one 
          who has Bi'ah with his sister, his father's sister, his 
          mother's sister, Achos Ishto, the wife of his brother, 
          the wife of his father's brother, or a Nidah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We hold that one does not pay and get lashed for one 
               sin!
<br>

sjt:
<p>
<font><b>2) ACQUIRING AN OBJECT BY LIFTING IT LESS THAN THREE TEFACHIM FROM THE GROUND</b></font><b>
<br>QUESTION:</b> The Beraisa (31a) states that a thief who stole a wallet on Shabbos by dragging it from the Reshus ha'Yachid of its owner into Reshus ha'Rabim is exempt from the obligation of compensation. Since he did not lift the wallet in the domain of its owner, he acquired it only at the moment he removed it from that domain. At that moment he also carried the wallet from Reshus ha'Yachid to Reshus ha'Rabim. Since the two transgressions, theft and Shabbos desecration, occurred simultaneously, the principle of 'Kam Lei bid'Rabah Minei' applies and the thief is exempt from payment (the lesser of the two punishments).
</p><p>
The Gemara (31b) asks, into what domain did the thief bring the wallet? If he brought it into Reshus ha'Rabim, his act should not be considered an act of theft. <b>RASHI</b> (DH Isur) explains that the Gemara at this point understands that an act of Meshichah (the act of pulling an object towards oneself in order to acquire it), without an accompanying act of Hagbahah (the act of lifting an object in order to acquire it), is not a valid Kinyan. The Gemara rejects the possibility that the thief took the wallet into his own courtyard adjacent to the courtyard of the wallet's owner (see Rashi, DH l'Reshus); although such an act would constitute a valid Kinyan for theft, it would not constitute a violation of Shabbos (mid'Oraisa).
</p><p>
Rav Ashi answers that the Beraisa refers to a case in which the thief dragged the wallet into Reshus ha'Rabim with one hand, and he positioned his other hand within three Tefachim from the ground of Reshus ha'Rabim and received the wallet in that hand. Although an act of Hagbahah requires that the object be lifted more than three Tefachim from the ground, when one performs Hagbahah with his hand it is not necessary to lift the object more than three Tefachim from the ground. This difference is based on Rava's statement that a person's hand is considered a significant area in itself; it has the status of an independent area of four Tefachim in length and width (with regard to Hanachah, see Rashi DH ked'Rava). Rashi explains that just as one's hand is considered an independent domain with regard to the laws of Shabbos, it is considered an independent domain with regard to the Kinyan of Hagbahah (such that the Kinyan is effective even if the object is lifted less than three Tefachim from the ground).
</p><p>
<b>TOSFOS</b> (DH Rav Ashi) questions the comparison of the status of a hand with regard to the laws of Shabbos to its status with regard to a Kinyan Hagbahah. Why does the fact that one's hand is considered a domain of four by four Tefachim for the laws of Shabbos necessarily prove that one who performs a Kinyan Hagbahah by placing an object into his hand does not need to lift the object three Tefachim from the ground?
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers this question based on the words of <b>TOSFOS</b> in Shabbos (4a, DH v'Ha). Tosfos asks why Akirah and Hanachah must be done in a domain of at least four by four Tefachim in order for the act to constitute the Melachah of Hotza'ah. He explains that this presumably was the manner in which Hotza'ah was performed in the Mishkan (from which the Melachos of Shabbos are derived), as an object is not normally placed on an area smaller than four by four Tefachim. Tosfos cites the <b><b><b>RI</b></b></b> who explains, alternatively, that the requirement for an area of four by four Tefachim is derived from the verse, 'Al Yetzei Ish mi'Mekomo b'Yom ha'Shabbos' -- 'No person may leave his place on Shabbos' (Shemos 16:29). While the simple meaning of 'his place' refers to a person's place, which is defined as four Amos, it also refers to the place of an <i>object</i>, which is four Tefachim. (The Gemara in Eruvin (17b) explains that 'Al Yetzei' may be read 'Al Yotzi' -- 'he should not take out,' a reference to carrying an object into a different Reshus on Shabbos.)
</p><p>
Based on the words of Tosfos, the Pnei Yehoshua suggests that the reason for Rava's principle, that a person's hand is considered an independent domain for the laws of Shabbos, is that a person normally places an object in his hand until he is able to deposit it in a safer place. Although he keeps the object in his hand only temporarily, since accepting an object into one's hand is the normal manner of conduct, the hand has the status of a domain on Shabbos. (According to the first explanation of Tosfos in Shabbos, holding an object in one's hand was the normal way in which an object was carried in the Mishkan. According to the second explanation, one's hand is considered a normal place of rest of an object.)
</p><p>
In the same way that the definition of a domain for the laws of Shabbos depends on what is the normal area in which objects are placed, the definition of what constitutes Hagbahah (or any other form of Kinyan) depends on how the object is normally acquired. This is evident from the Gemara in Bava Basra (86a) which states that objects which are normally pulled are acquired with Meshichah, while objects which are normally lifted are acquired with Hagbahah. Rava's principle teaches that since it is normal for a person to put an object in his hand until he puts it in its place of storage, putting an object (which is normally lifted up) into a person's raised hand effects a Kinyan Hagbahah even when the item is not lifted up three Tefachim from the ground. The fact that the hand is a place where objects are normally kept causes the Kinyan Hagbahah to take effect. (D. Bloom)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONE PAY OR SUFFER LASHES? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #1 (Ula):</font></b> In our Mishnah his sister is a Na'arah, 
          so he pays. In Mishnah #1 she is a Bogeres, so he is 
          lashed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Objection:</font></b> Also for a Bogeres one pays for embarrassment 
          and blemish!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> The case is, she is insane (so these payments do 
          not apply).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection:</font></b> There is payment for pain!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> The Mishnah discusses (only) a seducer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This suggests another answer to the contradiction.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer #2:</font></b> Mishnah #1 discusses even a Na'arah. She is an 
          orphan who was seduced, so she forgives all payments!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Inference:</font></b> Ula holds that if one is liable to pay and be 
          lashed for one act, he pays and is not lashed.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> What is Ula's source?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1:</font></b> He learns from one who strikes someone. (Even 
          though one is lashed for this when the damage was less 
          than a Perutah, when the damage is a Perutah) he only 
          pays. We learn to all such cases.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection #1:</font></b> (If paying is a harsher punishment than 
          lashes) perhaps only one who strikes someone pays, since 
          the Torah is stringent about this and obligates five 
          payments!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Rejection #2:</font></b> If paying is a lighter punishment than 
          lashes, perhaps we are lenient about one who strikes 
          someone, since Beis Din is permitted to strike people (so 
          we cannot learn to other cases).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer #2:</font></b> Rather, he learns from Edim Zomemim (witnesses 
          who testified about something that they could not have 
          seen. Even though there are lashes for this, when they 
          must pay) they only pay.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Rejection #1:</font></b> The Torah is stringent about Edim Zomemim. 
          They are lashed without warning. We cannot learn to other 
          cases!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Rejection #2:</font></b> If paying is the lighter punishment, 
          perhaps we are lenient about Edim Zomemim, since they did 
          no action!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer #3:</font></b> He learns a Tzad ha'Shavah (what is common) to 
          both of these. They should pay and be lashed, but they 
          only pay. We learn to all such cases.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Rejection #1:</font></b> We cannot learn from these two, for each 
          has a special severity!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Rejection #2:</font></b> If paying is the lighter punishment, we 
          cannot learn from them, for each has a special leniency!
<br>
<br>

sjt:
<font><b>1) WHEN IS ONE PERMITTED TO HIT ANOTHER PERSON</b></font><b>
<br>QUESTION:</b> The Mishnah (29a) states that a man who rapes his sister or his father's sister must pay a fine (Kenas). The Gemara (31b) questions this ruling from the Mishnah in Makos (13a) which states that one who has relations with his sister or his father's sister is punished with Malkus. The principle of 'Kam Lei bid'Rabah Minei' teaches that when one becomes liable for two punishments (such as Malkus and a monetary payment) at one time, he receives only the 'larger,' more severe punishment (in this case, Malkus). Why, then, does the Mishnah here state that he must pay a fine? 
</p><p>
Ula answers that the Mishnah here refers to a sister who is a Na'arah, for whom the Torah obligates the rapist to pay a fine. The Mishnah in Makos refers to a sister who is a Bogeres (above the age of twelve and a half), for whom no fine is levied. <b>RASHI</b> (DH Masnisin) explains that Ula understands that for raping a Na'arah, a man must pay a fine but is not punished with Malkus. For raping a Bogeres, a man is punished with Malkus and pays no fine.
</p><p>
The Gemara asks what Ula's source is to say that a person who does an act which makes him liable for Malkus and for a monetary obligation is <i>exempt</i> from Malkus but is <i>obligated</i> to pay. The Gemara answers that Ula derives this law from 'Chovel b'Chaveiro.' When a man causes injury to his friend, although he should be obligated to pay for damages (Shemos 21:19) and receive Malkus (Devarim 25:3), nevertheless the Torah only requires him to pay and does not punish him with Malkus. 
</p><p>
The Gemara challenges Ula's source and says that the obligation to pay in the case of 'Chovel b'Chaveiro' is more severe than Malkus. Since the perpetrator must pay <i>five</i> different payments -- Nezek (damage), Tza'ar (pain), Ripuy (healing), Sheves (unemployment), and Boshes (embarrassment) -- the obligation of payment is considered a punishment more severe than Malkus. How, then, can Ula derive from the case of 'Chovel b'Chaveiro' to the case of rape that the rapist should be required only to pay? In the case of rape, <i>Malkus</i> is the more severe punishment! The Gemara adds that even if the obligation to pay is a more lenient form of punishment than Malkus (even in the case of 'Chovel b'Chaveiro'), the case of 'Chovel b'Chaveiro' still differs from the case of rape. The case of 'Chovel b'Chaveiro' is lenient because the act of striking a person is permitted in a certain situation; the Torah allows (and commands) Beis Din to strike a person who deserves Malkus. In contrast, rape is never sanctioned. Therefore, it is possible that rape is more strict than 'Chovel b'Chaveiro,' and thus when one is liable for both Malkus and to pay a fine, he should be punished with Malkus and be exempt from the fine.
</p><p>
Why does the Gemara mention only one case (Beis Din which administers Malkus) in which the prohibition of 'Chovel b'Chaveiro' is waived? There are a number of other situations in which the Torah allows one person to strike another. The Gemara in Makos (8a) states that it is a Mitzvah for a father to strike his son, and for a teacher to strike his student, for the sake of educating him. Similarly, although the Torah prohibits injuring another person and causing his blood to spill, a doctor is permitted to 'injure' a person and cause him to bleed in order to heal him, and a Mohel is permitted to 'injure' a person and cause him to bleed when he performs the Mitzvah of Milah.
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> (#92) answers that the other examples are not included in the prohibition of 'Chovel b'Chaveiro' at all, because those acts are done for the benefit and improvement of the person. In contrast, corporal punishment administered by Beis Din is intended to punish a wrongdoer for his misdeeds; no visible benefit accrues from such a beating. (See <b>KOVETZ HE'OROS</b>, Yevamos 70:1, who writes that punishments administered by Beis Din punish the wrongdoer for his past deeds; they are not intended to be a corrective measure for the future.) Accordingly, punishment by Beis Din is considered 'Chovel b'Chaveiro,' but it is a form of 'Chovel b'Chaveiro' which the Torah permits ('Hutar Michlalo').
</p><p>
<b>RAV MOSHE FEINSTEIN</b> zt'l (Igros Moshe CM 1:3) gives the same answer as the Kovetz Shi'urim. He cites additional proof from the <b>RAMBAM</b> (Hilchos Chovel u'Mazik 5:1) who writes that the prohibition of 'Chovel b'Chaveiro' applies only when one hits in a manner of 'Nitzayon,' fighting. Rav Moshe Feinstein explains that when one hits another person in order to prevent him from sinning, his act is not one of 'Nitzayon.' Accordingly, Malkus administered by Beis Din as punishment for a sin one has <i>already</i> committed is included in the category of 'Nitzayon.' Conversely, all of the other cases mentioned above are not cases of 'Chovel b'Chaveiro' because the injuries in those cases are not inflicted in a manner of 'Nitzayon.'
</p><p>
(The Igros Moshe gives this answer in the context of a lengthy explanation of the opinion of Ben Bag Bag in Bava Kama (27b). He writes that the Rabanan who argue with Ben Bag Bag may maintain that other forms of Chavalah <i>are</i> considered 'Hutar Michlalo,' and, if so, they would have to say that the Gemara here just gives one possible example out of numerous possible examples for 'Hutar Michlalo.') (D.Bloom)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Answer #4:</font></b> Ula learns from a Gezeirah Shavah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'Tachas' regarding one who strikes someone, 
               and also regarding a rapist. Just like the former 
               pays money and is not lashed, so too all other 
               cases. (Tosfos - he learns only to a rapist.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>R. YOCHANAN'S ANSWER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #3 (to contradiction 4:b, 31b - R. Yochanan):</font></b> One 
          is lashed even for a Na'arah if he was warned. If there 
          was no warning, he pays.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan holds that if one is liable to pay and 
               be lashed for one act, he is lashed and does not 
               pay.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> What is his source?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> 'According to his evil' - he is punished for one 
          evil, not for two. Adjacent to this it says 'he will lash 
          him 40 times.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> One who strikes his friend pays and is not 
          lashed!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he pays only when there was no 
               warning.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Yochanan taught that if one inflicted 
               a wound for which the compensation is less than a 
               Perutah, he is lashed;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that he was warned, for otherwise 
                    he would not be lashed!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Inference:</font></b> If the compensation was a Perutah, 
                    he would pay!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> The Torah explicitly said that wounding is 
          punishable by money, like R. Ila'a said regarding Edim 
          Zomemim:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If witnesses testified that 
               Ploni owes 200 Zuz and they were found to be 
               Zomemim, they are lashed and pay, since these 
               punishments come from different verses;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, since they pay they are not lashed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why don't we say they are lashed and do 
               not pay?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (R. Ila'a):</font></b> The Torah explicitly said that 
               Edim Zomemim pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Where did the Torah say this?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> 'You will do to him like he plotted to do to 
               his brother. Yad b'Yad' refers to something that 
               given from hand to hand, i.e. money.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Similarly, regarding wounding it says 'Like he did, 
               will be done to him.' 'So he will give' is extra to 
               teach that this means something that is given, i.e. 
               money.
<br>

