# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection #2:</font></b> Rava taught that one may squeeze
               grapes and make Kidush on the juice!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It excludes wine from the top and bottom of
          the barrel.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> R. Chiya taught that one should not bring
          such wine for Nesachim; if he did, it is Kosher
          (therefore, it is l'Chatchilah for Kidush).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> It excludes wine that is black, or white
          (and bad), or sweet (and weak), cellar wine (that was not
          checked; perhaps it is bad), and raisin wine (made by
          putting water on raisins).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Beraisa):</font></b> One should not bring any of these
          for Nesachim. If he did, it is Kosher.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3:</font></b> It excludes wine that is Koses (it cannot
          intoxicate), diluted, was exposed, Temed, and wine that
          smells bad.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One should not bring any of these for
               Nesachim. If he did, it is invalid.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Which of these did Rav come to teach about?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, he did not come to exclude Koses. R.
               Yochanan and R. Yehoshua ben Levi argued about this!
               (If Rav holds like R. Yochanan, it is proper wine
               (and Kosher for Kidush). If he holds like R.
               Yehoshua ben Levi, he should have said that one
               blesses sheha'Kol on it.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Surely, he did not come to exclude diluted wine.
               It is better for Kidush!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yosi b'Rebbi Chanina):</font></b> Chachamim agree with
                    R. Eliezer that we do not bless on the wine
                    (after Birkas ha'Mazon) until adding water.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Surely, he did not need to exclude exposed wine.
               It is dangerous, and one may not drink it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> He comes to exclude Temed.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he put in three measures of water and four came
               out, it is proper wine!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he put in three, and three and a half come
               out, Chachamim and 'Others' argue about this! (The
               Halachah follows Chachamim, that one blesses
               sheha'Kol on it.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> He comes to exclude bad-smelling wine.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3:</font></b> Really, he comes to exclude exposed wine,
          even if one passed it through a strainer according to R.
          Nechemyah (that it is then permitted to drink);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Still, it is invalid for Nesachim - 'Hakrivehu Na
               l'Fechasecha...'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rav Kahana):</font></b> Is white wine acceptable for
          Kidush?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> No (it must be red) - 'Al Tere Yayin Ki
          Yis'adam.'
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Bottles in Sharon...
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The 10 Pitasos (bad bottles) of the Mishnah
          are usable and sealed with sulfur (but they were not
          baked properly (Rambam; Rashbam - they will not last
          long).
<br><br>
<p>

sjt:
</p><p>
<font><b>2) PUTTING WATER IN A 'KOS SHEL BERACHAH' DESPITE THE FACT THAT IT NEEDS TO BE 'CHAI'</b></font><b>
<br>QUESTION:</b> The Gemara alludes to an argument between Rebbi Eliezer and the Rabanan with regard to wine, but it does not specify the details of the argument. <b>TOSFOS</b> (DH Modim) explains that the Gemara refers to a statement that Rebbi Eliezer made in Berachos (50b) that a person may not recite a Berachah on wine until he puts water into the wine. The Rabanan apparently argue with this statement and maintain that a person may recite a Berachah on wine even if he does not put water in the wine. However, Rebbi Yosi b'Rebbi Chanina says that the Rabanan agree with Rebbi Eliezer in the case of a Kos Shel Berachah, in which case one may not recite a Berachah until he puts water into the wine.
</p><p>
Tosfos (DH Ad she'Yiten) asks that this ruling seems to contradict a different Gemara in Berachos (51a). The Gemara there lists ten requirements of a Kos Shel Berachah. One of those requirements is that it Kos Shel Berachah must be 'Chai,' or undiluted. If a Kos Shel Berachah must be undiluted, why do the Rabanan say the opposite, that water <i>must</i> be poured into a Kos Shel Berachah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> quotes the <b>GEDOLEI NARVONA</b> who explain that the word 'Chai' does not refer to the wine, but rather to the cup. The cup used for the Kos Shel Berachah must be complete and not broken. This explanation is consistent with the Gemara's description of a broken Kli (Bava Kama 54a): 'Shevirasan Zo Hi Misasan' -- 'their breaking is their death.' The opposite of a broken vessel, a vessel which is complete and intact, is called 'Chai,' or 'alive.' Tosfos supports this explanation by noting that the other requirements of a Kos Shel Berachah all indeed involve details of the cup, not the wine.
</p><p>
(b) <b>RASHI</b> in Berachos (51a, DH Chai) explains that 'Chai' means that the raw wine should be poured into the Kos Shel Berachah first, and only afterwards should it be diluted with water.
</p><p>
(Tosfos points out that this excludes pouring the wine first into one cup, and then pouring it into the Kos Shel Berachah. It is not clear why Tosfos does not give the obvious cases of what Rashi's explanation of 'Chai' excludes: pouring water into the Kos Shel Berachah first, and then pouring wine, or diluting the wine in one cup and then pouring it into the Kos Shel Berachah.)
</p><p>
(c) <b>TOSFOS</b> (DH Ad she'Yiten) understands that the Gemara in Berachos refers to wine which has been slightly diluted before the Berachah of 'Nodeh Lecha,' and more water is added for the blessing of 'Nodeh Lecha' (Birkas ha'Aretz). This is what the Gemara means in Berachos (51a) when it says that 'Rebbi added at Birkas ha'Aretz.' (Rashi there explains those words differently. When the Gemara says that 'Rebbi added at Birkas ha'Aretz,' it means that he added <i>wine</i> to the cup at Birkas ha'Aretz.) (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RESPONSIBILITY FOR SOLD WINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven sold wine to Shimon and it soured,
          Reuven is exempt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is known that Reuven's wine sours, the sale
               is invalid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven said that the wine is scented, it must
               last until Shavu'os.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	'Old wine' is from the previous year;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	'Aged wine' must be in its third year.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - R. Yosi b'Rebbi Chanina):</font></b> This is only if the
          wine was put in Shimon's Keli, but if it remained in
          Reuven's Kelim, he is responsible (his wine or Kelim are
          to blame)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Shimon is to blame for not drinking the wine
          sooner!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he asked to buy wine for cooking.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why does R. Yosi b'Rebbi Chanina establish
          the Mishnah when it was put in Shimon's Keli and he asked
          to buy wine for cooking? He should establish it to
          discuss Reuven's Keli, and Shimon did not ask to buy wine
          for cooking!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Mishnah was difficult. It says, if
          it is known that Reuven's wine sours, the sale is
          invalid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shimon is to blame for not drinking the wine
               sooner!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We must say that he asked to buy wine for
               cooking.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Yosi b'Rebbi Chanina argues with Rav Chiya bar
          Yosef.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chiya bar Yosef):</font></b> 'Ha'Yayin Boged Gever
               Yahir' - wine spoils due to its owner.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Mari):</font></b> A haughty person is disgraceful even in the
          eyes of his household - 'Gever Yahir v'Lo Yinveh'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Lo Yinveh' hints at people of his Naveh
               (home).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If one (who is not a Chacham) wears the
          Talis of a Chacham (it totally covers his cloak), he does
          not enter Hashem's place;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says here 'v'Lo Yinveh', just like 'El Neve
               Kodshecha.'
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven sold a barrel of wine to a grocer
          (Shimon) in order to sell it over time (Tosfos; Rashbam -
          the grocer is merely a Shali'ach to sell Reuven's wine
          for him) and it spoiled, Reuven suffers the entire loss.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if Shimon did not make a new spout.
               If he did, it is his fault.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if the market day did not come yet.
               If it did, Shimon is at fault (he should have sold
               it then).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rava):</font></b> If Reuven gave wine to Shimon to take to a
          certain place to sell it, and the price declined by the
          time he arrived, Reuven suffers the entire loss.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> If it soured, what is the law?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #1 - Answer (Rav Hillel):</font></b> Shimon shares the
          loss (it spoiled due to both of them). This is unlike R.
          Yosi b'Rebbi Chanina (who blames the spoilage on the
          owner of the wine and Kelim).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Version #2 - Answer (Rav Hillel):</font></b> Reuven bears the
          entire loss, like R. Yosi b'Rebbi Chanina.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> 'Old wine' is from the previous year.
<br>
<br>

sjt:
<font><b>1) AGADAH: THE 'TALIS' OF A TALMID CHACHAM</b></font><b>
<br>OPINIONS:</b> Rav Yehudah states that one who acts arrogantly by wearing the 'Talis of a Talmid Chacham' when he in fact is not a Talmid Chacham is not permitted to enter the 'Mechitzah of Hash-m.' He derives this from the verse, 'Gever Yahir v'Lo Yinveh' -- 'the arrogant man shall not abide in his home' (Chabakuk 2:5). Rav Yehudah explains that the word 'Yinveh' is similar to the word in the verse, 'El Neveh Kodshecha' -- 'to Your holy domain' (Shemos 15). Accordingly, the verse in Chabakuk teaches that an arrogant person will not be allowed entrance to an inner sanctum with Hash-m.
</p><p>
What is the 'Talis of a Talmid Chacham' of which Rav Yehudah speaks?
</p><p>
(a) The <b>RASHBAM</b> (DH Kol ha'Misga'eh) explains that the 'Talis of a Talmid Chacham' refers to the meticulous behavior of the Talmid Chacham. In those days, a man used to wear a cloak over a long shirt. A Talmid Chacham was careful not to let a Tefach of the garment which he wore under his robe show from under his cloak. The Rashbam understands that this was a sign of great modesty. Some commentaries explain that the reason why this was considered modest behavior is that in case his shirt would ride up, only one Tefach of his skin would show, as opposed to the amount of flesh exposed on those who wore short robes. People who were not on the level of a Talmid Chacham who would dress in this manner were acting as impostors.
</p><p>
(b) The <b>IYUN YAKOV</b> explains that one who wears the 'Talis of a Talmid Chacham' is one who 'steals' the Divrei Torah of a great Talmid Chacham and pretends that it is his own words of wisdom.
</p><p>
The <b>BEN YEHOYADA</b> has difficulty with both the explanation of the Rashbam and that of the Iyun Yakov. If the problem of dressing like a Talmid Chacham is arrogance, the Gemara should say outright that whoever is arrogant will not be allowed entrance to an inner sanctum with Hash-m. If it means that one 'steals' Divrei Torah, the problem is not one of arrogance but of theft and Geneivas Da'as, whereby one makes others think that he is more intelligent and creative than he really is.
</p><p>
(c) The <b>BEN YEHOYADA</b> therefore explains that when the Gemara calls the person who wears the Talis of a Talmid Chacham 'arrogant,' it is not describing the outcome of the act, but rather the <i>cause</i> of the actg. One who wears the Talis of a Talmid Chacham is not acting arrogantly; rather, his arrogance is what causes him to wear such garments in the first place. The Ben Yehoyada explains that since the person is not actually a Talmid Chacham and yet, out of his arrogance, he dons the garments of a Talmid Chacham, he causes a Chilul Hash-m when he acts in his normal manner (which is not at all befitting of a Talmid Chacham) while he wears clothing that makes him look like a Talmid Chacham. This is why Hash-m shuns him. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY ANYONE CONDUCT LIKE A CHACHAM?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If one (who is not a Chacham) wears
               the Talis of a Chacham (it totally covers his
               cloak), he does not enter Hashem's place. It says
               here 'v'Lo Yinveh', just like 'El Neve Kodshecha.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Berachos 16a (Mishnah):</font></b> A Chasan is exempt from
               Shema from the wedding night until Motzei Shabbos,
               if he did not yet have relations.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Gamliel said Shema on his wedding night. His
               Talmidim asked 'you taught that a Chasan is exempt!'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Gamliel:</font></b> I refuse to exempt myself from accepting
               Ol Malchus Shamayim, even for a moment!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Pesachim 54b (Mishnah):</font></b> In a locale where people
               work on Tish'ah b'Av, we work; in a locale where
               people do not work, one may not work. In every
               place, Chachamim do not work.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> R. Shimon ben Gamliel says, everyone should act like
               a Chacham.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 55a - Inference:</font></b> R. Shimon ben Gamliel is not
               concerned for haughtiness, and Chachamim are
               concerned.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Contradiction (Mishnah):</font></b> If a Chasan wants to say
               Shma on the first night, he may;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Shimon ben Gamliel says, not everyone is fitting
               to flaunt his piety.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #1 (R. Yochanan):</font></b> The opinions must be
               switched.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #2 (Rav Shisha brei d'Rav Idi):</font></b> The opinions
               need not be switched. Chachamim hold that on Tish'ah
               b'Av, since only Chachamim are not working, it is
               haughtiness (for an Am ha'Aretz) not to work.
               Haughtiness does not apply to Shema, for the Chasan
               acts like everyone else (who say it that night);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon ben Gamliel holds that haughtiness
                    applies to Shema. It requires intent, so one
                    who says it flaunts his ability to concentrate,
                    but we know that a Chasan cannot! On Tish'ah
                    b'Av, being idle does not show that he calls
                    himself a Chacham. Many people have no work to
                    do!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Berachos Sof Perek 2):</font></b> The Halachah follows the
               first Tana (who allows a Chasan to be stringent).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Kri'as Shema 4:7):</font></b> Anyone who is
               exempt from Kri'as Shema. He may opt to be stringent
               and say it, if his mind is settled. If he is exempt
               because he is befuddled, he may not read until his
               mind is settled.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> What is the problem if he
                    is befuddled? (If he is not Yotzei,) he is like
                    one who reads Torah, and unlike one who casts
                    the yoke of Heaven off himself! This is unlike
                    Tefilah. Nowadays haughtiness does not apply,
                    for it is known that most people read (Shema)
                    and pray by rote. Also Chachamim of the
                    (Yerushalmi) Talmud said 'we should be thankful
                    to our heads, for they know to bow when we
                    reach Modim.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> The Ra'avad means that everyone
                    says Shema, including people who say it without
                    Kavanah. In the days of the Gemara, some said
                    it with deeper thoughts, without Kavanas
                    Tefilah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Berachos 2:15):</font></b> The Halachah follows R. Shimon
               ben Gamliel.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 70:3):</font></b> One who married a virgin
               is exempt from Shema for three days if he did not
               yet have relations, for he is distracted with a
               Mitzvah. This was in previous times. Nowadays, also
               others do not have proper intent, so also he reads.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> The Rosh rules like R.
                    Shimon ben Gamliel. He rules like Rav Shisha
                    (who does not switch the opinions), for he is
                    Basra. The Halachah always follows R. Shimon
                    ben Gamliel in the Mishnah. The Rif and Rambam
                    rule like Chachamim. They hold that the
                    Halachah follows R. Yochanan, for he is cited
                    in the Gemara far more than Rav Shisha. If so,
                    R. Shimon ben Gamliel holds that a Chasan <i>may</i>
                    be stringent, and the Halachah follows him. The
                    Rif says that the Halachah follows the first
                    Tana, i.e. based on our text of the Mishnah.
                    Tosfos rules like Rav Shisha, and like
                    Chachamim, but says that we never have good
                    Kavanah, so also a Chasan should say Shema. If
                    he would not, this would connote that at all
                    other times he has Kavanah. This would be
                    haughtiness!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magen Avraham (2):</font></b> The Beis Yosef says that all
                    hold that the Halachah follows R. Shimon ben
                    Gamliel in Mishnayos. In CM (163:1), we rule
                    unlike R. Shimon ben Gamliel! This requires
                    investigation. The Beis Yosef (CM 231:8 DH
                    ha'Siton) says that there the Rambam and Tur
                    rule against R. Shimon ben Gamliel, for the
                    first Tana's reasoning is better.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH veha'Rambam):</font></b> The Tur cites the
                    Rambam (one may read only if his mind is
                    settled like others). Perhaps he teaches that
                    nowadays, just like before; one may not read if
                    he is more befuddled and unable to concentrate
                    than others. The Rambam permits to read even if
                    he is exempt, as long as his mind is settled.
                    We follow the Rif and Rambam.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (72:2):</font></b> We do not take out a Mes for
               burial shortly before the time to read Shema.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1):</font></b> Rav Yosef was taken out shortly before
                    the time (Berachos 19a); the Gemara said that a
                    distinguished man is different. The Rambam
                    brings this distinction, but the Rif and Rosh
                    do not. The Beis Yosef says that it is because
                    nowadays we do not have a distinguished person.
                    I say a general rule. One may consider himself
                    to be distinguished to be stringent, like we
                    say about Tish'ah b'Av, without concern for
                    haughtiness. If the stringency leads to any
                    leniency, nowadays no one is distinguished to
                    be lenient. Nowadays we do not fine a Litra of
                    gold for disgracing a Chacham, and no Chacham
                    may permit Nedarim alone.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (OC 128:45):</font></b> One may not use a Kohen even
               nowadays, for this is like Me'ilah with Hekdesh,
               unless he pardoned his honor.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (39):</font></b> A case occurred in which a Kohen
                    served R. Tam. A Talmid asked that this is like
                    Me'ilah, and R. Tam answered that Kohanim do
                    not have Kedushah nowadays. Really, the Kohen
                    was happy to serve Kodesh. This is his
                    Kedushah! R. Tam did not want to say 'it is
                    permitted because I am a Chacham.' In some
                    cases, a lender may eat the Peros of Mashkanta
                    if he deducts from the loan; a Chacham may not
                    eat even if he deducts. Ravina ate and deducted
                    (Bava Metzia 67b). R. Tam explained that Ravina
                    did not want to consider himself to be a
                    Chacham.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (240:1):</font></b> The Onah (frequency of
               marital relations) of a Chacham is every Shabbos
               night.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (3):</font></b> This is because on a Yom
                    Chol, he must learn. One may not make himself a
                    Chacham, for the Torah forbids reducing her
                    Onah (Sefer ha'Kaneh).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (6):</font></b> If he has her permission,
                    he will be blessed for conducting like a
                    Chacham. Sefer ha'Kaneh was unsure if nowadays
                    anyone is a Chacham for this law. He concludes
                    that if he is considered a Chacham in the
                    generation, and she married him with this
                    intent, he is liable only on Shabbos night.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bi'ur Halachah (DH Talmid):</font></b> Me'il Tzedakah says
                    that anyone who learns constantly, whether he
                    teaches or learns, is obligated only on Shabbos
                    night. Even though nowadays, regarding many
                    laws there is no Chacham, one may make himself
                    a Chacham for this. The Magen Avraham forbids
                    <i>one who does not learn</i> to make himself a
                    Chacham. However, Me'il Tzedakah counseled
                    those close to him to fulfill a worker's Onah
                    of twice a week. Also Chachmas Adam says so.
                    The general rule is, it depends on the man's
                    strength.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (554:22):</font></b> In a locale where people
               work on Tish'ah b'Av, we work; in a locale where
               people do not work, one may not work. In every
               place, Chachamim do not work. Anyone who wants to
               act like a Chacham in this matter may do so.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Garsinan):</font></b> Hagahos Maimoniyos
                    (5:10) says that the first Tana is concerned
                    for haughtiness, and R. Shimon ben Gamliel is
                    not. Tosfos says that nowadays even the first
                    Tana agrees that anyone may act like a Chacham,
                    for we do not work so much also on other days.
                    Haughtiness applied only then, when everyone
                    used to work. However, where everyone works,
                    e.g. in Sefard, one must investigate whether
                    one may be idle on Tish'ah b'Av. Perhaps also
                    there, the custom is not to work (Semak). I say
                    that everywhere, the custom is not to work.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (43):</font></b> The custom not to work is
                    so one will not cease to mourn over the
                    Churban. Therefore, we do not work even at
                    night. We refrain only from Melachah that takes
                    time to do.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (100):</font></b> When acting like a Chacham
                    is haughtiness, it is forbidden. See what I
                    said above 551:129 (that if one wants to cease
                    being stringent, he must do Hataras Nedarim).
<br><br>
<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Aged wine' must last until the coming
          Sukos.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PROPER SIZE OF DWELLINGS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Akiva):</font></b> If Reuven sold or accepted to
          build a Chasan's house for Shimon's son or a widow's
          house for Shimon's daughter, it must be at least four
          Amos by six Amos;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yishmael says, that is proper for a cattle pen!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who wants to build a cattle pen should make
               it four Amos by six Amos.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A small house is six by eight Amos. A large house is
          eight by 10. A Traklin must be 10 by 10.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The height (of each of these) should be half the sum of
          the length and width - R. Shimon ben Gamliel says, a
          proof of this is the Heichal.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why does the Mishnah mention a
          Chasan's house for Shimon's son or a widow's house for
          his daughter? Both apply to sons and daughters!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches a matter by the way, that it is
          improper for a Chasan to live in his mother-in-law's
          house.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Sefer ben Sira):</font></b> The lowliest thing is a Chasan
               who lives in his father-in-law's house;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Worse than this is a guest who invites other
               guests. Worse than this is one who answers before
               the other person finished speaking - 'Meshiv Davar
               b'Terem Yishma Iveles Hi Lo u'Chlimah'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Yishmael says, that is proper for a
          cattle pen!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Who taught the proper dimensions for a cattle
          pen?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Some say that R. Yishmael did. Others say that
          R. Akiva did.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Some say that R. Akiva did. He admits that four
               by six is proper for a cattle pen, and sometimes a
               person lives in such a dwelling.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Others say that R. Yishmael did, but R. Akiva
               would say that a cattle pen should be smaller.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A Traklin must be 10 by 10.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Traklin is a hall in which roses are put.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A Chatzer (for officers) should be 12 by 12.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The height (of each of these) should be half
          the sum of the length and width. A proof of this - R.
          Shimon ben Gamliel says, we learn from the Heichal.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Who taught 'a proof of this'?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1:</font></b> R. Shimon ben Gamliel did;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first Tana asked 'what is a proof of this?'
               R. Shimon ben Gamliel answered 'we learn from the
               Heichal.'
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The first Tana taught it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel asked 'Do you learn from
               the Heichal? Does everyone build like the Heichal?!'
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Beraisa - Others):</font></b> The height should be like the
          length of the beams (that span the width of the house).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't they say 'the height should be
          like width?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The walls are thicker (so the interior is
          narrower) at the bottom. He teaches that the height
          should be like the (greater) width at the top.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer #2:</font></b> There are indentations in which the beams
          fit. They are slightly longer than the (interior) width
          of the house.
<br>

<p>

sjt:
</p><p>
<font><b>2) AGADAH: LIGHTER THAN BRAN</b></font><b>
<br>OPINIONS:</b> The Gemara quotes Sefer Ben Sira, in which Ben Sira states that he weighed everything with a scale but found nothing lighter than 'Subin' -- 'bran.' Less than bran is a Chasan who lives in the home of his father-in-law. Less than such a Chasan is a guest who invites a guest. Less than such a guest is one who answers before he hears. What is the common denominator of all of these things?
</p><p>
(a) The <b>RASHBAM</b> explains that when Ben Sira begins by saying that nothing is lighter than bran, he does not mean that bran is the worst thing in the world. If this is what he means, he would have mentioned the inedible parts of the wheat and not the bran, which is edible. Rather, he means that it is a lowly item. It seems that the Rashbam understands that the things listed by Ben Sira are common only in that they are all lowly things. They are not connected with each other in any other way.
</p><p>
(b) The <b>IYUN YAKOV</b> similarly states that the Gemara here mentions things that are lowly in people's eyes. He understands that the Gemara's reference to bran alludes to a person who gives bread made out of bran to a poor person. Ben Sira continues to mention about things that are lowly in people's eyes.
</p><p>
(c) The <b>MAHARSHA</b> explains that when Ben Sira refers to nothing being lighter than 'Subin,' he is not referring to actual bran, but to people who pay back their loans with merchandise of inferior quality. Although the Halachah is that such a repayment is acceptable (since the merchandise has monetary worth), it is not something which people want. Therefore, paying back a loan in such a manner is considered a lowly act.
</p><p>
Worse than this is a son-in-law who lives in his father-in-law's home, living off of the largesse of his father-in-law. The son-in-law comes to help himself to anything in the house, and, worse, he views himself as the cause for the abundance that is in his father-in-law's house, as though he were Yakov in the house of Lavan.
</p><p>
Worse than this is the guest who constantly makes himself at home in his host's house, and who firmly believes that he is the cause of the blessing of wealth that his host receives. After all, he reasons, the Chachamim teach that, 'More than the homeowner does for the poor person, the poor person does for the homeowner.' Such a guest is worse than a Chasan who lives in his father-in-law's house, because he takes the liberty to invite into the house visitors whom his host might not want in his house.
</p><p>
Ben Sira concludes that worse than such a guest is the person who answers before he hears the question. The Maharsha explains that this refers to one who happened to get the answer right, even though he did not fully hear the question. He thinks to himself that he is so intelligent; 'not only did I give the right answer, but I did not even need to hear the entire question!' This attitude ultimately dooms him, because he thinks that he can give brilliant answers while hearing only half of the question. In the end, he will end up showing everyone how foolish he really is.
</p><p>
(It is possible that the Maharsha also means that in the case of the borrower who pays back merchandise of inferior quality, the borrower thinks that Hash-m anyway compensates the lender for giving him a loan. It therefore makes no difference whether he pays back the lender in a way which is not in his best interest. This explanation matches the other three cases, in which the Maharsha explains that the person views himself either as the cause of blessing or as unrealistically intelligent.)
</p><p>
(d) The <b>ETZ YOSEF</b> explains that these things are all things which a person might think are good, but actually are bad. One might think that bran is good to eat, when really it is not good to eat. Similarly, one might think that there is nothing wrong with moving in with one's father-in-law; after all, he is now part of his father-in-law's family. However, this is incorrect, because the son-in-law may end up being suspected of having relations with his mother-in-law, and his mother-in-law might be suspected of funneling money to her son-in-law against her husband's will.
</p><p>
Similarly, a guest might think that since the host likes having guests, he may feel free to bring more guests into the home. However, the opposite is true. Just because the host allows the first guest into his home does not mean that he wants another guest whom he does not even know.
</p><p>
Even worse is one who answers before he hears the question. The person thinks that this is the best possible way to answer; since the questioner seeks an answer, let him have the answer as soon as possible! However, the opposite is true. When a person bothers to ask a question, he wants to ascertain that the listener has heard his question and understands all of the details of the question. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE KERUVIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Contradiction:</font></b> It says 'veha'Bayis... u'Shloshim Amah
          Komaso', and it says 'v'Esrim Amah Komaso'!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Chanina):</font></b> The latter verse gives the height
          above the Keruvim (the figures on the cover of the Aron).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What do we learn from this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that the space above is like the
          space below: just like nothing occupies the space above
          (it is empty), also the space below (the 10 Amos in which
          the Keruvim stand, miraculously) does not occupy space
          (as we will explain).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This supports R. Levi,
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Levi):</font></b> We have a tradition that the Aron and
               Keruvim do not occupy space.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Support (Beraisa):</font></b> The Aron Moshe made was
               surrounded by 10 Amos in every direction (even
               though the Kodesh ha'Kodoshim was only 20 by 20,
               i.e. it did not occupy any space).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Ravnai):</font></b> The (two) Keruvim stood miraculously -
          'V'Chamesh Amos Kenaf ha'Keruv ha'Echas v'Chamesh Amos
          Kenaf ha'Keruv ha'Shenis...' (They stood next to each
          other, and the total span of all four wings was 20 Amos,
          i.e. the entire length of the Kodesh ha'Kodoshim. We
          conclude that their bodies (in between the wings) did not
          occupy space!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection #1 (Abaye):</font></b> Perhaps (there was no miracle;)
          the wings of each Keruv touched each other, and the
          bodies were underneath, like chickens!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection #2 (Rava):</font></b> Perhaps they did not stand next to
          each other!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection #3 (Rav Acha bar Yakov):</font></b> (Even if they stood
          next to each other,) perhaps they were on a diagonal
          (which is about 28 Amos)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection #4 (Rav Huna brei d'Rav Yehoshua):</font></b> Perhaps
          the Kodesh ha'Kodoshim is 20 by 20 at the bottom, but it
          is wider on top!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection #5 (Rav Papa):</font></b> Perhaps the wings were bent!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection #6 (Rav Ashi):</font></b> Perhaps the wings overlapped
          each other!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What was the (normal) position of the
          Keruvim?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan or R. Elazar):</font></b> Each faced the
          other.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	Answer #2 (the other of R. Yochanan and R. Elazar):
          Each faced the walls of the Kodesh ha'Kodoshim.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (against the first opinion):</font></b> 'U'Fneihem
          la'Bayis'!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> When Yisrael does Hashem's will, they face each
          other. when we do not, they face the walls.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (against the second opinion):</font></b> 'U'Fneihem Ish
          El Achiv'!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer:</font></b> They face each other somewhat, and also face
          the walls somewhat.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Unkelos):</font></b> 'Keruvim Shnayim Ma'ase
               Tza'atzu'im' - (their faces) looked like children
               leaving their Rebbi, i.e., looking slightly to the
               side.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO OWNS PROPERTY IN ANOTHER'S DOMAIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Mishnah):</font></b> If Reuven owns a pit in Shimon's house, he
          enters and leaves at normal times (i.e. by day);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	He may not bring his animal in, rather, he takes water
          out for it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven and Shimon each make a key (this will be
               explained).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> For what are the keys?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> Both are for the pit (neither can
          open it without the other).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> We understand why Reuven has a key, in order
          to prevent Shimon from stealing water;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why does Shimon make a key?
<br>
<br>

sjt:
<font><b>1) AGADAH: THE POSITION OF THE 'KERUVIM'</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan and Rebbi Elazar disagree about how the Keruvim were situated atop the Aron ha'Kodesh. One says that they faced each other, and the other one says that they faced the walls, away from each other. The Gemara asks that according to the one who says that they faced each other, what does the verse mean when it says, 'And their faces were to the house (i.e. the walls of the sanctuary)' (Divrei ha'Yamim II 3:13)? The Gemara answers that when the Jewish people fulfilled the will of Hash-m, the Keruvim faced each other. When the Jewish people did not fulfill the will of Hash-m, the Keruvim faced the walls.
</p><p>
The Gemara asks a similar question according to the opinion that the Keruvim faced the walls. The verse says, 'And their faces were as a man to his brother' (Shemos 25:20), which clearly implies that they faced each other. The Gemara answers that according to the opinion that the Keruvim faced the walls, they did not face in opposite directions. Rather, they faced slightly away from each other, as though each one was turning to the side.
</p><p>
The <b>NEFESH HA'CHAYIM</b> (1:8) understands that that according to this opinion, the Keruvim in the Mishkan indeed faced each other, as the verse (Shemos 25:20) says. However, when Shlomo ha'Melech built the Beis ha'Mikdash, he positioned the Keruvim in a manner in which they appeared to face slightly away from each other. The <b>RASHBAM</b> (DH d'Metzaded) points out that according to this opinion, the position of the Keruvim was not an indication of the Jewish people's loyalty to Hash-m, because certainly Shlomo ha'Melech would not have situated them in a manner which implies the Jews' disloyalty. Nevertheless, the question remains: why <i>did</i> Shlomo ha'Melech position the Keruvim in such a manner? If the Keruvim are supposed to represent the relationship between Hash-m and the Jewish people (see Yoma 54a), why did he not build them so that they faced each other?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>NEFESH HA'CHAYIM</b> (1:8-9) explains that the relationship between Hash-m and the Jewish people in the desert differed from their relationship during the times of the Beis ha'Mikdash. In the desert, Hash-m constantly provided the Jewish people with all of their basic needs in a miraculous manner. He sent the Man, the well of Miriam, and the Ananei ha'Kavod. The Jewish people were expected to conduct themselves in the manner described by Rebbi Shimon bar Yochai in Berachos (34b) -- to totally commit themselves to learning Hashem's Torah, and to rely on Hash-m to take care of their material needs. This was signified in the positioning of the Keruvim, which faced directly towards each other. The Jewish people were supposed to direct their attention and reliance directly to Hash-m at all times, and Hash-m would supply them with all of their needs.
</p><p>
In the times of Shlomo ha'Melech, when the Jewish people no longer received the Man or drank from the well of Miriam, Hashem's relationship with them had changed. Most people were unable to commit all hours of the day exclusively to learning Torah; they had to use part of the day to work the fields and earn a livelihood. Since this system of 'Derech Eretz' was the way Hash-m intended for most people to act (with the exception of the generation of the Midbar, and certain unique individuals throughout history), there was nothing wrong with portraying this in the positioning of the Keruvim. Hence, although the Jewish people still had to focus on having a relationship with Hash-m, they were not expected to be exclusively focused on that relationship at all times, as they had done in the Midbar. This was reflected in the way Shlomo ha'Melech positioned the Keruvim. They faced each other but looked slightly away to the side. This position symbolized the type of Avodas Hash-m required for that generation.
</p><p>
The Nefesh ha'Chayim asks that although it makes sense that the Keruv which represents the Jewish people should be positioned to look slightly away, why should the Keruv which represents Hash-m look slightly away? Hashem's attention to the Jewish people is constant and absolute! The Nefesh ha'Chayim answers that the Keruv which represents Hash-m looked slightly away because the amount of blessing bestowed upon the world is commensurate to the level of Avodas Hash-m (particularly Torah learning) achieved by the Jewish people. Since the Jewish people were not able to focus exclusively on Avodas Hash-m in the same manner as their forebears in the Midbar, the amount of blessing which Hash-m would send them would be limited accordingly.
</p><p>
(b) The <b>ANAF YOSEF</b> asks a similar question. His answer is based on an entirely different way of understanding the Gemara. He prefaces his words by saying that there is a tradition that if the Jewish people will be worthy when the final redemption is destined to occur, Hash-m will return the exiles to the land first and only afterwards build the Beis ha'Mikdash. If the Jewish people are not worthy at that time, Hash-m will build the Beis ha'Mikdash first and only afterwards return the exiles to the land.
</p><p>
The Anaf Yosef says that this is the intention of the Gemara here. The Gemara is alluding to the order of events at the time of the final redemption when it describes the relationship between Hash-m and the Jewish people in terms of the positioning of the Keruvim. The opinion that the Keruvim faced each other represents the opinion that Hash-m first will reunite the Jewish people with their exiled brethren, and only afterwards will He rebuild the Beis ha'Mikdash. The opinion that the Keruvim faced the 'house' maintains that Hash-m first will build the Beis ha'Mikdash (the 'house').
</p><p>
The Gemara asks, according to the opinion that the ingathering of the exiles will occur first, what is the meaning of the verse in Divrei ha'Yamim, 'And their faces were to the house'? The Gemara answers that the positioning of the Keruvim -- i.e. the order in which the events of the final redemption will transpire --depends on whether the Jewish people are doing the will of Hash-m at the time of the redemption. If the Jewish people are doing the will of Hash-m, the ingathering of the exiles will occur first. If they are not doing His will, the Beis ha'Mikdash will be built first.
</p><p>
The Gemara then asks, according to the opinion that the Beis ha'Mikdash will be built first, what is the meaning of the verse in Shemos, 'And their faces were as a man to his brother'? The Gemara answers that the Keruvim faced each other but turned slightly to the side. This alludes to the fact that some people indeed will be returned from the exile first, before the Beis ha'Mikdash will be rebuilt. The rest of the exiles will be returned after the rebuilding of the Beis ha'Mikdash. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS A RESHUS HA'RABIM?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A Reshus ha'Rabim is 16 Amos wide.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shabbos 6a (Beraisa #1):</font></b> Reshus ha'Rabim is a road
               between cities, a big market, and alleyways in a
               city that are open on both ends. This is a bona fide
               Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't the Tana include the Midbar?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa #2):</font></b> Reshus ha'Rabim is a road between
                    cities, a big market, open alleyways and the
                    Midbar.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> One Beraisa discusses when Benei
               Yisrael were in the Midbar. The other Beraisa
               discusses nowadays.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 7a:</font></b> Rav Dimi holds that between the pillars (in the
               market) is a Karmelis;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Version #1:</font></b> R. Zeira said that the platform is a
               Karmelis, for it is inconvenient to walk there. He
               would hold that between the pillars, which is
               convenient, is not Karmelis (rather, it is Reshus
               ha'Rabim).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Version #2:</font></b> Between the pillars is Reshus ha'Rabim,
               because sometimes people walk there.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 98a (Rav):</font></b> One who carries four Amos in a Reshus
               ha'Rabim with a ceiling is exempt, for this is not
               like the encampment in the Midbar.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Eruvin 6b (Rabah bar bar Chanah):</font></b> Had they not
               locked the doors of Yerushalayim at night, it would
               have been Reshus ha'Rabim. One who carried in it
               would have been liable;
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Ula):</font></b> If they didn't lock the doors of the gates of
               Mechuza at night, it would be Reshus ha'Rabim.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Shabbos 2a and Eruvin 2a) brings Beraisa #1
               and the teaching about Yerushalayim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Shabbos 14:1):</font></b> Reshus ha'Rabim is a
               Midbar, forest, market, or a road open to them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Magid Mishneh):</font></b> The Gemara says that
                    the Midbar was a Reshus ha'Rabim only when
                    Yisrael were there!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Kesef Mishneh):</font></b> The Rambam's son
                    explains that when Yisrael had an arranged
                    encampment in the Midbar, it was like a valley
                    or field. Nowadays, anyone may go anywhere they
                    want, so it is Reshus ha'Rabim. A forest is a
                    Reshus ha'Rabim because everyone needs to go
                    there for wood, and it is easy to walk there.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid):</font></b> The road must be 16 Amos wide,
               without a roof.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Magid Mishneh' The Rashba says that if a Mavuy
                    is open to the length of Reshus ha'Rabim, it is
                    Reshus ha'Rabim even if it is not 16 Amos wide,
                    but not if it is open to the width of Reshus
                    ha'Rabim. There is no proof for this from the
                    Gemara. Some Ge'onim and Acharonim say that
                    Reshus ha'Rabim must have 600,000, like the
                    encampment in the Midbar. There is no hint for
                    this from the Gemara. It is not primary. The
                    Ramban and Rashba say so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Eruvin 1:8):</font></b> Rashi says that Reshus is 16 Amos
               wide in a city with 600,000 and there is no wall, or
               the Reshus ha'Rabim went from gate to gate, so it is
               open on two sides, like the the encampment in the
               Midbar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Shabbos 6b supports this. It
                    says that when Yisrael dwelled in the Midbar,
                    it was a Reshus ha'Rabim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> The Ri says that if Mavo'os 13 and a
               third Amos wide are open on two sides to a Reshus
               ha'Rabim 16 Amos wide, since many go through
               constantly, it is Reshus ha'Rabim mid'Oraisa. He
               proves this from Shabbos 7a, in which we say that
               Reshus ha'Rabim between the pillars is Reshus
               ha'Rabim, even though the platform and pillars
               diminish (the width from 16 Amos). Even the opinion
               that calls it a Karmelis would agree that that it is
               Reshus ha'Rabim when people can walk through easily.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 303:18):</font></b> Some say that women are
               lenient to go out with jewelry, for nowadays we do
               not have Reshus ha'Rabim. Our Reshus ha'Rabim is
               Karmelis.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 345:7):</font></b> Reshus ha'Rabim is a
               street or market 16 Amos wide without a roof and
               without a wall. Even if it has a wall, if it is open
               from one gate to the other (Rema - and the doors are
               not locked at night), it is a Reshus ha'Rabim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (5):</font></b> Also an intercity road is a
                    Reshus ha'Rabim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (5):</font></b> It seems that if one door is locked,
                    it is not Reshus ha'Rabim, for it is not
                    Mefulash (open on two sides).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Kaf ha'Chayim 34):</font></b> The Magid Mishneh
                    says so in the name of the Rashba, and Tosfos
                    agrees, but the Shulchan Aruch (364:2) rules
                    like the Rif, Rosh and Rashi, that one door is
                    not a full Mechitzah, therefore, a door is
                    needed also on the fourth side.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishnah Berurah (22):</font></b> The Rema connotes that
                    even if they could be locked, but they are not,
                    it is Reshus ha'Rabim. This is like the first
                    opinion below (364:2).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (35):</font></b> The Rashba says that the
                    city square is a Reshus ha'Rabim even if the
                    doors are locked. The Birkei Yosef says that
                    the primary opinion says that it is not.
<br>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that if 600,000 do
               not pass through every day, it is not Reshus
               ha'Rabim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH uv'Reish):</font></b> The Rosh cited Rashi
                    without dissent. This connotes that he agrees
                    that 600,000 are required.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Immediately afterwards, the Rosh cites
                    the Ri, who says only that many must pass
                    through!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (ibid.):</font></b> Also in Beitzah (3:2) the
                    Rosh said that nowadays it is not common to
                    find Reshus ha'Rabim in which 600,000 pass
                    every day. Also Semag, Semak and Tosfos say so.
                    However, the Rambam never mentions this
                    condition. The Ran says that if it were true,
                    the Gemara would have mentioned it!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (6):</font></b> Above, the Tur challenged Sefer
                    ha'Terumos, because nowadays we do not have
                    Reshus ha'Rabim (for cities do not have
                    600,000). The Beis Yosef said that also the
                    Magid Mishneh, citing the Rashba, asked this.
                    The Magid Mishneh and Rashba do not require
                    600,000! The Maharshal and Mas'as Binyamin say
                    that one must be stringent like the first
                    opinion. The Rema (brought below) says that we
                    do not have Reshus ha'Rabim, and people say
                    this. This is the majority opinion. One may be
                    stringent, but he cannot protest against those
                    who are lenient.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Magen Avraham (7):</font></b> Above (303:18) and
                    elsewhere, the Shulchan Aruch is lenient. Most
                    Poskim are lenient.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Bi'ur Halachah DH she'Ein):</font></b> Many
                    rejected this proof. In Siman 303, the Shulchan
                    Aruch merely said how some try to defend the
                    practice! In many places the Shulchan Aruch
                    forbids (Stam) matters forbidden only in Reshus
                    ha'Rabim, e.g. for a tailor to go out with a
                    needle shortly before dark. Chachamim decreed
                    not to fulfill Shofar on Shabbos. Surely, this
                    was due to a practical concern for Reshus
                    ha'Rabim! The Ramban says that even Rashi
                    requires 600,000 only in a city, but not for
                    intercity roads. One may rely on the lenient
                    opinion only if there is another reason to be
                    lenient.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Mishnah Berurah (23):</font></b> Even though in the Midbar
                    there were also women, children and Eruv Rav,
                    we follow the number explicit in the Torah. It
                    seems that the Shulchan Aruch favors the
                    stringent opinion, for it calls the lenient
                    opinion 'some say.' We cannot protest against
                    one who is lenient; a Ba'al Nefesh should be
                    stringent.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Kaf ha'Chayim (39):</font></b> Eshel Avraham (8) says that
                    seemingly, the lenient opinion should require
                    600,000 Yisre'elim, but the Shulchan Aruch and
                    Poskim connote that Nochrim count.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> To prevent suspicion that Reuven
          entered to be with Shimon's wife (now, he will enter only
          when Shimon is home).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Levi owns a garden inside Yehudah's
          garden, he enters and leaves at normal times;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He may not bring in merchants, nor may he enter
               Yehudah's garden in order to get to a different
               field.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Yehudah has the right to seed the path.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If Levi received a path on the side (of Yehudah's
          garden) by mutual consent, he enters and leaves at any
          time he wants. He may bring in merchants. He may not
          enter Yehudah's garden in order to get to a different
          field, and neither may seed it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Gemara - Rav Yehudah):</font></b> If Shimon bought an Amah
          (irrigation channel) in Reuven's Beis ha'Shelachin
          (irrigated field), he gets two Amos, one on each bank.
          (Some say that also, if the channel is less than two
          Amos, he may widen it to two Amos.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he bought an Amah Kilon (water trough for
               animals), he gets one Amah, half on each side (Some
               say, if the trough is less than one Amah, he may
               widen it to one Amah).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Who may plant on the banks?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> Reuven seeds them.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> Reuven plants (trees on) them.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	All the more so, Rav Yehudah permits Reuven to plant
          trees. Since trees have deep roots, they will not harm
          the banks.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman forbids Reuven to seed the banks, for
               this will moisten the ground and weaken the banks.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If the banks of Shimon's Amah fell, he
          can fix it with dirt of Reuven's field. Surely, the dirt
          scattered onto the field.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Objection (Rav Papa):</font></b> Reuven can say that the banks did
          not fall, rather, the water level rose (and Reuven has no
          dirt of Shimon)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, he can fix it with dirt of Reuven's field
               because this was (an understood) condition of the
               sale.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LAWS OF PATHS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a Reshus ha'Rabim passed through Reuven's
          field, and Reuven set aside the end of his field for
          people to walk on, intending to take over the area of the
          old path, the new path also becomes a Reshus ha'Rabim,
          and Reuven may not take the area he wanted.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	(One who buys) a private road is (entitled to at least)
          four Amos. A Reshus ha'Rabim is 16 Amos;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	There is no limit to the road for a king or a funeral
          procession.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Judges of Tzipori say, we allow an area of Beis Arba'ah
          Kavim (about 1667 square Amos) for a Ma'amad (a place
          where people stop when returning from a burial).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why didn't Chachamim enact that
          Reuven gets the old path? He should be allowed to take a
          stick and hit anyone who walks on the old path!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that one may not take the law into
          his own hands.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection #1 (Rav Zvid):</font></b> Chachamim decreed that he does
          not get the path he wanted, lest he give a crooked path
          in its stead.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Mesharshiya):</font></b> The case is, he gave them
          a crooked path in its stead.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> Any replacement path he gives is
          considered a crooked path, for it is closer for some
          people, but further for others.
<br>

<p>

sjt:
</p><p>
<font><b>2) A PUBLIC PATH THROUGH ONE'S FIELD</b></font><b>
<br>QUESTION:</b> The Mishnah discusses a case in which the public has the right to use part of a person's field as a path. The <b>RASHBAM</b> (DH Mi she'Haisah) explains how the public obtained the right to the path: either the public always used the area as a path, or an owner of the field gave the public explicit permission to the public to use it as a path. However, the present owner now wants his field back. To that end, he designates a different area at the side of the field as a path for the public's use, and he takes back the land used as the path in the middle of his field. The Mishnah states that the public has the right to the new path, and the public still may use the old path as well.
</p><p>
The Gemara points out that if the public is considered the owner of the new path (as implied by the wording, 'Mah she'Nasan Nasan'), then the owner's exchange apparently was effective. Accordingly, the owner should receive the old path back and the public should have no right to it. It must be that the reason why he does not receive the old path is not because the public still legally owns it, but because practically he cannot stop the public from using it (as is implied by the wording, 'v'Shelo Lo Higi'o' -- 'and his, he did not receive'). The Gemara asks that if this is the reason why the public may still use the old path, the owner should sit there with a stick and ward off anyone who tries to pass. Since the Mishnah does not allow him sit there and hit anyone who attempts to pass through his field on the former path, it must be that the Mishnah maintains that 'a person may not enforce the law by himself, even when he will lose as a result' ('Lo Avid Inish Dina l'Nafshei Afilu b'Makom Peseida'). The Gemara answers that the Mishnah does not necessarily maintain 'Lo Avid Inish Dina l'Nafshei.' Rather, the Rabanan made a Gezeirah that the original path remain open for public usage, in order to thwart a fieldowner from giving the public an inconvenient path as an alternate route.
</p><p>
The <b>CHIDUSHEI HA'RAN</b> asks that the Gemara apparently could have asked the question in the opposite manner, based on the assumption that the exchange was <i>not</i> effective. The Mishnah says, 'v'Shelo Lo Higi'o,' which implies that the intended exchange was <i>not</i> effective, and that is why he does not acquire the rights to the old path. It must be that the reason why the fieldowner must allow the public to use the <i>new</i> path is that the Mishnah maintains that a person may not enforce the law by himself ('Lo Avid Inish Dina l'Nafshei'). Why does the Gemara assume that since the public obtains the right to the new path the exchange was effective, instead of assuming that since the public retains the right to the old path the exchange was <i>not</i> effective?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAN</b> quotes the <b>RAMBAN</b> who answers that if the exchange is not considered effective, once the fieldowner realizes his mistake he should be able to legally stop the public from using the new path, since they are not accustomed to using it yet.
</p><p>
(b) The <b>RAN</b> himself gives a different answer. The rule of 'Lo Avid Inish Dina l'Nafshei' states only that one may not enter another person's domain in order to take what rightfully belongs to him, and that one may not forcibly take an object from another person (which that person used to own) even though he is the new owner of the object. However, if a person attempts to trespass on one's property, the owner is allowed to stop the trespasser, even according to the opinion that 'Lo Avid Inish Dina l'Nafshei.'
</p><p>
Accordingly, the Gemara could not have asked the question on the basis of the assumption that the exchange was not effective, and that the fieldowner was trying to guard the new path he had designated for public use. Even according to the opinion that 'Lo Avid Inish Dina l'Nafshei,' the fieldowner would be permitted to block the new path, since anyone who uses that path is considered a trespasser. The Gemara therefore assumed that the exchange <i>was</i> effective, and the fieldowner was not allowed to block the old path. Based on this assumption, the Gemara asks that the Mishnah must follow the opinion of 'Lo Avid Inish Dina l'Nafshei.' (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>LAWS OF PATHS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does he lose the path he gave? Let
          him say 'take your path, and give mine back to me!'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Mishnah is R. Eliezer.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah citing R. Eliezer):</font></b> If the
               public chose a path (in Reuven's property), they
               keep it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Are the public robbers?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Gidal citing Rav):</font></b> The case is, they had a
          path in Reuven's land, and it was lost.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> If so, (surely they keep it;) why did Rabah
          bar Rav Huna teach in Rav's name that the Halachah does
          not follow R. Eliezer?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> These Amora'im argue about Rav's opinion. (He
          only taught one of these teachings.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> According to Rabah bar Rav Huna, what is the
          reason in our Mishnah? (Presumably, it is not like R.
          Eliezer, for the Halachah does not follow him!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like Rav Yehudah taught, that one may not
          reclaim any property that is used for a public
          thoroughfare.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> According to R. Eliezer, how does the public
          acquire the path?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> They acquire it through walking on it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> If Reuven walked the
               length and width of Shimon's field, he acquires
               where he walked;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, walking does not acquire. He must
               make Chazakah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Eliezer's source?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> 'His'halech ba'Aretz l'Arkah ul'Rachbah Ki
          Lecha Etnenah.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say, that was due to Hashem's love for
               Avraham, He wanted that it should be easy for
               Avraham's descendants to conquer it (it will be like
               an inheritance).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(R. Yosi b'Rebbi Chanina):</font></b> Chachamim admit to R.
          Eliezer about a path in a vineyard. Since it is
          exclusively for walking, it is acquired through walking.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	When people would come to R. Yitzchak bar Ami (Rashbam
          - regarding a sale of a path in a vineyard; R. Chananel -
          regarding one who lost the path to his field), he would
          give a path wide enough to carry a load of vines and turn
          around;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashbam):</font></b> This is only if there are
               walls on both sides of the path. If not, it suffices
               to give a path wide enough to walk on (the bundle
               can hang over the sides).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Tosfos):</font></b> This is only if there are
               not (low) walls on both sides of the path. If there
               are, he only gets between the walls (the bundle can
               hang over the walls).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE WIDTH OF ROADS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A private road is four Amos.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa - Others):</font></b> He gets enough to enable a loaded
          donkey to pass.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The Halachah follows Others.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa - judges of Bavel):</font></b> The path is only two and a
          half Amos wide.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The Halachah follows judges of Bavel.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Huna ruled like Others!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Two and a half Amos are needed for a loaded
          donkey to pass.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A Reshus ha'Rabim is 16 Amos.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A private road is four Amos. An intercity
          road is eight Amos. A Reshus ha'Rabim is 16 Amos. A road
          to a city of refuge is 32 Amos.
<br>
<br>

sjt:
<font><b>1) A PUBLIC PATH THAT BECOMES LOST</b></font><b>
<br>QUESTION:</b> The Mishnah discusses a case in which the public has the right to use part of a person's field as a path. The <b>RASHBAM</b> (DH Mi she'Haisah) explains how the public obtained the right to the path: either the public always used the area as a path, or an owner of the field gave the public explicit permission to the public to use it as a path. However, the present owner now wants his field back. To that end, he designates a different area at the side of the field as a path for the public's use, and he takes back the land used as the path in the middle of his field. The Mishnah states that the public has the right to the new path, and the public still may use the old path as well.
</p><p>
The Gemara asks why the fieldowner cannot simply take back the path with the claim that he gave it to the public by mistake? Rebbi Eliezer answers that the public has the right to choose whatever property it wants. The Gemara questions this statement. Can the public really go and usurp property indiscriminately? Rav Gidal in the name of Rav explains that the public may make claim to a piece of property only when the public already had the right to an area in that property but there is now a doubt about the exact location of that area. In such a case, the public may choose their path in the field without having to go to Beis Din.
</p><p>
The Gemara asks that this implies that the Halachah follows the view of Rebbi Eliezer, since the Mishnah is in accordance with his opinion. However, Rabah bar Rav Huna in the name of Rav explicitly states that the Halachah does <i>not</i> follow the view of Rebbi Eliezer. The Gemara answers that Rabah bar Rav Huna and Rav Gidal disagree about the position of Rav.
</p><p>
According to Rabah bar Rav Huna, what is the reasoning of the Mishnah? The Gemara explains that Rabah bar Rav Huna clearly follows the reason given by Rebbi Yehudah, that once the public walks on a path given to them by a fieldowner they acquire it, and the fieldowner no longer may take it back.
</p><p>
The Gemara's original answer does not seem consistent with the Mishnah. Even if the public originally had a path in the field, such that if the path becomes lost the public may choose a new path in the field, in the case of the Mishnah the fieldowner gives the public a new path <i>outside</i> of his field, where the public had no path previously. How are the two cases related?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> (DH keshe'Avdah) explains that the Gemara is making a Kal va'Chomer: If the public is permitted to choose a new path when they lose their old path which the fieldowner let them use (i.e. he did not protest), then certainly where a fieldowner originally gave them the use of the field, they may use the path.
</p><p>
<b>TOSFOS</b> (DH Kegon) has a number of difficulties with this approach. The Gemara in Bava Kama (28a) discusses the Mishnah, but it cites only Rebbi Yehudah's reason and not Rebbi Eliezer's reason. This implies that everyone agrees with the reason that Rebbi Yehudah gives for the Mishnah. Why does the Gemara there leave out the reason of Rebbi Eliezer?
</p><p>
Moreover, what is the Kal va'Chomer from the case of Rebbi Eliezer? In his case, the public definitely owned a path, and the only question is where the path is situated. In the case of the Mishnah, the public never had any claim to the path at all; it merely was given to them by mistake by the fieldowner. Why should the ruling of Rebbi Eliezer teach anything about the case in the Mishnah?
</p><p>
(b) <b>TOSFOS</b> quotes the <b><b><b>RI</b></b></b> who explains the Gemara in an entirely different manner. The Gemara cites Rebbi Eliezer's words in order to explain the Mishnah. Rav Gidal, however, quotes Rav who says that Rebbi Eliezer's words do not explain the Mishnah. Rebbi Eliezer did not say that the public may do whatever it wants (which would explain the Mishnah), but that only when the public already had a path in the field but it became lost may the public claim a new path anywhere in the field. Accordingly, the Mishnah is unrelated to Rebbi Eliezer's statement; the Mishnah does not discuss a path which the public lost, but rather a path which the owner mistakenly gave to the public.
</p><p>
Once the Gemara mentions Rebbi Eliezer, it asks that if Rebbi Eliezer's words were said in the case as explained by Rav Gidal, why would Rabah bar Rav Huna say that Rav does not rule like Rebbi Eliezer? Why should Rebbi Eliezer's opinion not be the Halachah? The <b>RITVA</b> explains that although the Gemara in Kesuvos (109b) says that in such a case an individual would have to go to Beis Din to sort out the exact location of his lost path, the public should have a stronger right than that of an individual (at least b'Di'eved). The Gemara answers that it must be that Rabah bar Rav Huna understands that Rebbi Eliezer's statement was said not in a case in which the pubic lost a path, but in a case in which the public seized a path. Therefore, he says that the Halachah does not follow the view of Rebbi Eliezer. The Gemara continues to discuss the reasoning of the Mishnah, and it says that the reasoning of the Mishnah is the reasoning of Rebbi Yehudah. This is why the Gemara in Bava Kama (28a) does not mention any other reason for the Mishnah's ruling. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN AND HOW MAY ONE TAKE THE LAW INTO HIS OWN HANDS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 99b (Mishnah):</font></b> If a public road passed through
               Reuven's field, and he set aside the end of his
               field to be a new path, intending to take the area
               of the old path, the new path also becomes a public
               road, and Reuven may not take the old path.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Gemara) Question:</font></b> Why didn't Chachamim enact that
               Reuven gets the old path? He should be allowed to
               take a stick and hit anyone who walks on the old
               path!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that one may not take the law
               into his own hands.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection #1 (Rav Zvid):</font></b> Chachamim decreed that he
               does not get the old path, lest he give a crooked
               path in its stead.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Rav Mesharshiya):</font></b> The case is, he gave
               them a crooked path in its stead.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #3 (Rav Ashi):</font></b> Any replacement path he gives
               is considered a crooked path, for it is closer for
               some people, but further for others.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Bava Kama 27b (Rav Yehudah):</font></b> One may not take the
               law into his own hands;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> One may do so.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> All permit when needed to avoid a loss. They argue
               about when there is no loss. Rav Yehudah forbids,
               for he can go to Beis Din. Rav Nachman permits.
               Since he acts properly, he need not exert himself to
               go to Beis Din.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Bava Kama 117a:</font></b> Reuven and Shimon each claimed to
               own a certain trap. Reuven handed it over to the
               king's officer.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Abaye:</font></b> We cannot make him pay. He claims that it was
               his!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rava:</font></b> We don't allow him to do such a thing! Rather,
               he is excommunicated until he brings the trap to
               Beis Din so they can judge the case.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Berachos 5b:</font></b> Four hundred barrels of Rav Huna's wine
               spoiled. Rabanan suggested that it is because he did
               not give to his sharecropper his share of vine
               branches. Rav Huna countered 'he stole much more
               than that from me!'
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Rabanan:</font></b> This is like people say, that one who
               steals from a thief tastes theft.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Kama 12b):</font></b> In monetary laws, the Halachah
               follows Rav Nachman, who says here that one may take
               the law into his own hands.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Sanhedrin 2:12):</font></b> One may take the
               law into his own hands if he has the power.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 3:3):</font></b> One may take the law into his
               own hands only if the other comes to steal from him,
               or is holding his item. He may not (forcibly) take a
               security for an existing debt. That must be done in
               Beis Din (113a). Therefore, if he hit him, he is
               liable like anyone who hit him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rivash (396):</font></b> If Reuven has property of Levi,
                    who owes him, he may keep it for a security,
                    for one may take the law into his own hands,
                    even if he would not lose by going to Beis Din.
                    However, he may sell it only after 30 days, in
                    Beis Din. Surely he cannot keep it for himself!
                    If a widow assessed property for herself, this
                    is void (Kesuvos 98a), even if it was in front
                    of a Beis Din of Hedyotos who know the value.
                    She can sell to others, for then she tries to
                    get the highest price for it; this helps her
                    and the orphans. When she keeps it herself, she
                    seeks to buy as cheaply as possible, which
                    harms the orphans. Also, she cannot be the
                    buyer and seller! A Beis Din of experts can
                    sell on behalf of the orphans. Rav Safra was a
                    partner with Isar, and took half the
                    merchandise in front of witnesses who knew the
                    value. It was invalid, for it was not in front
                    of Beis Din (Bava Metzi'a 31a).
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 4:1):</font></b> Some permit taking the law into his
               own hands only for a particular item of his that
               Reuven stole or seeks to steal or damage it, but not
               if Reuven owes him for a previous theft or other
               reason.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Beis Yosef DH Kosav, citing Mordechai
                    30):</font></b> Rabbeinu Meir says that one may take the
                    law into his own hands only regarding a
                    particular item that Reuven refuses to give
                    back. He bring a proof from Berachos 5b. One
                    may take back only what was stolen, but not
                    something else in place of it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (1):</font></b> The Rosh and Nimukei Yosef
                    agree. The Rivash (above) disagrees, and allows
                    seizing for anything except for a loan.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> He may do so only by himself, but not through
               Nochrim. If he acted through Nochrim, if he had no
               other recourse, what he did is done (he is exempt).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra 14):</font></b> Reuven handed over a disputed
                    trap to an officer. Rava said that he cannot do
                    so only because he could not prove that it was
                    his.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Yam Shel Shlomo (3:6):</font></b> A case occurred in which
                    Levi denied having Reuven's deposit, and Reuven
                    made accusations against him to Nochrim.
                    Nochrim broke the door, Reuven took his deposit
                    and Levi suffered great losses. Chachamim ruled
                    that if Reuven had no other way to get it, he
                    is exempt. If he had another way, he is liable,
                    like R. Meir, who obligates for Garmi. I say
                    that even the Maharam and Rosh, who permit
                    taking the law into his own hands only when one
                    can prove that he took properly, permit here.
                    Even though he had no witnesses that Levi had
                    it, or Levi said that he returned it, since he 
                    knew that Levi has it, it is like seeing one's
                    object in another's hands. This is unlike one
                    who cannot collect through Yisrael law and went
                    to Nochri courts. The other party can take him
                    to Beis Din and force him to return it. Here is
                    different, for he knew that he will get his
                    deposit, and all knew that it is his. If Reuven
                    could have collected through Beis Din, he must
                    pay all the damage to Levi. Even though in such
                    a case he is exempt if he hit Levi, he is
                    liable for going to Nochri courts instead of
                    Beis Din. The Mordechai (Bava Kama 193) says
                    that if one went to Nochri courts to save his
                    money without intent to damage, he does not pay
                    like a Moser, for it is only Gerama. He did
                    improperly and should be tied to a post, but he
                    is exempt. However, if he could have saved
                    through Beis Din, he is a Moser who intends to
                    damage.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that taking the law into his own
               hands is only when he hurt him; one may do so only
               if he can prove that it is his. However, one may
               always seize property for security, and then go to
               Din with him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (3):</font></b> The Mordechai (Bava Basra
                    569) allows a Tzibur to seize a security before
                    going to Din, for they are a Rabim and they
                    will go to Din.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (4):</font></b> This opinion permits taking a security
                    even when he cannot prove that he is owed, even
                    in front of witnesses. We need not teach about
                    without witnesses, for then he has a Migo. One
                    may not seize a stolen object in front of
                    witnesses, for surely the other party denies
                    it. One may seize security for debts, for
                    perhaps the other party would admit. The Rema
                    concludes 'and he goes to Din with him', i.e.
                    if he will deny owing, he will return the
                    security.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Nesivos ha'Mishpat 3):</font></b> This is from
                    the Maharik (161), and he says oppositely
                    (witnesses are needed to seize a stolen object,
                    but not for a loan)!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Questions:</font></b> The Gemara sought to prove from the
                    Mishnah of a path that one may not take the law
                    into his own hands. Tosfos (Bava Kama 28a DH
                    v'Linkot) says that we thought that he does not
                    get back his path because he cannot summons
                    everyone to Din. This is difficult. If one can
                    prove what was stolen, he can collect in the
                    thief's absence. Surely, he can clarify what
                    was his path. (If not, obviously he gets
                    nothing!) If so, a Shali'ach Beis Din can
                    enforce that he get back his path, or Beis Din
                    can authorize him to be their Shali'ach! Also,
                    if all permit seizure without hitting, he
                    should be allowed to take back his path, just
                    without force!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer (Nesivos ha'Mishpat):</font></b> Since he caused
                    the situation (by trying to take their path),
                    he may not collect in their absence.
                    Alternatively, he may not collect in their
                    absence because he could gather them, just it
                    is toilsome. We permit seizure without hitting
                    only if he will later go to Din.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE MAY TAKE THE LAW INTO ONE'S OWN HANDS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> We learn from 'Tachin Lecha <i>ha</i>'Derech' -
          the extra 'Hei' teaches to add the width of a normal
          path.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There is no limit to the road for a king.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This is because the king may breach fences to make a
          path for himself.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> There is no limit to the road for a funeral
          procession.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	This is due to the honor of the deceased.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>MA'AMADOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Judges of Tzipori say, we allow an area of
          Beis Arba'ah Kavim for a Ma'amad.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one sells (the place reserved for) his
          grave, the path to it, or the place of his Ma'amad and
          eulogy, his family can bury him there against the will of
          the buyer.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We make at least seven Ma'amados and
          Moshavos (stops on the way to burial) for a deceased,
          corresponding to the seven 'Havalim' (follies) in the
          first verse of Koheles - 'Havel Havalim...'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rava):</font></b> How are they done?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Ashi - Beraisa - R. Yehudah):</font></b> In Yehudah,
          they used to make at least seven Ma'amados and Moshavos,
          e.g. 'stop, dear ones, stop; wait, dear ones, wait.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Chachamim:</font></b> If so (this is Ma'amados and
               Moshavos), it should be permitted even on Shabbos!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rami bar Papa's sister was married to Rav Avya; she
          died. Rav Avya made a Ma'amad and Moshav for her.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> He made two mistakes:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We make Ma'amados and Moshavos only with
               relatives (who are not mourners), but he made with
               strangers;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We only do so on the day of burial, but he did so
               on the next day.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Abaye):</font></b> He also erred by doing it in the city. We do
          it only in the cemetery.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> He also erred by doing it where it was not the
          local custom.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Beraisa - Chachamim):</font></b> If so, it should be
          permitted even on Shabbos!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is only done in the cemetery (on the day or
               burial - Maharsha deletes this from the text),
               people would not be there on Shabbos! (Normally,
               cemeteries are outside the Techum of the city.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the cemetery was within the
          Techum. (The burial was shortly before Shabbos, so there
          was no time for Ma'amados and Moshavos before Shabbos.
          The night after burial is considered the day of burial).
<br>