sjt:
<p>
<font><b>2) THE GEZEIRAH SHAVAH OF 'TACHAS TACHAS'</b></font><b>
<br>QUESTION:</b> Ula (32a) maintains that one who is liable for both Malkus and a monetary obligation for the same transgression pays the money and does not receive Malkus. The Gemara concludes that Ula's source for this law is a Gezeirah Shavah of 'Tachas Tachas.' The verse states that the rapist must pay a fine of fifty Shekels '<i>Tachas</i> Asher Inisah' -- 'in exchange for having afflicted her' (Devarim 22:29). When the Torah discusses the monetary payments for causing injury, the verse states that one must pay 'Ayin <i>Tachas</i> Ayin' -- 'an eye in exchange for an eye' (Shemos 21:24). This means that the attacker must provide his victim with monetary compensation for the loss of the eye. The Gezeirah Shavah teaches that just as the attacker pays money in the case of the loss of an eye and he is not punished with Malkus, so, too, a rapist pays a fine and is not punished with Malkus.
</p><p>
The Gemara's conclusion here apparently contradicts an earlier Gemara (29b). The Gemara there quotes Reish Lakish and Rav Papa who cite various verses from which they derive that a man who rapes a Na'arah who is forbidden to him either by a Lo Ta'aseh or by Kares must pay the fine to her father. Why is a separate verse necessary to teach that he must pay a fine in the case of a Lo Ta'aseh? This requirement may be derived from Ula's Gezeirah Shavah! Since a person who injures his fellow man transgresses a Lo Ta'aseh and yet he still must pay compensation and does not receive Malkus, the Gezeirah Shavah of 'Tachas Tachas' should extend this law to a case of rape. Accordingly, when a man rapes a Na'arah who is prohibited to him by a Lo Ta'aseh, he should pay a fine and not receive Malkus because of the Gezeirah Shavah of 'Tachas Tachas.' Why do Reish Lakish and Rav Papa derive this Halachah from different sources and not from the Gezeirah Shavah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>CHOCHMAS SHLOMO</b> answers that if the Halachah that the rapist pays a fine and does not receive Malkus would be derived only from the Gezeirah Shavah, it would apply only to a case of one who rapes a Na'arah who is a Nidah, whom he is permitted to marry after she becomes Tahor. There would be no source that he must pay a fine when he rapes a Na'arah whom he is not permitted to marry; we would have ruled in such a case that he is exempt from a fine and receives Malkus. The verses expounded earlier (29b) are necessary to teach that even when the Na'arah is forbidden to him, he still must pay a fine.
</p><p>
The <b>MAHARSHA</b> challenges this answer. The principle of 'Ein Gezeirah Shavah l'Mechetzah' teaches that a Gezeirah Shavah must the two respective categories of Halachah to each other for <i>all</i> laws, and not merely for some. Accordingly, it is illogical to suggest that the Gezeirah Shavah of 'Tachas Tachas' applies only to a Na'arah who is permitted to him and not to a woman who is forbidden to him.
</p><p>
<b>REBBI AKIVA EIGER</b> defends the answer of the Chochmas Shlomo. He explains that the application of the principle of 'Ein Gezeirah Shavah l'Mechetzah' to this Gezeirah Shavah would teach that when there is an obligation to pay, one does not receive Malkus, only in the case of a Nidah. The verse states, 'And she will be to him for a wife' (Devarim 22:29), and implies that if she is forbidden to him, he has no monetary obligation. The extra verses cited by Reish Lakish and Rav Papa are necessary to teach that there indeed is a fine for raping a Na'arah who is forbidden by a Lo Ta'aseh.
</p><p>
(b) The <b>MAHARSHA</b> answers that according to Ula there indeed is no need for the Derashos of Reish Lakish and Rav Papa (29b). Those teachings are necessary only according to the opinion of Rebbi Yochanan, who disagrees with Ula in the Gemara here. It is evident that not everyone agrees with those Derashos, as Shimon ha'Timni and Rebbi Shimon ben Menasya (29b) clearly do not understand those verses in the way that Reish Lakish and Rav Papa explain them.
</p><p>
(Rebbi Akiva Eiger notes that this answer seems to contradict the words of <b>TOSFOS</b> (35b, DH Masnisin), who implies that Rav Papa may agree with Ula. See the <b>MAHARAM SHIF</b> for an alternative answer.) (D. Bloom)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHY R. YOCHANAN DISAGREES WITH ULA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Why didn't R. Yochanan learn like Ula?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1:</font></b> If so, we would not lash for the Lav of Bi'ah 
          with one's sister. (We know that every Lav obligates 
          lashes.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection:</font></b> If so, it is difficult why we do not lash for 
          the Lav of wounding!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also, regarding Edim Zomemim (who obligated someone 
               to pay) we do not fulfill 'if the Rasha deserves to 
               be lashed'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We must say that it suffices that we lash Edim 
               Zomemim who testify that a Kohen is Pasul. 
               Similarly, one who inflicts a wound worth less than 
               a Perutah is lashed.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Likewise, it suffices that we lash for Bi'ah with a 
               Bogeres sister!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer #2:</font></b> R. Yochanan did not learn like Ula because he 
          expounds 'Tachas' like Abaye does:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Abaye):</font></b> 'Tachas' (compensation for) that he 
               afflicted her' implies that he pays (the 50 for 
               enjoying Bi'ah with her, and) additional money for 
               embarrassment and blemish.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Ula learns this law like Rava does:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> 'The man who lies with her will give 50 
                    to her father' - he pays 50 for the enjoyment 
                    of lying with her, implying that he also pays 
                    for embarrassment and blemish.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WARNING 'EDIM' 'ZOMEMIM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (R. Elazar):</font></b> Edim Zomemim pay money and are not lashed 
          because they cannot be warned.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Support #1 (Rava):</font></b> There is no time they can be warned!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we would warn them long before they testify, they 
               could claim that they forgot the warning!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If we would warn them right before they testify, 
               they (even truthful witnesses) would refuse to 
               testify!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If we would warn them after they testify, this is 
               too late!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection #1 (Abaye):</font></b> We could warn them after they 
          testify, within the time needed to greet someone. During 
          this time they could still retract their testimony!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection #2 (Rav Acha brei d'Rav Ika):</font></b> We could warn 
          them long before they testify, and subtly remind them at 
          they time they testify!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Support #2 (Abaye):</font></b> We must say that they need not be 
          warned!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since they tried to kill someone without warning, it 
               is improper to say that they cannot be killed 
               without warning!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This would not fulfill 'Like he plotted to do to his 
               brother'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question (Rav Sama brei d'Rav Yirmiyah):</font></b> According to 
          this, we should require warning to lash Edim Zomemim for 
          false testimony when the lashes are not due to 'Like he 
          plotted', e.g. if they testified that Ploni is a Pasul 
          Kohen!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> 'There will be one law for you' - the same law 
          applies to everyone.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE PUNISHMENT FOR WOUNDING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Shisha brei d'Rav Idi):</font></b> Also one who hits someone 
          pays money but is not lashed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Source #1:</font></b> 'If men will fight and one strikes a pregnant 
          woman, aborting the fetus (he will pay her husband)'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> The verse discusses men trying to kill 
               each other - 'If she will die, you will give a life 
               for a life';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We must say that there was warning, for otherwise he 
               could not be killed!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Warning for a severe punishment (death, for murder) 
               is valid warning for a lighter punishment (lashes, 
               for hitting), and it says that he pays money!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Objection #1 (Rav Ashi):</font></b> Perhaps warning for a severe 
          punishment is not valid warning for a light one!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection #2 (Rav Ashi):</font></b> Even if it is considered 
          warning, perhaps lashes is harsher than death!
<br>
<br>