sjt:
</p><p>
<font><b>2) SITTING AND STANDING AFTER ONE LEAVES THE CEMETERY</b></font><b>
<br>OPINIONS:</b> The Gemara says that after a burial, the people who leave the cemetery should stop no less than seven times, at which they sit down and rise again and continue to walk. This ritual corresponds to the verse, 'Havel Havalim, Amar Koheles, Havel Havalim ha'Kol Havel' -- ''Vanity of vanities,' said Koheles, 'Vanity of vanities, all is vanity'' (Koheles 1:2). (The Gemara counts seven occurrences of the word 'vanity' in this verse, since each plural word ('vanities') is regarded as two.)
</p><p>
What exactly is the connection between this verse and the ritual of sitting and standing seven times?
</p><p>
Moreover, do the people merely sit and stand when they perform this ritual, or do they do something else?
</p><p>
(a) The <b>RASHBAM</b> (DH mi'Shiv'ah) explains that the people walk a little and then sit down in order to comfort the mourner, and in order to lament the loss of the departed, and in order that each person take to heart that he, too, will die one day and thus he should do Teshuvah now. The Rashbam explains that the Gemara derives this from the seven mentions of 'vanity' in the verse in Koheles. The verse there emphasizes how the pleasures of this world are meaningless since everyone ultimately dies.
</p><p>
(b) The Rashbam records another explanation which he read. According to that explanation, Shedim (demons) follow people back from the cemetery. In order to make the Shedim leave, the people delay their return by first sitting and standing for a while. After they have done this seven times, the Shedim leave the people alone. This explanation is also stated by the <b>TESHUVOS MAHARIL</b> (#23).
</p><p>
The Rashbam does not accept this explanation. If this is the reason for the ritual of stopping seven times, then it should be done in any place where there are Shedim, and not only in a cemetery. Moreover, this reason is unrelated to the verse of 'Havel Havalim.'
</p><p>
(c) The <b>RITVA</b> explains that the seven times the people sit and stand symbolize the seven cycles of the year mentioned in the verse, 'Zera v'Katzir v'Kor va'Chom v'Kayitz va'Choref Yom va'Lailah' -- 'seed time and harvest, and cold and heat, and summer and winter, and day and night shall not cease' (Bereishis 8:22). ('Day and night' represent one season, as the verse calls them 'Yom Echad' -- 'one day,' in Bereishis 1:5.)
</p><p>
(Perhaps the Ritva does not mention that the seven times are derived from the seven Havalim in the verse in Koheles, since not all seven Havalim are mentioned explicitly in the verse.) (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BURIAL CAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one sold a place for or accepts to build
          a burial cave, the interior of the cave must be four Amos
          by six Amos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He hollows out eight Kuchin (places for coffins)
               from the interior, three on each long side, and two
               on the short side opposite the entrance.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Each Kuch is four Amos long, seven Tefachim high,
               and six Tefachim wide.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon says, the cave must be six Amos by eight
          Amos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He hollows out 13 Kuchin, 4 on each long side,
               three on the short side opposite the entrance, and
               two by the entrance, one on each side.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	He builds a courtyard on top of the cave, six Amos by
          six Amos, enough for the coffin and the people carrying
          it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	He builds two caves in opposite directions (the
          entrance is in the middle);
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Shimon says, he builds four caves, one in each
          direction;
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Shimon ben Gamliel says, he builds according to the
          hardness of the ground.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> According to R. Shimon, how are the
          two Kuchin near the entrance positioned?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> They face out (from the interior).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection #1:</font></b> This is under the courtyard! (The
               weight of the people carrying the coffin might make
               it cave in.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection #2 (Mishnah):</font></b> One who stands in the
               courtyard on top of a burial cave is Tahor.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Mesim are buried under the courtyard, one who
                    enters would be Tamei.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1 (R. Yosi b'Rebbi Chanina):</font></b> They are vertical
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Yochanan taught that proper burial for a
          donkey (but not for people!) is to drop it in a pit!
<br>
<br>

sjt:
<font><b>1) THE HEIGHT OF THE 'KUCHIN'</b></font><b>
<br>OPINIONS:</b> The Mishnah states that the Kuchin (graves) which a person must supply when he agrees to supply a burial cave must be four Amos long, seven Tefachim high, and six Tefachim wide. They must be four Amos long because the average person is three Amos long, and another Amah is needed for the casket (see <b>RASHBAM</b> to 100b, DH veha'Kuchin). The width must be six Tefachim because a person of average size is six Tefachim wide when fully clad, and, without clothing, his body can fit into a casket which can fit into a grave which is six Tefachim wife (see <b>TOSFOS</b> to 101a, DH v'Rachban). Why must the height of the Kuchin be seven Tefachim?
</p><p>
(a) The <b>RASHBAM</b> (100b, DH v'Ruman) explains that the actual height of the casket is six Tefachim (to fit the Mes). Another Tefach is added so that the Tum'ah will be contained within the casket and not cause those who walk over the cave to become Tamei.
</p><p>
<b>TOSFOS</b> notes that the Rashbam's explanation does not mean that a person who walks over the grave does not become Tamei (see Tosefta 6:7) since the Tum'ah stays below the ground (it is not 'Boka'as v'Olah'). The Gemara in Berachos (19b) notes that Kohanim are permitted to skip over graves in order to see a king (and recite the blessing upon seeing a king). This implies that although a grave (with a one-Tefach gap between the top of the casket and the roof of the grave) does not exude Tum'ah d'Oraisa, one who walks over such a grave normally would become Tamei mid'Rabanan. (The Rabanan did not enact such Tum'ah in the case of Kohanim running to see a king.) The <b>RITVA</b> explains the reason for this Gezeirah as follows. The Rabanan knew that not all graves were made in this manner, and thus one who walks over graves should be Tamei mid'Oraisa. They therefore decreed that Kohanim should never walk over any graves, lest they walk over a grave which would cause them to become Tamei. The Rabanan suspended their decree in the case of a special Mitzvah-need, such as seeing a king.
</p><p>
(b) Tosfos quotes the <b>RIVAM</b> who explains that leaving a Tefach of space between the casket and the roof of the grave helps prevent the Tum'ah from penetrating above the grave only when there is also an opening at the side of the casket (see <b>MESORES HA'SHAS</b> #7) which lets the Tum'ah into the grave. Without such an opening at the side, leaving a one-Tefach gap only causes <i>more</i> Tum'ah, not less. The Rivam explains that if there is no opening at the side of the casket, the entire casket is considered to have Tum'as Mes, and the Tum'ah rises above the ground, opposite the entire casket. If there is an opening at the side of the casket, the Tum'ah is considered to have a place to go, so to speak. In this way, the Tum'ah is contained inside the grave and does not rise through the top of the grave. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES THE TORAH DEMAND PRECISION?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The diagonal of a square is seven fifths the length
               of a side.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 102a:</font></b> If a cave is four by six Amos, the diagonal is
               eight Amos.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bechoros 17b:</font></b> The Torah gave precise measures for
               the Mizbe'ach and Kelim (Aron, Menorah and
               Shulchan). This shows that people can be exact!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> The Torah commanded to make the Kelim. It
               accepts whatever people are able to make - 'ha'Kol
               bi'Chsav mi'Yad Hash-m Alai Hiskil.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Eruvin 14a:</font></b> The diameter is a third of the
               circumference.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> What is the source of this?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (R. Yochanan):</font></b> We learn from the Yam Shel
               Shlomo (a Mikveh). It was 'Eser ba'Amah mi'Sefaso Ad
               Sefaso Soviv v'Chamesh ba'Amah v'Kav Sheloshim
               ba'Amah Yasov Oso Soviv.'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> The circumference should exceed 30, for it
               is measured 'Soviv' (around the outside)!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> The circumference was measured from the
               inside.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Perush ha'Mishnayos (Eruvin 1:8):</font></b> It is impossible
               to know the exact ratio of the diameter to the
               circumference. Scientists use 7/22 for an
               approximation. Since in any case we must use an
               approximation, we rely on a whole number, i.e. one
               part in three, in the entire Torah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Perush ha'Mishnayos (Eruvin 4:8):</font></b> The Mishnah says
               that the Techum is 2000 square Amos, like a square
               tablet. This teaches that even though one cannot
               make it perfectly square, it suffices to be as
               precise as possible, just like one cannot make a
               perfectly square tablet.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Tosfos (Sukah 8a DH Kol):</font></b> The calculation of the
               diagonal is not exact. If we make a square whose
               side is the diagonal of a square of side 5, it fills
               exactly half of a square of side 10 (see Tosfos'
               picture). Its area is 50, not 49!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Tosfos Eruvin 14a DH veha'Ika):</font></b> The Gemara
               connotes that the diameter is exactly a third of the
               circumference. It is not exact!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Tashbatz 1:165):</font></b> Tosfos explains that the
               Gemara brought a verse to teach that we are not
               concerned for the excess. (This is not in our text
               of Tosfos.) The Gemara says that if a rectangle is 4
               by 6, the diagonal is 8. Really, it is the square
               root of 52! Perush ha'Mishnayos (Ohalos 15:4) says
               that the Gemara was stringent to call it 8, for it
               is more than 7. There are two possiblilities. One is
               that Chachamim had a tradition to rely on
               approximation. (Shi'urim are a tradition from Sinai.
               Sometimes we find that a tradition was only for
               certain matters.) The reason is because the Torah
               was not given to angels (who can be exact). The
               verse about the Yam Shel Shlomo supports this. The
               other possibility is that Chachamim merely taught
               concisely, but practically, we must be precise. They
               rely on Chachamim, who know the Shi'urim, to ensure
               that people be precise in practice. I prefer the
               latter explanation. The Gemara says 'we are
               imprecise to be stringent, but not to be lenient'
               only regarding big errors. The Gemara says 'we are
               not exact about a small amount.' In Eruvin (23a), we
               say that if the side of a square is 70 Amos <i>and a
               remainder</i>, its area is 5000 square Amos, like
               Chatzer ha'Mishkan (which was 50 by 100), We did not
               rely on the approximation to say that it is exactly
               70 because the approximation was not said regarding
               a rectangle, only regarding a square.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Aruch ha'Shulchan (YD 30:13):</font></b> The Beis Yosef
                    says that the width of a Sela (coin) is a third
                    of a Tefach, and the circumference is a Tefach,
                    for a square is a quarter bigger than the
                    circle inside (the excess is a quarter of the
                    square's circumference, which is a third of the
                    circle's circumference). Even though the
                    calculation is not exact, the Torah decreed to
                    measure this way. Why did the Gemara ask the
                    source that the diameter is a third of the
                    circumference, and learn from a verse? One can
                    measure with a string! Rather, it asked for the
                    source to rely on the approximation.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 32:39):</font></b> It is a tradition from
               Sinai that Tefilin must be square. The diagonal must
               be like Chachamim said, seven fifths of the side.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pri Megadim (Eshel Avraham 53):</font></b> Even though one
                    cannot make Tefilin perfectly square, he must
                    be as precise as possible.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Aruch ha'Shulchan (32:68):</font></b> Even though the
                    calculation of the diagonal is not exact, the
                    Torah commanded to measure according to it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Halichos Shlomo (4:25(36)):</font></b> Tefilin need not be
                    perfectly square according to measuring tools.
                    It suffices if they look square to the eye.
                    Acharonim say that the Halachah was said that
                    the diagonal is two fifths bigger than the
                    side, even though this is not exact. Tosfos
                    showed that it is one part in 50 more than
                    this. If so, also Tefilin may one part in 50
                    bigger.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Note:</font></b> Tosfos showed that the <i>square</i> of the
                    diagonal is one part in 50 bigger (than a
                    square of seven). The Gemara discussed the
                    <i>length</i> of the diagonal. This exceeds the
                    exact value (the square root of 2, i.e.
                    1.414...) by about one part in 100! Perhaps
                    Halichos Shlomo means that the <i>square</i> of the
                    diagonal may be one part in 50 bigger.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Aruch ha'Shulchan (YD 84:36):</font></b> I heard from a
                    researcher that through a microscope, one can
                    see many creatures in water and the air! The
                    Torah was not given to angels. The Torah did
                    not forbid what the eye cannot see. What the
                    eye can see is forbidden, even if it is tiny.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (648:12):</font></b> If any amount on an Esrog
               changed appearance, it is Pasul.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (46):</font></b> This is only is anyone
                    can see it. If it is too small to be seen and
                    one must look intently, it is Kosher.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Halichos Shlomo (4(78)):</font></b> This is a general
                    rule, that Torah was given to each generation
                    according to people's senses The Torah was not
                    given to angels! If one can see normally, he
                    may rely on what he sees. If one cannot see a
                    speck of (menstrual) blood in a garment, we
                    need not be concerned. If one can see
                    something, even if he does not recognize that
                    it is a bug, he must be stringent. (If one saw
                    through a microscope, he should ask a Chacham
                    what to do.) If the eye cannot see bugs move,
                    they cannot be called 'Sheretz ha'Aretz'. This
                    leniency does not apply if one could detect
                    movement before the bugs are covered with a
                    shell. If an Esrog looks complete, and one sees
                    through a magnifying glass that it is missing a
                    tiny amount, it is Kosher and Mehudar
                    l'Chatchilah. 'Hadar' and 'Tamah' (complete)
                    are according to natural sight. We permit
                    homeopathic medicines even though some are made
                    from Tamei animals. We are not concerned for
                    Bitul Isur l'Chatchilah, because it is such a
                    tiny amount that it is not considered a mixture
                    according to human senses.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Even ha'Ezel (Kuntres Bein ha'Shemashos 1::1:3,
                    cited in Halichos Shlomo, ibid.):</font></b> The Ran says
                    that perhaps we cannot see three stars within
                    the time to walk three quarters of a Mil after
                    sundown, because our sight is weaker. Bechoros
                    54b says that a person can see (animals) 16 Mil
                    away. Nowadays, no one can see close to this!
                    If so, we cannot prove anything from our sight.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Chachmas Adam (38, Binas Adam 34):</font></b> We need not
                    be concerned for bugs in vinegar that can be
                    seen only through a microscope. The Beis Yosef
                    is concerned for what can be seen in the sun
                    with one's eye.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Igros Moshe (YD 2:146):</font></b> We may eat things
                    fermented through worms visible through a
                    microscope. R. Chayim of Brisk said that the
                    Torah forbids only what eyes can see. We are
                    not concerned for what a microscope can see
                    regarding inhaling organisms, Dam Nidah,
                    squareness of Tefilin or nicks in a Shechitah
                    knife. Previous generations did not have
                    microscopes. Surely they did not sin, even
                    b'Ones! If one ceased to breathe, we are sure
                    that he died, and we bury him. An exceptional
                    case occurred in which one who 'died' was later
                    found to be alive (Pischei Teshuvah YD 357:1,
                    citing the Chasam Sofer). Normally, we need not
                    be concerned for this. However, if a radiogram
                    detects electric responses, there is no
                    majority to say that he died! One must continue
                    to try to cure him, even on Shabbos.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Note:</font></b> If an animal ate Chametz, its meat, milk,
                    or eggs are not Chametz. (In some cases, we say
                    that one who ate them <i>benefited</i> from Chametz,
                    but he did not eat Chametz.) However, some say
                    that if bacteria (too small for the eye to see)
                    ate Kitniyos (e.g. corn syrup) and produced
                    sugar, it is as if the Kitniyos changed form by
                    itself, and the sugar is considered Kitniyos,
                    just like whiskey is absolute Chametz.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Halichos Shlomo (2:34):</font></b> If an electric razor
                    shaves so close that one cannot feel the hairs
                    that remain, it is forbidden, even if one can
                    see the hairs through a magnifying glass.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Halichos Shlomo (12:40):</font></b> If in a Sefer Torah it
                    looks like two letters touch, it is Pasul, even
                    if it is seen through a magnifying glass that
                    they are separate.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>IS IT EFSHAR LETZAMTZEM? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> According to R. Yochanan, they go out from
          the corners opposite the entrance (picture 'Aleph' in
          Rashbam).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> (We assume that there is one Amah
               between Kuchim on each side, and half an Amah free
               from the last Kuch until the corner.) There is less
               than an Amah free in the corner (it is the diagonal
               of a square whose side is a half Amah, which is
               about seven 10ths of an Amah). The Kuch (its width
               is an Amah) overlaps other Kuchim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> The corner Kuchim are above or
               below the ones on the sides.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Support:</font></b> We must say so according to R. Shimon
               regarding the Kuchim nearest the entrance in
               adjacent directions. If not, they overlap (picture
               'Beis' in Rashbam)! We can say the same about those
               in the corners.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection (Rav Huna brei d'Rav Yehoshua):</font></b> No, we
               can say that the Kuchim on the sides (do not extend
               straight out, rather,) they extend on a diagonal
               (picture 'Gimel' in Rashbam), therefore they do not
               overlap those of the adjacent direction.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> This is wrong! The diagonal of a
               square is seven fifths the length of a side. The
               long side of the cave is eight Amos, so the line
               between corners of adjacent directions is seven
               fifths of this, i.e. 11 Amos and a fifth;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is not enough for eight Kuchim (along the
                    two long sides; each is an Amah wife) and the
                    seven spaces (each is an Amah) between them!
                    (All of these Kuchim and spaces must cross this
                    diagonal! Really, the 'middle' Kuchim near the
                    corner do not reach the diagonal, which is more
                    than four Amos from the corner. However, the
                    calculation is proper, for every Kuch is
                    straight, so if we would extend it, it would
                    cross the diagonal.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3:</font></b> Elsewhere, Rav Shisha brei d'Rav Idi
          answered 'he found Nefalim (miscarriages)';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here also, the Kuchin near the entrance are for
               Nefalim (they are in the free space on the long
               side. They are very small.)
<br>

<p>

sjt:
</p><p>
<font><b>2) A TEMPORARY BURIAL</b></font><b>
<br>OPINIONS:</b> The Gemara quotes the Mishnah in Ohalos (16:3) which states that when one finds a buried corpse which was not buried in a cemetery, he is allowed to move the corpse and give it a proper burial somewhere else. However, he must also take the Tefusah, the additional three Tefachim of earth underneath the corpse. The <b>RASHBAM</b> (DH Mes) explains that the three Tefachim of earth underneath the Mes has the status of the Mes itself, and thus it also must be given a proper burial.
</p><p>
The Rashbam explains that the Mishnah's law is based on the assumption that when a corpse is found buried alone with no indication that the area was designated as a cemetery, one may assume that it is only a temporary grave (that is, the people who buried the corpse were rushed, or were unable to get to a proper cemetery). Accordingly, disinterring the corpse and transporting it to a permanent grave is permitted. The <b>RAMBAN</b> in <b>TORAS HA'ADAM</b> (Shar ha'Kevurah) includes this situation as one of three times when one is permitted to move a Mes. This is also the Halachah as recorded by the <b>SHULCHAN ARUCH</b> (YD 363:1).
</p><p>
The Gemara is not clear about the conditions of the case. Does the allowance to move a corpse apply even when a family buried a dead person in a cemetery but later claims that they had in mind to bury him there only temporarily? Would they be allowed to move the corpse?
</p><p>
(a) The <b>SHO'EL U'MEISHIV</b> (1:231) writes that a relative may not claim that he intended to bury his relative in the cemetery only temporarily. A relative is presumed to be 'Noge'a b'Davar' (partial to the outcome of the case). A similar ruling was issued by the <b>CHASAM SOFER</b> (6:37). The <b>MAHARAM SHIK</b> (YD 354) adds that even if once could claim that he had in mind to make this burial only a temporary burial, he would have to declare before the burial that 'this burial is only temporary.' This is also the opinion of the <b>TZITZ ELIEZER</b> (10:40).
</p><p>
(b) The <b>SEDEI CHEMED</b> (Mareches Aveilus 135) argues that it is possible to believe a relative's claim in such a case. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A BURIAL AREA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one finds one or two corpses lying
          normally, he may move them (to bury them elsewhere) with
          the earth they are in;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he finds three corpses, if they (Rashbam - face the
          same way, and are side by side, and the outermost ones
          are) separated by between four and eight Amos, we
          consider the area to be a burial area (he may not move
          them);
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	He checks 20 Amos from them. If he finds another
          corpse, he (may not move it, and) checks another 20 Amos
          from it, because there are grounds to say that it is also
          part of the burial area;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he found the fourth before the other three,
               he could have moved it with its earth.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If between four and eight Amos separate (the
          outermost ones), the Mishnah assumes that they came from
          a burial cave (we assume that they were all buried on one
          side). Who is the Tana?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to Chachamim, each side is four or six.
               According to R. Shimon, it is six or eight!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> It is R. Shimon, according to R. Shimon ben
          Yehudah (the side lengths are four and eight):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one finds three or more corpses and
               less than four Amos separate the outermost ones, he
               may move them with their earth, the law of a burial
               area does not apply;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Yehudah cites R. Shimon to say that
               we ignore those that are too close. If the outermost
               ones are separated by between four and eight Amos,
               we apply the law of a burial area.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Can we explain the Mishnah like R. Shimon?
          The Seifa is not like anyone!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> He checks 20 Amos from them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  According to R. Shimon, he should check 22 Amos
                    (perhaps these were on a short side, eight Amos
                    from the interior of the cave, the interior is
                    six long (like the courtyard above), and there
                    are eight Amos to the short side of the cave in
                    the opposite direction);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  According to Chachamim, he need check only
                    18 Amos (the short side is six Amos from the
                    interior, the interior is six, and six to the
                    end of the opposite cave)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1:</font></b> (The Reisha is R. Shimon, and the Seifa is
          Chachamim);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He checked the first cave on the diagonal (to
               find corpses on the long sides), which is (about)
               eight Amos; the remaining 12 Amos are (six) for the
               interior and (six) for the length of the opposite
               cave.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> He should also check the opposite cave
               on the diagonal (which is eight), making 22 in all!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Since he did not find more in the first
               cave, we are not stringent to make him check the
               opposite cave on the diagonal.
<br>
<br>

sjt:
<font><b>1) A 'SHECHUNAS KEVAROS'</b></font><b>
<br>OPINIONS:</b> The Mishnah in Ohalos (16:3) discusses the circumstances under which a group of corpses found buried in one place is evidence that the place is a cemetery. The Mishnah teaches that when one finds three corpses within approximately four or eight Amos of each other, the area is considered a 'Shechunas Kevaros' -- a 'neighborhood of graves.' The Mishnah states that in such a case, one must check 20 Amos around the graves to ascertain that there are no other graves in the area.
</p><p>
Does the Mishnah's teaching apply only when one finds three graves in a particular order or formation, or when one finds three graves in any order?
</p><p>
(a) The <b>RASHBAM</b> (DH u'Bodek) writes that in the case of four Amos, one finds three corpses buried within four Amos, and the three corpses are lying side by side (as opposed to at an angle from each other). Based on the Mishnah earlier (see diagram in Rashbam, 101a), there clearly are many possibilities for where in the family burial cave (Me'arah) these corpses could be positioned. In the Mishnah earlier, Rebbi Shimon and the Rabanan disagree about how many graves are built in each Me'arah. They agree, however, about the general layout of a family burial plot: the plot is comprised of two Me'aros which face each other, with a Chatzer (courtyard) in the middle, between the two Me'aros. Accordingly, the three corpses which one finds may be the three corpses at the top of a Me'arah, which means that one must search the correlating sides of what potentially might be a family Me'arah, and then he skips the area of what might be the adjacent Chatzer (where no corpse would be buried), and he searches the next area, opposite the discovered graves, for another Me'arah. However, the three corpses may also face two other directions as well; they could be lying on the right or left side of a Me'arah. It must be that when the Mishnah states that one must check 20 Amos for another corpse, it means that one must check in multiple directions, following the standard design of a family burial plot.
</p><p>
<b>TOSFOS</b> (DH me'Arba) asks that this explanation seems difficult in light of the Gemara here. The Gemara asks that the Mishnah in Ohalos does not correspond to any of the opinions in the Mishnah here. According to the Rabanan, each Me'arah is four by six Amos. While the width of four Amos is understandable, it does not seem consistent with the Mishnah's comment that a person must check 20 Amos for other graves. Since the length of the Me'arah, Chatzer, and second Me'arah together is 18 Amos, why does the Mishnah require that a person check 20 Amos?
</p><p>
The Tana of the Mishnah there cannot be Rebbi Shimon, because he maintains that each Me'arah is <i>eight</i> Amos long, and thus the total length which one must check would not be 20 Amos but 22 Amos -- two Me'aros, each of which is eight Amos long, and the Chatzer, which is six Amos long.
</p><p>
Tosfos asks that the Gemara seems to use a roundabout way to prove that the Mishnah in Ohalos does not concur with the Mishnah here. The Gemara should say merely that since the Mishnah here states that each grave must be one Amah wide, and the space between it and the next grave must be one Amah (except for corners), there cannot be a case according to the Mishnah here where there are three corpses buried within four Amos. Tosfos answers this question by saying that the Mishnah in Ohalos still can follow Rebbi Shimon ben Gamliel, who says that one can establish graves 'Lefi ha'Sela' -- 'according to the strength of the rock (in the graveyard).' When the <b>RITVA</b> quotes the explanation of the Rashbam, he indeed inserts that the graves could be within four Amos according to the opinion of Rebbi Shimon ben Gamliel.
</p><p>
However, Tosfos has a number of other difficulties with the explanation of the Rashbam. He asks that the same Mishnah in Ohalos states that when one searches for graves, he must check only the <i>second</i> Amah after the corpse he found. This seems to be consistent with the Mishnah here, which maintains that a second corpse is never placed closer than one Amah to the first corpse (when they are placed side by side). How can this Mishnah discuss a case in which three corpses are buried side by side within four Amos of each other? The Mishnah itself (100b) states that the width of every grave is one Amah, and thus three graves with two spaces between them should comprise at least five Amos!
</p><p>
(b) Tosfos quotes <b>RABEINU TAM</b> who argues that the Gemara's case involves two graves at the top of a Me'arah and one grave at the corner closest to the top of the Me'arah. The last grave on top of the Me'arah is spaced only a half-Amah away from the first grave nearest the top of the Me'arah. For some reason, Rabeinu Tam discounts the half-Amah by half-Amah square that is between these graves. It is possible that he discounts that area because the diagonal of the square is less than one Amah; consequently, the first corpse near the top of the grave indeed is within four Amos of the other two corpses at the top of the Me'arah. (This explanation, however, does not seem consistent with the Ritva's interpretation of Rabeinu Tam's words.) According to Rabeinu Tam, there is only one possible set-up of the Me'aros and Chatzer, as the top corner of the Me'arah was found. One therefore can look exactly where he would think the other graves should be (according to the standard family burial area as described by the Mishnah here). (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PAYING BACK PIECEMEAL</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one was Makdish his field at a time
               when Yovel applies, the redemption price is 50
               Shekalim for a Beis Kor. Ditches or rocks in it are
               redeemed like a field only if they are less than 10
               Tefachim deep or tall.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> (When they are 10, granted they are judged
               separately from the field, but still) they should be
               redeemed according to the fixed price!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Ukva bar Chama):</font></b> The case is, the
               ditches are full of water, and cannot be sown.
               (Therefore, they are not redeemed like fields.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 172a (Rava):</font></b> If one has two loan documents for 50
               each, and wants to convert them to one document of
               100, we do not do so. This helps the lender, for (if
               the borrower paid half,) it pressures the borrower
               to finish paying (lest the lender claim the entire
               100 from him). It helps the borrower, for (if he
               pays half,) the lender's document will be blemished
               (and he must swear to collect the rest).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Bava Metzia 77b (Rava):</font></b> If one paid a debt of 100
               Zuz, one Zuz at a time, the debt is paid, but the
               lender may bear a grudge, for he loses this way.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Kidushin 20b - Question (Rav Huna bar Chinena):</font></b> If
               one sold Bayis Ir Chomah (a house in a walled city),
               can he partially redeem it? Do we learn 'Ge'ulaso-
               Ge'ulaso' from a Sedei Achuzah (a field that one
               inherited from his ancestors) that was sold, which
               cannot be partially redeemed? Or, perhaps there the
               Torah said that partial redemption does not work,
               but here it did not say so?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Rav Sheshes - Beraisa):</font></b> The repetition 'v'Im
               Pado Yifdeh' teaches that one may partially redeem
               his Sedei Achuzah from Hekdesh;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Shimon says, if one sold his field and did
                    not redeem it before Yovel, it reverts to him
                    in Yovel. Therefore, he may not partially
                    redeem it. If one was Makdish his field and
                    does not redeem it before Yovel, it is given to
                    the Kohanim. Therefore, he may partially redeem
                    it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> (Culmination of answer):</font></b> Similarly, one may
                    partially redeem Bayis Ir Chomah, for after one
                    year, he cannot redeem it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Avodah Zarah 4a - Question:</font></b> 'Rak Eschem Yodati... Al
               Ken Efkod Aleichem Es Kol Avonoseichem' - one does
               not afflict his beloved!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (R. Avahu):</font></b> I explain through a parable. A
               man lent to someone he loves and to someone he
               hates. He collects from his friend bit by bit, he
               collects from the other all at once.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Erchin 21b:</font></b> Some prefer to buy orphans' property
               sold to pay a (Kesuvah of a) woman, for she prefers
               to receive the money little by little.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 23:17):</font></b> If David had two loan
               documents of 50 each, and asked to convert them to
               one document for 100, we do not do so. It is the
               borrower's privilege that there are two documents,
               so David cannot force him in Din to pay all at once.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 8:6):</font></b> If one bought
               something and paid and erred about the amount, and
               later the seller says 'you gave to me 90, not 100',
               the sale is valid, and he pays the remaining 10 even
               after many years.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 6:8):</font></b> Rava teaches that the lender
               cannot demand to be paid at once. We also learn from
               above; we said that one can pay half the price now,
               and the rest after several years.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Mordechai (Bava Metzia 352):</font></b> Some learn from Rava
               that one can pay a debt one Zuz at a time. Others
               learn from Avodah Zarah that one cannot. This is not
               a proof. We can say that he lent to him for a set
               time. He collects from his friend before the time,
               bit by bit, and does not collect from the other
               until it is due, and then he collects all at once.
               In Erchin we say that a woman prefers to be paid
               little by little. This connotes that normal
               creditors do not take a little at a time.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Ran (Kidushin 7b DH Garsinan Taught, and Teshuvas
               Rashba):</font></b> If there is no source to say otherwise, we
               say that one can partially redeem Bayis Ir Chomah.
               Some derive that one who gave his field for
               collateral can pay half at a time. However, some say
               that even regarding Sedei Achuzah, he does not get
               back half now. It is half redeemed only to ensure
               that half will not go to Kohanim in Yovel. The
               Rashbam (103a DH Likadshu) agrees. He explains that
               we asked 'we should be able to redeem the rocks by
               themselves, for they are like a separate field!'
               Even if it is all one field, one can partially
               redeem it! we must say that one who redeems part of
               one field receives nothing now. Also the Ramban says
               so. Surely one may partially redeem without getting
               back half, for Rava taught that piecemeal payment is
               payment.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (YD 172:3):</font></b> Any Mashkanta cannot be partially
               redeemed. If the borrower paid part, the lender eats
               the Peros until he is fully paid.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (22):</font></b> This is a textual error. It should
                    say <i>can</i> be redeemed, like Teshuvas ha'Rashba
                    and Shulchan Aruch (CM 74:4).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (15):</font></b> The text is correct. In this sense
                    (to get back half the Mashkanta), it cannot be
                    partially redeemed. According to the Shach, it
                    should say 'in any case, if he partially
                    redeemed...'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 74:4):</font></b> If David lent to Levi for
               a set time, and within the time Levi wanted to repay
               bit by bit, some say that David cannot demand to be 
               paid only at once. Piecemeal payment is payment,
               just David has a grievance against him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (10):</font></b> David's grievance is 'had you paid me
                    at once, I would have spent the money
                    profitably to buy merchandise.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Im):</font></b> The Rif did not bring
                    Rava's teaching. Perhaps he holds that Rava
                    discusses one who accepted piecemeal payment,
                    but one need not accept it. The Rosh says that
                    he must accept payment. Also Ba'al ha'Itur says
                    so. If not, why does he have complaints? If he
                    wants, he need not accept the money! In
                    Kidushin, we say that one may partially redeem
                    Bayis Ir Chomah, unless we learn from Sedei
                    Achuzah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (17):</font></b> The Rif explains that Rava teaches
                    that piecemeal payment is valid b'Di'eved, i.e.
                    if David accepted partial payment, he cannot
                    say 'take it back, and you are liable (for any
                    loss) until you pay all of it at once.' The
                    Rambam and Semag rule that if David wants to
                    convert two loan documents of 50 to one
                    document for 100', we do not, for now David
                    cannot force Levi to pay all at once. Sefer
                    ha'Terumos explains that (even with one
                    document) David cannot force Levi to pay all at
                    once. Rather, Levi fears to pay part at a time,
                    lest David deny the partial payment. The Rambam
                    and Semag hold that David can force him to pay
                    at once. We must say that Levi wants to pay
                    partially within the time, and David demands
                    payment all at once. If the loan was already
                    due, even if there are two documents David can
                    force him to pay at once. (The Bach (53:1)
                    understood that the Rambam discusses after
                    payment is due, therefore, he found the Rambam
                    difficult.) The Rambam did not need to bring
                    Rava's law, for Rava discusses b'Di'eved, and
                    it follows from what the Rambam wrote in
                    Hilchos Mechirah. I say that also the Rosh can
                    agree with the Rif. The Rosh says that Rava's
                    law follows from above, that one can pay half
                    the price now, and the rest after several
                    years. This does not show that a lender must
                    accept partial payment l'Chatchilah! However,
                    if so, why did the Tur rule like Ba'al ha'Itur,
                    unlike the Rosh? One can resolve this with
                    difficulty.
<br>
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH Kosav):</font></b> The Rashba (3:37) says
                    that if Reuven owed Shimon in currency A, and
                    paid part in another currency B, and now Shimon
                    wants to consider what was paid based on the
                    current value of currency B, and Reuven wants
                    to consider it based on its value at the time
                    he paid, Reuven is correct. What he paid was
                    payment, not a deposit.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> However, if Levi gave a field
               or two for collateral, he cannot force David to
               return half the collateral for half the money.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav):</font></b> Sefer
                    ha'Terumos says so in the name of the Ramban,
                    and that Bava Basra 107a proves this. In
                    Kidushin, we say that one may partially redeem,
                    i.e. pay half the money, but the buyer keeps
                    the field until it is fully redeemed. The
                    Rashbam (DH Likadshu) agrees. Another version
                    of Sefer ha'Terumos says that some disagree. He
                    equates securities of Metaltelim and land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz:</font></b> In a Stam loan, David eats the Peros and
                    deducts them from the loan. He can say that he
                    prefers to work and eat the Peros of the entire
                    field. If Levi gave a security of Metaltelim,
                    David must return half due to Midas Sedom.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (18):</font></b> David does not eat the Peros, yet
                    he may keep the field to pressure Levi to pay
                    fully. If David eats the Peros, even after full
                    payment he keeps the field until the set time
                    (Sa'if 3), unless the custom in this place is
                    that the borrower can redeem it early.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Likewise, if the time for payment came, David
               need not accept piecemeal payment.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra 16):</font></b> We learn from Avodah Zarah and
                    Erchin.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (11):</font></b> It is not really likewise! Before
                    payment was due, David must accept piecemeal
                    payment (but he keeps the entire Mashkanta)!
                    The Rema means, just like David has the upper
                    hand before the loan is due regarding the
                    security (he keeps all of it), he has the upper
                    hand after it is due and need not accept
                    piecemeal payment! The Mordechai proves this.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>PARTIAL REDEMPTION </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Shisha brei d'Rav Idi):</font></b> The entire
          Mishnah is R. Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The three corpses found were Nefalim. (A cave for
               Nefalim is only six Amos long. The remaining 14 Amos
               are (six) for the interior and (eight) for the
               length of the opposite cave.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> We should say that also the opposite
               cave is for Nefalim, and require checking only six
               for it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We do not assume that two caves are for
               Nefalim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Both Chachamim and R. Shimon contradict
          themselves!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Shimon):</font></b> If rows of a vineyard are
               less than four Amos apart, it is not considered a
               vineyard;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, we ignore those that are too close
               together, and (if enough vines remain,) it is
               considered a vineyard.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer - part 1 (for R. Shimon):</font></b> There, one does not
          plant in order to uproot. We assume that he will leave
          them all, and they are not planted like a vineyard;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, we are concerned lest people were rushed to
               bury a Mes just before Shabbos, and buried him
               (abnormally) close to properly spaced Mesim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer - part 2 (for Chachamim):</font></b> It is disgraceful to
          bury people so close together, so we assume that they
          planned to rebury them all elsewhere;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One does plant vines densely, planning to leave
               the good ones and uproot the poor ones for firewood.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK HA'OMER L'CHAVEIRO</b>*****
</b></font></center><p><b>
<br><b></b><b><b><font color='blue'>2) </font></b><font color='blue'>ARE DITCHES AND ROCKS CONSIDERED PART OF A FIELD?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven told Shimon 'I sell to you a Beis
          Kor of earth', and there were ditches 10 Tefachim deep or
          rocks 10 Tefachim tall, they are not considered part of
          the Beis Kor;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they were less than 10 Tefachim, they are part
               of the Beis Kor.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'I sell to you approximately a Beis Kor of
          earth'. even ditches and rocks of 10 Tefachim are part of
          the Beis Kor.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Mishnah):</font></b> If one was Makdish his field at a
          time when Yovel applies, the redemption price is fixed,
          50 silver Shekalim for a Beis Chomer of barley (the area
          in which a Kor of barley is sown).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there were ditches 10 Tefachim deep or rocks
               10 Tefachim tall, they are not redeemed like a
               field. (Rather, they are redeemed like regular
               Hekdesh, according to their value.) If they are less
               than 10 Tefachim, they are like part of the field.
<br>

<p>

sjt:
</p><p>
<font><b>2) A 'BEIS KOR' OF 'AFAR'</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when one says that he is selling a Beis Kor (thirty Se'ah) of earth ('Afar'), ditches more than ten Tefachim deep and rocks more than ten Tefachim high are not included in the sale. Ditches less than ten Tefachim deep and rocks less than ten Tefachim high are included in the sale.
</p><p>
Why does the Mishnah mention specifically that a Beis Kor of 'Afar' is being sold? The Mishnah should say simply 'Beis Kor,' and it would be obvious that the Mishnah is referring to land. Even if one suggests that the term 'Beis Kor' alone is not specific enough, the Mishnah should use the more common term, 'Karka' ('land').
</p><p>
(a) The <b>RASHBAM</b> (DH Beis Kor Afar) explains that if the seller would not have said 'Afar,' he would have been able to give the buyer any type of land, even a Beis Kor of rocks. He could have claimed that he sold the land in order for the buyer to build a house on it, or for the buyer to spread out fruit on it. The <b>AYELES HA'SHACHAR</b> points out that the buyer also would have had this intention in mind (because, obviously, the validity of the sale depends on the buyer's intention as well). 'Afar' denotes land which one can plant. Accordingly, deep ditches and large rocks are not included.
</p><p>
The <b>RASHBA</b> quotes others who question the Rashbam's logic. If the word 'Afar' denotes plantable land, why are ditches not included? After all, the insides of ditches can be planted. The Rashba answers that 'fit for planting' refers to the Beis Kor as a single, contiguous unit; the buyer does not want to have to plant his field in different sections (part above ground, and part inside a ditch). Similarly, the Rashba suggests that the buyer does not want to have to plant in what <i>looks</i> like two or three different places.
</p><p>
(b) <b>TOSFOS</b> (DH Beis Kor) explains that the Mishnah says 'Afar' in order to teach that the <i>buyer</i> must accept rocky areas in the field when the rocks are <i>less</i> than ten Tefachim high.
</p><p>
(c) The Rashba quotes others who explain that in fact the terminology 'Beis Kor Afar' is exactly how people normally talk (in the times of the Tana of the Mishnah) when they buy or sell land. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ARE DITCHES AND ROCKS CONSIDERED PART OF A FIELD? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> (When they are 10, granted they are judged
          separately from the field, but still) they should be
          redeemed according to the fixed price!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The fixed redemption price does not
               apply to fields less than a Beis Kor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Beraisa) Suggestion:</font></b> Perhaps 'Zera
               Chomer Se'orim' is the smallest quantity redeemed
               according to the fixed price!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rejection:</font></b> 'V'Im Ga'ol Yig'al Es ha'Sadeh'
                    teaches that a field of any size is redeemed
                    according to the fixed price.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Ukva bar Chama):</font></b> The case is, the ditches
          are full of water, and cannot be sown (therefore they are
          not redeemed like fields).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> They are mentioned along with rocks.
               This implies that they are like rocks, which cannot
               be sown.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even if they are less than 10 Tefachim
          they should not be like the field!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Ditches are like cracks of the field. Small
          rocks are like mounds of the field. Neither of these are
          considered by themselves.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Are the ditches in our Mishnah full of water?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Papa):</font></b> Even if they are not full of water
          (they are not included).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> One does not pay money for (one place that
          looks like) two or three places.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> They are mentioned along with rocks,
          which cannot be sown, presumably the ditches are similar!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> They are like rocks when they are less than 10
          Tefachim. Then, they are like part of the field.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> The small rocks (and ditches) are
          considered like the field when they are at most four
          Kavim (of the Beis Kor. If they are more than this, the
          buyer does not accept them.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Ukva bar Chama):</font></b> They are like the field only if
          they are spread out over at least five Kavim. If not,
          they are not included.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba citing R. Yochanan):</font></b> They are like
          the field only if they are spread out over the majority
          of the field.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (R. Chiya bar Aba):</font></b> When the four Kavim are
          spread out over the majority of the field (e.g. 16 Beis
          Se'im in a Beis Kor) , if most of the four Kavim are
          spread out over the minority (of these 16 Se'im, e.g.
          seven Se'im), and the minority of the four Kavim are
          spread out over the majority of this majority (nine
          Se'im), what is the law? (Do we say that since they are
          too concentrated in one area, they are not Batel?)
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	This question is not resolved.
<br>
<br>

sjt:
<font><b>1) REDEEMING HALF OF A 'SEDEH ACHUZAH'</b></font><b>
<br>OPINIONS:</b> The Gemara quotes the Mishnah in Erchin (25a) which teaches that if a field contains ditches deeper than ten Tefachim, or rocks higher than ten Tefachim, those areas are not calculated together with the field in accordance with the prescribed formula of 'Zera Chomer Se'orim.' (The Torah teaches (Vayikra 27:16) that one who consecrates his field (when the laws of Yovel are in force) may redeem his field by paying an amount calculated according to the formula of fifty silver Shekalim for every Chomer of barley seed that can be planted there.) The Gemara asks that although the value of the pits and rocks are not calculated with the field, they should become Hekdesh in their own right.
</p><p>
What is the Gemara's question? Why should those areas become Hekdesh if they are not considered part of the field?
</p><p>
(a) The <b>RASHBAM</b> (DH Likdeshu) explains that the fact that the ditches are not part of the field should not preclude them from being part of a Sedeh Achuzah. The Mishnah's statement that 'they are not measured with it' (with the rest of the field) implies that they cannot have the Halachic status of a Sedeh Achuzah at all, and are not able to be redeemed separately in accordance with the formula of fifty Shekalim for every Beis Kor. The Gemara therefore asks why they cannot have the status of a Sedeh Achuzah.
</p><p>
<b>TOSFOS</b> (DH v'Amai) argues that this cannot be the Gemara's question. The Rashbam bases his understanding of the Gemara's question on the premise that if the ditches or rocks are considered a second Sedeh Achuzah, they should be able to be redeemed separately. However, the Gemara in Kidushin (21a) states that one can redeem half of a Sedeh Achuzah and use the prescribed formula for the redemption. This teaches that whether the ditches and rocks are considered part of the field or they are considered a separate field, they still should be redeemed with the prescribed formula for a Sedeh Achuzah. Why does the Gemara ask a question which implies that <i>only</i> because the ditches and rocks are considered separate from the field are they able to be redeemed individually?
</p><p>
(b) <b>TOSFOS</b> therefore explains that the Gemara's question is that even if the ditches and rocks are not considered part of the field, the Hekdesh should take effect on the entire area because the owner was Makdish his entire field. This implies that the ditches and rocks are considered a 'field,' albeit a separate field.
</p><p>
The <b>RASHBA</b> defends the Rashbam's opinion. When the Gemara in Kidushin says that one can redeem half of a Sedeh Achuzah, it does not mean that he may pay part of the redemption money and thereby instantly re-acquire the corresponding part of his field. Rather, it means that he may pay part of the value of the field in order to <i>stop the transfer</i> of that part of the field to the Kohanim when the Yovel year arrives. He does <i>not</i> receive that part of the field back until Yovel. Accordingly, whether the ditches and rocks are considered part of the field or a separate field has a practical consequence. If the entire land is considered one field, then if the former owner redeems part of the field before Yovel he may choose some of the ditches and rocks as well (if he so desires). If, however, the ditches and rocks are considered a separate field and the former owner pays towards the redemption of the primary field (without the ditches and rocks), he may not choose to redeem the ditches and rocks. This is the difference between whether the field is considered one unit or two units with regard to the redemption of a Sedeh Achuzah. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>RETURNING EXTRA LAND</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven told Shimon 'I sell to you a
               Beis Kor (a field in which 30 Se'im of seed are
               sown, i.e. 75,000 square Amos), be it less or more',
               even if there is a (Beis) Rova too little or much
               per (Beis) Se'ah, there is no compensation. If the
               error is more than this, he calculates. He returns
               money, and If he wants, he returns land. He returns
               money to help Reuven. If the extra is (Beis) nine
               Kavim, he returns land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He does not return just the Rova. He returns all the
               extra land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 104a - Question:</font></b> Our Mishnah says that we help the
               seller;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> If the amount of land was
               seven and a half Kavim per Kor too little or too
               much, the sale stands. If it was more than this, we
               force the seller to sell the extra, and we force the
               buyer to buy it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Really, we do not force the seller to sell
               the extra land. The Beraisa teaches that if the
               value of the land declined, he can say 'if you give
               it me, give to me at today's lower price.'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> When the seller makes the buyer
               buy the extra land, it is according to the price at
               the time of the original sale.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> That is when the price increased.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If the extra is Beis nine Kavim (he
               returns land).
<br>
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> This applies even if there were nine
               extra Kavim in a sale of a giant valley.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> It applies only if there were seven
               and a half extra Kavim for each Kor (a Rova per
               Se'ah). When the extra is nine Kavim, since it is a
               proper field, Reuven cannot force Shimon to buy it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven kept a field bordering the sold
               field, Shimon can force Reuven to take back the
               extra land, even if it is less than nine Kavim.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Mishnah):</font></b> He does not return just the Rova for each
               Se'ah. He returns all the extra land.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> Just the contrary! The Chidush is that he
               returns the extra Rova'im!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer (Ravin bar Rav Nachman):</font></b> The text should say
               'he does not just return the extra above the
               Rova'im. He also returns the extra Rova'im.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (7:1):</font></b> The Halachah follows Rav
               Nachman, who says (that there is pardon for an error
               up to) seven and a half extra Kavim for each Kor.
               When the extra is nine Kavim, he returns it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 28:7):</font></b> If the excess was
               less than nine Kabim, he returns money like at the
               time of the sale, to help the seller. If the excess
               was near another field of the seller, he returns the
               extra land, for the seller adjoins it to his other
               fields, and does not lose at all. If the excess
               exceeds nine Kabim, we deduct a Rova for each Se'ah.
               If the excess after deducting the Rova'im was (at
               least) nine Kabim, he gives all the Rova'im with the
               excess, in land, like at the time of the sale.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (8):</font></b> This is when it was cheap at the time of
               the sale, and rose in price when he returns it. If
               it was expensive and became cheaper, we tell the
               buyer 'if you want to return money, return like at
               the time of the sale. If you want to return land,
               return according to its current value.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> It seems that the Rambam
                    explains that nine Kabim is above all the
                    Rova'im. It was explained above that any amount
                    above the Rova'im is returned, like Rav Hai
                    Gaon says. The Rambam's Chidush is that when
                    there is less than nine Kabim above the
                    Rova'im, even though in all there is nine
                    Kabim, he returns money. This is astounding.
                    Since there is an amount proper for the seller,
                    why can't he return land? Also the law of
                    change of price is difficult. Whenever the law
                    is that he returns land, it does not matter
                    whether the price changed! If the seller wants
                    to sell it to him, he can sell it for whatever
                    they agree upon! The Gemara discussed only when
                    there is not an amount proper for the seller.
                    Then, if he agrees to take land, if the price
                    declined, its current value must equal the
                    initial value of the excess. If the price rose,
                    and the owner wants money, he gets based on the
                    current value, for it is as if he sells it to
                    him now. The Ra'avad explains like this. This
                    requires investigation.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 218:9):</font></b> If the excess was less
               than nine Kabim, he returns money like at the time
               of the sale, to help the seller. If the excess was
               near another field of the seller, he returns the
               extra in land, for the seller adjoins it to his
               other fields, and does not lose at all.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Hayah):</font></b> The Rashbam explains
                    that when the excess is less than nine Kabim,
                    we force the buyer to return money to help the
                    seller, for it is not worth having such a small
                    field. The seller decides whether or not he
                    wants to sell the excess. The Beraisa teaches
                    that the buyer has the upper hand, i.e. if the
                    price declined and the seller wants to sell, he
                    sells at the current lower price. We force the
                    buyer to take it, for he does not lose.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (33):</font></b> Even though the Shulchan Aruch cites
                    the Rambam, it seems that he refers only to
                    what the Rashbam and Tur agree to. I.e. there
                    are not nine Kabim even with the Rova'im. 'To
                    help the seller' refers to giving money, not to
                    the price. The next Sa'if is the Rambam's
                    opinion; it refers to nine Kabim with[out] the
                    Rova'im.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (34):</font></b> The seller has better rights, i.e. he
                    opts to get back money or land. If too little
                    land was given, the buyer need not accept a
                    different field less than nine Kabim. Rather,
                    he deducts from the price.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (10):</font></b> If the excess exceeds nine
               Kabim, we deduct a Rova for each Se'ah. If the
               excess after deducting the Rova'im was nine Kabim,
               he gives all the Rova'im with the excess, in land,
               like at the time of the sale.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Gra (19):</font></b> When there are nine Kabim, the buyer can
               return land, but if it decreased in price, he must
               give what now equals the initial value, for it
               decreased in his Reshus. If he wants to return
               money, the seller must sell (at the initial price).
               We always favor the seller, even when the price
               rose. It is no loss to the buyer, for he returns
               land like he bought. This explains the Gemara, which
               says that we force the seller, and the Mishnah,
               which says that we (always) favor the seller.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (11):</font></b> This is when it was cheap at
               the time of the sale, and rose in price when he
               returns it. If it was expensive and became cheaper,
               we tell the buyer 'if you want to return money,
               return like at the time of the sale. If you want to
               return land, return according to its current value.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema (12):</font></b> The Shulchan Aruch from Saif 9 until here
               is from the Rambam. The Magid Mishneh said that it
               requires investigation. The primary opinion holds
               that whenever it is less than nine Kabim, the seller
               can opt to take money or land. If he takes money, he
               takes at the cheaper price, whether the price went
               up or down. If the seller had an adjacent field, or
               if the excess was nine Kabim, he returns land,
               including all the Rova'im.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (35):</font></b> All agree that less than a Rova per
                    Se'ah is pardoned, and that if the excess is
                    less than nine Kabim, he returns money. The
                    argument is when there are nine Kabim. The
                    Rashbam and Tur hold that the buyer can force
                    the seller to accept land. The Rambam says so
                    only when there are nine Kabim above the
                    Rova'im, but if not, the seller decides. Even
                    when the excess is nine Kabim without the
                    Rova'im, if the price declined, the buyer must
                    the initial value of the excess in money, or
                    land that now is worth that amount. The seller
                    says 'it declined (in value) in your Reshus.'
                    If it increased in value, we say that it
                    increased in the seller's Reshus, for the
                    excess was never sold. The seller has the upper
                    hand unless the price did not change. Then, he
                    must accept the excess back in land. The Gemara
                    favors the Rambam (see Drishah below), but the
                    reasoning is unclear. Perhaps it is because the
                    Rova'im are fitting to be pardoned (had there
                    not been more excess), therefore, they do not
                    join to force the seller to accept land. The
                    Rema wrote that the Shulchan Aruch is like the
                    Rambam from Sa'if 9 because he understood that
                    Sa'if 9 discusses nine Kabim without the
                    Rova'im.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Drishah (8):</font></b> According to the Tur, it should have
               said 'if you want to take money for the land', not
               'if you want to give.' He says that 'we force the
               seller to sell, and the buyer to buy' is when it
               declined in value. If the seller wants to sell at
               the low price, we force the buyer to buy it. What is
               the Chidush? We force the buyer even if the price
               did not change! The Mishnah says 'if there is more
               than this, we calculate.' Also, why did the Mishnah
               say that we (always) favor the seller? According to
               the Rambam, the seller never loses (due to a change
               in price). Perush ha'Rambam is a little difficult,
               but he was forced to say so because Rav Nachman said
               'we allow seven and a half extra Kavim for each Kor.
               If there are nine Kavim extra (i.e. after deducting
               seven and a half Kavim per Kor)...'
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (R. Yirmeyah):</font></b> What is the law if they are
          spread out over the proper area, but they are arranged in
          a circle (making it hard to sow between them), or in a
          row, or like an ox's horns, or in a zigzag (Each shape is
          harder to sow than the previous)?
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	These questions are not resolved.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ROCKS THAT ARE EXCLUDED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Rashbam (Beraisa):</font></b> One rock of any size
          outside the field is not included;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #2 - Tosfos - (Beraisa):</font></b> A rock that has a
          name, of any size (alternatively - a rock that is a Beis
          Rova (about 104 square Amos)) is not included. (end of
          Version #2)
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A rock on the border is not included (it must be inside
          the field).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If a small amount of earth is
          between the rock and the border, what is the law?
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> (If we consider the rock to be in
          the field when some earth separates it from the border),
          if the earth (between it and the border) is under a rock,
          or has a rock under it, what is the law?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	This question is not resolved.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TOO MUCH OR TOO LITTLE LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven told Shimon 'I sell to you a Beis
          Kor, measured by a rope', if it is any amount less,
          Shimon deducts from the price. If it is any amount more,
          Shimon returns the extra (land or money).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'be it less or more', even if there is a
          Rova too little or much per Se'ah, there is no
          compensation.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the error is more than this, he must return
               (everything).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	When Shimon must return, he returns money. If he
          (Reuven) wants, he returns land.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We say that he returns money to help Reuven. If
               the extra is Beis nine Kavim in a field (which is
               worthwhile, it is considered a field), or half a Kav
               in a garden, or according to R. Akiva a Beis Rova,
               Reuven will (presumably) ask for land.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	He does not just return the Rova. He returns all the
          extra land.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'ONA'AH L'KARKA'OS' IN THE CASE OF THE SALE OF A 'BEIS KOR AFAR'</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when one says that he is selling a Beis Kor of Afar and the measurement comes up short, the seller must compensate the buyer for the amount of land which he did not provide. If the land is found to be more than a Beis Kor, the buyer must give back that amount of land (or money) to the seller. In any event, the sale remains valid. The <b>RASHBAM</b> (DH Piches) asks that the Mishnah seems to contradict the ruling of Rava. Rava (90a) rules that whenever one specifies a precise measurement in a sale, the sale is rendered invalid when that measurement is off even by a small amount. Why does the Mishnah consider the sale valid?
</p><p>
(a) The <b>RASHBAM</b> answers that Rava's ruling applies only to Metaltelin (movable objects), not to land. People always seek to buy land, and thus they prefer to be compensated when they are overcharged than to have the purchase invalidated. Moreover, when the seller sells a Beis Kor of land, it is possible that he does not know the exact measurement of his land and he may be giving an estimated size. Accordingly, he is willing to add or subtract in order to consummate the deal.
</p><p>
The <b>RAN</b> questions the Rashbam's description of the difference between land and Metaltelin. The Gemara in Bava Metzia (56b) discusses the status of wheat seeds planted in the ground. It asks whether such seeds are considered land or Metaltelin. In the course of its discussion, the Gemara mentions Rava's ruling. If Rava's ruling applies only to Metaltelin, the Gemara there should not mention it in the context of its question, since the Gemara does not know whether the seeds have the status of Metaltelin or not. The Ran agrees, however, with the Rashbam's explanation that when a person sells a Beis Kor of land, he intends to ensure that the buyer receives a Beis Kor of land even if the specific land he is selling does not measure exactly a Beis Kor.
</p><p>
(b) <b>TOSFOS</b> (104a, DH Pachos) also has difficulty with the Rashbam's explanation of Rava's ruling. He quotes the <b><b><b>RI</b></b></b> who explains that Rava's ruling applies only to a person who measured a piece of land dishonestly, and the other party later took him to task for doing so. Such a sale is disqualified. However, if the seller is approximating the measure, he certainly has intent to supply a Beis Kor of land. Whether he will add or subtract land depends on the future measurement of the property.
</p><p>
(c) The <b>SHITAH MEKUBETZES</b> quotes an opinion which says that when the Mishnah states that the seller must compensate for missing land, and the buyer must compensate for extra land, it does not mean that compensation must be made against the will of the parties involved. If one of them chooses to opt out of the sale, he is entitled to do so. The reason why the Mishnah says only that the amount must be made up and it does not mention the fact that the sale can be canceled is that it is contrasting this case with the second case of the Mishnah, in which an understood approximation was given. In that case, an exact measurement is not necessary, since only an approximate size was stipulated when the property was sold ('Hen Cheser Hen Yeser' -- 'whether it is a little less or a little more'). This is why the first case states only that the measurement is important, and not that the sale may be canceled if the measurement is not accurate.
</p><p>
(d) The <b>RASHBA</b> in Kidushin (42b) maintains that Rava does not say that the sale is 'Batel' -- 'invalid,' but rather 'Chozer' -- 'goes back.' The Rashba concludes that Rava means that cases of sales involving inaccurate measurements, weights, and numbers are <i>never</i> invalidated, but rather the difference from the proper amount specified must be made up, whether in units or in price. According to the Rashba, there is no real difference between a sale of Metaltelin and a sale of land. In both cases, the sale is valid and the amount must be made up by supplying the difference in amount or by supplying the difference in price. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS A SMALL MISTAKE PARDONED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> If Reuven told Shimon 'I sell to you
          a Beis Kor' (and did not mention measure by a rope, nor
          'less or more'), what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If he said 'I sell to you a Beis
          Kor, measured by a rope', if it is any amount less,
          Shimon deducts from the price; if it is any amount more,
          Shimon returns the extra.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had he not said this, there would be
               no compensation.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Seifa):</font></b> If he said 'be it less or more',
          even if there is a Rova too little or too much per Se'ah,
          there is no compensation.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had he not said this, there would be
               compensation!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Conclusion:</font></b> The inferences contradict one another. We
          cannot answer our question from the Mishnah, because we
          do not know which inference is correct.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> If he said 'I sell to you a Beis
          Kor', 'I sell to you approximately a Beis Kor', 'I sell
          to you a Beis Kor, be it less or more', even if there is
          a Rova too little or too much per Se'ah, there is no
          compensation.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If he did not specify, it is as if he
               said 'be it less or more'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Beraisa does not give three separate
          cases, rather it all explains one case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It means, when is selling a Beis Kor like selling
               approximately a Beis Kor? It is if he said 'I sell
               to you a Beis Kor, be it less or more.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> If so, it should not say 'I sell
          to you' three times!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, the Beraisa settles our question. If he
               did not specify, it is as if he said 'be it less or
               more.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS RETURNED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He returns money to him...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really true that we give the seller his
          choice, and not the buyer?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> If the amount of land
               was seven and a half Kavim per Kor too little or too
               much, the sale stands. If it was more than this, we
               force the seller to sell the extra (the buyer can
               say 'I do not want to have to guard myself from
               you') and the buyer to buy it (the seller has little
               use for a small field).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, we do not force the seller to sell the
          extra land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that if the value of the land
               declined, the buyer can say 'if you insist that I
               buy the extra land, I will pay only today's lower
               price.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> When the seller makes the buyer buy
          the extra land, it is according to the price at the time
          of the original sale.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> That is when the price increased.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN THE SELLER CANNOT DEMAND MONEY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the extra is Beis nine Kavim (he returns
          land).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> This applies even if there were nine extra
          Kavim in a sale of a giant valley.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> It applies only if there were seven and
          a half extra Kavim for each Kor (if not, the extra is
          pardoned);
<br>
<br>