sjt:
<font><b>1) 'HASRA'AH' FOR 'EDIM ZOMEMIM'</b></font><b>
<br>QUESTION:</b> Rebbi Eliezer explains that Edim Zomemim are not punished with Malkus for testifying falsely because they cannot be warned with Hasra'ah.
</p><p>
Rava explains that it is impossible to give a valid Hasra'ah to Edim Zomemim because they can claim that they forgot the Hasra'ah by the time they gave their testimony and the court case concluded. They cannot be warned immediately before they testify, because such a warning would discourage potential witnesses from testifying in Beis Din altogether. <b>RASHI</b> (DH Parshi) explains that witnesses will not bother to come to Beis Din to testify if they are warned every time they come; they will prefer to avoid the discomfort of being suspect of lying. Giving them Hasra'ah <i>after</i> they have testified is meaningless, because 'what has happened has already happened.' Rashi (DH Mai) explains that this refers to the principle of 'Keivan she'Higid Shuv Eino Chozer u'Magid' -- a witness may not change his testimony once he has already testified in Beis Din (see Kesuvos 18b).
</p><p>
Rava's explanation -- that potential witnesses will abstain from testifying if they are given Hasra'ah before they testify -- apparently contradicts the Mishnah in Sanhedrin (29a). The Mishnah explicitly states that witnesses are warned not to testify falsely immediately before they testify. The Gemara there discusses various statements which Beis Din uses to warn the witnesses about the severity of the punishment given to false witnesses. (The <b>RAMBAM</b>, Hilchos Edus 17:2, notes that this warning is given even to witnesses who testify about a monetary matter.) Why does Rava say that Beis Din does <i>not</i> warn witnesses immediately before they testify, lest potential witnesses be discouraged from testifying?
</p><p>
<b>ANSWERS:</b> 
<br>(a) The <b>RITVA</b> answers that the warning normally given to witnesses is a <i>general</i> statement about the prohibition against false testimony. Rava means that no policy of warning witnesses with a specific threat (for example, in a capital case, 'If other witnesses testify that you are Edim Zomemim, you will be put to death') can be instituted, because it certainly would scare away all witnesses.
</p><p>
However, Rashi (DH Parshi) implies that the witnesses' reluctance to testify is not due to fright about facing the death penalty, but rather they merely want to avoid the hassle of being suspected of lying. How does Rashi reconcile Rava's statement with the Mishnah in Sanhedrin?
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> explains that Rashi understands that the Mishnah in Sanhedrin refers to Hasra'ah given long before the witnesses testify. Such a Hasra'ah serves no purpose, however, because the witnesses can claim that they forgot the Hasra'ah by the time they gave their testimony, as Rava here explains. The Gemara here, in contrast, refers to Hasra'ah given immediately before the witnesses testify. Rashi explains that when they are warned immediately before they testify, the witnesses will feel that Beis Din does not trust them and they will not bother to testify.
</p><p>
The Shitah Mekubetzes discusses the exact moment at which the witnesses are warned. He cites the <b>RAMBAM</b> (Hilchos Edus 17:2) who implies that the warning is usually given long before the testimony. However, in cases of capital punishment, the Rambam (Hilchos Sanhedrin 12:3) rules that Beis Din warns the witnesses immediately after the witnesses testify that they gave Hasra'ah to the defendant before he committed his offense. How is this apparent contradiction in the words of the Rambam to be reconciled?
</p><p>
The Shitah Mekubetzes explains that although Beis Din warns the witnesses <i>during their testimony</i> about the severity of testifying falsely, at the same time Beis Din <i>encourages</i> the witnesses to testify. After some words of warning, Beis Din urges the witnesses to fulfill their Torah obligation to testify. Beis Din also tells the witnesses that they should not be concerned about causing the death of the accused, because 'when the wicked perish there are songs of joy' (Mishlei 11:10).
</p><p>
However, according to the explanation of the Shitah Mekubetzes, the original question returns. Why does Beis Din not warn every witness at the time he testifies, and immediately afterwards give him words of encouragement to testify? Why does Rava say such a Hasra'ah is not possible? The Shitah Mekubetzes answers that such encouragement would constitute too large of an interruption between the Hasra'ah and the witnesses' testimony, and the witnesses again would have the ability to claim that they forgot the warning. (Y. Montrose)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> Chananyah, Misha'el and Azaryah (chose to 
               jump into the furnace and not bow to 
               Nevuchadnetzar's image.) Had they been lashed, they 
               would have bowed to the image!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Rav Sama brei d'Rav Asi, against Rav Ashi):</font></b> 
          Beis Din gives a limited number of lashes. Rav taught 
          that they would not have endured unlimited lashes!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Objection #3 (Rav Yakov):</font></b> Granted, this could be the 
          source for Chachamim, who explain 'a life for a life' 
          literally;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Rebbi says that it refers to a monetary 
               payment. (He need not say that warning was given.) 
               How will he learn that one who wounds pays money?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Source #2 (Rav Yakov) Question:</font></b> 'If he will get up... he 
          will be acquitted' - would we think that Reuven is killed 
          even if Levi (the one he struck) recovers?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, this teaches that we lock up Reuven. 
               If Levi dies, Reuven is killed. If Levi recovers 'He 
               pays his unemployment and medical expenses'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If there was no warning, he would not be killed!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, we must say he was warned. Warning for a 
               severe punishment is valid warning for a lighter 
               one, yet he pays money!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection #1 (Rav Ashi):</font></b> Perhaps warning for a severe 
          punishment is not warning for a light one!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Objection #2 (Rav Ashi):</font></b> Even if it is warning, perhaps 
          lashes is harsher than death!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> Had Chananyah, Misha'el and Azaryah been 
               lashed, they would have bowed to the image.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Rav Sama brei d'Rav Asi):</font></b> We distinguish 
          between a limited and an unlimited number of lashes!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Objection #3 (Rav Mari):</font></b> We need not say that Reuven 
          intended to kill and the verse acquits him from 
          execution. Perhaps he struck him accidentally, and he is 
          acquitted from exile!
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  This is left difficult.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>REISH LAKISH'S ANSWER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #4 (to contradiction 4:b, 31b - Reish Lakish):</font></b> Our 
          Tana is R. Meir, who says that a person can be lashed and 
          pay for one act.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> If the Tana is R. Meir, he should pay even for 
          his daughter!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #1:</font></b> R. Meir holds that one can be lashed and pay, 
          but one who is killed does not pay.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection (Beraisa - R. Meir):</font></b> If one stole an animal and 
          slaughtered it on Shabbos or slaughtered it to serve 
          idolatry, or stole and slaughtered an animal sentenced to 
          die, he pays four or five times its value;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim exempt (from paying four or five).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (R. Yochanan):</font></b> The case is, the thief appointed a 
          Shali'ach (agent) to slaughter for him.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If the thief punished for someone else's sin?!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> Yes!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Source #1 (Rava):</font></b> 'He slaughtered or sold it' - just 
               like selling it involves another person, so 
               slaughtering may involve another person.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Source #2 (Tana d'Vei R. Yishmael):</font></b> 'Or' comes to 
               include a Shali'ach.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Source #3 (Tana d'Vei Chizkiyah):</font></b> 'Tachas' includes 
               a Shali'ach.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Objection (Mar Zutra):</font></b> Do we ever find that a person is 
          exempt for doing something, and he is liable if his 
          Shali'ach does it?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> Also when he himself slaughters he should pay, 
          just he is exempt due to Kam Lei bid'Rabah Minei (one who 
          is Chayav Misah does not pay).
<br>

sjt:
<p>
<font><b>2) THE IDOL IN FRONT OF CHANANYAH, MISHA'EL, AND AZARYAH</b></font><b>
<br>QUESTION:</b> Rav Shisha (33a) teaches that a person who injures his friend must pay money and does not receive Malkus. He derives this from the verses (Shemos 21:22-5) which imply that if one intends to kill his friend but instead injures a pregnant woman and causes her to miscarry, he must pay the woman's husband for the loss of the embryo. Rav Shisha quotes Rebbi Elazar who says that the verses clearly state that if the attacker would have killed the woman, he would have been put to death (see Rashi, DH ha'Kasuv). If he would have been put to death, then he must have received a valid Hasra'ah (warning) before his act, because without Hasra'ah he would not receive corporal punishment in Beis Din.
</p><p>
Since the offender was warned not to attack and he attacked anyway, he should be punished with Malkus for the injury he caused to the woman. Rav Shisha maintains that when one who warned not to do an act of a severe sin which includes a less severe sin, the warning is valid for the less severe sin as well. Accordingly, although the offender did not succeed in killing anyone, the warning he received ('do not kill') includes a warning not to hit anyone, and thus he should receive Malkus for hitting the pregnant woman. Nevertheless, the verses state that he only pays for injuries (for the miscarriage) and does not receive Malkus.
</p><p>
Rav Ashi disagrees with this proof for two reasons. Perhaps there is no such principle that Hasra'ah for a severe punishment automatically includes Hasra'ah for a light punishment (and thus there is no Hasra'ah for Malkus in the case of the man who hits a woman and kills her embryo). Moreover, even if there is such a principle, what is the source that capital punishment is more severe than Malkus? Perhaps Malkus is considered more severe than death. This is apparent from Rav's statement that had Chananyah, Misha'el, and Azaryah been tortured, they would have bowed down to the statue of Nevuchadnetzar (see Daniel 3:18).
</p><p>
Why does Rav assume that they would have bowed down to the statue if they would have been tortured? Chananyah, Misha'el, and Azaryah were Tzadikim, and they certainly would have given up their lives and suffered any form of torture in order to avoid bowing down to an idol, as the Torah requires (see Berachos 61a, Pesachim 25b).
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Ilmalei) cites <b>RABEINU TAM</b> who answers that the statue was not an actual idol that was worshipped. Rather, it was a statue made in honor of the king. Nevertheless, not bowing down towards the statue in honor of the king still constituted a Kidush Hash-m. Although Chananyah, Misha'el, and Azaryah chose to be thrown into the furnace to avoid bowing down to the statue, they would <i>not</i> have undergone torture to avoid such an act. Rabeinu Tam proves that the statue was not one worshipped as Avodah Zarah from the verse, 'To your god we will not bow down, and to your golden statue that you have erected we will not bend' (Daniel 3:18), which implies that the statue itself was not treated as a god by Nevuchadnetzar.
</p><p>
The <b>TOSFOS HA'ROSH</b> cites proof for Rabeinu Tam's explanation from the Gemara in Pesachim (53b). The Gemara asks, 'What did they see that they let themselves be thrown into the furnace?' The Gemara answers that they learned this conduct from the frogs in Mitzrayim, which jumped into the ovens in sanctification of Hashem's name. If the statue would have been a genuine idol of Avodah Zarah, why would the Gemara ask, 'What did they see...?' It would have been obvious why they chose to give up their lives, as they were faced with the cardinal sin of idolatry! Rather, it must be that the Gemara knows that they were not faced with actual idolatry, and therefore it needs to find a source for their conduct.
</p><p>
Why, though, did they choose to give up their lives when they were not obligated to do so? The <b>RAMBAN</b> (cited by the Shitah Mekubetzes) explains that the common people mistakenly thought that the statue was Avodah Zarah, and therefore they maintained that they were obligated to give up their lives for Kidush Hash-m. The Ramban adds that he found support for this approach in the 'Midrash Chazis.' The Midrash relates that when Yechezkel told them to hide so that they not be killed, they chose not to hide but instead to allow themselves to be killed 'so that people should say that all of the nations -- except for the Jewish people -- bowed down to the statue.'
</p><p>
(b) Alternatively, the Ramban answers that Rav does not mean literally that Chananyah, Misha'el, and Azaryah would have worshipped the statue. Rather, Rav exaggerates in order to emphasize how difficult it is to undergo torture, and that torture is worse than death. (This explanation answers Tosfos' question on Rabeinu Tam. Tosfos asks that the words of the Gemara ('they would have worshipped the idol') imply that the statue indeed was Avodah Zarah. According to the Ramban, the statue <i>was</i> Avodah Zarah. Rav does not mean that they actually would have worshipped it had they been tortured.)
</p><p>
(c) <b>RABEINU ELIEZER</b> (cited by the Shitah Mekubetzes) explains that Rav indeed means that they would have bowed down to the statue, and that the statue indeed was Avodah Zarah. The Torah requires that one give up his life in order not to worship Avodah Zarah; the Torah does <i>not</i> require that one be tortured indefinitely in order not to worship Avodah Zarah. Although the Torah requires that one suffer a slower death in order not to worship Avodah Zarah (like the death of Rebbi Akiva, as related in Berachos 61a), it does not require that one suffer indefinitely. The Shitah Mekubetzes agrees with this explanation. (D. Bloom)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IMPROPER SLAUGHTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> If a Shali'ach slaughtered, why do Chachamim 
          exempt the thief?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> Chachamim hold like R. Shimon, who says that a 
          slaughter that does not permit to eat the meat is not 
          considered slaughter;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This explains why they exempt slaughter to idolatry 
               or of an animal sentenced to die.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> An animal slaughtered on Shabbos may be eaten!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one slaughtered on Shabbos or Yom 
               Kipur, even though he is Chayav Misah, the slaughter 
               is Kosher.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Chachamim hold like R. Yochanan ha'Sandlar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If one cooked on Shabbos 
               b'Shogeg, he may eat it. If he was Meizid, he may 
               not eat it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if he was Shogeg, he may eat it 
               after Shabbos. If he was Meizid, he may never eat 
               it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yochanan ha'Sandlar says, if he was Shogeg, after 
               Shabbos others may eat it but not him. If he was 
               Meizid, even others may never eat it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> What is R. Yochanan ha'Sandlar's source?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> R. Chiya expounded 'Shabbos is Kodesh to you' - 
          just like one may not eat Kodesh, one may not eat things 
          made on Shabbos.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps just like one may not benefit from 
          Kodesh, also from things made on Shabbos!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer:</font></b> 'To you' - it will be yours.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps the Isur applies even to things done 
          b'Shogeg!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection:</font></b> 'Those who desecrate it will die' - the verse 
          discusses only Meizid.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  Rav Acha and Ravina argued about whether the Isur to eat 
          things made on Shabbos is mid'Oraisa or mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The one who says that it is mid'Oraisa learns like 
               above (f).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The one who says that it is mid'Rabanan expounds 'It 
               (Shabbos) is Kodesh', but not things made on 
               Shabbos.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Question:</font></b> According to the opinion that it is 
          mid'Rabanan, why do Chachamim exempt the thief from 
          paying four or five?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer:</font></b> They do not! They only exempt in the cases of 
          slaughtering for idolatry or an ox sentenced to die.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Question:</font></b> The moment one starts slaughtering for idolatry 
          the animal becomes forbidden. During the rest of the 
          slaughter, it does not belong to the original owner! (Why 
          does R. Meir obligate paying four or five?)
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> The case is, he said that he serves the 
          idolatry by finishing the Shechitah.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> An ox sentenced to die does not belong to the 
          original owner! (Why does R. Meir say he pays four or 
          five?)
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer (Rabah):</font></b> The case is, Shimon was guarding Reuven's 
          ox. It gored, was sentenced to die, and was stolen while 
          by Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds like R. Yakov and as R. Shimon.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He holds like R. Yakov who says that a watchman 
                    can return an animal that was sentenced to die;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> He holds like R. Shimon who says that something 
                    that is worth money to one person (even if it 
                    has no value to anyone else) is considered to 
                    have value. (Since Shimon could have returned 
                    the ox, the thief must pay for it.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RABAH'S ANSWER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Answer #2 (to question 3:d, Daf 33b):</font></b> Really, the thief 
          himself slaughtered it. R. Meir holds that one is lashed 
          and pays, but one who is killed does not pay. Fines are 
          Chidushim (special), and one pays even if he is killed.
<br>
<br>