sjt:
<font><b>1) THE ALLOWABLE MARGIN OF ERROR IN THE SALE OF A 'BEIS KOR'</b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa which states that when one says that he is selling 'a Beis Kor,' 'like a Beis Kor,' or 'a little less or a little more than a Beis Kor,' in each of these cases he is allowed a margin of error of one quarter of a Kav per every Se'ah (there are thirty Se'ah in a Beis Kor; see <b>RASHBAM</b> to 102b, DH ha'Omer).
</p><p>
(This Halachah also applies to the buyer, who may keep up to one quarter of a Kav extra per Se'ah. For the purposes of brevity, here we will discuss the case from the viewpoint of the seller.)
</p><p>
The Gemara concludes that this Beraisa provides proof that when a person says that he is selling a Beis Kor, he approximates the size of the field that he sells and does not intend to sell exactly a Beis Kor.
</p><p>
<b>TOSFOS</b> (DH Ela) has difficulty with the Gemara's conclusion. The Mishnah earlier (102b) says that ditches less than ten Tefachim deep are included in the sale of a field. The Gemara there (103a) quotes Rebbi Yitzchak who says that only up to four Kav of such ditches are included in the sale, and not more. If the Gemara here means that one is allowed a margin of error of a quarter of a Kav per Se'ah, and there are thirty Se'ah in a Beis Kor, then the seller may withhold up to seven and a half Kav of land from the buyer! Why does Rebbi Yitzchak say that he may include only up to four Kav of ditches?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (according to the <b>MAHARSHAL's</b> understanding) answers that when Rebbi Yitzchak says that only up to four Kav of ditches may be included, he means that only up to four Kav may be included in the amount of land which <i>must</i> be provided in the sale, <i>after</i> the seven and one half Kav of 'leeway' area has been taken into account.
</p><p>
The <b>AYELES HA'SHACHAR</b> asks that according to Tosfos, would a seller be permitted to say that he is selling a field which is a 'Beis Kor' when he knows that the field contains seven Kav <i>less</i> than a Beis Kor? Are the words 'Beis Kor' in such a case considered an acceptable approximation of the size of the field, or are his words considered a lie? The Ayeles ha'Shachar does not answer this question.
</p><p>
(b) Tosfos quotes the <b>RASHBA</b> who says that when the Gemara says that one has leeway of up to seven and one half Kav, it refers to a case where the buyer and seller saw the area being sold and agreed that this was the Beis Kor referred to in their deal. If they find that their estimation of its size is inaccurate, they are allowed up to one quarter of a Kav of a margin of error. Rebbi Yitzchak, however, refers to a case in which the Beis Kor which was purchased was not seen. In such a case, there is no reason to allow the seller to supply one quarter of a Kav less than the measurement mentioned in the sale, since the buyer understood that he was buying a full Beis Kor. It is in this case that Rebbi Yitzchak rules that only up to four Kav of ditches may be included in the sale.
</p><p>
(c) The <b>ALIYOS D'RABEINU YONAH</b> answers that the case in which up to four Kav is acceptable refers to a person who sells one Beis Kor out of a large piece of property. Since he has a lot of land from which to choose, he has the right to give land which contains up to four Kav of ditches. The Gemara, in contrast, is talking about a b'Di'eved situation in which the seller does not actually have a full Beis Kor. In such a situation, the buyer still must take the field if there is only one quarter of a Kav per Se'ah missing. Rebbi Yitzchak would agree that the buyer certainly must also take a full Beis Kor when there is no more land left, <i>even</i> if it has up to seven and a half Kav of ditches. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE FOLLOW THE FORMER CLAUSE OR THE LATTER?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #1 - Ben Nanas):</font></b> If one said 'I sell to you
               (a Beis Kor) measured by a rope, be it less or
               more', (the latter clause) 'be it less or more'
               overrides 'measured by a rope'. If he said 'be it
               less or more, measured by a rope', 'measured by a
               rope' overrides 'be it less or more'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Aba bar Mamal):</font></b> Other Tana'im argue with Ben
               Nanas.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We already know this from a Mishnah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #2):</font></b> A case occurred in which one
                    rented a bathhouse 'for 12 Dinarim for the
                    year, a Dinar per month' (and it became a leap
                    year). R. Shimon ben Gamliel and R. Yosi ruled
                    that he pays half for the added month.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that there, we are
               not sure if he retracted (and wants 13 if it will be
               a leap year), or if he only comes to explain (that
               rent is due every month), but here he surely
               retracted, and Chachamim would admit to Ben Nanas.
               R. Aba teaches that this is not so.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Yehudah citing Shmuel):</font></b> Mishnah #1 is like Ben
               Nanas, but Chachamim say that the buyer has the
               lower hand (since we are unsure which clause
               overrides the other).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> 'This is like Ben Nanas' implies that the
               Halachah does not follow him. Rav and Shmuel taught
               that if one sold 'a Kor for 30 (Sela'im)', either
               can retract until all is measured out. If he said 'a
               Kor for 30, each Se'ah for a Sela', after each Se'ah
               is measured out, neither can retract. (The latter
               clause overrides the former. Each Se'ah is a sale by
               itself!)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> 'This is like Ben Nanas', and the
               Halachah follows him.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> Shmuel taught that in Mishnah #2, they
               asked the Halachah in the middle of the month. If
               they ask at the beginning of the month, the renter
               must pay for it. If they ask at the end of the
               month, the renter need not pay! (The latter clause
               does not override the former.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2:</font></b> Really, Shmuel rules unlike Ben Nanas.
               Regarding the bathhouse, whoever is Muchzak has the
               upper hand.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Huna citing bei Rav):</font></b> If Levi said 'I sell this
               for Istira (i.e. 96 Perutos), 100 Ma'os' (and
               Yehudah agreed), he owes 100 Ma'os. If he said 'I
               sell for 100 Ma'os, Istira', Yehudah owes Istira.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> Rav already taught elsewhere that the
               latter clause overrides. He obligates the renter to
               pay for the bathhouse in the added month!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that regarding the
               bathhouse, the latter clause explains the former.
               (Therefore, he also taught about '100 Ma'os/Istira'
               to teach that the latter clause overrides the
               former.)
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Bava Metzia 102b (Rav Nachman):</font></b> The owner is Muchzak
               (in the bathhouse. Even if he claims at the end of
               the month, the renter must pay.)
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> Rav Nachman is unsure which clause we follow. Even
               if the clause favoring the renter was said last, the
               owner is Muchzak and the renter must pay.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (7:1):</font></b> Shmuel is unsure which clause
               overrides. We do not take anyone's property when
               there is a Safek. The Halachah follows Shmuel
               against Rav in monetary laws.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (ibid.):</font></b>  Rav Nachman argued about the bathhouse
               and said that even if they ask at the end of the
               month, the owner is paid. He does not hold that we
               follow the latter clause. He says so even if he
               rented 'for a Dinar per month, 12 Dinarim for the
               year'! Rather, he holds that land is in the owner's
               Chazakah. We do not take it from him without a
               proof. The same applies to 'measured by a rope, be
               it less or more' and '100 Ma'os, Istira.' We follow
               the lesser clause, for property is in the owner's
               Chazakah, and the other is ha'Motzi mi'Chavero Alav
               ha'Re'ayah. Rav Nachman and Shmuel agree to this.
               The Halachah follows them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 28:11):</font></b> If one sold a Beis
               Kor, and said 'measured by a rope, be it less or
               more', or 'be it less or more, measured by a rope',
               we follow the lesser clause. He has only as if he
               said 'be it less or more.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> I do not understand this. The lesser
                    clause is what is lenient for the Nitva
                    (defendant)! If the buyer gave money, he is the
                    Tove'a (claimant). If he did not pay and made
                    Chazakah on the land, and the seller demands
                    more money, he is the Tove'a! Sometimes giving
                    too little is a leniency for the Nitva, and
                    sometimes it is a stringency. The same applies
                    to giving too much.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Prishah (CM 218:9 DH veha'Ra'avad):</font></b> The Ra'avad
                    holds that if the buyer already paid, in every
                    case he is the Tove'a. If too much land was
                    given, the case is that he paid for the extra,
                    and now claims asks to get back the extra he
                    paid (for perhaps we follow 'measured by a
                    rope').
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magid Mishneh:</font></b> The Ri mi'Gash explains that the
                    bearer of the document has the lower hand. He
                    seeks to take from the other, so he must bring
                    a proof. Therefore, he gets based on the lesser
                    clause, be it first or last. The Rashbam says
                    that the seller is Muchzak in the land, so he
                    he has the upper hand. If he gave too litlle,
                    he says 'be it less or more' (so I need not
                    compensate you). If he gave too much, this is
                    why he said 'measured by a rope.' The Rambam
                    agrees. I say that even if the seller comes to
                    take money (for the extra), we force the buyer
                    to pay, for the seller was Muchzak in the land.
                    We say similarly regarding contradictory
                    clauses of rental.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 218:14):</font></b> If one sold a Beis Kor,
               and said 'measured by a rope, be it less or more',
               or vice-versa, we follow the lesser clause, and he
               has only as if he said 'be it less or more.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (42):</font></b> 'The lesser clause' is the one that
                    diminishes his words. He said that he sells a
                    Beis Kor, and we say that it need not be a Beis
                    Kor. It can be less or more. Alternatively,
                    there are three laws that depend on three
                    things that he said. 1) If he said Stam 'Beis
                    Kor', he must give a full Beis Kor. He may not
                    deduct from the money instead. 2) 'Measured by
                    a rope' also connotes precision, but he may
                    deduct (if he gave less). 3) 'Be it less or
                    more' is a weak clause, for it means that he is
                    imprecise. The Shulchan Aruch teaches that we
                    follow it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (43):</font></b> We follow 'be it less or more'
                    whether this harms the buyer, i.e. he received
                    too little, or whether it helps him, i.e. if he
                    received extra. This is why he says 'he (the
                    buyer) has only...' This is even if he did not
                    pay yet and received too little. He must pay
                    the full price of the Beis Kor, for the sale
                    was finalized and the price is a debt.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah and Drishah (9):</font></b> The Tur explains that
                    the Rambam holds that we follow the weakest
                    clause. The Rashbam explains that we follow the
                    clause that weakens the buyer. The Tur holds
                    that the Rambam and Rashbam say so even if the
                    buyer did not yet pay. The Rashbam holds that
                    since the seller is Muchzak, he can say 'I said
                    both clauses, for I was unsure if it is less or
                    more. I said 'measured by a rope' in case it is
                    more, and 'be it less or more' in case it is
                    less. Since the buyer was quiet, he accepted
                    this. The Rashbam said 'Chachamim hold that we
                    follow the lesser clause; the case is, he
                    received the money.' He does <i>not</i> mean that
                    the buyer has the lower hand only if he already
                    paid. The Rashbam said so to avoid a
                    contradiction in Shmuel. However, regarding a
                    bathhouse he rules unlike Shmuel; even if they
                    ask at the end of the month, the owner is paid
                    fully, for he is Muchzak, and the Safek began
                    before the month began. The Beis Yosef says
                    that we follow the lesser clause, for whoever 
                    is Muchzak in the money has the upper hand.
                    This is like Shmuel. The Halachah is unlike
                    him! The Magid Mishneh says that the Rambam is
                    like the Rashbam. The Tur says that they
                    disagree. This is correct. Also from the
                    Ra'avad we infer that the Rambam holds that the
                    buyer gains when extra was given. The Ra'avad
                    argues, for 'the lesser clause' connotes that
                    we are always lenient and weaken the Tove'a.
                    Chachamim did not say who is weakened, for
                    sometimes it is the buyer, and sometimes it is
                    the seller. However, Perush ha'Mishnayos is
                    like the Magid Mishneh. This requires
                    investigation.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 2):</font></b> The Magid Mishneh and Beis
                    Yosef are correct. The Ir Shushan and Bach hold
                    like them, and Perush ha'Mishnayos supports
                    them. We cannot say that 'the lesser clause'
                    diminishes 'Beis Kor.' The Mishnah does not
                    mention Beis Kor! The Rambam just uses it to
                    explain 'measured by a rope'! They mean like
                    the Ra'avad says; the Ri mi'Gash and Rashbam
                    agree with the Ra'avad l'Halachah. The Magid
                    Mishneh says 'even if the seller comes to take
                    money, we force the buyer to pay, for the
                    seller was Muchzak in the land.' He does not
                    means that we force him to buy if he does not
                    want. Chazakah in the land does not help for
                    this! Also, we force a renter to pay for the
                    extra month only if he already used it! (If
                    not, he can say that he will not use it.)
                    Rather, if the buyer wants the land, he must
                    buy and pay also for the excess. Until he does,
                    the seller is Muchzak in the land. The
                    Ra'avad's words connote that he disagrees, but
                    I say that he agrees. The Ra'avad discusses
                    when the seller wants the buyer to buy and pay
                    for the excess. In this case, we do not force
                    the buyer. Perhaps also the Magid Mishneh
                    understood that the Ra'avad comes to explain
                    the Rambam.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES RENTAL INCLUDE THE ADDED MONTH IN A LEAP YEAR? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	When (there is this much extra per Kor, and) the extra
          is nine Kavim, since it is a proper field, Reuven cannot
          force Shimon to buy it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rava, against Rav Nachman - Mishnah):</font></b> If the
          extra is Beis nine Kavim in a field...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Assumption:</font></b> (Even if) the field is two Kor, so
               there are only four and a half extra Kavim for each
               Kor, he must return it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> No, he sold only one Kor.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah):</font></b> Or half a Kav in a garden...
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The garden is Se'atayim, so there is only an
               extra Rova Kav for each Se'ah. Normally one pardons
               this, but since it is the size of a proper garden,
               he must return it!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> No, he sold only one Se'ah.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> According to R. Akiva, a Beis Rova.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The case is, the garden is one Se'ah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he sold only a half Se'ah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> If he sold a field, and there was
          more than an extra Rova for each Se'ah, and the total was
          at least a half Se'ah but less than nine Kavim, and the
          land became fit for a garden, or vice-versa (he sold a
          garden, now it is only fit for a field), what is the law?
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven kept a field bordering the sold
          field, Shimon can insist that Reuven take back the extra
          land (it is fitting for him), even if it is less than
          nine Kavim.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Questions (Rav Ashi):</font></b> If any of the following separate
          between Reuven's field and the field he sold: a pit, an
          irrigation channel, a Reshus ha'Rabim, or a row of date
          trees, what is the law?
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	These questions are not resolved.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He does not return just the Rova for each
          Se'ah. He returns all the extra land.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Just the contrary! The Chidush is that he
          returns the extra Rova'im!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Ravin bar Rav Nachman):</font></b> Indeed, the text should
          say 'he does not just return the extra above the Reva'im.
          He returns the extra Reva'im as well.
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN THE SELLER GETS BACK LAND</b></font><b>
<br>OPINIONS:</b> The Mishnah (103b) teaches that when the size of a field is estimated at a Beis Kor (thirty Se'ah) at the time it is sold, both the buyer and the seller must agree to accept a loss or a gain of one quarter of a Kav per Se'ah. This means that if there is up to one quarter of a Kav of extra land per Se'ah, the buyer may keep that land. If the extra land is <i>more</i> than one quarter of a Kav per Se'ah, 'the seller has the upper hand in a case where he gave nine extra Kav in a field.' Rav Huna and Rav Nachman disagree about the intent of the Mishnah. Rav Huna explains that the Mishnah means that if the land contains nine extra Kav <i>including</i> the one extra quarter of a Kav per Se'ah that a buyer normally is allowed to keep, all of the extra land goes back to the seller. Rav Huna understands that the seller would never intentionally add so much land, which itself is considered a proper field. Therefore, in a case in which an area of two Kor (60 Se'ah) of land was sold and one quarter Kav was left per Se'ah, all of the extra land returns to the seller.
</p><p>
Rav Nachman disagrees and explains that every Kor may contain up to seven and a half extra Kavin. If there is more than nine Kav, the land returns to the seller. What does Rav Nachman mean to say?
</p><p>
(a) The <b>RASHBAM</b> (DH v'Iy) explains that Rav Nachman means that if there is even a small bit more than a quarter of a Kav per Se'ah, and altogether there is more than nine extra Kav, all of the extra land goes back to the seller. Accordingly, whether the extra land returns to the seller depends on the size of the land being sold. If two Kor are sold and there is one quarter of a Kav extra per Se'ah, all of the extra land goes to the buyer <i>unless</i> the extra land is slightly more than one quarter of a Kav per Se'ah. If one Kor is sold and there is one quarter of a Kav extra per Se'ah, the buyer keeps the land. If, however, in this second case there is one Kav and a half more of extra land, all of the land goes back to the seller. If there is more than seven and a half Kav but less than nine Kav extra, the buyer must compensate the seller for all of the extra amount (including the seven and a half Kav; see Rashbam to 103b, DH Yeser Mikan). This is also the opinion of the <b>RA'AVAD</b>.
</p><p>
(b) The Rashbam cites another opinion which explains that when Rav Nachman says, 'If there is more than nine Kav it goes back,' he means <i>more</i> than nine Kav over the normal amount of one quarter Kav per Se'ah, regardless of how many Kor are being sold.
</p><p>
(c) The Rashbam cites a third opinion which explains that if there is more than nine Kav per Kor, all of the land goes back to the seller. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHICH CLAUSE DO WE FOLLOW?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah #1 - Ben Nanas):</font></b> If one said 'I sell to you (a
          Beis Kor) measured by a rope, be it less or more', (the
          latter clause) 'be it less or more' overrides 'measured
          by a rope'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'be it less or more, measured by a rope',
          'measured by a rope' overrides 'be it less or more'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Aba bar Mamal):</font></b> Other Tana'im argue with Ben Nanas.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> We already know this from a Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #2):</font></b> A case occurred in Tzipori in which
               Levi rented out his bathhouse 'for 12 Dinarim for
               the year, a Dinar per month' (and it became a leap
               year). R. Shimon ben Gamliel and R. Yosi ruled that
               the renter pays half for the added month.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (They do not say that the latter clause overrides
               the former!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that there, we are not
          sure if Kelim retracted (and wants 13 Dinarim if it will
          be a leap year), or if he only comes to explain (that
          rent is due every month, and not at the end of the year,
          but indeed the rent is 12, even if it will be a leap
          year), but here surely the seller retracted, and
          Chachamim would admit to Ben Nanas;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Aba teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Yehudah citing Shmuel):</font></b> This (Mishnah #1) is like
          Ben Nanas, but Chachamim say that the buyer has the lower
          hand (since we are unsure which clause overrides the
          other).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Inference:</font></b> 'This is like Ben Nanas' implies that the
          Halachah does not follow him.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Rav and Shmuel taught that if Reuven
          sold to Shimon 'a Kor (of grain) for 30 (Sela'im)',
          either can retract until all is measured out;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'a Kor for 30, each Se'ah for a Sela',
               after each Se'ah is measured out, neither can
               retract. (The latter clause overrides the former.
               Each Se'ah is a sale by itself!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rather, this is like Ben Nanas, and the
          Halachah follows him.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel does not rule like Ben Nanas!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Shmuel taught that in Mishnah #2, they argue in
               the middle of the month. If they argue at the
               beginning of the month, the renter must pay for it,
               and if they argue at the end of the month, the
               renter need not pay for it! (The latter clause does
               not override the former.)
<br>
<br>

sjt:
<font><b>1) WHEN A CONTRADICTORY STATEMENT IS NOT A RETRACTION</b></font><b>
<br>QUESTION:</b> The Mishnah records the opinion of Ben Nanas in the case of conflicting terms in a sale. The expression 'Midah b'Chevel' refers to when an exact amount is specified, and 'Hen Chaser Hen Yaser' means an approximate amount ('more or less'). Ben Nanas states that when a seller states both of these terms when he sells a field, we follow the last term that he states. Rebbi Aba says that 'his colleagues' disagree with Ben Nanas.
</p><p>
The Gemara asks that Rebbi Aba seems to teach nothing new, since it is clear from a Beraisa that the Rabanan disagree with Ben Nanas. The Beraisa discusses a case in which the wording of a rental contract was 'twelve gold [Dinarim] per year, one gold Dinar per month,' and the year turned out to be a leap year. Must the tenant pay a Dinar for the extra month? Raban Shimon ben Gamliel and Rebbi Yosi rule that the payment for the extra month is divided between the two parties, and thus the tenant pays only half of a Dinar for the extra month.
</p><p>
The Gemara explains that Rebbi Aba's statement is necessary. It is possible that in the rental contract the landlord merely intended to explain what he meant and he did not contradict himself. In the case of the Mishnah, in contrast, the two terms clearly contradict each other. Perhaps Rebbi Shimon ben Gamliel and Rebbi Yosi rule that the money is divided only when there is a possibility that the two terms do not contradict each other, but they agree that when the two terms contradict each other, the second term takes precedence. The <b>RASHBAM</b> (DH Ka Mashma Lan) adds that because the seller said two contradictory terms 'Toch Kedei Dibur,' it is unclear which one he really meant. This is why Rebbi Aba's statement, that Rebbi Shimon ben Gamliel and Rebbi Yosi disagree with Ben Nanas, is necessary.
</p><p>
The Rashbam explains that in the case of the Mishnah, the two contradictory terms were uttered 'Toch Kedei Dibur.' If this is the case, though, why do Rebbi Shimon ben Gamliel and Rebbi Yosi disagree with Ben Nanas? When a person utters a second statement within 'Toch Kedei Dibur' which contradicts his first statement, it is logical to assume that his intention is to invalidate the first statement. Why do Rebbi Shimon ben Gamliel and Rebbi Yosi disagree with Ben Nanas?
</p><p>
<b>ANSWER:</b> The <b>NIMUKEI YOSEF</b> quotes a cryptic statement in the name of the <b>RITVA</b>, who explains that when a person contradicts himself, he usually says that he has made a mistake, or some other comment to that effect. The Ritva then writes that if a person merely says 'the second statement and does not explain further that he regrets the second term and wants the first term.'
</p><p>
The <b>AYELES HA'SHACHAR</b> writes that he did not understand the meaning of these words of the Ritva until he saw the <b>TOSFOS RID</b>. The Tosfos Rid explains that it is possible that when the person said the second term, his intention was to say a similar phrase that would express his first statement in a different way, but he ended up saying a phrase that was contradictory. This is what the Ritva means when he says that the person 'regrets the second term and wants the first term.' He may not have had in mind anything other than his first statement. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'> DOES RENTAL INCLUDE THE ADDED MONTH IN A LEAP YEAR?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A case occurred in which one rented a
               bathhouse 'for 12 Dinarim for the year, a Dinar per
               month' (and it became a leap year). R. Shimon ben
               Gamliel and R. Yosi ruled that he pays half for the
               added month.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav):</font></b> I would have ruled that he must pay for the
               entire month.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He holds that when one says two contradictory
               clauses, we follow the latter.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'>(Shmuel):</font></b> The Mishnah discusses when they come to
               Beis Din (for a ruling) in the middle of the 13th
               month, but if Levi said at the beginning of the
               month 'you must pay extra for this month', Yehudah
               must pay for the entire month. If Levi made no claim
               until the end of the month, Yehudah need not pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Shmuel is unsure whether or not the latter phrase is
               binding, so we follow Chazakah. Levi is Muchzak in
               his bathhouse. Yehudah cannot use it without proving
               that he is entitled to. Yehudah is Muchzak in his
               money; Levi cannot make him pay for what he used of
               the extra month.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The owner is Muchzak in his land.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> He is unsure which phrase we follow. Even if the
               phrase favoring the renter was said last, the owner
               is Muchzak and the renter must pay.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 110a:</font></b> If a document does not specify for how many
               years a lender (Reuven) will eat the Peros of
               Mashkanta (land given for collateral), and he
               already ate the Peros for three years, the question
               is about the Peros, which are with Reuven. The
               Chazakah favors him, so he need not pay.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> The Halachah follows Rav Nachman (in
               monetary laws), who says that when in doubt, we
               apply Chazakah to the land and say that it belongs
               to the original owner!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> That is when the doubt will never be
               resolved. Here, witnesses might come and testify how
               many years it was for. Beis Din does not make one
               pay if future testimony might force Beis Din to
               retract its ruling.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b>  Rav Nachman said that even if they ask at the
               end of the month, the owner is paid. This is not
               because we follow the latter clause. It is even if
               he rented 'for a Dinar per month, 12 Dinarim for the
               year'! Rather, he holds that land is in the owner's
               Chazakah. We do not take it from him without a
               proof.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Bava Metzia 59b):</font></b> The Halachah follows Rav
               Nachman.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Metzia 8:30):</font></b> Regarding land, the
               Halachah follows Rav Nachman, that land is in the
               owner's Chazakah. This is only if the matter is not
               prone to become known, like in the coming Perek
               (110a).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (citing Or Zaru'a):</font></b> If one rented
                    a house until Adar, and they argue about
                    whether this is Adar Rishon or Sheni, they
                    divide (Adar Sheni).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shach (CM 312:15):</font></b> The Or Zaru'a learns from a
               Tosefta (Bava Metzia 8:14). I say that the Tosefta
               is like R. Shimon ben Gamliel and R. Yosi, who do
               not follow Chazakah of the land. The Halachah is not
               like them, rather, it is like Rav Nachman! The Or
               Zaru'a rules like the Rosh (Bava Metzia 2:8) said in
               his name, that when a judge cannot know, because the
               Gemara never resolved the Halachah, we divide. Rav
               Nachman follows Chazakah only regarding
               contradictory clauses, for we cannot know his
               intent. Regarding Adar, the Safek is not about the
               words, rather, <i>we</i> do not know which Adar is
               primary. R. Meir and R. Yehudah argue about this in
               Nedarim (63a), and Poskim argue about whom the
               Halachah follows. Therefore, we divide. <i>We</i> (unlike
               the Or Zaru'a) rule that when there is a Safek about
               the Halachah, ha'Motzi mi'Chavero Alav ha'Re'ayah,
               so we follow the Chazakah of the land.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Sechirus 7:2):</font></b> If one rented a
               bathhouse for a year, and it became a leap year, the
               tenant gets the added month. If he rented it by the
               month, the owner gets the added month. If when
               discussing the rental he mentioned both 'months' and
               'year', no matter which he mentioned last, the owner
               gets the added month. Land is in the owner's
               Chazakah. We do not take it from him without a clear
               proof. The same applies if a Ba'al ha'Bayis says 'I
               rented (the house) to you for this period of time',
               and the tenant says 'I rented Stam', or 'I rented
               for a longer period', the tenant must bring a proof.
               If he does not, the owner swears Heses and evicts
               him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba says that this is
                    only if he said 'this year', or 'the year',
                    which like saying 'this year', but if he said
                    'one year', it is only 12 months, like most
                    years. In Nedarim (63a) the Rashba says that
                    this is only when he stipulated on Rosh
                    Hashanah. However, if it was in the middle of
                    the year, and he said 'the year' or 'this
                    year', he gets only until Rosh Hashanah! If he
                    said 'one year', he gets only 12 months, even
                    if he said 'from today.' The Rambam (Hilchos
                    Nedarim 10:4) disagrees. He says that one who
                    vowed for a year is forbidden in the added
                    month. The Mishnah in Bava Metzia favors the
                    Rambam. The same applies to every case of land
                    that is not prone to be clarified.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (Nedarim 63a DH Masnisin):</font></b> The Rashba
                    learns from Erchin 31a, which says that we
                    include the added month (in the year to redeem
                    a house sold in a walled city) only because the
                    Torah said 'a <i>full</i> year.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rejection (of Rashba - Ran, ibid.):</font></b> If he gets
                    13 months only if he stipulated on Rosh
                    Hashanah, the Gemara should have taught this!
                    The Gemara taught Stam that the tenant gets the
                    added month. We cannot say that this is only in
                    a rare case! There is no proof from Erchin, for
                    there they did not stipulate. One might have
                    thought that the Torah gives redemption rights
                    only for 12 months, like most years.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b> Beis Yosef (CM 312 DH u'Mah she'Omar b'Shem):
                    The Ran and Magid Mishneh did not see Teshuvas
                    ha'Rashba, in which he argues only l'Halachah,
                    but in practice, he defers to his Rebbeyim and
                    the Rambam.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> SMA (312:23):</font></b> Why did the Tur bring the Rashba?
                    The Rashba said so only l'Halachah! Also,
                    regarding Nedarim, the Tur says that if in the
                    middle of the year he said 'this year', he is
                    forbidden until Rosh Hashanah, but if he said
                    'one year' or (Stam) 'a year', he is forbidden
                    for a full year from day to day! The Rashba
                    learns from money to Isurim and vice-versa! I
                    resolve as follows. Here the Tur discusses one
                    who, on Rosh Hashanah, says 'one year' or
                    (Stam) 'a year'. Surely, he intends to exclude
                    the added month. Had he wanted to include it,
                    he would have said 'this year'! Rather, he
                    shows that he refers to a Stam year, which is
                    usually 12 months. Regarding Nedarim, the Tur
                    discusses who, in the middle of the year, says
                    'one year' or 'a year'. He means 13 months (if
                    there will be an added month). He could not
                    have said 'this year', for this would connote
                    only until Rosh Hashanah. The Ran does not
                    distinguish this way, but the Tur does.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 312:15):</font></b> If one rented a 
               bathhouse for a year for a certain sum, and it
               became a leap year, the tenant gets the added month.
               If he rented it by the month, the owner gets the
               added month. If he mentioned both 'months' and
               'year', whether he said 'one per month, 12 for the
               year', or vice-versa, the owner gets the added
               month, for land is in the owner's Chazakah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH DH u'Mah she'Omar Hizkir):</font></b> Rashi
                    says that even if he comes at the end of the
                    month, the owner gets it, for the Safek arose
                    at the beginning of the month, and we establish
                    the land in the owner's Reshus. The tenant
                    lived in another's Reshus, therefore, he must
                    pay.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (25):</font></b> The Nimukei Yosef says that the Safek
                    is when both clauses were adjacent to each
                    other. If they were separate, surely we follow
                    the latter clause, like regarding loan
                    documents.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (26):</font></b> Regarding such a Safek about
                    Metaltelim, if one seized them, we do not take
                    them from him
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (14):</font></b> Regarding a Kohen who seized a
                    Safek Bechor, and contradictory pairs of
                    witnesses, the Rosh (Bava Metzia 1:13, Bechoros
                    2:13) says that if the tenant has a Vadai
                    claim, e.g. you explicitly said that it will be
                    12 for the year even if it is a leap year, we
                    do not take from him. In Bava Metzia 100a and
                    CM 317:3, we say that even when a lender has a
                    Vadai claim, we take from him because the land
                    is in the borrower's Chazakah. There is
                    different, for we know how much he ate, just he
                    claims that he rented it for three years.
                    Therefore, we follow the Chazakah of the land.
                    It is as if the Peros are in the borrower's
                    Reshus. Here, if the tenant claims that the
                    stipulation was to pay only 12, we are unsure
                    if the Peros are 12 or 13. Chazakah of the land
                    does not resolve this. Therefore, the Rosh 
                    derived that seizure does not help for a Safek.
                    In Bava Metzia we asked from Rav Nachman, wno
                    holds that Chazakah of land helps for a Safek;
                    it is as if the Peros are in the Reshus of the
                    landowner. If so, for the same reason a
                    borrower should collect Peros from a lender
                    even if the lender is Vadai. The Rosh says that
                    seizure helps only with a Vadai claim. This
                    refers to seizure without Reshus. If he was
                    allowed to seize, it helps even with a Safek
                    claim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> However, if one hired a teacher for he said
               son and said such expressions, and he taught him in
               the added month, the father need not pay for it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (27):</font></b> Rav Nachman said only that land is in
                    the owner's Reshus. The teacher shows that he
                    taught in the added month due to the contract,
                    for he did not ask the father. Also, if one
                    taught David's son without David's Da'as, this
                    is not called benefiting him regarding vows,
                    therefore, David need not pay him.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DO WE FOLLOW THE FORMER CLAUSE OR THE LATTER? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, Shmuel says the Halachah does not
          follow Ben Nanas. Regarding the bathhouse, whoever is
          Muchzak has the upper hand. (If Reuven already used it in
          the extra month, Shimon cannot force him to pay. If he
          did not yet use it, he may not use it without paying.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Huna citing bei Rav):</font></b> If Levi said 'I sell this
          for Istira (a half Dinar, i.e. 96 Perutos), 100 Ma'os'
          (and Yehudah agreed), he owes 100 Ma'os;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'I sell for 100 Ma'os, Istira',
               Yehudah owes Istira.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Rav teaches that the latter clause overrides
          the former. He already taught this in another way!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> I would say that the renter must pay to
               use the bathhouse in the added month.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Had Rav taught only about the bathhouse, one
          might have thought that there, his reason is not because
          the latter clause overrides the former, rather, because
          the latter clause explains the former. (Therefore, he
          also taught about '100 Ma'os/Istira' to teach that the
          latter clause overrides the former.)
<br>

sjt:
</p><p>
<font><b>2) THE OPINION OF RAV</b></font><b>
<br>OPINIONS:</b> Rav Huna says that in the Yeshiva of Rav it was taught that if a seller states two contradictory amounts, one after the other, in the terms of a sale (for example, he says that he sells the item for 'an Istera, 100 Ma'os,' or '100 Ma'os, an Istera'), the second amount is binding.
</p><p>
The Gemara asks that Rav Huna does not seem to teach anything new, since Rav explicitly taught that the second statement takes effect. The Beraisa earlier (105a) discusses a case in which the wording of a rental contract was 'twelve gold [Dinarim] per year, one gold Dinar per month,' and the year turned out to be a leap year. Must the tenant pay a Dinar for the extra month? Raban Shimon ben Gamliel and Rebbi Yosi rule that the payment for the extra month is divided between the two parties, and thus the tenant pays only half of a Dinar for the extra month. Rav said that had the case been presented to him, he would have ruled that the landowner receives the money. Rav seems to maintain that the second statement is effective, and that is why the tenant must pay the owner an extra Dinar for the extra month. Why, then, does Rav Huna quote this ruling in the name of the 'Yeshiva of Rav' and not in the name of Rav himself, and why does he express Rav's ruling in a different case? The Gemara answers that one might have thought 'that he is merely explaining.' What is the meaning of the Gemara's answer?
</p><p>
(a) The <b>RASHBAM</b> (DH Mahu) explains that in the case of the rental, it is reasonable to assume that the landlord meant the usual rent of twelve gold coins per year, and the reason why he added 'one Dinar per month' was that he wanted to cover himself in case the year became a leap year. Accordingly, his two statements did not contradict each other at all. Perhaps this is the reason why Rav ruled that he would have awarded all of the money to the landlord (and not because we follow the second statement). However, in the case of one who says, 'Istera Me'ah Ma'ei,' although the terms seem contradictory, it is possible that the seller means to say that the item costs 'an Istera which is almost one hundred Ma'ei.' Consequently, one might have assumed that Rav would rule that the item's cost is one Istera. In order to prevent one from making such a mistake, Rav Huna states that Rav follows the view of Ben Nanas, that the second statement takes effect.
</p><p>
(b) The Rashbam quotes a different explanation in the name of <b>RASHI</b> in Bava Metzia (102b, DH Iy me'Hasam). Rashi explains that when the Gemara here says 'that he is merely explaining,' it refers to the cases of 'Istera Me'ah Ma'ei' and 'Me'ah Ma'ei Istera.' In the former case, it is possible that the seller means that he wants a unit of coinage (Istera) which is worth more than the standard Istera (worth 96 Perutos). He wants a 'large Istera' worth 100 Perutos. In the case of 'Me'ah Ma'ei Istera,' it is possible that the seller means that he will accept 100 old Perutos which are worth only an Istera. <b>TOSFOS</b> (DH Perushei) explains that Rashi maintains that Rav's statement -- that he 'would have given everything to the landlord' -- is not a proof that he rules that the second statement always takes effect. It is possible that Rav ruled this way because he understands that a landlord has the right to keep whatever is known as his property until it is proven otherwise.
</p><p>
The Rashbam argues that this cannot be the explanation of the Gemara here. Tosfos also questions this explanation. The Mishnah later (165b) says that if a document states '100 Zuz which is 20 Sela,' the Halachah is that the lesser amount, 20 Sela, is assumed to be the proper amount. Similarly, if the document states '100 Zuz that is 30 Sela,' 100 Zuz, the lesser amount, is used. Since the Mishnah later says that the lesser amount is considered the proper amount and the two amounts are not assumed to be in agreement, why does Rav maintain that the first amount (Istera) is assumed to be in agreement with the second amount (Me'ah Ma'ei)?
</p><p>
Tosfos answers that the Mishnah later discusses a case in which the two contradictory terms are separated by other words, in contrast to the case of the Gemara here in which the two terms are stated consecutively. Since the two terms are consecutive, there is more reason to assume that they are not contradictory. Tosfos points out, however, that the Rashbam's explanation is more consistent with the flow of the Gemara. The Gemara's question is that Rav Huna did not need to teach the case of Istera, since Rav already expressed his opinion in the case of the rental of the bathhouse. The Gemara therefore needs to answer why the law in the case of the bathhouse does not teach what the law is in the case of Rav Huna. However, Rashi's approach seems more correct in Bava Metzia (102b), because the Gemara there asks the question the other way around. The Gemara there asks that Rav's ruling in the case of the bathhouse is redundant, since Rav Huna already reported that Rav taught this Halachah in the case of 'Istera Me'ah Ma'ei.' The Gemara there gives the same answer that it gives here. Rashi's explanation in Bava Metzia, therefore, is fitting, because the Gemara there attempts to explain the case of 'Istera Me'ah Ma'ei' and not the case of the bathhouse. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A SALE WITHIN DEFINED BORDERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one said 'I sell to you the Beis Kor
          within the following borders', if it is less than a sixth
          (less than a Beis Kor), the sale stands. If it is up to a
          sixth, he deducts (this will be explained).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rav Huna):</font></b> If it is a sixth less, it is as if
          it is lacking less than a sixth, and he does not deduct
          from the price;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If it is a sixth less, it is as if it is
          lacking more than a sixth, and he deducts from the price.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Huna explains the Mishnah as follows. If it is less
          than (or exactly) a sixth (less than a Beis Kor), the
          sale stands. If it is more than a sixth, he deducts from
          the price;
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Yehudah explains the Mishnah as follows. If it is
          less than a sixth, the sale stands; (exactly or) more
          than a sixth, he deducts from the price.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (against Rav Huna - Beraisa):</font></b> (If one said 'I
          sell to you the Beis Kor) within the following borders',
          if it is a sixth less or more (than a Beis Kor), the law
          is like when judges estimated land of orphans (and
          erred); the sale stands.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding estimation of judges, a mistake of a
               sixth is like more than a sixth!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Counter-question (Rav Huna):</font></b> It says that the sale
          stands!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> We must explain as follows. It is
          like the estimation of judges regarding a sixth, the sale
          stands (according to R. Shimon ben Gamliel; the Beraisa
          is like him). (We follow the Rashbam's text; see the
          Bach.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This is difficult for Rav Yehudah!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> It is like the estimation of
          judges (in one aspect), and it is not like the estimation
          of judges (in another aspect):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is like the estimation of judges regarding a
               sixth; the mistake is not pardoned (the Beraisa is
               Chachamim);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is unlike the estimation of judges, for there,
               the sale is void. Here, the sale stands, but he
               deducts from the price.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Ploni sold land to Rav Papa. He said 'it measures 20
          Grivi.' In truth, it was 15.
<br>
<br>

sjt:
<font><b>1) 'B'SIMANAV UV'METZARAV'</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when one sells land and says, '... with these landmarks and with these boundaries,' he is allowed a margin of error of up to one sixth. The <b>RASHBAM</b> (DH b'Simanav) explains that the Mishnah refers to the same case which it has been discussing until now, a case in which one sells a Beis Kor of 'Afar' (earth). The only difference is that in this case, the seller specifies the field's landmarks and boundaries.
</p><p>
What exactly is the novelty of this case in contrast to the other cases which the Mishnah has discussed, such as 'Midah b'Chevel' ('by the measure of the rope') and 'Hen Chaser Hen Yaser' ('whether less or whether more')?
</p><p>
(a) The <b>RA'AVAD</b> (cited by the Shitah Mekubetzes) understands that this case is unique. In all of the previous cases, the buyer purchases an specific amount of land sight unseen. Accordingly, the amount is more important in those cases, because the amount is the only information about the land the buyer has. Of course, if he accepts the terms of 'Hen Chaser Hen Yaser,' then he must allow for some inaccuracy in the measurements. In contrast, in the case of 'b'Simanav uv'Metzarav,' the buyer has seen the field and its boundaries, and he has accepted upon himself to buy that piece of land. Accordingly, he also accepts to buy the land at its present size, unless a large discrepancy (one sixth) between the stated size and the actual size is discovered. This is also the explanation of the <b>TOSFOS YOM TOV</b>.
</p><p>
(b) The <b>RE'EM</b> (cited by the Shitah Mekubetzes) disagrees with the Ra'avad. He explains that 'Midah b'Chevel' is a case of a precise measurement, where the seller must account for the entire amount that he committed to sell. In the case of 'Hen Chaser Hen Yaser,' the seller explicitly gives an imprecise measure in order to allow for a discrepancy of up to one quarter Kav per Se'ah. The case of 'b'Simanav uv'Metzarav' is in between the two previous cases. On one hand, the seller specifies boundaries. On the other hand, he does not mention a precise size, only the area that contains this amount (Beis Kor) of earth being sold. Therefore, the seller is allowed a margin of error of up to one sixth of the Beis Kor.
</p><p>
The Re'em's explanation seems difficult. The Ra'avad seems to give a simple difference based on the fact that a margin of error of one sixth is much greater than the margin of error allowed in the previous cases, even that of 'Hen Chaser Hen Yaser' (one quarter Kav per Se'ah). It follows that the case of 'b'Simanav uv'Metzarav' in <i>not</i> in between the cases of 'Hen Chaser' and 'Midah b'Chevel,' but rather it is the most extreme amount of error allowed. How can the Re'em argue with these numbers? The Re'em's intent seems unclear, unless one suggests that he in fact does not disagree with the Ra'avad (in which case the Shitah Mekubetzes is difficult to understand, because he cites the Re'em as a second explanation). (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A DIVISION STAND IF ONE OF THE PARTIES WAS ABSENT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If two brothers divided an estate, and a
               third brother came from abroad, the division is
               void;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> Each brother gives from his share to the
               third brother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rava):</font></b> According to Rav, the division is
               void. This means that a division without the
               knowledge of one of the parties is invalid. If so,
               if there were three partners or brothers, and two of
               them divided by themselves, will we say that the
               division is invalid?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Nachman):</font></b> There, they picked portions
               knowing that there were three. In Rav's case, they
               thought that there were only two.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav):</font></b> If brothers divided, and a creditor (of their
               father) took the portion of Ploni (a brother), the
               division is void.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Shmuel):</font></b> Ploni lost. He is not compensated.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> Ploni gets a quarter of what was taken,
               in land v'Kesf (and/or money).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Rav says that the division is void. It as if each
               brother inherited his proper share; all must pay the
               debt. Shmuel says that Ploni lost. It is as if the
               brothers are buyers (each takes a share in place of
               his 'destined' inheritance) without Acharayos. Rav
               Asi is unsure whether they are like heirs or like
               buyers, therefore we compromise and he gets a
               quarter in land and/or money.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> The Halachah is, in both arguments, the
               brothers give a portion of their property. (They are
               heirs, like Rav. The division is valid, like
               Shmuel);
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Ameimar):</font></b> The division is invalid (like Rav).
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> The Halachah follows Ameimar.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Bava Metzia 31b:</font></b> Rav Safra and Isur had a joint
               business venture. Rav Safra, in front of two people,
               took half the merchandise without telling Isur. Isur
               came to Rabah bar Rav Huna (to complain).
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rabah bar Rav Huna (to Rav Safra):</font></b> Bring two of the
               three people in front of whom you divided, or two
               witnesses who saw you divide in front of three.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 69a:</font></b> Two Kusim made an Iska together. One divided
               the money by himself. Rav Papa ruled that the
               division stands, for Rav Nachman said that money is
               as if it was already divided. It does not need an
               evaluation. We do not say so about wine (different
               wines are of different qualities), or when there
               were good and bad coins.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Kesuvos 100a (Shmuel):</font></b> If orphans come to divide
               their father's property, Beis Din appoints an
               overseer for them and they select a nice portion for
               them. When the orphans grow up, they can demand a
               new division;
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> (Rav Nachman):</font></b> They cannot demand a new division. If
               they could, Beis Din would be weak!
<br>        <b>  <b><font color='darkgreen'>17. </font></b></b> The case is, Beis Din erred about location (e.g. an
               orphan received a portion far from property that he
               inherited from his mother's father).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (7:2):</font></b> We say that if two out of three
               divided by themselves, the division stands. We learn
               from here that if one of two partners or brothers
               went away, and the other needs his share, we divide
               and give to him his share. We do not wait for his
               partner to return.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rosh:</font></b> This is like Rabah bar Rav Huna ruled in
                    the case of Rav Safra and Isur, and the case of
                    the two Kusim. Here we learn that the same
                    applies to land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Rosh):</font></b> In Kesuvos, we say that when
                    orphans come to divide, Beis Din appoints an
                    Apotropos and they pick good shares; if not for
                    the power of Beis Din, we would think that when
                    they mature, they can protest about which
                    directions they received, even though they
                    divided through a lottery. Here, there is no
                    reason why the power of Beis Din should stop
                    one from protesting when they divided in his
                    absence!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1 (Rosh):</font></b> There is different, for all
                    the orphans are minors, and they do not demand
                    a division. If one was an adult and demanded a
                    division, we would not need the power of Beis
                    Din.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #2 (Rosh citing R. Yonah):</font></b> There, if not
                    for Beis Din's power, when they mature, one
                    (David) could say 'my brother's portion is
                    worth more to me.' Letter of the law, the
                    division is Batel, for if before dividing he
                    said so and the others said that it is not
                    worth more to them, David would get it without
                    a lottery. If a brother merely wanted a new
                    lottery, hoping to get a different portion,
                    surely we do not heed him. Likewise, here the
                    third cannot protest against the division of
                    the other two. Since the division was done
                    through Beis Din and a lottery, what difference
                    would it make if he were there?! However, if he
                    says that another portion is worth more to him
                    and he is willing to accept it for more, we
                    heed him, for had he said so before the
                    lottery, he would get it without a lottery.
                    Also the Ra'avad said so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Hagahos Ashri (Bava Kama 26a, 6:16):</font></b> The
               Yerushalmi cites a case in which Bar Ziza's
               sharecropper deposited a Litra of gold with Ploni.
               Bar Ziza and his sharecropper died.R. Yishmael
               b'Rebbi Yosi said that surely, the gold was Bar
               Ziza's. Bar Ziza had minor and adult children. R.
               Yishmael gave half the gold to the adults, and said
               that the minors will get the other half when they
               mature. After R. Yishmael b'Rebbi Yosi died, the
               case came to R. Chiya. He ruled that the money
               Ziza's. Rather, it is given to the sharecropper's
               children. When he heard that Bar Ziza's adult
               children already received half, he said that they
               keep it, for it was through Beis Din, but the rest
               goes to the sharecropper's children. Bar Ziza's
               minors do not get a share of what their older
               brothers received.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rif:</font></b> What their older brothers received was like a
               Metzi'ah. R. Yitzchak says that Leis Din (there is
               no case) between the minors and adults. It is as if
               he received a gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yam Shel Shlomo (Bava Kama 6:32):</font></b> The minors
                    have no case against the adults. It is as if
                    they received a gift or found a Metzi'ah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach CM 175:2):</font></b> R. Yitzchak argues
                    with the first opinion. He holds that it is as
                    if Bar Ziza received a gift, and the minors
                    share it. Hagahos Ashri could agree, but he
                    rules like the first opinion. Since it is an
                    argument in the Yerushalmi, the older brothers
                    are Muchzak, so they need not give. If so, if
                    the minors seized (up to half) in a way that
                    helps, they keep it. All old texts of the Rif
                    say Leis <i>Bein</i> (there is no difference)
                    between the minors and adults, i.e. they share
                    equally what the adults received. This is the
                    text in the Yerushalmi, in Hagahos Maimoniyos
                    (Hilchos Nizkei Mamon 14 [5]) and Ba'al
                    ha'Itur. If R. Yitzchak wanted to teach that
                    the minors do not get, what is his Chidush?
                    Also, he should have said just 'it is as if
                    they got a gift.' Why did he say 'Leis
                    Bein...'? Also, the Rif says 'it is as if <i>he</i>
                    (Bar Ziza) received a gift. Indeed, the
                    Yerushalmi says 'they', but this can refer to
                    his heirs, unlike a Metzi'ah, which is only the
                    finder's. Therefore, if a judge ruled and gave
                    to the adults, and afterwards another judge
                    ruled oppositely, it is a Safek whether the
                    adults must give to the minors, so if they
                    seized, it helps.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 10:1):</font></b> If two brothers
               divided, and a third brother came from abroad, or
               three brothers divided and a creditor took the
               portion of one of them, even if one took land and
               the other money, the division is void. They divide
               the rest equally.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 175:3):</font></b> If two brothers divided,
               and later came a brother that they did not know
               about, the division is void. Even if there were
               three fields and each took one and they split the
               third, and when the new brother came he received
               that third field, the first brothers do not keep
               what they received the first time. Rather, if one
               wants, he can Mevatel the old division and they make
               a new lottery for all three of them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> The Rashbam explains that
                    they initially divided in front of a Beis Din
                    of commoners.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Da):</font></b> Tosfos says that Shmuel
                    says that each of the first two brothers gives
                    a third of his share to the third brother, i.e.
                    when initially each took one field, and they
                    left one field for the third, in case his
                    lottery will fall on it when he comes. Rashi
                    said that Shmuel holds that the initial
                    division stands even for the third brother,
                    even though they divided without his Da'as. The
                    Rosh and Tur were not concerned for Tosfos'
                    opinion, for they challenged Rashi from the
                    case of orphans, and answered that there is
                    different, for no one requested to divide.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (10):</font></b> The Shulchan Aruch rules like Tosfos.
                    Since Shmuel says that Shmuel upholds the
                    division only when the third brother received
                    the third field, Rav holds that even in this
                    case the division is Batel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Even if the third brother
               agreed to take part of the portions of the other
               two, either of the first can Mevatel the division,
               since it was mistaken.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Rabeinu):</font></b> If the first
                    brothers want to keep the initial division,
                    surely Beis Din does not Mevatel it!
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Abaye:</font></b> You realized that it was 15, and you
               bought it anyway.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Mishnah):</font></b> If it is a sixth less, the
                    sale stands. If it is up to a sixth, he deducts
                    from the price.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> That is when the buyer did not
                    know. Here, Rav Papa knew that it was 15.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Papa:</font></b> He told me 20!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Abaye:</font></b> He can say 'I meant that it is as good as
               a field of 20.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DIVISION OF BROTHERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Yosi):</font></b> When brothers divide an estate,
          once one picks his share by lottery, everyone acquires
          his share. (Ra'avad - if two or more brothers remain,
          they must divide the rest by lottery; Rashbam - they can
          divide the rest as they wish; Ran - if they agreed that
          the portions would go in order (e.g. according to their
          births), all the shares are acquired when the first
          brother picks his share).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (R. Elazar):</font></b> It is like the initial division of
          Eretz Yisrael. Just like that was by lottery, also
          regarding brothers.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If it must be like the initial division of
          Eretz Yisrael, we should require not only a box (for the
          lots), but also (Re'em; alternatively - we should require
          a Kodesh urn and) the Urim v'Tumim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The brothers decide absolutely that
          the division should be according to the lottery. This
          helps as if they had the Urim v'Tumim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav):</font></b> If two brothers divided an estate, and a third
          brother came from abroad, the division is void (they must
          make a new division);
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> (The division stands.) Each brother gives a
          third of his share to the third brother (Rashbam; Tosfos
          - the third brother picks by lottery. We leave the
          initial division intact as much as possible (e.g. if the
          third brother picked a field which the other two would
          have shared, each of the other two keeps the fields he
          was supposed to get by himself).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> According to Rav, the division is
          void. This means that a division without the knowledge of
          one of the parties is invalid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, if there were three partners or brothers,
               and two of them divided by themselves (in front of
               Beis Din), will we say that the division is invalid
               (Rashbam - if the third objects; Meiri - even if the
               third consents)?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> That is different. There, they
          knew that there were three, and they picked portions
          accordingly;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In Rav's case, they thought that there were only
               two.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> According to Shmuel, the division
          stands. This means that if a division gave the wrong
          amounts, it is valid (we just correct the amounts);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav and Shmuel taught that if Reuven sold to
               Shimon 'a Kor (of grain) for 30 (Sela'im)', either
               can retract until all is measured out! (Shmuel
               should say that what was measured is sold!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'a Kor for 30, each Se'ah for a Sela',
               after each Se'ah is measured out, neither can
               retract.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> There, Chachamim enacted according to
          what the parties want, that they can retract until all is
          measured (in case the price changes).
<br>

<p>

sjt:
</p><p>
<font><b>2) TWO BROTHERS DIVIDE AN ESTATE, AND A THIRD BROTHER THEN APPEARS</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which two brothers divided their father's estate after his death, and then a third brother arrived from overseas. Rav rules that the division is invalid. Shmuel rules 'Mekamtzin' -- 'they must be frugal.' What does Shmuel mean?
</p><p>
(a) The <b>RASHBAM</b> (DH Mekamtzin) explains that each of the first two brothers must give a third of his portion to the third brother. For example, if each brother originally received three fields, each he must choose one field and give it the third brother. In this way, every brother ends up with two fields.
</p><p>
(b) <b>TOSFOS</b> (DH u'Shmuel) disagrees with this explanation. Why should the first two brothers have the right to choose what property they receive, while the third brother must receive the less desirable portions? Tosfos explains instead that 'Mekamtzin' means that new lots are drawn to divide the existing fields of the brothers. For example, if there were three fields to divide, and the first two brothers originally took one field each and split the third, lots are drawn when the third brother arrives to determine his portion. If he draws the lot of the third field, that field becomes his, and the other brothers retain possession of their respective fields. If the third brother draws the lot of one of the other brothers' fields, the brothers keep their halves of the third field and split the remaining field. This is in contrast to Rav's opinion that an entirely new lottery is performed, and none of the brothers have possession of any fields before the lottery.
</p><p>
(c) The <b>RASHBA</b> and others quote the <b><b><b>RI</b></b> MI'GASH</b> who gives a different explanation. He explains that when Shmuel says 'Mekamtzin,' he means that if the third brother is satisfied with what the other two brothers have given to him, the division is considered valid. If, however, the third brother is not satisfied, Shmuel agrees that the entire lottery must be performed again. In what way does Rav disagree? Rav maintains that even one of the original two brothers may demand to have a new lottery instead of having to divide up his current portion, even against the will of the other two brothers. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A BROTHER WHO LOST PART OF HIS SHARE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If brothers divided, and a creditor (of their
          father) took the portion of Ploni (a brother), the
          division is void.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Ploni lost. He is not compensated.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> Ploni gets a quarter of what was taken, in
          land or (Rashbam; Tosfos - and a quarter) in money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that the division is void. We consider
               it as if each brother inherited his proper share.
               All must pay the debt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel says that Ploni lost. We consider the
               brothers to be like buyers (they allow each other to
               take a share in place of what (Hash-m knows that) he
               should have inherited) without Acharayus (liability
               to compensate one whose land is legally taken from
               him);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Asi is unsure whether they are like heirs or
               like buyers (Tosfos - with Acharayus), and therefore
               we compromise and he gets a quarter in land or
               (Tosfos - and a quarter) in money.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The Halachah is, in this and the previous
          argument, the brothers give a portion of their property
          (they are heirs, like Rav. The division is valid, like
          Shmuel (106b));
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> The division is invalid (like Rav).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah follows Ameimar.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>VARYING ESTIMATIONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If three came to appraise orphans' property,
          and one said 100 (Zuz), and the others said 200, or vice-
          versa, we follow the majority;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If one said 100, another said 80, and the third said
          120, we adopt 100;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Eliezer b'Rebbi Tzadok says, we adopt 90 (we will
          explain the opinions);
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Others say, we take a third of the difference between
          the extreme positions (40) and add it to the lowest
          opinion.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The first opinion adopts 100. This is the average
               of the extreme positions (Rambam; Rashbam - it is
               the intermediate opinion);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer b'Rebbi Tzadok says 90, We assume that
               it is really worth 90;
<br>
<br>

sjt:
<font><b>1) A CREDITOR WHO TAKES PROPERTY FROM ONLY ONE HEIR</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which brothers divided their father's estate after his death, and then a creditor came and took the portion of one of the brothers. Is that brother entitled to compensation from the other brothers? The Gemara records three opinions.
</p><p>
<b>TOSFOS</b> (DH u'Va) asks that the details of the case are unclear. Why does the creditor have the right to take whatever he wants simply because he has a lien on the father's estate? The brothers equally share the responsibility of their father's debt, and thus the creditor should be allowed to take only an equal portion from each brother. This appears to be the implication of the Gemara later (124a) which states that when a creditor shows to the sons of a deceased man a document attesting to the fact that their father owed him money, the firstborn son pays double the portion of the other sons, since he inherits double the portion of the other sons. Why, in this case, does the Gemara accept that the creditor may take the entire amount from one son?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the Gemara here is discussing a case of an 'Apotiki,' in which the terms of the loan specifically state that a specific field is designated as collateral for the loan.
</p><p>
(b) The <b>RITVA</b> gives a similar answer. He explains that one brother received as his portion 'Ziburis' land, land of low quality. The Rabanan enacted that when a creditor collects his debt from the heirs of the deceased borrower, he may collect only from the lowest quality property, 'Ziburis.'
</p><p>
(c) The <b>CHIDUSHEI HA'RAN</b> suggests that in the case of the Gemara, only one brother has land which is considered 'Beinonis' -- 'middle grade' land. Since a creditor is normally entitled to take 'Beinonis' land, when he collects his debt from the heirs of the borrower he may take all of the Beinonis land, despite the fact that it is all in the hands of one brother (see Gitin 48b).
</p><p>
The Chidushei ha'Ran asks that this answer seems difficult. The Gemara in Bava Kama (9a) teaches that when two brothers divide their father's estate, and one brother takes money and the other takes land, and their father's creditor comes and seizes the land, the brother who took the land has no right to compensation from his brother. The second brother may claim that the very reason why he took the money and not the land was that he did not want to have to deal with any creditors. Why, then, may the brother in the case of the Gemara here demand compensation according to most opinions? Why can the other brothers not tell him that they specifically did not take the 'Beinonis' land because they did not want to deal with any creditors?
</p><p>
The Chidushei ha'Ran answers that in the case in Bava Kama, the brother who took money also exposed himself to a risk. Money can be stolen, and if robbers attack him and steal the money he will not be entitled to ask his brother for compensation. Each brother therefore may say that he carefully calculated which object he could take which would expose him to the least risk. However, in the case of the Gemara here, there was a division of land, all of which is subject to a creditor's appropriation. It just happened that the creditor took the 'Beinonis' land. It is clear that the brother who took 'Beinonis' did not have in mind that it was more likely to be taken away by a creditor than his brothers' lands. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>COLLECTING FROM TWO AREVIM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If brothers divided, and a creditor (of their
               father) took the portion of one brother, the
               division is void.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Shmuel):</font></b> That brother lost. He is not compensated.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> That brother gets a quarter of what was
               taken, in land and (or) money.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 25:9):</font></b> If two borrowed in one
               document, or bought one purchase, or if one partner
               borrowed or bought for the partnership, they are
               Arevim for each other, even though they did not
               specify.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Tur says that the Rambam
                    holds that one may collect the entire amount
                    from either, even if both have property. We
                    must say that the Tur had a mistaken text of
                    the Rambam. The Rambam says so only in Halachah
                    10, when they were Arevim for another's loan.
                    There is different. Since the borrower cannot
                    pay, and the lender collects from an Arev, it
                    makes no difference from which Arev he
                    collects. When two borrowed, each borrows half
                    and is an Arev on the other half. One collects
                    from an Arev only if he cannot collect from the
                    borrower.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (10):</font></b> If there are two Arevim for a loan,
               when the lender comes to collect, he may collect
               from whichever he wants. If one did not have the
               entire debt, he collects the rest from the other.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> This is not clear. Rather,
                    we follow the custom. We learn from Nochrim to
                    Yisrael.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> Bava Basra 107a supports the
                    Rambam. A creditor may collect from any
                    brother, even though we hold that a person's
                    property is an Arev for him. Some (Ramban 107a)
                    strain to reject the proof, and say that this
                    is when one of the brothers has no Beinonis, or
                    one brother's land was an explicit Apotiki (the
                    loan is collected only from it). The Tosefta
                    (Bava Basra 11:8) says that if there were two
                    Arevim on a loan, the lender may not collect
                    from one of them, unless they specified that he
                    may. The Ramban says that the same applies to
                    two who borrowed together. The Rashba (Bava
                    Metzi'a 34b) holds like the Rambam (we follow
                    the Gemara in Bava Basra against the Tosefta).
                    There is no source for the Ra'avad. Also, what
                    will be done in a place where there is no
                    custom?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Shevu'os 5:2):</font></b> When two borrowed, Avi ha'Ezri
               says that one is liable for the other's share due to
               Arvus. The lender may claim Ploni's share from
               Almoni only if he cannot collect from Ploni. The
               Ramban allows claiming it in any case. This is the
               Halachah in practice.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Shevu'os 17a) and Nimukei Yosef (Bava
                    Metzi'a 19a):</font></b> A Tosefta (Bava Basra 11:8)
                    teaches that when there are two Arevim,
                    l'Chatchilah one may collect only half from
                    each, unless they specified that he may collect
                    the full amount from either. Two who borrowed
                    together are like two Arevim. However, the
                    Rambam allows collecting the full amount from
                    either Arev.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef (ibid.):</font></b> The Rambam explains the
                    Tosefta to say that one may not collect from
                    either Arev before claiming from the borrower,
                    unless he stipulated. The Rashba says that two
                    Arevim are unlike two borrowers. An Arev is
                    like a security. Shibud is not half-way. When
                    partners borrow, each uses half for himself (so
                    his primary responsibility is only for half).
                    Perhaps the same applies to one who deposited
                    with two Shomrim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question #1:</font></b> In Bava Metzi'a 34b, we asked
                    whether an owner gives to a Shomer rights to
                    collect half the Kefel (if the thief will be
                    found) when the Shomer agreed to pay for half
                    the deposit. Then we asked whether an owner
                    gives half the Kefel when there were two
                    Shomrim and one agreed to pay for his half. If
                    he is responsible for the entire deposit, this
                    is the same question!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question #2:</font></b> We asked (96a) whether She'elah
                    b'Ba'alim applies when partners borrowed and
                    the owner was working for one of them. If a
                    partner is fully responsible, this is like
                    working for all the borrowers!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer to both questions (Ran and Nimukei Yosef
                    ibid., and 55a):</font></b> One partner is responsible for
                    the other's share only like an Arev. The owner
                    can claim from him only if the other partner
                    has no property.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Hagahos Maimoniyos (Mishpatim Teshuvah 63):</font></b> If
                    both Arevim have money, one may not claim
                    everything from one. R. Noson and Chachamim
                    (Bava Kama 53a) argue (about an ox that pushed
                    an animal into a pit) about getting paid from
                    one what the other should pay, only when one
                    cannot get paid from each what it should pay.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 77:1):</font></b> If two people borrowed
               together or bought an item together they are Arevim
               for each other. If one lacks property, everything
               may be collected from the other. If he has property,
               one may not collect from the Arev first (Rema -
               unless they specified that they are Arevim Kablanim,
               and he may claim from whichever he wants).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav b'Shem):</font></b> The
                    Magid Mishneh says that the Ramban holds like
                    the Rambam, unlike the Rosh (who says that the
                    Ramban permits collecting the entire amount
                    from either l'Chatchilah). Many Meforshim hold
                    like the Rambam, so we follow him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (9):</font></b> The Yerushalmi says that borrower are
                    Achara'in (responsible) for each other. Sefer
                    ha'Terumos says that this connotes Kablanos (an
                    Arev from whom one may collect before claiming
                    from the borrower). This is wrong. It also
                    connotes regular Arvus.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>R. Akiva Eiger:</font></b> Even though the document need
                    not say that they are Arevim for each other, if
                    it says so we do not say that this is extra to
                    teach that they are Kablanim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (132:3):</font></b> If there are two Arevim for
               a loan, the lender may collect from whichever he
               wants. If one did not have the entire debt, he
               collects the rest from the other. Some disagree and
               say that he collects half from each. However, if one
               does not have, he may collect everything from the
               other.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (77:11):</font></b> Chachamim did not make the lender
                    toil to collect half from each.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (77:3):</font></b> An Arev for another's loan is in
                    place of the borrower. The Shibud does not take
                    effect half-way.
<br>
<font color='blue'><i>See also:</i>
<b>PARTNERS WHO OWE</b> (Shevuos 37</font><font color='blue'>)
<p>