sjt:
<font><b>1) HALACHAH: BENEFITING FROM A MELACHAH PERFORMED BY A JEW ON SHABBOS</b></font><b>
<br>OPINIONS:</b> The Tana'im disagree about whether one may benefit from the result of a Melachah performed by a Jew on Shabbos. Rebbi Meir maintains that food cooked on Shabbos accidentally (b'Shogeg) may be eaten on Shabbos by anyone, even the person who cooked it. Food cooked intentionally (b'Mezid) may not be eaten on Shabbos by anyone, but it may be eaten after Shabbos.
</p><p>
Rebbi Yehudah maintains that food cooked on Shabbos b'Shogeg may be eaten only after Shabbos, by anyone. Food cooked b'Mezid may never be eaten by the person who cooked it, but it may be eaten after Shabbos by one who did not cook it.
</p><p>
Rebbi Yochanan ha'Sandlar rules that the transgressor may never eat food he cooked on Shabbos, whether he cooked b'Shogeg or b'Mezid. Others, however, may eat the food after Shabbos if it was cooked b'Shogeg. If it was cooked b'Mezid others may never eat it.
</p><p>
The Gemara in a number of places (see, for example, Shabbos 18b, 151a) teaches that when a Jew wrongfully instructs a Nochri to perform Melachah on Shabbos, the Jew may not benefit from that Melachah until 'bi'Chedei she'Ya'asu' -- until enough time has passed for the Melachah to be done after Shabbos. When the Tana'im here rule that one may not benefit from Melachah wrongfully performed by a Jew on Shabbos, do they require that one wait 'bi'Chedei she'Ya'asu' or do they permit one to benefit from the Melachah immediately after Shabbos?
</p><p>
(a) <b>RASHI</b> in Chulin (15a, DH Lo Yochal) writes that one must wait 'bi'Chedei she'Ya'asu' whenever he is required to wait until after Shabbos to eat the food. Since one may not benefit from a Melachah performed on Shabbos, he obviously must wait 'bi'Chedei she'Ya'asu.' This is also the opinion of the <b>BEHAG</b> (Hilchos Shabbos 22b) and the <b>RAMBAN</b>. The Ramban adds that this requirement applies only to a Melachah which was performed <i>wrongfully</i> by a Jew, but not to a Melachah which was permitted on Shabbos because of Piku'ach Nefesh. A vegetable picked on Shabbos for a deathly-ill person may be eaten by a healthy person immediately after Shabbos.
</p><p>
(b) However, the <b>RAMBAM</b> (Hilchos Shabbos 6:23) rules that when a Jew performs Melachah from which one may benefit after Shabbos, he is permitted to benefit from it <i>immediately</i> after Shabbos. This is also the opinion of <b>RABEINU YONAH</b> (cited by the <b>MAGID MISHNEH</b>), the <b>ROSH</b>, <b>RAN</b>, and many other Rishonim (see <b>BEIS YOSEF</b> OC 318:1).
</p><p>
Why, according to the ruling of these Rishonim, is the Halachah more stringent with regard to a Melachah performed by a Nochri for a Jew on Shabbos (which constitutes an Isur d'Rabanan according to most opinions) than with regard to a Melachah performed by a Jew on Shabbos (which is an Isur d'Oraisa)?
</p><p>
The <b>BEIS YOSEF</b> and others explain that the reason why the Halachah is more stringent with regard to a Melachah performed by a Nochri is that people tend to be more lax with the prohibition against benefiting from a Nochri's Melachah, since it is only mid'Rabanan. If one would be allowed to benefit from a Nochri's Melachah immediately after Shabbos, he might openly ask the Nochri to do Melachah for him on Shabbos. In contrast, when a Jew accidentally does Melachah on Shabbos, there is no concern that if he is permitted to benefit from the Melachah immediately after Shabbos he will do Melachah on Shabbos again. Also, there is no concern that a Jew will tell another Jew to do Melachah for him on Shabbos. Therefore, there is no requirement to wait 'bi'Chedei she'Ya'asu' in order to benefit from a Melachah done by a Jew on Shabbos.
</p><p>
The <b>SHITAH MEKUBETZES</b> in Chulin (15a) points out that there is a case in which waiting 'bi'Chedei she'Ya'asu' is necessary in order to permit one to benefit from a Melachah done by a Jew. The Gemara in Shabbos (18b) discusses a case in which a woman filled a pot with legumes and put it in the oven right before Shabbos, and thereby transgressed the Isur d'Rabanan of Shehiyah. The Gemara rules that one is permitted to benefit from the legumes after Shabbos, but only after he waits 'bi'Chedei she'Ya'asu.' How does the Rambam (and other Rishonim) understand the Gemara there?
</p><p>
The Shitah Mekubetzes answers that when a person performs a Melachah <i>before</i> Shabbos and the effects of that Melachah occur <i>on</i> Shabbos, it is not obvious to everyone that benefiting from the Melachah is prohibited (or that the Melachah itself is even prohibited to do in the first place). Therefore, the Rabanan were stringent in such a case and instituted the requirement to wait 'bi'Chedei she'Ya'asu,' just as they were stringent and prohibited benefiting from Melachah performed by a Nochri on Shabbos. The Isur that was done is not so obvious, and thus there is a concern that people might continue to do this form of Melachah on Shabbos. The Rabanan instituted the requirement to wait 'bi'Chedei she'Ya'asu' so that it would be clear to everyone that such a Melachah is forbidden.
</p><p>

<b>HALACHAH:</b> The <b>TUR</b> and <b>SHULCHAN ARUCH</b> (OC 318:1) rule like the Rambam and permit one to benefit, immediately after Shabbos, from Melachah done by a Jew on Shabbos. The <b>MISHNAH BERURAH</b> (318:5) also records the opinion of the Rambam. However, the Halachah may differ in the case of a Melachah done by a non-observant Jew who has no reservations about violating Shabbos. Even the Rambam may agree that one may not benefit from such a Jew's Melachah until after he waits 'bi'Chedei she'Ya'asu.' (See <b>HE'OROS B'MASECHES CHULIN</b>, 15a, in the name of <b>RAV</b> Y. S. <b>ELYASHIV</b> shlit'a.) (Y. Montrose)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  This is like another teaching of Rabah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> If a thief stole a goat before Shabbos and 
               slaughtered it on Shabbos, he pays four, since he 
               was obligated to pay for the theft before 
               desecrating Shabbos. (This is like R. Meir, who 
               obligates for fines incurred while he is Chayav 
               Misah.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he stole (through Chilul Shabbos) and slaughtered 
               on Shabbos he is exempt, since he is exempt for the 
               (principal and also the double payment for) theft, 
               he is exempt for selling or slaughtering.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Rabah):</font></b> If a thief stole a goat and then tunneled into a 
          house and slaughtered it there, he pays four, since he 
          was obligated to pay for the theft before tunneling (even 
          though one may kill him in the tunnel, for we assume that 
          he is ready to kill the owner of the house);
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  If he stole and slaughtered in the tunnel he is exempt. 
          Since he is exempt for the theft, he is exempt for 
          selling or slaughtering.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  He needed to teach both of these laws:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he taught only about Shabbos, we would have 
               thought that there he is exempt from paying since he 
               can be killed at any time (if witnesses will testify 
               about him), but in the case of tunneling he must 
               pay, since he can be killed only while in the 
               tunnel;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had he taught only about tunneling, we would have 
               thought that there he does not pay since he can be 
               killed without warning, but regarding Shabbos he 
               pays, for he cannot be killed without warning.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A BORROWED ANIMAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Rav Papa):</font></b> If a thief stole a cow before Shabbos and 
          slaughtered it on Shabbos, he pays five, since he was 
          obligated to pay for the theft before breaking Shabbos;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  If he borrowed a cow before Shabbos and slaughtered it on 
          Shabbos, he is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question (Rav Acha brei d'Rava):</font></b> Does Rav Papa merely 
          teach that Rabah's law also applies to a cow?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Rav Ashi):</font></b> No, he teaches about a borrowed 
          animal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Papa had taught that from the time a borrower 
               drags an animal to his premises, he is responsible 
               to feed it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One might have thought that from this time he is 
               also responsible if it dies. He teaches that this is 
               not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Rava):</font></b> If a man died and left a borrowed cow to his 
          sons, they may use it as long as he was allowed to use 
          it. If it dies, they are exempt;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  If they thought that it was their father's and 
          slaughtered it, they pay a cheap price for its meat (two 
          thirds of the normal price);
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  If they inherited land, they must pay.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Version #1:</font></b> This last statement applies to the first law 
<br>      <b>    <b><font color='darkgreen'>(e)</font></b></b>.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Version #2:</font></b> It applies to the second law (f).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Version #1 says that it applies to the first law, 
               and all the more so to the second law. Rava 
               disagrees with Rav Papa;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Version #2 says that it applies to the second law, 
               but not to the first. This is like Rav Papa.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO TRANSGRESSED WITHOUT WARNING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> We understand why R. Yochanan did not answer 
          the contradiction between Mishnayos (31b, 4:b) like Reish 
          Lakish, for he prefers to establish them like Chachamim;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why didn't Reish Lakish answer like R. Yochanan?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> Reish Lakish holds that since he is exempt from 
          paying if he was warned (about lashes), he is exempt even 
          if he is not warned.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  They are consistent with what they said elsewhere:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Dimi):</font></b> One who incurred a monetary obligation 
               at the same time that he transgressed b'Shogeg a sin 
               punishable by death or lashes (for Meizid), R. 
               Yochanan says that he must pay, and Reish Lakish 
               exempts.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yochanan obligates, since he was not warned!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Reish Lakish exempts. Since if he was warned he 
                    would be exempt, he is exempt even if he was 
                    not warned.
<br>

sjt:
<p>
<font><b>2) INADVERTENT THEFT</b></font><b>
<br>QUESTION:</b> Rava rules that when a man dies and leaves his children a borrowed cow, the children may use the cow for the duration of time for which their father had borrowed it. If the cow dies through an Ones (circumstances beyond one's control), the heirs are not responsible for it. Although a borrower generally is obligated to pay the owner for the animal he borrowed even when the it died through an Ones, his heirs do not have to pay because they did not borrow the cow themselves (Rashi DH Ein).
</p><p>
If the children slaughtered and ate the cow under the erroneous assumption that the cow belonged to their father, they are obligated to pay to the original owner only the lowest market price for the value of the meat. (Rashi here (DH Demei) and the <b>RASHBAM</b> in Bava Basra (146b, DH v'Shamin) explain that this means that they must pay only two thirds of the meat's actual value.]
</p><p>
Why are the heirs not obligated to pay the full price of the meat they ate? In what way does this case differ from the case of the Gemara in Bava Kama (111b) in which a person stole an object and, before the owners despaired (Yi'ush) of recovering it, someone else came and ate the object? In that case, the owner may collect the value of the object either from the original thief or from the person who ate it. In the case of the Gemara here, there is no indication that the owner despaired (just because the borrower died), and thus the children should be required to pay the full value of the meat to the owner and not a reduced value.
</p><p>
<b>ANSWER:</b> The <b>RITVA</b>, <b>RA'AVAD</b>, and other Rishonim explain that the difference between the two cases is the person's awareness of the fact that he is stealing. In the case in Bava Kama, the person who eats the meat knows that the meat was stolen by a thief. Even if he does not know that it was stolen, he himself intends to steal it from the thief. In contrast, in the case of the Gemara here the heirs think the cow belonged to their father and they think they are eating meat rightfully belongs to them. Since that they are not deliberately stealing, they are not required to pay the full price.
</p><p>
The <b>MACHANEH EFRAIM</b> (Hilchos Gezeilah #7) writes that the Ritva clearly implies that one who steals inadvertently is not categorized as a Gazlan (thief).
</p><p>
(The <b>RASHBAM</b> (Bava Basra 146b, DH v'Shamin) writes that the law that one pays only for inexpensive meat, or two thirds of the actual value, applies in any case in which one person eats the food of another person which he would not have eaten had he known that he would have had to pay for it. See <b>RE'AH</b> here who writes that this value represents the benefit that the eater derived from the meat, rather than its actual market value.)
</p><p>
According to this approach, the Ritva explains the Gemara earlier (30b) which states that when one person thrusts food down another person's throat, the second person is considered to be the thief. The Ritva explains that the Gemara refers specifically to a case in which the second person knows that the food does not belong to the person who gives it to him. For this reason the Gemara there says he is a thief only if he could have cast it out of his mouth but did not. If he did not know at the time he ate it that it was stolen, he is not considered a thief. (D. Bloom)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INADVERTENT TRANSGRESSORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Version #1 - Question (Reish Lakish):</font></b> 'If there will be 
          no Ason (death), he will pay'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> We explain <i>Ason</i> literally. (This 
               implies that if someone dies he is exempt, even if 
               he was not warned!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> No, the verse means 'if there is no sentence to 
          die (e.g. he was Shogeg, or was not warned), he will 
          pay'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Version #2 - Question (R. Yochanan):</font></b> 'If there will be no 
          Ason, he will pay'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> <i>Ason</i> means a sentence to die (if there 
               is no sentence, he pays)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> No, <i>Ason</i> literally means death.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Surely, all agree that one who transgressed a 
          capital sin b'Shogeg need not pay!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Tana d'Vei Chizkiyah):</font></b> 'One who strikes an 
               animal... and one who strikes (kills) a man' equates 
               these. Just like one who hits an animal pays, 
               whether he was Shogeg or Meizid, whether or not he 
               was aiming for this animal, and whether he hit with 
               an upward or downward motion, also one who strikes a 
               man is exempt (from paying) in every case.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Correction (Ravin):</font></b> Rather, if one transgressed a capital 
          sin b'Shogeg, all agree that he does not pay;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  They argue about one who transgressed b'Shogeg a sin 
          punishable by lashes and money;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan says that he pays. Only capital sins are 
               equated (e:1) to striking an animal (to teach that 
               he does not pay in any case). Chayavei Makos (sins 
               punishable by lashes) were not equated.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reish Lakish exempts from paying. The Torah 
               explicitly equates Chayavei Makos to capital sins.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>'CHAYAVEI' 'MAKOS' ARE LIKE CAPITAL SINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Where did the Torah equate them?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1 (Abaye):</font></b> We learn from a Gezeirah Shavah 
          'Rasha-Rasha'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer #2 (Rava):</font></b> We learn from a Gezeirah Shavah 
          'Makeh-Makeh'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question (Rav Papa):</font></b> From which occurrences of these 
          words do you learn?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You cannot learn from '<i>Makeh</i> (one who strikes) an 
               animal will pay for it' and '<i>Makeh</i> (one who 
               strikes) a man will die', for the latter verse 
               discusses killing a man!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> You cannot learn from '<i>Makeh</i> Nefesh (one who 
               mortally strikes) an animal will pay for it' and 'If 
               a man will wound a man (...so will be done to him)', 
               for the latter verse does not say 'Makeh'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rava):</font></b> I learn from the latter verses. Both of 
          them discuss hitting.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> You cannot learn about Chayavei Makos from 
          hitting a man. One is not lashed for this, rather, he 
          pays money!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> We do not need 'so will be done to him' to teach 
          about a blow worth a Perutah, so it teaches about a blow 
          worth less than a Perutah (which is punishable by 
          lashes).
<br>
<br>

sjt:
<font><b>1) THE GEZEIRAH SHAVAH OF 'RASHA RASHA'</b></font><b>
<br>QUESTION:</b> Ravin explains that the dispute between Rebbi Yochanan and Reish Lakish concerns a person who inadvertently transgresses a prohibition for which he is liable for Malkus and for a different punishment (such as a monetary fine). Rebbi Yochanan rules that the offender must pay the monetary fine. He maintains that the Hekesh (Vayikra 24:21) of the Gemara earlier -- which exempts a person from monetary obligations which he incurs at the same moment at which he kills someone (even b'Shogeg) -- does not apply to a person who is liable for <i>Malkus</i> and monetary compensation. Reish Lakish disagrees and maintains that even when one committed a transgression for which he is liable for Malkus and monetary compensation, the Hekesh exempts him from payment. This is because the Torah compares one who is Chayav Malkus with one who is Chayav Misah.
</p><p>
Where does the Torah compare one who is Chayav Malkus with one who is Chayav Misah? Abaye answers that there is a Gezeirah Shavah, 'Rasha Rasha.' With regard to capital punishment the Torah says, '... he is a Rasha who must die' (Bamidbar 35:31). With regard to Malkus the Torah states, 'If the Rasha deserves to be beaten...' (Devarim 25:2). Rava disagrees with Abaye and suggests a different source. The verse uses a form of the word 'Makeh' -- 'one who strikes' -- both when it discusses one's obligation to compensate for damage he caused to someone else's animal (Vayikra 24:21) and when it discusses the punishment of Malkus (Devarim 25:2). The usage of the word 'Makeh' in the verse of the Hekesh (Vayikra 24:21) teaches that Malkus is included in the Hekesh. 
</p><p>
It seems clear from the Gemara that Rava does not expound the Gezeirah Shavah of 'Rasha Rasha.' Similarly, Rebbi Yochanan -- who differentiates between a person who is liable for Misah and one who is liable for Malkus -- does not compare the two punishments through the Gezeirah Shavah. The Gemara later (37a) also does not seem to accept the Gezeirah Shavah, as is evident from its statement that one verse is needed to teach that one who is liable for Misah does not pay money (Shemos 21:22), and a different verse is needed to teach that one who is liable for Malkus does not pay money (Devarim 25:2). If the Gemara there would accept the Gezeirah Shavah of 'Rasha Rasha,' it would need only one verse to exempt a person from monetary liability, either in a case of Misah or in a case of Malkus, and the Gezeirah Shavah would teach that the other punishment also exempts him from monetary liability.
</p><p>
However, the Gezeirah Shavah of 'Rasha Rasha' is cited in a number of places as an undisputed teaching (Makos 5b, Sanhedrin 33b, and Bava Kama 86b). Why does the Gemara elsewhere cite the Gezeirah Shavah as a unanimous teaching, when several opinions in the Gemara here do not accept it?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Rava) answers that everyone agrees that the Gezeirah Shavah of 'Rasha Rasha' compares the laws of Malkus to the laws of Misah. The question is whether it also teaches the <i>accompanying</i> laws of Malkus, such as the exemption from monetary liability. Abaye understands that these laws are included in the Gezeirah Shavah, while Rava and Rebbi Yochanan maintain that they are not included in the Gezeirah Shavah.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> quotes the <b>ROSH</b> who explains that Rava agrees with Abaye that there exists a Gezeirah Shavah. However, he understands that the Gezeirah Shavah is not always necessary. The Rosh understands that when Rava states that the exemption from monetary liability is derived from the word 'Makeh,' he means that the Gezeirah Shavah is not necessary for this particular teaching. (See the Shitah Mekubetzes who explains, in a similar manner, two other Gemaras in which Rava gives an alternative teaching to 'Rasha Rasha.')
</p><p>
This answer reconciles only the opinion of Rava, but not that of Rebbi Yochanan, with the unanimous teaching of 'Rasha Rasha.'
<br> 
<br>(c) The Shitah Mekubetzes quotes a second answer in the name of the Rosh. Rava and Rebbi Yochanan understand that the Gezeirah Shavah of 'Rasha Rasha' applies only to laws which involve a person who is a Rasha, an evildoer. It does not apply to cases in which a person accidentally sinned. Accordingly, the Gezeirah Shavah of 'Rasha Rasha' is not relevant here, because the Gemara's objective is to teach that the exemption from monetary liability applies even when one is liable for lashes and for payment as a result of an <i>accidental</i> transgression. (See Shitah Mekubetzes who explains these answers at length.) (D. Bloom, Y. Montrose)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> If so, surely he does not pay!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer:</font></b> While hitting him, he tore his silk. (The Hekesh 
          exempts him from paying for the silk.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question (Rav Chiya):</font></b> Tana d'Vei Chizkiyah equated 
          striking an animal and a man. How do we know that he hit 
          it on a weekday and always pays? Perhaps he hit it on 
          Shabbos, and we distinguish (between Shogeg and Meizid)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer (Rava) Question:</font></b> What is the case of 'One who 
          strikes an animal will pay for it, and one who strikes a 
          man will die'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there was no warning, we would not kill one who 
               struck a man!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We must say he was warned.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he struck the animal on Shabbos (with warning), 
               he would not pay! Rather, we must say that he hit it 
               on a weekday.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW RABAH LEARNS THE 'MISHNAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rav Papa):</font></b> Rabah obligates (according to R. 
          Meir) even one who is executed to pay a fine. Like whom 
          does he establish the Mishnayos (ours, and 4:b, 31b)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is R. Meir, one should pay even for (raping or 
               seducing) his own daughter!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it is like R. Nechunya ben Hakanah (who exempts 
               Chayavei Krisos from paying), he should not pay for 
               his sister!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If it is R. Yitzchak (who exempts Chayavei Krisos 
               from lashes), he should not be lashed for a 
               Mamzeres!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If Rabah holds like R. Yochanan, he can explain like 
               R. Yochanan (there was no warning for lashes). But 
               if he holds like Reish Lakish, how can he explain 
               the Mishnah?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> Rabah must hold like R. Yochanan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question (Rav Masna):</font></b> (A Tana obligates one who burned on 
          Yom Kipur to pay.) According to Reish Lakish, who equates 
          Chayavei Makos to capital sins, who is this Tana, who 
          argues with R. Nechunya ben Hakanah?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer (Abaye):</font></b> It is R. Meir (who says that one is 
          lashed and pays) or R. Yitzchak.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>GIRLS WHO DO NOT RECEIVE A FINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Beraisa):</font></b> There is no fine for raping or seducing the 
          following:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Arayos and Shniyos l'Arayos (this will be 
               explained);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A Mema'enes (a minor who did Mi'un, i.e. decided to 
               end her mid'Rabanan marriage);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> An Ailonis;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A girl who was divorced due to Motzi Shem Ra (her 
               husband found that she was not a virgin).
<br>