</p><p>


lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The opinions that said 80 and 100 each erred by
                    10 (only one of them, the third opinion, made a
                    large error).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why don't we say that it is really
               worth 110, and the ones who said 100 and 120 each
               erred by 10!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Since we are unsure which of these is
               true, we follow the smaller amount.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa - Others):</font></b> We take a third of the difference
          between the extreme positions and add it to the lowest
          opinion.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We assume that it is really worth 93 and one third;
               the opinion that said 80 erred by 13 and one third;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The opinion that said 100 also erred by 13 1/3.
               He did not say 106 2/3, for he did not want to sound
               too much higher than the previous opinion.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why don't we say that it is really
               worth 113 1/3? The ones who said 100 erred by 13
               1/3. The opinion that said 120 also erred by 13 1/3.
               He did not say 126 2/3, for he did not want to sound
               too much higher than the others!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Since we are unsure which of these is
               true, we follow the smaller amount.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The Halachah follows 'Others'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> Their reason is difficult. Can
          you say that the Halachah follows them?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Judges of Bavel (Shmuel and Karna) - Beraisa):</font></b> We take
          a third of the difference between the extreme positions
          and add it to the lowest opinion.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> The Halachah follows Judges of Bavel.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> Their reason is difficult. Can
          you say that the Halachah follows them?!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHICH HALF THE BUYER RECEIVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven told Shimon 'I sell to you half of
          a field', Meshamnim (we divide according to the Shumen
          (fatness) of the land. Every clause of the Mishnah will
          be explained later), Shimon takes half a field;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he said 'I sell to you half of a field in the
          south', Meshamnim, and Shimon takes half in the south.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	He (Rashbam - Reuven; Rambam - Shimon) accepts to
          provide the place for the fence, a ditch six Tefachim
          wide, and a secondary ditch three Tefachim wide.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - R. Chiya bar Aba citing R. Yochanan):</font></b> The
          buyer takes the weaker half of the land.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Chiya bar Aba):</font></b> the Mishnah says Meshamnim
          (each gets half the good land)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question (R. Yochanan - Seifa):</font></b> If he
               said 'I sell to you half of a field in the south',
               Meshamnim, and Shimon takes half in the south
               (whether it is good or not)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Yochanan):</font></b> You must say that
               'Meshamnim' means that the calculation of half the
               land is not according to area, rather, according to
               value;
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> Also in the Reisha, it means that
          Shimon gets land worth as much as what Reuven keeps. (I
          taught only that Reuven can choose to keep the highest
          quality land.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>THE DITCHES OUTSIDE THE FENCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He accepts to provide the place for the
          fence (and a ditch and a secondary ditch...)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Both ditches are outside the fence. The
          secondary ditch is closer to the fence;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The ditches are to prevent a Nemiyah (marten)
               from jumping over the fence.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why isn't a (regular) ditch enough?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Since it is wide, the marten can jump from the
          bottom of it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why isn't a secondary ditch enough?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Since it is thin, the marten can jump from
          outside of it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> How much must he leave between the two
          ditches?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> He leaves one Tefach.
<br>

<p>

sjt:
</p><p>
<font><b>2) PLACE FOR A FENCE AND DITCHES</b></font><b>
<br>OPINIONS:</b> The Mishnah teaches that when a landowner says to a buyer that he is selling to him the southern half of his field, the property is estimated ('Meshamnin') and the buyer receives the southern half. The Mishnah adds, 'And he accepts upon himself the place for the fence, ditch, and the minor ditch (which separates the big ditch from the fence).' To whom does the last statement of the Mishnah refer, the buyer or the seller?
</p><p>
(a) The <b>RASHBAM</b> (DH u'Mekabel Alav) explains that the seller accepts upon himself to set aside space from his field for the fence and ditches that will be situated around the buyer's field in order to ward off wild animals. One who sells a field is expected to provide all the land necessary for the field to be usable. On the other hand, when one sells an entire field, he is not expected to provide any services for the field.
</p><p>
The <b>CHIDUSHIM</b> U'VI'URIM questions the opinion of the Rashbam. Why should the seller be required to give more than half of his land because the buyer needs protection from wild animals? Why is that the seller's responsibility? Moreover, the wording of the Mishnah is 'v'Hu Mekabel Alav Makom ha'Geder' -- 'and he accepts upon himself the place of the fence.' If the Mishnah means that the seller must supply additional room for a fence and a ditch, it should say 'v'Hu Nosen' -- 'and he gives.' Why does it say 'and he accepts upon himself'?
</p><p>
(b) The <b>RAMBAM</b> (Hilchos Mechirah 21:22) explains that the Mishnah refers to the buyer. The buyer accepts upon himself to make the fence and ditches in his land. According to both the Rashbam and the Rambam, the fence is built not at the midpoint of the field, but around the edges of the field, in order to ensure that animals do not enter that half of the field. However, the <b>RASHASH</b> explains that according to the Rambam the Mishnah is teaching that it is the seller's right to demand that the buyer not expose his field to wild animals. This applies to the extent that the buyer is obligated to erect the necessary security measures to prevent the entry of animals into his field. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE SON IS THE CLOSEST RELATIVE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Even without this answer, a son is in place
          of his father for two laws, and a brother is in place of
          his brother for only one law!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Also for Sedei Achuzah, the Torah said only
          that the closest relative stands in place to redeem it.
          It did not specify who is closest;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a brother would be considered closer regarding
               Yibum, we would have one source to say that a
               brother is closer, and one source (Yi'ud) to say
               that the son is closer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, since we say that even regarding Yibum,
               a son is closer, he is closer also for Sedei
               Achuzah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Suggestion #1:</font></b> We should rather expound 'She'ero' to
          teach that Reuven's father takes precedence over Reuven's
          daughter;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that the father comes even
               before the son. 'Ha'Karov' teaches that the closest
               relative inherits.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Since a son and daughter are equivalent
          regarding Yibum, also regarding inheritance (they both
          precede the father).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion #2:</font></b> We should rather expound 'She'ero' to
          teach that the father takes precedence over the father's
          brothers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that the father comes even
               before the brother. 'Ha'Karov' teaches that the
               closest relative inherits.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> We know that the father comes before the
          uncles without a verse. Uncles only inherit because they
          are relatives of the father!
<br>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> The Beraisa learns unlike the verse!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Im Ein Lo Achim (you will give the inheritance
               to She'ero.)' (The Beraisa learns that She'ero (the
               father) comes before the deceased's brothers!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The verses are written out of order. (They
          discuss uncles before the father, even though surely the
          father has precedence, like we said. Rather, the closest
          relative always comes first.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>AN ALTERNATE WAY OF LEARNING</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2 (to Question 3:b 108b) - Beraisa - R.
          Yishmael b'Rebbi Yosi):</font></b> (We learn that a father inherits
          from) 'if a man will die without a son (v'Ha'avartem Es
          Nachalaso l'Vito)' - we transfer inheritance from the
          father to a daughter, but not from the father to a
          brother.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this teaches that we transfer
               inheritance from Reuven's brothers to his daughter,
               but not from Reuven's father to Reuven's daughter?
<br>
<br>

sjt:
<font><b>1) THE SOURCE THAT A DAUGHTER EXEMPTS HER MOTHER FROM 'YIBUM'</b></font><b>
<br>QUESTION:</b> The Gemara assumes that a son and daughter share the Halachic distinction of exempting their mother from Yibum. This means that when a man dies with either a son or a daughter, his wife does not fall to Yibum.
</p><p>
<b>TOSFOS</b> (DH Keivan) and other Rishonim are perplexed by this assumption. The verse explicitly states that Yibum is performed when a man dies 'u'Ven Ein Lo' -- 'and he has no son' (Devarim 25:5). If he has a son, then his widow is not exempt from Yibum. The verse clearly implies that if he has a daughter, then his widow is <i>not</i> exempt from Yibum. What is the basis for the Gemara's assumption that a daughter also exempts the widow from Yibum?
</p><p>
(a) The <b>RASHBAM</b> (DH Bein) writes that the Gemara understands that the verse of 'Ein Lo' means 'Ayin Alav' -- 'look into him.' This teaches that if the man has any child, even a daughter, his widow is exempt from Yibum. This indeed is how the Gemara in Yevamos (22b) understands the verse.
</p><p>
<b>TOSFOS</b> questions the Rashbam's explanation. The Gemara in Yevamos states that the verse of 'Ayin Alav' teaches that Beis Din should check even to see if the dead man has a child who is a Mamzer, for even a Mazmer-son will exempt the widow from Yibum. Since 'Ayin Alav' is already used to teach that even a Mamzer exempts the widow from Yibum, how can the same Derashah be used to teach that even a daughter exempts the widow from Yibum? Tosfos answers that 'Ayin Alav' means that Beis Din must make sure that the deceased has no progeny at all. Accordingly, the same Derashah indeed teaches that both a Mamzer and a daughter exempt a widow from Yibum.
</p><p>
The <b>RASHBA</b> rejects this explanation. He argues that the Derashah of 'Ayin Alav' refers explicitly to the subject of the verse -- a son. 'Ayin Alav' means that Beis Din must ascertain that the deceased man has no living <i>son</i> (even a Mamzer) before the widow may do Yibum. It does not mean that Beis Din must ascertain that he had any children whatsoever.
</p><p>
(b) The <b>RASHBA</b> therefore cites an opinion which explains that the Gemara's assumption is derived from the verse, 'And his name will not be erased from Yisrael' (Devarim 25:6). This teaches that as long as there is a living remembrance for the father's name, even a girl, there is no requirement of Yibum or Chalitzah. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHOM ONE SHOULD MARRY</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> One should marry into a family of good
               lineage. Moshe married Yisro's daughter, and Yonason
               (who served idolatry) descended from him. Aharon
               married Aminadov's daughter, and Pinchas descended
               from him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> One must check a woman's brothers before
               marrying her - 'va'Yikach Aharon Es Elisheva Bas
               Aminadav Achos Nachshon';
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Since the verse calls her Aminadav's
                    daughter, we know that she is Nachshon's
                    sister!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> It says 'Achos Nachshon' to teach that
                    one must check a woman's brothers before
                    marrying her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Most sons resemble the mother's brothers.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Pesachim 49a (Beraisa):</font></b> One should sell all his
               property (if necessary) in order to marry a
               Chacham's daughter. Even if he will die or be
               exiled, his children will (learn from her and) be
               Chachamim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> One should not marry the daughter of an Am ha'Aretz
               (ignoramus). If he will die or be exiled (from his
               house), his children will be Amei ha'Aretz.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One should sell all his property in order
               to marry a Bas Chacham and to marry his daughter to
               a Chacham. This is like (seeds of) grapes of a vine
               planted with grapes of a vine. It is a nice match
               and yields proper progeny. One should not marry a
               Bas Am ha'Aretz. This is like grapes of a vine with
               grapes of a shrub. It is repulsive and does not
               yield proper progeny.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Beraisa):</font></b> One should sell all his property in order
               to marry a Bas Chacham. If he cannot, he should try
               to marry (in this order) the daughter of a great
               Tzadik; a head of the congregation; a treasurer of
               Tzedakah; a Rebbi of children. He should not marry a
               Bas Am ha'Aretz, for an Am ha'Aretz is Sheketz and
               his wife is Sheretz. It says about their daughters
               'Arur Shochev Im Kol Behemah.'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> An Am ha'Aretz may not eat meat.
               'Zos Toras ha'Behemah veha'Of' - only one who
               engages in Torah may eat meat.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> One may kill an Am ha'Aretz, even on
               Yom Kipur that is on Shabbos. One may not accompany
               an Am ha'Aretz on the road - 'Ki Hu Chayecha v'Orech
               Yomecha' - if he is not concerned for his own life
               (he does not learn), all the more so he is not
               concerned for another's life!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> Marrying one's daughter to an
               ignoramus is like tying her up in front of a lion.
               Just like a lion tramples and eats (without waiting
               for his prey to die) without shame, an Am ha'Aretz
               hits his wife and has relations (without waiting for
               her to consent) without shame.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Pesachim 16a):</font></b> In Chagigah (22a), we say that
               nowadays we accept testimony of an Am ha'Aretz. This
               refers to one who is ignorant, but he conducts
               properly. Here we discuss an Am ha'Aretz suspected
               of theft, murderer and incest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Pesachim 3:10):</font></b> In Chagigah, it was <i>enacted</i>
               to accept testimony of an Am ha'Aretz. Here we
               discuss an Am ha'Aretz who sins to anger Hash-m. One
               may kill him due to Piku'ach Nefesh, for he is
               suspected of murder.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Isurei Bi'ah 21:32):</font></b> One should not
               marry an Am ha'Aretz' daughter. If he will die or be
               exiled, his children will be Amei ha'Aretz, for
               their mother does not know the crown of Torah. One
               should not marry his daughter to an Am ha'Aretz.
               This is like tying her up in front of a lion, for an
               Am ha'Aretz hits and has relations without shame.
               One should sell all his property in order to marry a
               Bas Chacham. If he will die or be exiled, his
               children will be Chachamim. One should marry his
               daughter to a Chacham, for there is no disgrace or
               quarrels in a Chacham's house.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 2:6):</font></b> One should strive to marry
               a Bas Chacham and marry his daughter to a Chacham.
               If he cannot find a Bas Chacham, he should try to
               marry a great Tzadik; a head of the congregation; a
               treasurer of Tzedakah; a Rebbi of children. He
               should not marry a Bas Am ha'Aretz.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Birkei Yosef (2, cited in Pischei Teshuvah 5):
                    Mahariyo and others say that for many laws,
                    nowadays no one is a Chacham. I say that we do
                    not have even a budding Chacham (unlike Shevus
                    Yakov 1:164). However, for marriage our
                    Chachamim are Chachamim. Even though they are
                    not like previous generations, also Amei
                    ha'Aretz have declined. Actions are primary;
                    The Chacham must have Yir'as Shamayim. One may
                    prefer the daughter of a simple Heaven-fearing
                    man over a Gadol ha'Dor's daughter, if he
                    thinks that then his heart will be more open to
                    Torah and Avodah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> It says about an Am ha'Aretz' daughter 'Arur
               Shochev Im Kol Behemah.' This refers to an Am
               ha'Aretz who is not careful about Mitzvos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH l'Olam):</font></b> Rashi explains that an
                    Am ha'Aretz' daughter is considered an animal
                    because she does not understand that Torah is
                    one's life and eternity.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (5):</font></b> Rashi holds that women are Mevatel
                    their husband from learning because they think
                    that if he engages in business, their situation
                    in this world will be better, but engaging in
                    Torah helps only for the world to come. They
                    err. If a Bas Am ha'Aretz understands that
                    Torah is life in both worlds, one may marry her
                    in spite of her father.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shai l'Mora, in Rosh Pinah Shulchan
                    Aruch):</font></b> The Taz understood from the Beis Yosef
                    that Rashi explains that she is considered an
                    animal because she does not understand that
                    Torah is one's life. This is wrong! Rashi cites
                    'Torah is one's life' regarding the coming
                    matter, that one may not accompany an Am
                    ha'Aretz!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Note:</font></b> Based on our texts, this also refutes the
                    Beis Yosef!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Birkei Yosef (4):</font></b> According to the Taz, if her
                    father is rich and will support his son-in-law,
                    it is permitted. Many do so. In any case,
                    people are not careful about the Isur to marry
                    a Bas Am ha'Aretz.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah):</font></b> The Tur brings from the
                    Rosh that we discuss an Am ha'Aretz suspected
                    to transgress in order to anger Hash-m. He is
                    evil to Hash-m and to people. The Rosh said so
                    about the Heter to kill him. The Tur
                    understands that this applies also to 'he is
                    Sheketz and his wife is Sheretz...' I disagree.
                    The latter applies even if he transgresses for
                    pleasure, or is not fluent in details of
                    Mitzvos. Rashi says so. 
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Drishah (27 DH Aval):</font></b> Perhaps Rashi supports
                    the Tur. Rashi explained 'they are not fluent
                    about Mitzvos' regarding wives of Amei
                    ha'Aretz, not about Amei ha'Aretz themselves.
                    This shows that we discuss an Am ha'Aretz who
                    sins to anger Hash-m, but what we say about
                    their wives is not limited to such people. She
                    is Batel to (and like) her husband, and at the
                    least she is not fluent in Mitzvos. This is why
                    other laws of Amei ha'Aretz taught there (they
                    may not eat meat, one may not accompany them)
                    were not taught about their wives. All these
                    matters were taught together, for all discuss a
                    (male) Am ha'Aretz who sins to anger Hash-m.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Bach (8):</font></b> The Tur wrote only that he is
                    suspected to transgress, i.e. things that
                    everyone knows to be forbidden, e.g. not to say
                    Kri'as Shema morning and evening. He is
                    suspected to transgress because he is not
                    meticulous about Mitzvos to avoid
                    transgression. 'To anger' does not exclude one
                    who transgresses for pleasure. Rather, it means
                    that he transgresses b'Mezid. He and his wife
                    are called Sheketz because they intentionally
                    are not careful about Mitzvos. It is as if they
                    transgress to anger Hash-m. This excludes if he
                    transgresses due to error. If he is established
                    to engage in Torah, Chesed and conducts
                    straightly, even if he is ignorant, he is
                    considered a Chacham also regarding marriage.
                    We hold like this.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Taz (6):</font></b> Only a minority of people are
                    meticulous about details of all Mitzvos!
                    Rather, Sheketz is one who does not know
                    matters of Nidah. They breed b'Isur, like
                    vermin. It does not depend on transgressing to
                    anger Hash-m. This is not limited to Amei
                    ha'Aretz! Rather, the Tur excludes one who
                    heeds his Rebbeyim, there is a solution for
                    him; he can learn. There is no solution for an
                    Am ha'Aretz who hates Chachamim. Even if he
                    hears from the Chacham, he will mock him and
                    not listen. The Tur discusses one who
                    transgresses for pleasure, but we suspect that
                    he would do so also to anger Hash-m.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Gra (38):</font></b> The Rema rules like Rashi (49b, who
                    says that they are not careful about Mitzvos.
                    In the Shulchan Aruch, there is a note
                    attributing the Rema's opinion to the Tur.)
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, the Torah should not have said
               'v'Ha'avartem'. (Rashbam, according to Bach - in the
               suggestion, v'Ha'avartem was <i>not</i> the source that
               we do not transfer from the father to the daughter,
               therefore it should have said 'u'Nsatem', like the
               other verses.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> (The Tana of the previous Beraisa (108b)
          learns inheritance of the father from 'She'ero.') R.
          Yishmael b'Rebbi Yosi learns from 'v'Ha'avartem.' What
          does he learn from 'She'ero'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'She'ero' refers to his wife. It
          teaches that a man inherits his wife.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What does the previous Tana learn from
          'v'Ha'avartem'?
<br>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Beraisa - Rebbi):</font></b> Regarding all other
          inheritances it says 'u'Nsatem'. Regarding a daughter, it
          says 'v'Ha'avartem', because only a daughter is Ma'avir
          (transfers) inheritance from one tribe to another.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A woman (usually) is inherited by her husband or
               son. If her husband is from a different tribe, the
               inheritance passes to his tribe.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> How does R. Yishmael b'Rebbi Yosi know that
          'She'ero' means 'his wife'?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It says '(your father's wife) She'er Avicha
          Hi'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it means 'his mother' -
               'She'er Imecha Hi'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Rava):</font></b> 'Mi'Mishpacht<i>o</i> v'Yarash Osah'
               - the father's family is called family, but the
               mother's family is not.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We learn from 'l'Mishpechosam l'Veis Avosam.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Also the mother's family is called family! It
          says 'there was a youth mi'Beis Lechem Yehudah
          mi'Mishpachas Yehudah v'Hu Levi'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How can he be a Levi, and from the
               family of Yehudah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that his father was a Levi,
               and his mother was from Yehudah, and it says
               'mi'Mishpachas Yehudah'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Rav Chanan):</font></b> No. His name was
          Levi. He was not a Levi; he was from Yehudah.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why did Michah say 'Hayah Li ha'Levi
          l'Chohen'?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He was happy that he found a man whose name was
          Levi.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> His name was not Levi. It was Yonason -
          'vi'Yhonason ben Gershom ben Menasheh...'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> The Torah says explicitly that
               Gershom's father was not Menasheh, it was Moshe!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that since Yonason acted
               like Menasheh (ben Chizkiyah, who served idolatry),
               the verse ascribes him to Menasheh.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, he was a Levi. He is ascribed to
          Yehudah because he acted like Menasheh, who came from
          Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> This shows that we ascribe a
               corruption to another corruption.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> We learn this principle
               from '...v'Oso (Adoniyahu) Yoldah Acharei Avshalom'.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Adoniyahu's mother was Chagis, and
                    Avshalom's mother was Ma'achah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer:</font></b> Since Adoniyahu acted like Avshalom
                    (tried to make himself king), he is ascribed to
                    (the same mother as) Avshalom.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE IMPORTANCE OF LINEAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> One should marry into a family of good
          lineage. Moshe married Yisro's daughter, and Yonason
          descended from him. Aharon married Aminadov's daughter,
          and Pinchas descended from him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Also Pinchas descends from Yisro - 'Elazar...
          mi'Benos Puti'el Lo l'Ishah'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Puti'el is Yisro. He is called
               Puti'el, for he fattened (Pitem) calves for
               idolatry.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> No, Puti'el is Yosef, who fought (Pitpet)
          against his inclination.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> The tribes scorned Pinchas '...this son of
          Puti, the son of he who fattened calves for idolatry...'!
<br>

<p>

sjt:
</p><p>
<font><b>2) AGADAH: THE LINEAGE OF PINCHAS</b></font><b>
<br>OPINION</b>: The Gemara states that a person should make every effort to marry into a good family. Moshe Rabeinu, who married the daughter of Yisro, had a grandson who was an attendant ('Shamash') for Avodah Zarah. His brother, Aharon, on the other hand, who married the daughter of Aminadav, had a grandson, Pinchas, who defended the honor of Hash-m. The Gemara asks that Pinchas was also a descendant of Yisro, since his father, Elazar (the son of Aharon), married a daughter of 'Puti'el,' a reference to Yisro who used to 'fatten (Pitem) Korbanos for Avodah Zarah.' The Gemara suggests that 'Puti'el' is not a reference to Yisro, but rather to Yosef, who fought ('Pitpet') against his Yetzer ha'Ra. The Gemara responds that it is apparent that 'Puti'el' refers to Yisro from the fact that the Jewish people scorned Pinchas for killing a Nasi while his grandfather was 'Puti'el' -- 'the fattener.' The Gemara answers that although it is true that Pinchas had a maternal grandparent from Yisro, but that grandparent's spouse was from Yosef.
</p><p>
How does the Gemara answer its question?
</p><p>
(a) The <b>RASHBAM</b> (DH Ela) explains that the Gemara means that Pinchas was quite removed from Yisro. The Gemara earlier mentions the fact that Pinchas was also descended from Yosef. This means that Elazar, the son of Aharon, married a woman who was the offspring of a marriage between a descendant of Yosef and a descendant of Yisro. It is possible that she was a third-generation descendant from a daughter of Yisro, which would make Pinchas a fourth-generation descendant. Accordingly, the Gemara's original statement that a person should marry into a good family still applies, because only the children or grandchildren of a bad family are deemed 'at risk' to have a predisposition for evil. Generations which are further removed are not affected by the bad family of their ancestry.
</p><p>
(b) <b>TOSFOS</b> (DH Ela) gives a different explanation. He explains that the Gemara specifically says that Pinchas' relation to Yisro was through a maternal grandparent. The Gemara means that only when the <i>father</i> is the product of a marriage from a bad family is there potential for a negative effect on the children.
</p><p>
The <b>MAHARSHA</b> takes issue with these explanations. If the Gemara's answer is as the Rashbam explains it, then why does the Gemara need to mention that one grandparent was from Yosef? It should answer merely that the grandparent from Yisro was too far removed to have any negative effect on Pinchas! Similarly, according to Tosfos' explanation, why does the Gemara not merely say that Pinchas was from a bad family only through his mother?
</p><p>
(c) The <b>MAHARSHA</b> therefore explains that the Gemara intentionally emphasizes that although Pinchas had one maternal grandparent from Yisro, the spouse of that grandparent was from Yosef. The Gemara means that when, in a marriage, one spouse comes from a good family and the other from a bad family, the effects of each family cancel each other out, and the new family (the marriage) is considered neutral. Accordingly, Pinchas' mother's side was neutral, while his father's side, that of Aharon ha'Kohen, was exceptional. Such a marriage was considered a proper and praiseworthy match, and an excellent beginning for raising a Tzadik, as the Gemara states. Although Moshe Rabeinu was a great Tzadik, his partner in marriage was Tziporah, the daughter of Yisro. Accordingly, Moshe's grandson, Yehonasan, had a father who was deemed 'neutral.' However, his mother might not have been from a good family, which would tip the scale towards having a bad child. This is why the Gemara goes out of its way to show that Pinchas' maternal grandparents were split between Yosef and Yisro. (See <b>IYUN YAKOV</b> who agrees with the Maharsha's explanation, but also defends the explanations of the Rashbam and Tosfos.)
</p><p>
The Maharsha concludes with an important point. Lineage alone does not dictate whether the children will be Tzadikim or Resha'im. Lineage is merely one factor among many other factors. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE IMPORTANCE OF LINEAGE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, Pinchas descended from both Yisro
          and Yosef, from one on the father's side, and from the
          other on the mother's side.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> 'Mi'Ben<i>os</i> Puti'el' implies from two
               (people called Puti'el).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> One must check a woman's brothers before
          marrying her - 'va'Yikach Aharon Es Elisheva Bas Aminadav
          Achos Nachshon';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Since the verse calls her Aminadav's
               daughter, we know that she is Nachshon's sister!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It says 'Achos Nachshon' to teach that
               one must check a woman's brothers before marrying
               her.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Most sons resemble the mother's brothers.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>YONASON ERRED AND REPENTED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	'Mi Hevi'acha Halom, u'Mah Atah Oseh ba'Zeh, u'Mah
          Lecha Po'- they asked him, don't you descend from Moshe,
          about whom it says 'Al Tikrav Halom', 'Mah Zeh
          b'Yadecha', and 'v'Atah Po Amod Imadi'? Will you become a
          Kohen to idolatry?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Yonason:</font></b> I have a tradition from Moshe that it is
               better to hire himself out and do <i>Avodah Zarah</i>,
               than to be supported by others.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He thought that this means idolatry. Really, it
               means work that is foreign to him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav (to Rav Kahana):</font></b> Flay a carcass in the market
               for wages. Do not consider yourself too important,
               and that this is a disgrace for you.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	When David saw how much Yonason liked money, he
          appointed him over the treasuries - 'u'Shevu'el ben
          Gershom ben Moshe Nagid Al ha'Otzaros.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why does the verse call him 'Shevu'el'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> He returned to Hash-m (Shav
          la'Kel) with all his heart.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SONS INHERIT THE FATHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Sons inherit their father ...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source for this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> 'Ish Ki Yamus u'Ven Ein Lo' implies that if
          he had a son, the son would be first to inherit.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Papa):</font></b> Why don't we say that if
               there is only a son or daughter, he or she inherits,
               but if there are both, neither inherits?
<br>
<br>