sjt:
<p>
<font><b>2) HALACHAH: THE PENALTY FOR RAPE AND ITS APPLICATION NOWADAYS</b></font><b>
<br>OPINIONS:</b> The Beraisa presents a list of women for whom there is 'neither Kenas nor Pituy.' To what do these terms refer?
</p><p>
(a) <b>RASHI</b> (DH Kenas and DH Pituy) explains these words in their straightforward sense. 'Kenas' is the fine paid by one who rapes a girl, and 'Pituy' is the fine paid for one who seduces a girl.
</p><p>
Why is the fine for rape specifically described as a 'Kenas,' a 'penalty,' when the fine for seduction is also technically a Kenas? <b>TOSFOS</b> (DH Lo) explains that it is appropriate to describe the fine for rape as a 'Kenas' because of the Halachah (39a) that the rapist must marry his victim and remain married to her, even if she is lame, blind, or suffers from boils. This requirement is referred to as 'Shoseh b'Atziso' -- 'he must drink from his own jar.' In contrast, a man who seduces a woman and fulfills the Torah's commandment to marry her is allowed to divorce her later if he so chooses. Accordingly, the fine for rape is termed a 'Kenas' not because of the monetary aspect but because of the aspect of compulsion involved with the man's punishment.
</p><p>
(b) <b>TOSFOS</b> (DH Lo) writes that a variant text of the Gemara reads, 'neither Kenas nor Ones.' 'Kenas' refers to the fine for seduction and 'Ones' refers to the fine for rape. 
</p><p>
The <b>KOVETZ SHI'URIM</b> (#127) points out an interesting Halachic difference between the explanations of Rashi and Tosfos. The Gemara (Sanhedrin 31a) rules that Beis Din may not judge laws of penalties nowadays. Is the requirement that a rapist remain married to his wife (the woman he raped) considered a penalty, a Kenas, in which case it would <i>not</i> apply today, or is it an ordinary Torah law which applies today like other Torah obligations? According to Tosfos' explanation of Rashi's words the requirement that a rapist remain married is a Kenas and should <i>not</i> apply today, while according to the variant text which Tosfos cites the requirement is not a Kenas and <i>should</i> apply today.
</p><p>
The Kovetz Shi'urim writes that most Rishonim maintain that the requirement that the rapist remain married is <i>not</i> categorized as a penalty. This is the opinion of the <b>SEFER HA'CHINUCH</b> (#557), <b>SEMAK</b>, and <b>RAMBAN</b> in Sefer ha'Mitzvos (#235), who all write that the Halachah of 'Shoseh b'Atziso' applies nowadays because it is not a Kenas but rather a Mitzvas Aseh.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (EH 177:3) writes that a man who rapes a virgin is obligated to marry her (if she and her father consent) and he may not divorce her. If he transgresses the Mitzvah and divorces her, Beis Din forces him to remarry her. The Shulchan Aruch clearly understands that the Halachah of 'Shoseh b'Atziso' applies nowadays, and thus it is not a Kenas.
</p><p>
The <b>MINCHAS CHINUCH</b> (177:20) comments that the Shulchan Aruch does not state first that Beis Din <i>forces</i> the man to marry her, but merely that he is <i>obligated</i> to marry her. The Shulchan Aruch then writes that if he divorces her, Beis Din <i>forces</i> him to remarry her. The Minchas Chinuch infers from this wording that the Shulchan Aruch maintains that although nowadays Beis Din does not force a person to perform a <i>Mitzvas Aseh</i>, Beis Din <i>does</i> enforce compliance of a <i>Mitzvas Lo Ta'aseh</i>. The obligation to marry the victim is a Mitzvas Aseh, 'v'Lo Siheyeh l'Ishah' -- 'And she will be to him for a wife' (Devarim 22:29). Once he has already married her, he is bound to <i>remain</i> married to her because of a Mitzvas Lo Ta'aseh, 'Lo Yuchal Shalchah Kol Yamav' -- 'He may not send her away all of his days' (ibid.). (D. Bloom, Y. Montrose)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>GIRLS WHO DO NOT RECEIVE A FINE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> What are Arayos and Shniyos l'Arayos?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer #1:</font></b> If Arayos is literal (relatives forbidden 
          mid'Oraisa) and Shniyos l'Arayos are relatives forbidden 
          mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Rejection:</font></b> Since Shniyos are permitted mid'Oraisa, there 
          is a fine for them!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Version #1 - Answer #2:</font></b> Arayos are Chayavei Misos Beis 
          Din and Shniyos l'Arayos are Chayavei Krisos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, there is a fine of Chayavei Lavin (because 
               Kidushin is Tofsin). This is like Shimon ha'Teimani.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Version #2 - Answer #2:</font></b> Arayos are Chayavei Misos Beis 
          Din and Chayavei Krisos. Shniyos l'Arayos are Chayavei 
          Lavin. This is like R. Shimon ben Menasya (who says that 
          there is a fine only if one may marry her).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  (Beraisa #1):</font></b> A Mema'enes does not receive a fine.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Inference:</font></b> Other minors receive a fine.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Chachamim, who say that there is a fine 
               for a minor.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question (Seifa):</font></b> There is no fine for an Ailonis.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Meir, who says that only a Na'arah 
               receives a fine. Since an Ailonis goes from being a 
               minor to a Bogeres (she is never a Na'arah), she 
               gets no fine.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Is the Reisha like Chachamim and the Seifa like R. 
               Meir?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #1:</font></b> The entire Mishnah is R. Meir. He holds like 
          R. Yehudah regarding Mi'un (that a Na'arah can do Mi'un).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Rejection (Beraisa #2 - R. Meir):</font></b> A girl can do Mi'un 
          until she brings two hairs (after 12 years and becomes a 
          Na'arah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah permits until there is more black (due to 
               hairs) than white.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer #2:</font></b> The entire Mishnah is R. Yehudah. He holds 
          like R. Meir regarding a minor (that she receives a 
          fine).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Rejection:</font></b> This is not so!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> The Mishnah is like R. Meir.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Answer #2 were correct, Yehudah would have said 
               that the Mishnah is like R. Meir and R. Yehudah!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Answer #3:</font></b> The Tana of Beraisa #1 holds like R. Meir 
          regarding a minor, and like R. Yehudah regarding Mi'un.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer #4 (Rafram):</font></b> In Beraisa #1, 'Mema'enes' means one 
          who could do Mi'un, i.e. a minor.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  Question:</font></b> If so, the Beraisa should simply say 'a minor'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is left difficult.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  (Beraisa #1):</font></b> An Ailonis does not receive a fine.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Contradiction (Beraisa #3):</font></b> A deaf or insane girl or an 
          Ailonis receives a fine.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Objection:</font></b> The answer is obvious! R. Meir says that an 
          Ailonis receives no fine (since she is never a Na'arah). 
          Chachamim say she receives a fine when she is a minor!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The one who asked this should have 
               anticipated the answer!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He brought this Beraisa in order to ask the 
               following contradiction.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GIRLS AGAINST WHOM THERE IS NO 'TA'ANAS BESULIM'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Contradiction (against Beraisa #3 - Beraisa #4):</font></b> There is 
          no Ta'anas Besulim against the following: a deaf or 
          insane girl, a Bogeres, or a Mukas Etz.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There is Ta'anas Besulim against a blind girl or an 
               Ailonis;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir says, there is no claim against a blind 
               girl.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> (Since a deaf (or insane) girl is not assumed to be 
               a virgin, there should be no fine!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  Answer (Rav Sheshes):	R. Gamliel and R. Yehoshua 
          argue about this. (All agree that she receives a fine 
          because she is assumed to be a virgin! R. Gamliel (12b) 
          says that there is no Ta'anas Besulim against her, for if 
          a healthy girl would claim that she was raped she would 
          be believed, therefore we make this claim on behalf of a 
          deaf girl. R. Yehoshua does not believe one who says that 
          she was raped, therefore there is Ta'anas Besulim against 
          a deaf girl.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> We know only that R. Gamliel believes her when 
          she makes a claim. Would he believe her even when she 
          makes no claim?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> Yes! In any case like this (she does not know to 
          make the claim), we claim this for her.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  (Beraisa #4):</font></b> There is no Ta'anas Besulim against a 
          Bogeres.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> Rav said that a Bogeres may have Bi'ah the 
          entire first night (any blood is attributed to Dam 
          Besulim)!
<br>
<br>

sjt:
<font><b>1) A CLAIM OF 'BESULIM' FROM AN 'AYLONIS'</b></font><b>
<br>QUESTION:</b> The Gemara (35b) cites a Beraisa which states that a man who rapes or seduces an Aylonis is exempt from paying the fine normally imposed for such an act. <b>RASHI</b> (DH Aylonis) explains that an Aylonis is a woman who never developed signs of physical maturity and cannot give birth. The Gemara here cites a second Beraisa which states that a man who rapes or seduces an Aylonis <i>is</i> obligated to pay the fine. The Beraisa states further that if a man marries an Aylonis and discovers that she is not a Besulah (virgin), he may exempt himself from the obligation to pay 200 Zuz for the Kesuvah of a Besulah and may only 100 Zuz, the amount of the Kesuvah of a Be'ulah.
</p><p>
In such a case, why may the man exempt himself from paying 200 Zuz for the Kesuvah on the grounds that his wife, an Aylonis, was not a Besulah? Rashi earlier (11b, DH Medami) states that such a claim applies only to a Na'arah, a girl under the age of twelve and a half years old. Such a claim may <i>not</i> be made against a Bogeres, a woman over the age of twelve and a half, because the man knows that a woman tends to lose her Besulim naturally when she reaches the age of Bogeres. The Beraisa cannot refer to a case in which the woman was married when she was a Na'arah or a Ketanah, because she does not have the status of an Aylonis until she reaches the age of twenty and has physical signs of an Aylonis (see Yevamos 80b). (If he married her without the knowledge that she was an Aylonis and later discovered that she was an Aylonis, the Kidushin itself is a 'Mekach Ta'us' and is invalid.) Why, then, does the Beraisa say that a man may claim that his wife, an Aylonis, was not a Besulah, and exempt himself from paying 200 Zuz for her Kesuvah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHITAH MEKUBETZES</b> (DH ha'Suma) cites the <b>SHITAH YESHANAH</b> who suggests that the Gemara refers to a case in which the woman was married when she was <i>almost</i> twenty years old, and her husband found that she was not a Besulah. Shortly afterwards, when she reached the age of twenty, she still had no signs of physical maturity (two pubic hairs), and thus her status as an Aylonis was established. In such a case her husband has a valid claim and he is not required to give her a Kesuvah of 200 Zuz.
</p><p>
Had he found that she was a Besulah when he married her, she would have received a Kesuvah of 200 Zuz. Since her husband knew that she was almost twenty years old and she still had no signs of physical maturity, he clearly was aware of, and accepted, the likelihood that she was an Aylonis, and thus the Kidushin was not a 'Mekach Ta'us.'
</p><p>
(b) The <b>RASHBA</b> explains that the Beraisa refers to a case in which the husband explicitly agrees at the time of the marriage that even if later it is discovered that the woman is an Aylonis he still consents to the marriage. At the time of the marriage, she was a Na'arah (from twelve years and one day to twelve and a half years old), and he did not find that she was a Besulah. Later, when she reached the age of twenty, it became clear that she was an Aylonis. Accordingly, the Beraisa refers to a man who makes a claim against his wife when she has already been determined to be an Aylonis, but the marriage was consummated at a time when she was expected to be a Besulah and entitled to a Kesuvah of 200 Zuz. (D. Bloom)
</p><p>
<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer:</font></b> If no blood is found, he has Ta'anas Besulim. The 
          Beraisa teaches that if he claims Pesach Pasu'ach, this 
          is not a claim.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  (Beraisa - R. Meir):</font></b> There is no Ta'anas Besulim against 
          a blind girl.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  (R. Zeira):</font></b> This is because she falls on the ground (and 
          loses her Besulim).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Question:</font></b> All girls fall!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Answer:</font></b> If a healthy girl sees blood after falling she 
          tells her mother (who will realize that she is a Mukas 
          Etz). A blind girl will not.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  (Beraisa (Sof 35b)):</font></b> One who was divorced due to Motzi 
          Shem Ra does not receive a fine.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  Question:</font></b> She is stoned for adultery!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> It means that a girl of ill repute 
          in her youth does not receive a fine.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  (Rav Papa):</font></b> This shows that we do not collect with a bad 
          document.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> There is a rumor that it was forged. 
               Correspondingly, there was a rumor that she had 
               Znus.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Rava taught that we are not concerned for 
               such rumors!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  Answer:</font></b> Two men came and said that she asked them to have 
          Bi'ah with her. Correspondingly, two men said that the 
          bearer of the document asked them to forge for him.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  Question:</font></b> The comparison is faulty! Many men would agree 
          to Bi'ah, but we do not suspect Yisraelim of forgery!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  Answer:</font></b> Since he was trying to get a forged document, we 
          are concerned that he forged it himself.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A REDEEMED CAPTIVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> These girls do not receive a fine:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A convert, captive or slave who converted, was 
               redeemed or was freed above the age of three years;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, a redeemed captive retains her 
               Kedushah (is assumed to be a virgin), even if she 
               was above three;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  One who has Bi'ah with his or his wife's daughter or 
          granddaughter does not pay a fine, since he is Chayav 
          Misah in Beis Din;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Anyone liable to die does not pay - 'If there is no 
               fatality, he will be punished monetarily'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  (Gemara - R. Yochanan):</font></b> R. Yehudah (in our Mishnah) and 
          R. Dosa said the same law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Dosa):</font></b> A woman who was taken captive 
               may eat Terumah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We do not disqualify her from Kehunah just because 
               her captor pushed her around!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Objection (Rabah):</font></b> Perhaps they disagree with each other!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah said here that she retains her Kedushah, 
               so one who rapes or seduces her will not profit. He 
               could hold like the Chachamim of R. Dosa, who 
               disqualify her from Kehunah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Dosa permitted her to eat Terumah mid'Rabanan. Regarding the 
               fine mid'Oraisa, he could hold that she does not 
               collect it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question (Abaye):</font></b> R. Yehudah's reason is not to prevent a 
          sinner from profiting!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> A captured girl retains her 
               Kedushah. Even if she was 10 years old, her Kesuvah 
               is 200.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We cannot say that the reason is to prevent a sinner 
               from profiting!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer:</font></b> There, we are concerned lest men (assume that she 
          was defiled and) refrain from marrying her.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> R. Yehudah holds that she does not retain her 
          Kedushah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a Kohen redeemed a captive, he may 
               marry her. If he testified that she is Tehorah, he 
               may not marry her;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, in either case he may not marry 
               her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> This is illogical! If he can marry her 
               when he redeems her, surely it is no worse when he 
               also testifies to her Kedushah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> When he redeems <i>and</i> testifies about her, 
               he may marry her. If he only testifies about her, he 
               may not.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> In any case, R. Yehudah contradicts his opinion in 
               our Mishnah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer #1 (Rav Papa):</font></b> Correct the Beraisa to say that R. 
          Yehudah says, in either case he may marry her.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #2 (Rav Huna brei d'Rav Yehoshua):</font></b> Do not change 
          the text. R. Yehudah addresses Chachamim according to 
          their opinion:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yehudah:</font></b> I hold that in either case he may marry 
               her. You should say that in either case he may not 
               marry her!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that a man would not waste his money. 
               He would not redeem her if he was not sure that she 
               is Tehorah;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he only testifies about her, we suspect that he 
               merely desires her.
<br>

sjt:
<p>
<font><b>2) A FATHER DOES NOT PAY A FINE FOR SEDUCING HIS DAUGHTER</b></font><b>
<br>QUESTION:</b> The Mishnah lists the cases in which a man does not pay a fine for raping or seducing a woman. Included in the list is a father who rapes or seduces his daughter. He is exempt from the fine because he is put to death by Beis Din for having relations with his daughter. One who is punished with death is exempt from a fine because of the principle, 'Kam Lei bid'Rabah Minei.'
</p><p>
Why does the Mishnah need the principle of 'Kam Lei bid'Rabah Minei' to exempt the father from the fine? He is exempt because, as the father of the girl who was seduced, <i>he</i> is the recipient of the money of the fine. There is no point in making him pay money to himself, and thus he is exempt.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (29a, DH v'Al Eshes Achiv) cites the Yerushalmi which states that the Mishnah refers to a case in which the father died soon after he raped or seduced his daughter. The Mishnah later (41b) explicitly states that when the father dies before the rapist is brought to Beis Din, the girl herself receives the money. Therefore, if not for the principle of 'Kam Lei bid'Rabah Minei,' the daughter would have collected the Kenas from her father's estate.
</p><p>
(b) <b>TOSFOS</b> also suggests that the Mishnah refers to a case in which the rape or seduction occurred when the girl was a Na'arah (before the age of twelve and a half), but the case was brought to Beis Din only after she became a Bogeres (after the age of twelve and a half)). In an ordinary case, the victim herself receives the Kenas when the rapist or seducer is brought to court only after she becomes a Bogeres (see 41b). Accordingly, 'Kam Lei bid'Rabah Minei' is the only reason why she does not receive the Kenas when the perpetrator was her father.
</p><p>
(c) <b>TOSFOS</b> in Sanhedrin (73b, DH b'Mefutah) answers that the Mishnah refers to a case in which the girl's father had accepted Kidushin from a man on her behalf before he seduced her, and thus she has the status of an Arusah who is no longer in the domain of her father. The man who betrothed her then divorced her (without consummating the marriage with Nisu'in). According to Rebbi Akiva (38a), if the girl is then raped or seduced she is entitled to keep the Kenas herself. Hence, if her father seduces her, he would have to pay her if not for the principle of 'Kam Lei bid'Rabah Minei.' (See Tosfos there at length. See also <b>CHAZON ISH</b> (Sanhedrin 19:7) who discusses whether these answers apply to both a case of rape and a case of seduction.)
</p><p>
The <b>RASHBA</b> prefers this answer over the first two. The first answer, that the father died before the case was brought to Beis Din, is not logical because there was no reason in the first place for the case to be brought to Beis Din had the father been alive. Would Beis Din have declared that he should pay the money to himself? (The Rashba suggests a defense for the Yerushalmi's answer and explains as follows: Despite the fact that Beis Din would have exempted the father from payment had he appeared before Beis Din, if the father does <i>not</i> go to Beis Din the obligation to pay the Kenas is not entirely eliminated, but remains dormant in a state of suspension. If circumstances change -- for example, the father dies before he goes to Beis Din, or the girl becomes a Bogeres -- the dormant obligation takes effect such that she becomes the recipient of the Kenas.) (D. Bloom, Y. Montrose)
</p><p>


lvr: 32
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ABSTINENCE TO DISCERN THE FATHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question (Rav Papa bar Shmuel):</font></b> R. Yehudah holds that she 
          does not retain her Kedushah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> If a convert sees menstrual 
               blood, she is not Temei'ah retroactively;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, she is like all other women. She is 
               retroactively Temei'ah for 24 hours or from the last 
               time she checked herself, whichever is less.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah says, a female convert must wait three 
               months before marrying (to discern whether the child 
               was conceived before or after conversion);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yosi permits her to accept Kidushin and have 
               Nisu'in immediately.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer (Rav Yosef):</font></b> You cannot ask a question from a 
          convert to a captive. A convert is not careful to avoid 
          Bi'ah (before conversion), but a captive is.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question (Rav Papa bar Shmuel):</font></b> R. Yehudah contradicts 
          himself regarding a captive!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> A female convert, captive or 
               slave, who converted, was redeemed or was freed 
               above the age of three, must wait three months 
               before marrying;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi permits her to accept Kidushin and have 
               Nisu'in immediately.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  Rav Yosef had no answer.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer (Rav Papa bar Shmuel citing Rav Sheshes):</font></b> The case 
          is, people saw that she had Bi'ah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Question:</font></b> If so, why is R. Yosi lenient?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Answer #1 (Rabah):</font></b> A woman who is Mezanah uses a tuft (to 
          absorb the semen after Bi'ah) to prevent pregnancy.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Question:</font></b> Granted, a convert planned to convert, and 
          guarded herself (from pregnancy).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Also a captive guards herself, for she hopes to be 
               redeemed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A slave might have heard that her master intended to 
               free her, and guarded herself.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> If a slave was freed because 
               her master decapitated one of her limbs, she did not 
               know to (prepare a tuft to) guard herself 
               beforehand!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> R. Yosi permits only when she 
               anticipated the need to guard herself.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> A girl does not anticipate being raped 
               (and prepare a tuft for this)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yehudah):</font></b> A raped girl must wait 
                    three months;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yosi permits her to accept Kidushin and have 
                    Nisu'in immediately.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Answer #2 (Rabah):</font></b> R. Yosi holds that a girl who is 
          Mezanah turns over (so the semen will fall out) to avoid 
          becoming pregnant;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah is concerned lest she did not turn over 
               well.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CAPITAL SINS EXEMPT FROM PAYMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  (Mishnah):</font></b> 'If there is no fatality, there will be (a 
          monetary) punishment'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Question:</font></b> We learned this from 'According to his evil'! 
          We punish him for one evil, not for two!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Answer:</font></b> We need one source for execution and money, and 
          one source for lashes and money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had we learned only about death and money, we would 
               say that this is because (it suffices that) a soul 
               perishes, but we could obligate lashes and money;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had we learned only about lashes and money, we would 
               say that this is because the sin was not so severe, 
               but one who is executed could also need to pay.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Question:</font></b> According to R. Meir, who says that we do 
          administer lashes and money, what do we learn from the 
          two verses?
<br>
<br>