sjt:
<font><b>1) WAS RAV KAHANA A KOHEN?</b></font><b>
<br>OPINIONS:</b> The Gemara relates that Moshe Rabeinu passed down a teaching that a person (such as one who teaches Torah) should do work that is foreign to him instead of having to accept Tzedakah. The Gemara says that this is similar to what Rav told Rav Kahana. Rav told Rav Kahana that it is better to carry an animal carcass in the marketplace and be paid for it than to say that 'I am a great man and the work is undignified for me.'
</p><p>
A slightly different conclusion to Rav's statement is printed in some texts of the Gemara. According to those texts, Rav told Rav Kahana that it is better to carry an animal carcass in the marketplace and be paid for it than to say that 'I am a Kohen (Kahana Ana) and the work is undignified for me.' Which text is more accurate?
</p><p>
(a) The <b>RASHBAM</b> (DH v'Lo Teima) says that the correct text is the one that appears in our Gemara.
</p><p>
(b) It is clear from <b>TOSFOS</b> (DH v'Lo Teima) that his Gemara had the second text. <b>RABEINU TAM</b> understands that the words 'Kahana Ana' do not mean 'I am a Kohen.' Rather, Rav told Rav Kahana that he should do demeaning work rather than say 'I am <i>Rav Kahana</i> and this work is undignified for me.' Rabeinu Tam explains that Rav would not have told Rav Kahana not to say that he was a Kohen, because Rav Kahana was <i>not</i> a Kohen. This is apparent from the Gemara in Chulin (132a), which teaches that a person may give the Matnos Kehunah of the Zero'a, Lechayayim, and Keivah to a Bas Kohen, even if she is married to a Yisrael. The Gemara proves this from the conduct of Rav Kahana, who ate Matnos Kehunah because of his wife who was a Bas Kohen.
</p><p>
(c) The <b>RITVA</b> also quotes the second text, but he understands that 'Kahana Ana' means that one should not say 'I am a Kohen' (as the Rashbam understands that text). Why would Rav tell Rav Kahana not to say 'I am a Kohen' if Rav Kahana was not a Kohen, as Rabeinu Tam proves from the Gemara in Chulin? The Ritva answers that there may have been two Amora'im named Rav Kahana, one of whom indeed was a Kohen.
</p><p>
(d) Alternatively, the Ritva explains that the words 'Kahana Ana' -- 'I am a Kohen' -- also mean that 'I am a dignified person' and do not necessarily mean that the person is a Kohen.
</p><p>
(e) The Ritva suggests a third explanation. Rav was not telling Rav Kahana what he <i>personally</i> should not say to avoid working. Rather, he was telling him that a person in general should not try to get out of working, <i>for example</i> by saying that he is a Kohen. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY A CHACHAM TAKE GIFTS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Yonason:</font></b> I have a tradition from Moshe that it is
               better to hire himself out and do <i>Avodah Zarah</i>,
               than to be supported by others.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He thought that this means idolatry. Really, it
               means work that is foreign to him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav (to Rav Kahana):</font></b> Flay a carcass in the market
               for wages. Do not consider yourself too important,
               and that this is a disgrace for you.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Metzia 84b:</font></b> R. Elazar b'Rebbi Shimon's wife was
               angry that he had 'squandered' her father's money by
               bringing afflictions on himself; she left him. Some
               sailors were saved from great danger in the merit of
               R. Elazar; they gave to him a great gift. He told
               his wife 'my wealth exceeds that of your father's
               house' - 'Haysah k'Aniyos Socher' (the Torah
               supports those who learn it).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Kesuvos 105a:</font></b> Giving a gift to a Chacham is like
               bringing Bikurim.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Avos 1:13:</font></b> One who uses the crown (of Torah for
               personal benefit) will cease from the world.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Avos 4:5:</font></b> Anyone who benefits (financially) from
               Torah removes his life from the world.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Chulin 44b:</font></b> R. Elazar would not accept gifts from
               the Nasi or invitations to eat there due to 'V'Sonei
               Matanos Yichyeh';
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Zeira declined gifts from the Nasi's house, but
               accepted invitations to eat there. He reasoned that
               they are honored by his presence.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Chulin 134a:</font></b> A bag of money was sent to support
               Rabanan; R. Ami acquired it.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> 'V'Nosan' - a person should not take for
               himself!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 	Answer #1:</font></b> He acquired it on behalf of the poor.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 	Answer #2:</font></b> The head (of the academy) may take for
               himself;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'Veha'Kohen ha'Gadol me'Echav' - the
                    Kohen Gadol must be greater than the other
                    Kohanim in beauty, Chochmah, and wealth;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Others say, if necessary, the other Kohanim
                    give money to him to make him the wealthiest
                    Kohen.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Matanos Aniyim 10:18):</font></b> One should
               avoid taking from people if at all possible, even if
               he must suffer. Great Chachamim chopped wood,
               carried beams, drew water, or were smiths rather
               than request from the Tzibur. They did not accept
               offers of money.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> In every generation there have been
               very poor and very rich people. Surely, the rich
               were willing to give to the poor! Rather, the poor
               preferred to subsist on their meager incomes.
               Chachamim like Hillel and R. Chanina ben Dosa were
               very poor. They saw that it would be Chilul Hash-m
               to take money from people, lest Torah be cheapened
               in people's eyes, i.e. Torah would look like a
               profession from which one supports himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Kesef Mishneh):</font></b> One cannot learn from
                    Hillel! At first, he was one of thousands of
                    Talmidim. Perhaps support was given only to the
                    most known Talmidim, or those who could not
                    support themselves. Surely, when he taught
                    Yisrael he had ceased to chop wood! R. Chanina
                    ben Dosa had no need to take from people.
                    Shamayim would grant all his desires, just he
                    did not want to benefit from this world.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> 'Haysah k'Aniyos Socher' - the Torah
               supports a Chacham who is physically unable to
               support himself. Otherwise, he may not take from
               others.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Kesef Mishneh):</font></b> If so, this is no
                    praise of Torah. Sick and handicapped people
                    always find people to support them, even if
                    they are not Chachamim! Also, R. Elazar b'Rebbi
                    Shimon brought afflictions on himself; he
                    caused his afflictions depart when he wanted to
                    learn, but he did not do so to preclude the
                    need to benefit from Torah!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Defense of Rambam (Einayim l'Mishpat Bava Basra
                    110a:3):</font></b> R. Elazar b'Rebbi Shimon was concerned
                    lest he needed a Kaparah for informing on
                    sinners. Alternatively, he accepted on himself
                    the afflictions due to come on Kelal Yisrael,
                    so it was proper that they support him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Kesef Mishneh):</font></b> The Rambam connotes
                    that a healthy Chacham should not take a gift.
                    Giving a gift to a Chacham is likened to
                    bringing Bikurim! It was customary to give
                    gifts to Nevi'im (Shmuel 1:9:7-8).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Einayim l'Mishpat ibid.):</font></b> We learned
                    that giving to a Chacham is like Bikurim from
                    Elisha (Melachim 2:4:42), i.e. in a famine
                    year. Perhaps it applies only when the Chacham
                    cannot support himself! Since people give small
                    gifts to an important person, even if he is
                    ignorant, this is not considered benefit from
                    Torah. Elisha (took a big gift, but he) himself
                    did not benefit from the gift. He give it to
                    his Talmidim, who could not support themselves
                    while learning.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kesef Mishneh:</font></b> When R. Ami took the money sent
                    to the Beis Medrash (Chulin 134a), the question
                    was only why he took it by himself, rather than
                    letting others give it to him.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> The Gemara says that one who wants
               to benefit from others like Elisha may do so. This
               permits occasionally accept lodging or a meal, but
               not regular stipends!
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 255:1):</font></b> One should avoid taking
               Tzedakah if at all possible, even if he must suffer.
               Chachamim commanded to make Shabbos like Chol rather
               than take Tzedakah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Birkei Yosef (DH v'Al):</font></b> Chachamim taught that
                    'one should not take from people' to include
                    even gifts. However, for the preservation of
                    Torah it was permitted. Tana'im and Amora'im
                    were stringent not to take; this was beyond the
                    letter of the law.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Yam Shel Shlomo (Chulin 3:9, brought in Taz
                    246:7):</font></b> There is a Heter to lend to Nochrim on
                    interest 'Kedai Chayav' (for as much as he
                    needs to live). Tosfos (Bava Metzi'a 70b DH
                    Tashich) says that nowadays due to government
                    taxes, there is no limit. We can say the same
                    to justify taking money to learn even if one
                    has money. Even those exempt from taxes have
                    great expenses to teach Torah to their children
                    and to marry off daughters to Chachamim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (7):</font></b> One who is not overly wealthy may rely
                    on this to take a gift of any amount. However,
                    if he already has enough to last his lifetime,
                    he may not take gifts.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (246:21):</font></b> The custom is to support the Rav of
               the city, lest he need to work in public and
               disgrace Torah in the eyes of the masses. This is
               only if the Chacham needs assistance. Some are more
               lenient to allow a Chacham and his Talmidim to
               receive support in order to engage in Torah
               comfortably.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (DH u'Mah she'Chosav Kol, and Sof
                    ha'Siman):</font></b> We learn from the Kohen Gadol that a
                    Rosh Yeshiva may take gifts to become rich to
                    give more clout to his words.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> Kesuvos 105a was forced to say that
                    judges in Yerushalayim received extra money
                    only if their stipends did not suffice!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Bach DH v'Ha):</font></b> Those judges did not
                    need to be rich to give clout to their words.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Taz 7):</font></b> If people may give gifts to
                    the Av Beis Din, one who knows that he will
                    have a judgment later will give a gift long
                    beforehand to bias the Av Beis Din! If he takes
                    gifts, he will not receive any other reward for
                    his Torah. All the more so, money hungry
                    Chachamim who demand money disgrace Torah and 
                    those who learn it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rema (ibid.) Nevertheless, it is Midas Chasidus to
               support oneself and learn. This is a gift from
               Shamayim; not everyone can do so and become a
               Chacham.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra 65):</font></b> R. Elazar and R. Zeira
                    declined gifts from the Nasi due to 'V'Sonei
                    Matanos Yichyeh'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> The Heter is to receive from the
               Tzibur, but one may not take gifts from people.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (21):</font></b> The Kesef Mishneh, Maharshal and
                    Bach permit even gifts from people. 'V'Sonei
                    Matanos Yichyeh' does not imply that one who
                    takes gifts will die.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema (ibid.):</font></b> Giving a <i>small</i> gift to a Chacham is
               likened to bringing Bikurim; it is customary to give
               such gifts to a great person, even if he is
               ignorant.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Birkei Yosef (DH Kol):</font></b> If the giver himself
                    wanted to give, one who refuses to accept
                    withholds Chesed. Shmuel ha'Navi did not take,
                    for he feared that people offered because they
                    were embarrassed not to. Even though some
                    Chachamim refused to take due to 'v'Sonei
                    Matanos Yichyeh', a traveler does not have his
                    Kelim and is like an Oni, so he may take.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TAKING FROM PEOPLE IN ORDER TO LEARN TORAH </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> When there are both, who
               should inherit? Will the mayor inherit?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Clarification (Rav Papa):</font></b> I meant that neither
               would inherit alone, rather, they would split the
               inheritance.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> We do not need a verse to teach
               that a lone son inherits everything.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps the verse teaches that a
               daughter also inherits?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> That is learned from 'v'Chol Bas Yoreshes
               Nachalah.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Acha bar Yakov):</font></b> We learn that sons
          inherit from 'Lamah Yigara Shem Avinu... Ki Ein Lo Ben.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had he had a son, the son alone would
               inherit.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> That is no proof. Perhaps Tzelafchad's
          daughters thought so, but the Torah teaches differently!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we must rely on Answer #1.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Ravina):</font></b> We learn from 'ha'Karov Elav' - the
          closest one inherits.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The son is closer than the daughter, for he
               stands in place of his father regarding Yi'ud
               (marrying an Amah Ivriyah) and (redeeming) an
               inherited field.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> Yi'ud does not prove that the son is closer,
          since it is not applicable to a daughter. We know that a
          son stands in place of his father regarding an inherited
          field only from the fact that he precedes the daughter
          regarding inheritance!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, we must rely on Answer #1.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4:</font></b> 'V'Hisnachaltem Osam li'<i>Vneichem</i>
          Achareichem' - you will bequeath slaves to your sons, but
          not to your daughters.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we should also expound 'Lema'an Yirbu
          Yemeichem vi'Mei <i>Veneichem</i>' to exclude your daughters?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Regarding a blessing, it is illogical to
          expound to exclude daughters.
<br>
<b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>BROTHERS INHERIT EACH OTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Paternal brothers inherit each other ...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> We learn a Gezeirah Shavah 'Achvah-
          Achvah' from Yakov's sons.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like Yakov's sons were paternal but not
               (all) maternal brothers, also brothers mentioned
               regarding inheritance must be paternal.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why is the Gezeirah Shavah needed? We can
          learn from 'mi'Mishpachto v'Yorash Osah!' (We said above
          (109b) that 'Mishpachah' refers to the father's family.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> True! In truth, Rabah's Gezeirah Shavah teaches
          about Yibum.
<br>

sjt:
</p><p>
<font><b>2) WHY ONE WOULD THINK THAT A DAUGHTER IS LIKE A SON</b></font><b>
<br>OPINIONS:</b> The Gemara earlier (110a) derives from the verse, 'When a man dies and he has no son, you shall pass his inheritance to his daughter' (Bamidbar 27:8), that if the man who died <i>does</i> have a son, that son receives the entire inheritance. The Gemara here asks that perhaps the Torah merely means to teach that a daughter inherits? The Gemara answers that this is already learned from the verse of 'v'Chol Bas Yoreshes Nachalah' -- 'And every daughter who inherits her father's estate...' (Bamidbar 36:8).
</p><p>
What exactly is the Gemara's challenge and its answer?
</p><p>
(a) The <b>RASHBAM</b> (DH Amar Lei Rav Papa) explains that his teachers gave the following explanation of the question. Perhaps the reason why the Torah does not state explicitly that a daughter inherits just as a son inherits is that one might have thought that a daughter inherits only when there is also a son, but when she has no brothers perhaps the inheritance is passed on to a different relative. This is why the Torah writes that if there is no son, then a daughter inherits. The Torah teaches that she certainly inherits when she has no brother.
</p><p>
(b) The Rashbam gives another explanation of the Gemara's question, which is the opposite of his first explanation. The fact that a daughter is mentioned at all in the Parshah of Yerushah is a novelty, since all of the other people mentioned in the Parshah are males. Moreover, the Gemara earlier (109b) derives from the verse (Bamidbar 1:2) 'l'Mishpechosam l'Veis Avosam' that only the family of the father is considered family in matters of inheritance. It is possible, therefore, that although the verse says that a daughter inherits, it may mean that when there is no son, the daughter inherits in such a way that her husband and son effectively receive the inheritance, unless she inherits <i>with</i> her brother, in which case some of the inheritance is not passed on to others since it stays with the son (as opposed to the part that goes from the daughter to her husband or son from another Shevet).
</p><p>
(c) The <b>SHITAH MEKUBETZES</b> quotes the <b>RE'EM</b> who says that the verse of 'Ish Ki Yamus' (Bamidbar 27:8) may be understood in a different manner. The Torah may be teaching that a daughter receives a full inheritance when she does not have a brother, which implies that she receives only half when she has a brother. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INHERITANCE FROM WOMEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A man inherits his mother ...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> 'V'Chol Bas Yoreshes Nachalah
          mi'Mat<i>os</i>...' - how can she inherit from two tribes? We
          must say that her parents are from different tribes, and
          she inherits both of them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How do we know that also a son inherits
               both parents?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> A Kal v'Chomer teaches this;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A daughter does not have precedence to inherit
                    her father (over a son), yet she inherits her
                    mother;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  A son has precedence to inherit his father.
                    All the more so, he inherits his mother!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  Also, just like a son has precedence to
                    inherit his father (over a daughter), also
                    regarding his mother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Zecharyah ben ha'Katzov says, a son and
               daughter inherit their mother's property equally.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He holds Dayo (a Kal va'Chomer may not teach more
                    than either of the cases it is built on. Here,
                    we have no source to say that the son has
                    precedence to inherit the mother).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Do Chachamim really argue with Dayo? It is
          mid'Oraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'V'Aviha Yarok Yarak b'Faneha ha'Lo
               Sikalem Shiv'as Yamim' - all the more so, if Hash-m
               is angry at her, she should be isolated 14 days, but
               we learn only as much as the source.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Usually, Chachamim agree to Dayo. Here they
          have a source to say that the son takes precedence also
          to inherit the mother.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Mi'Matos' equates the father's tribe to the
               mother's tribe.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like the son has precedence to inherit the
                    father, also to inherit the mother.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rav Nitai was about to rule a case like R. Zecharyah
          ben ha'Katzav.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shmuel:</font></b> Will you rule like R. Zecharyah? The
               Halachah does not follow him!
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	R. Tavla ruled in a case like R. Zecharyah ben
          ha'Katzav.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Why did you rule this way?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Tavla:</font></b> Rav Chinena bar Shalmiya said in the
               name of Rav that the Halachah follows R. Zecharyah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Retract your ruling. If not, I will
               excommunicate you!
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Rav Huna bar Chiya was about to rule a case like R.
          Zecharyah ben ha'Katzav.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Why will you rule like R. Zecharyah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Huna bar Chiya:</font></b> Rav Huna said in the name of
               Rav that the Halachah follows R. Zecharyah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> I will send to inquire if Rav Huna
               really said so.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rav Huna bar Chiya was embarrassed. In the
                    meantime, Rav Huna died.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom does Rav Nachman hold?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav and Shmuel taught that the Halachah does
          not follow R. Zecharyah.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (R. Yehudah Nesi'ah):</font></b> How do we know that the
          son has precedence to inherit the mother?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (R. Yanai):</font></b> 'Mi'Matos' equates the mother's
          tribe to the father's.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a son has precedence to inherit his
               father before a daughter, also, to inherit his
               mother.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A FIRSTBORN'S RIGHTS IN HIS MOTHER'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Yehudah Nesi'ah):</font></b> If so, we should also
          equate them to say that a firstborn son gets a double
          portion in the mother's property, like in the father's!
<br>
<br>

sjt:
<font><b>1) PROOF FOR THE CONCEPT OF 'DAYO' FROM MIRIAM'S ISOLATION PERIOD</b></font><b>
<br>OPINIONS:</b> The Gemara proves the concept of 'Dayo la'Ba Min ha'Din Liyehos ka'Nidon' -- it is sufficient to give the Halachah learned from a Kal va'Chomer the exact status of the Halachah from which it was learned (and not a more stringent Halachah) -- from the incident of Miriam's isolation. The verse teaches a logical reason, based on a Kal va'Chomer, for why Miriam was sent out of the encampment of the Jewish people for seven days: 'v'Aviha Yarok Yarak b'Faneha ha'Lo Sikalem Shiv'as Yamim' -- 'If her father would have rejected her, would she have not been scorned (and isolated) for seven days' (Bamidbar 12:14), then certainly when Miriam was rejected by the Shechinah she should be isolated for seven days (but not for fourteen days, because of the rule of 'Dayo'). (See Insights to Bava Kama 25:1 for the source of the Halachah that one who is shunned by his father is isolated for seven days.)
</p><p>
The Gemara clearly implies that because Miriam sinned against Hash-m, she should have been sent away for double the time. The Torah teaches that 'Dayo' limits the Halachah that is derived through the Kal va'Chomer to the degree of severity of the Halachah's source.
</p><p>
What is the basis for the Gemara's assumption that the punishment for one who sinned against Hash-m should be double that of one who sinned against a parent?
</p><p>
(a) <b>TOSFOS</b> (DH Kal va'Chomer) quotes <b>RABEINU TAM</b> who explains the Gemara's assumption based on the Gemara in Nidah (31a) which teaches that there are three partners in the creation of a person: Hash-m, the father, and the mother. Hashem's portion in the creation of a person is equal to the portion of the father and mother together. That is, there are four portions in the creation of a person -- two which are contributed by Hash-m, and one by the father and one by the mother. It follows logically that if a person who sins against his father -- who contributed 'one part out of four' to his creation -- is shunned for seven days, then one who sins against Hash-m -- Who contributed 'two parts out of four' -- must be shunned for twice that amount, or fourteen days.
</p><p>
Tosfos, however, is not satisfied with this answer. Tosfos asks that according to this answer, even without a Kal va'Chomer it would be known that one who sins against Hash-m should be shunned for fourteen days. Moreover, the Sifri states that the reason why Miriam should have been punished for fourteen days was that she spoke Lashon ha'Ra about Moshe Rabeinu, who had the status of a king and a Kohen Gadol (as he served in the Mishkan during the seven inaugural days). The Sifri seems to contradict Rabeinu Tam's logic regarding the source for fourteen days. (See <b>RASHASH</b>, who understands that this question is also the intent of Tosfos, unlike the <b>MAHARSHA</b> understands it.) Tosfos suggests that it is possible to explain that according to Rabeinu Tam, when the Sifri mentions that Miriam sinned against the 'Melech,' it refers not to Moshe Rabeinu but to Hash-m. However, Tosfos rejects this approach since it is not consistent with the wording of the Sifri.
</p><p>
(b) Tosfos quotes <b>RABEINU CHAIM</b> who explains that the verse does not mean that one who sins against Hash-m should be punished for fourteen days, but rather for a little more than seven days. Once the verse says that the period of punishment should be more than 'Hisager' -- 'she should be shut out' (Bamidbar 12:14), it adds another period of 'Tisager' -- 'she should be shut out' -- to show that Miriam deserved more punishment than just one period of isolation. This indicates fourteen days.
</p><p>
The <b>RAN</b> gives a similar explanation. Once the Torah teaches that Miriam deserved more than seven days, and the Halachos of a Metzora teach that the Metzora is shunned in seven-day increments, 'more than seven' automatically means fourteen days. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A HUSBAND INHERIT AFTER SAFEK DIVORCE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Sheiro (his close relative)' refers to
               his wife. The verse teaches that a husband inherits
               his wife.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 159b (Abaye):</font></b> The Torah mentions Sivah (transferal
               of inheritance to another tribe) regarding a son and
               a husband (who inherit their mother and wife,
               respectively). Just like a husband in the grave does
               not inherit, also a son.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kidushin 45b:</font></b> A man agreed to his daughter's
               Kidushin (to a Kohen), and went abroad. She had
               Nisu'in.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav):</font></b> She may eat Terumah until the father returns
               and protests.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Asi):</font></b> She may not eat, lest he return and
               protest!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Shmuel bar Rav Yitzchak):</font></b> Rav admits that if
               she dies before the father returns, her husband does
               not inherit her. We leave the money in its Chazakah
               (her father inherits her, perhaps the Nisu'in was
               invalid).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Gitin 73b (Beraisa - R. Yehudah):</font></b> (If a man gave a
               Get to take effect at the last moment he is in the
               world,) in the interim, he receives her earnings; he
               can annul her vows; (if she would die) he inherits
               her... She is like his wife in every respect, just
               she does not need another Get.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> R. Meir says, her Bi'ah with another man is
               contingent;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Yosi says, if she has Bi'ah with another man, it
               is a Safek;
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> Chachamim say, she has the stringencies of being
               divorced and not divorced, provided that he
               (eventually) dies from the sickness.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Chachamim and R. Yosi argue about whether he must
               feed her.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Kesuvos 27a and 5:35):</font></b> Only proper
               divorce uproots inheritance mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 1:8):</font></b> A man inherits his
               wife mi'Divrei Sofrim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> There are many proofs
                    against this, including the end of Perek 9 of
                    Bava Basra.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> There is an argument about this
                    in the Gemara. The Rambam rules like Rav
                    (Kesuvos 83b). Perhaps this is because we hold
                    that one can stipulate not to inherit an
                    inheritance that comes from elsewhere, i.e. a
                    wife, which is only mid'Rabanan. However,
                    others explain 'it comes from elsewhere', i.e.
                    due to his action (marriage), unlike
                    inheritance of blood relatives, which is
                    automatic. The Rambam himself explains this way
                    in Hilchos Ishus 23:6,7)! The Ra'avad learns
                    from Bava Basra 159b. The Rashba brought other
                    proofs that it is mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kesef Mishneh:</font></b> One could have said that the
                    Rambam holds that it is mid'Oraisa, but he
                    calls it mi'Divrei Sofrim because it is not
                    explicit in the Torah. However, in Halachah 6:8
                    he says that Chachamim strengthened a husband's
                    inheritance like Torah law, even though it is
                    mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (9):</font></b> If one was Safek divorced, her husband
               does not inherit her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> If a man lodged with his
                    ex-wife in an inn, Beis Hillel require another
                    Get. The Yerushalmi says that this is for
                    inheritance. I.e. even though he Vadai divorced
                    her and we are unsure if he remarried her, he
                    inherits her. If he Safek divorced her, all the
                    more so he inherits her!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> I did not find a total proof for
                    the Rambam. Perhaps he learns from a man who
                    agreed to his daughter's Kidushin to a Kohen,
                    and she had Nisu'in when he was abroad, Rav
                    permits her to eat Terumah. However, Rav admits
                    that he does not inherit her, for we leave the
                    money in its Chazakah. The Ba'al ha'Itur says
                    that he does not inherit her in any case of
                    Safek Kidushin or Safek divorce. The Rambam
                    agrees. However, one could distinguish. Before
                    Nisu'in, her father was Muchzak to inherit her.
                    Before divorce, her husband was Muchzak to
                    inherit her. Perhaps we do not change this
                    Chazakah due to a Safek! Gitin 73b supports the
                    Rambam. Tana'im argue about a Safek divorcee.
                    R. Yehudah (who considers her to be Vadai
                    married) says that he inherits her, but the
                    other Tana'im do not mention this. Also, if a
                    husband inherits even a Safek divorcee, R.
                    Yehudah would not need to teach that he
                    inherits her! The Yerushalmi actually
                    <i>supports</i> the Rambam! R. Elazar says that
                    after he was secluded with his ex-wife, he
                    inherits her, like we learned that a husband
                    receives her earnings, and he can annul her
                    vows... Ze'ira derives that she is like his
                    wife in every respect. If one inherits a Safek
                    divorcee, Ze'ira could not infer this! However,
                    perhaps he derived this from the fact that he
                    can annul her vows. This is mid'Oraisa, so we
                    would be stringent if it were a Safek. In any
                    case the Yerushalmi does not refute the Rambam,
                    for it holds that she is Vadai married. If it
                    were Safek Kidushin, how could we take the
                    inheritance from her father due to a Safek?
                    Later, I found that Ge'onim argue about this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Lechem Mishneh:</font></b> How can the Magid Mishneh bring
                    a proof from the Yerushalmi for the Rambam, 
                    which discusses Safek Kidushin? Perhaps divorce
                    is different, for he is Muchzak! The Magid
                    Mishneh means that according to the Ra'avad,
                    who does not distinguish Kidushin from divorce,
                    the Yerushalmi supports the Rambam. Why didn't
                    R. Elazar say that after seclusion, he can
                    annul her vows? This is a bigger Chidush,
                    because (there is a gap in the text). He must
                    hold that inheritance is a bigger Chidush, for
                    one would think that we leave money in its
                    Chazakah. We find that we do not follow the
                    majority regarding money, but we do for capital
                    cases.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Lechem Mishneh (edition #2):</font></b> The Yerushalmi
                    holds that her husband inherits when there is
                    Safek Kidushin. The Bavli (Kidushin 45b)
                    disagrees. The Ra'avad holds that there is no
                    source to say that they argue about Safek
                    divorce.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Hagahos Chever ben Chayim (in Likutim in
                    Frankel Rambam):</font></b> The Rambam holds that a
                    husband inherits mid'Rabanan. We are lenient
                    about a Safek Isur mid'Rabanan, and all the
                    more so regarding Safek Mamon. We cannot
                    challenge the Rambam from the Yerushalmi, which
                    holds that a husband inherits mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Basra 9:16):</font></b> The Rashbam holds that that
               if a man intended to divorce his wife, he does not
               inherit her. There is no proof for this.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 90:5):</font></b> If a woman was Safek
               divorced and died, her husband does not inherit her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (14):</font></b> The Tur says that only
                    full divorce uproots inheritance. It seems that
                    Safek divorce has the same the law as when we
                    are unsure who died first (Sa'if 6; his heirs
                    inherit the Ikar Kesuvah and addition, her
                    heirs inherit the Nichsei Melug, and they
                    divide the Nichsei Tzon Barzel).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (20):</font></b> The Rambam equates this to
                    the law of an Arusah who had Nisu'in in her
                    father's absence. Her husband does not inherit
                    her, for it is a Safek; perhaps her father did
                    not approve. The same applies to a Safek
                    divorcee. The Magid Mishneh rejected the proof,
                    and the Ra'avad disagreed with the law. The
                    Magid Mishneh concluded that Ge'onim argue
                    about this. Therefore, if her husband seized
                    the inheritance, he keeps it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Be'er ha'Golah (40):</font></b> The Rashbam holds that
                    once one intends to divorce his wife, he does
                    not inherit her. The Rosh holds that only
                    proper divorce uproots his inheritance. I think
                    that the Shulchan Aruch means that he does not
                    inherit the property Muchzak to her, but we do
                    not take from him what is Muchzak to him, for a
                    Safek cannot take from a Vadai. This is like a
                    house that fell on both of them in the next
                    Sa'if.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mekor Baruch (7 6:4, in Likutim in Frankel
                    Rambam):</font></b> We should say that the husband is
                    Vadai, and her family is Safek, and they cannot
                    take from him! Also, this should be no worse
                    than when a house fell on him and his wife and
                    we are unsure who died first. The Rambam rules
                    that they divide the Nichsei Tzon Barzel. Also,
                    an heir is no better than the one whom he
                    inherits. If she were alive, she could not 
                    collect her Kesuvah! Even a woman who may
                    remarry based on one witness that her husband
                    died collects only Ikar Kesuvah, because we
                    expound the Kesuvah (when you will be permitted
                    to remarry...), but not additions or Nichsei
                    Tzon Barzel. The Nimukei Yosef says so in the
                    name of the Ritva (Yevamos 117a DH she'Chen)
                    and also the Magid Mishneh (Hilchos Ishus
                    16:26) says so. All the more so a Safek
                    divorcee cannot collect. If she remarried, we
                    would force her to leave! Why do her heirs
                    inherit her Kesuvah?!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Sha'ar ha'Melech (Hilchos Ishus 10, Chupas
                    Chasanim 4):</font></b> A house that fell on both of them
                    is different, for there both lost their
                    Chazakos. Here, the husband is still Muchzak.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DOES A HUSBAND FORFEIT INHERITANCE? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yanai held that the answer was obvious. He
               left without answering the question.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the answer?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> (A firstborn gets a double share)
          'b'Chol Asher Yimatzei <i>Lo</i>' - not to her.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps this applies only when he is a
          firstborn only to the father, but not to the mother, but
          if he is firstborn to both, he receives a double portion
          also in the mother's property!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (Rav Nachman bar Yitzchak):</font></b> 'Reishis <i>Ono</i>' -
          not her first strength.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> That verse is used to teach that the first
          viable child (if he is a male) inherits like a firstborn,
          even if stillborn babies preceded him!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Reishis Ono' is the first child that the father
               is concerned for.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Reishis On' would have taught this. The Torah
          said 'Reishis On<i>o</i>' to teach both laws.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps we learn that he does not receive a
          double portion in his mother's property only when he is
          not a firstborn to the father, only to the mother; but if
          he is firstborn to both, he receives a double portion
          also in the mother's property!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> '<i>Lo</i> Mishpat ha'Bechorah' - the law
          applies only to a man, but not to a woman.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE INHERITS HIS WIFE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A man inherits his wife ...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Sheiro (his close relative)' refers to his
          wife. It teaches that a husband inherits his wife;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps she likewise inherits him!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'V'Yorash Osah', but she does not
               inherit him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'u'Nsatem Es Nachalaso li'Sh'eiro'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> We read the verse this way:
          'u'Nsatem Es Nachalaso l'Karov Elav'; 'Sh'eiro v'Yarash
          Osah'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> The words do not appear in that order
          in the verse!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> We read 'u'Nsatem Es Nachalas Sh'eiro
          Lo'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava holds that we may expound a verse by cutting
               letters from words ('Vav' from 'Nachalso', 'Lamed'
               from 'li'Sheiro'), and combining them (to form
               'Lo').
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A Tana has a different source.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Akiva):</font></b> 'V'Yorash Osah' teaches
               that a husband inherits his wife;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yishmael:</font></b> We need not expound like this.
               'V'Chol Bas Yoreshes Nachalah... Tihyeh l'Ishah'
               discusses transferring inheritance through marriage;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It also says 'v'Lo Tisov Nachalah li'Vnei Yisrael
                    mi'Mateh El Mateh';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  It also says 'v'Lo Tisov Nachalah mi'Mateh
                    l'Mateh Acher';
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  It also says 'v'Elazar... va'Yikberu Oso
                    b'Giv'as Pinchas Beno.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> The Pasuk ascribes the land to Pinchas,
               and not to his father Elazar. How did Pinchas have
               land if he did not inherit it from his father?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that he married a woman, and
               inherited her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It also says 'u'Sguv Holid Es Ya'ir va'Yhi Lo (to
                    Ya'ir) Esrim v'Shalosh Arim.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> How did Ya'ir have land that did
                    not belong to his father?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer:</font></b> We must say that he married a
                    woman, and inherited her.
<br>

<p>

sjt:
</p><p>
<font><b>2) HALACHAH: 'SHTAR CHATZI ZACHAR' -- THE WAY IN WHICH A WIFE MAY INHERIT HER HUSBAND</b></font><b>
<br>QUESTION:</b> The Gemara derives from the verse, 'She'eiro' -- 'his relative' (Bamidbar 27:11), that a husband inherits his wife's property when she dies. The verse adds, 'v'Yarash Osah' -- 'and he will inherit her,' to teach that one should not think that a woman inherits her husband's property just as he inherits her property. Rather, he inherits from her, but she does not inherit from him.
</p><p>
If a man wants his wife to inherit part of his estate after his death, is there a Halachic way to set up such an inheritance?
</p><p>
<b>ANSWER:</b> The Poskim discuss various ways in which such a will may be established. One such way is called a 'Shtar Chatzi Zachar,' a 'document of half of a male.'
</p><p>
There are many variations of a 'Shtar Chatzi Zachar.' The basic formulation of such a document (see <b>NESIVOS HA'MISHPAT</b> CM 281:9) is that the man writes in his will (and makes a Kinyan to the effect) that he owes his wife (or daughter), whom he would like to receive a portion of his inheritance, a very large sum of money. He writes that this debt takes effect an instant before his death. He adds, however, a condition to this gift. If the other heirs will give his wife a sum of money equal to half of the share of an ordinary son of his who inherits his estate, his obligation to give her a large sum of money will become null and void.
</p><p>
This procedure has several advantages over merely giving a present to his wife during his lifetime which takes effect the moment before his death. One particular advantage is that if the man is uncertain about how much his estate will be worth when he dies, the 'Shtar Chatzi Zachar' ensures that his wife will receive a fair share, and he does not have to guess at a sum of money which may be too large or too small.
</p><p>

<b>HALACHAH:</b> The writing of such a Shtar is deemed proper and acceptable according to Ashkenazic custom. (See <b>REMA</b> CM 281:7.) It was set up primarily so that a daughter would also receive a portion of her father's estate, but is also used for a wife. This legal procedure should be conducted only in consultation with a Rav and a legal expert familiar with the process, and who can ascertain that the document is written in a way that is Halachically and legally valid.
</p><p>
However, it seems that Sephardic custom does not accept this practice, and thus a Sephardic Jew should consult a competent Halachic authority with regard to the proper procedure. (Y. Montrose)
</p><p>



</p><p>