sjt:
<font><b>1) THE USE OF A 'MOCH' </b></font><b>
<br>QUESTION:</b> In the Beraisa, Rebbi Yehudah states that a Nochris who converted, a female captive who was redeemed, and a Shifchah (maidservant) who was set free when they were over the age of three years and one day are required to wait three months before they may marry. The Chachamim enacted this period of waiting in order to distinguish between a child conceived from a Nochri and a child conceived from a Jew. If one of these women fails to wait three months, the fatherhood of her baby born soon afterwards is in doubt. Rebbi Yosi disagrees and rules that they may marry immediately and do not have to wait three months.
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The Gemara explains that Rebbi Yosi does not share the concern of Rebbi Yehudah because he maintains that a woman who has illicit relations uses a Moch (cloth) to prevent pregnancy, and thus she may marry a Jew immediately after her conversion, redemption, or emancipation. <b>RASHI</b> (DH Meshameshes) explains that she uses a Moch <i>after</i> relations in order to prevent pregnancy.
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The <b>CHASAM SOFER</b> (Chidushim, Satmar edition) points out that Rashi's words here contradict his explanation elsewhere. The Gemara later (39a) and in Yevamos (12b) states that three women must use a Moch: a minor, a pregnant woman, and a nursing mother. Rashi there (DH Meshamshos b'Moch) explains that these three women may insert a Moch <i>before</i> they have relations so that they not become pregnant. <b>TOSFOS</b> there (DH Shalosh) cites <b>RABEINU TAM</b> who asserts that the use of a Moch <i>before</i> relations is certainly forbidden because it constitutes an act of Hashchasas Zera. Rabeinu Tam instead explains that these women may insert the Moch only <i>after</i> relations. In this manner, the act of relations is performed in the normal way, and the woman transgresses no prohibition when she uses the Moch afterwards to absorb the Zera. Rabeinu Tam explains that since a woman is not commanded to fulfill the Mitzvah of Piryah v'Rivyah, she also is not prohibited from destroying Zera. (See Rashi to 39a, DH Meshamshos, and Tosfos DH Shalosh in the name of Rabeinu Tam. Rashi and Tosfos there are consistent with their respective opinions in Yevamos.)
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Why does Rashi here explain that the Moch is used after relations, unlike his commentary later (39a) and in Yevamos?
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<b>ANSWER:</b> The <b>CHASAM SOFER</b> answers that based on logical grounds Rashi here explains that the Moch is used after relations. If the Gemara refers to a Moch inserted before relations, Rebbi Yehudah would not require that she wait three months before she marries, for the chances of becoming pregnant with such a Moch are very low.
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It is illogical to suggest that Rebbi Yehudah maintains that perhaps she forgot to insert a Moch before relations, because it is clear from the Gemara that a promiscuous woman does everything she can to avoid pregnancy. This is apparent from the words of Rava in the end of the Sugya. Rava states that according to Rebbi Yosi, the adulterous woman turns herself over after relations in order to prevent pregnancy, while Rebbi Yehudah is concerned that she does not turn herself over thoroughly enough to prevent pregnancy. The fact that the Gemara does not say that Rebbi Yehudah is concerned that she does not turn herself over at all shows that according to Rebbi Yehudah a promiscuous woman makes every effort to avoid pregnancy.
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Since the Gemara here discusses a case of an illicit relationship, it must be that the woman was unable to insert a Moch before relations because the <i>man</i> insisted that she not use it. Rebbi Yehudah maintains that when the Moch is used after relations she still must wait three months before marrying, due to the concern that she does not clean herself thoroughly and may still become pregnant.
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Accordingly, the three types of women mentioned by the Gemara later (39a) who are required to use a Moch (because pregnancy poses a danger to their health) are required to insert a Moch <i>before</i> relations. It does not suffice to use a Moch after relations, because such a use of a Moch is not a reliable form of protection against pregnancy and they will still be in danger. The Chasam Sofer sides with Rashi's opinion there (that the Moch is inserted before relations), because that form of usage is the only form that spares the woman from danger.
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1. Based on this approach, the Chasam Sofer explains the words of <b>TOSFOS</b> in Megilah (13b, DH v'Toveles). Tosfos asks that when Achashverosh took Esther as his wife, she did not wait three months from the time she lived with Mordechai until the time she lived with Achashverosh. Why did Esther not observe this mandatory period of waiting? Tosfos explains that Esther used a Moch to avoid pregnancy. The <b>TUREI EVEN</b> asks if Esther used a Moch, how did she conceive and give birth to Daryavesh (Darius)?
</p><p>
The Chasam Sofer answers that Esther did not use a Moch when she lived with Achashverosh because he objected to its use. Rather, Tosfos means that she used a Moch <i>after</i> relations. However, since such a method of contraception is not entirely reliable, Esther became pregnant with Daryavesh.
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The Chasam Sofer explains that the conception and birth of Daryavesh was Divinely guided. Hash-m decreed that Esther's attempt to prevent pregnancy should fail so that Daryavesh would be born, since he would later become the builder of the second Beis ha'Mikdash. (See also <b>TESHUVOS CHASAM SOFER</b> YD 172, where the Chasam Sofer explains further that although the Halachah does not allow a woman to rely on the use of a Moch after relations to permit her to marry immediately and not wait three months, nevertheless it is possible that Esther was more expert at its use and relied on her expertise. Hash-m, however, caused her to fail to clean herself thoroughly one time so that Daryavesh would be conceived.) (D. Bloom)
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<br>


lvr: 32
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Answer:</font></b> One teaches about death and money. The other 
          teaches about death and lashes;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had we learned only about death and money, we would 
               say that this is because we do not punish him bodily 
               and monetarily, but we do administer death and 
               lashes, for this is like one long death;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had we learned only about death and lashes, we would 
               say that we do not inflict two punishments on his 
               body, but we do administer death and money.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>RANSOM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need 'Do not take a ransom for a 
          murderer'? (We already know that we do not administer 
          death and money!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  Answer:</font></b> We do not accept money from him to exempt him 
          from death.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need 'Do not take a ransom for one 
          who (killed b'Shogeg and) must flee to a refuge city'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  Answer:</font></b> We not accept money from him to exempt him from 
          exile.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had we learned only about intentional murder, we 
               would say that this is because the sin was severe, 
               but we would take ransom for murder b'Shogeg;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had we learned only about murder b'Shogeg, we would 
               say that this is because a soul will not perish, but 
               we would take ransom to keep an intentional murderer 
               alive.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need 'The only atonement for 
          bloodshed... is the blood of the murderer'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> This teaches that if we beheaded a calf 
          (for atonement after a murdered corpse was found) and 
          later we found the murderer, he is executed.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need 'You will eradicate the innocent 
          blood from your midst'?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  Answer (Beraisa) Question:</font></b> How do we know that death by 
          Sayif (a sword) is administered at the neck?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> 'You will eradicate the innocent blood from 
               your midst' equates all murderers to Eglah Arufah. 
               Just like the calf is killed by the neck, also 
               murderers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> We should also learn that we use a chopper 
               and cut from the back of the neck!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> 'Love your neighbor as 
               yourself' - choose a nice death for him (so he will 
               die quickly).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  Question:</font></b> Why do we need 'Any Cherem (person sentenced to 
          die) will not be redeemed'?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  Answer (Beraisa):</font></b> This teaches that if someone pledged to 
          Hekdesh the Erech (a sum based on a person's age and 
          gender) of someone sentenced to die, he pays nothing.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this applies even before the 
               verdict!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> '<i>From</i> a man' excludes this case.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  Question:</font></b> R. Chananya ben Akavya holds that since Erchin 
          are fixed, they apply even to one sentenced to die. What 
          does he learn from the verse?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  Answer (Beraisa - R. Yishmael son of R. Yochanan ben 
          Berokah):</font></b> We find that people liable to death at the 
          hands of Shamayim get atonement through money - 'If 
          ransom is put on him';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this applies even to one facing 
               execution!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Cherem Min ha'Adam Lo Yipadeh'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps this applies only to severe 
               capital sins, for which there is no atonement for 
               Shogeg. How do we know that it applies even to light 
               capital sins (e.g. Chayavei Krisos), for which there 
               is atonement for Shogeg (Korban Chatas)?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> '<i>Every</i> Cherem'.
<br>

sjt:
<p>
<font><b>2) ATONEMENT FOR 'MISAH BI'YEDEI SHAMAYIM' </b></font><b>
<br>QUESTION:</b> The Beraisa discusses whether one may render payment in place of receiving punishment. The Torah states that the owner of a bull which killed a person must pay a fine of 'Kofer' -- 'redemption' money, with which he 'redeems' himself from the death penalty (Shemos 21:30). The Torah implies that this payment takes the place of Misah bi'Yedei Shamayim (death at the hands of Heaven), for which the owner of the bull is liable for not sufficiently guarding his animal. One might have thought that this law also applies when a person is liable for Misah bi'Yedei Adam (death at the hands of Beis Din) -- perhaps he may pay a fine of Kofer instead of being punished with death. The Torah therefore teaches, 'Any condemned person who is doomed to death shall not be redeemed, but shall surely be put to death' (Vayikra 27:29).
</p><p>
Rebbi Yishmael states that the extra word 'Kol' in the verse ('<i>Kol</i> Cherem Asher Yachoram Min ha'Adam...') teaches that one cannot exempt himself from death through payment even from a 'light' form of death penalty ('Misos Kalos'). (A 'light' form of death penalty is one administered for a transgression for which one is obligated to bring a Korban Chatas (or flee to an Ir Miklat; Rashi DH Misos) when transgressed inadvertently.
</p><p>
The Beraisa implies that for any transgression punishable with Misah b'Yedei Shamayim one <i>may</i> pay Kofer and exonerate himself from further punishment. It is only Misah bi'Yedei <i>Adam</i> for which one may not exonerate himself. Accordingly, a Kohen who ate Terumah while he was Tamei (for which one is liable for Misah bi'Yedei Shamayim; Vayikra 22:9) should be able to attain atonement and exonerate himself from death by paying Kofer. <b>REBBI AKIVA EIGER</b> asks that this leniency is mentioned nowhere in the Gemara. May one exonerate himself from Misah bi'Yedei Shamayim by paying Kofer as the Beraisa implies, or may he not exonerate himself from Misah bi'Yedei Shamayim?
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> (#133) answers this question based on the words of <b>TOSFOS</b> (DH Misos). Tosfos in the name of the <b>RASHBA</b> asks, why is the verse 'Kol Cherem' (Vayikra 27:29) necessary to teach that Kofer does not exonerate a person from 'Misos Kalos'? One opinion in Bava Kama (40a) maintains that the amount of Kofer one must pay (when his bull killed a person) is determined by the <i>victim's</i> assessed monetary value (Demei Nizak). According to that opinion, Kofer is applicable only to a sinner guilty of causing the death of another person. In a case in which a sinner is put to death by Beis Din for a sin other than murder or bodily harm (for example, for desecration of Shabbos), in which the value of Kofer cannot be determined by the victim's monetary value (since there is no victim), how can Kofer apply?
</p><p>
The Rashba answers that the Gemara here follows the view of Rebbi Yishmael. In Bava Kama (40a), Rebbi Yishmael rules that Kofer is determined by the value of the owner of the bull (Demei Mazik). Therefore, if not for the verse of 'Kol Cherem,' one would have thought that a person who is liable for Misah bi'Yedei Adam for a sin other than murder (for example, he desecrated Shabbos) may pay a Kofer in the amount of his own value, similar to the amount he would pay if his bull would kill someone.
</p><p>
Since the Halachah follows the opinion that the value of Kofer is determined according to the value of the person killed, the verse of 'Kol Cherem' indeed is not necessary to teach that one who desecrated Shabbos may not pay Kofer for atonement. Similarly, according to this opinion it is not possible to attain atonement for transgressions for which one is liable for Misah b'Yedei Shamayim (such as one who eats Terumah while he is Tamei), because in such cases there is no 'Nizak' (victim) by whom to assess the value of Kofer.
</p><p>
(This answer does not resolve Rebbi Yishmael's opinion. <b>RAV</b> Y. S. <b>ELYASHIV</b> shlit'a (quoted in He'oros b'Maseches Kesuvos) asks this question and gives this answer, but leaves the opinion of Rebbi Yishmael unresolved.) (D. Bloom)
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