# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> No matter how he holds, this is difficult!
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he holds like Chachamim (in the coming
               Beraisa), Shimon gets the extra portion. If he holds
               like R. Yehudah, Yehudah gets it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Shmuel is unsure if the Halachah follows
          Chachamim or R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> 'Yakir' - he will inform
               others (who is his firstborn). This teaches that a
               man is believed to say who his firstborn is;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (If he is a Kohen,) just like he is believed to
                    say who is his firstborn, he is believed to say
                    that a certain son was born to a divorcee or
                    Chalutzah (and is disqualified from Kehunah).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he is not believed (about either
               of these).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Nachman bar Yitzchak):</font></b> According to
          Chachamim, what do we learn from 'Yakir'?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It teaches about when we need the father
          to identify the firstborn (we have no Chazakah).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Is this needed in order to give to him an
          extra portion? A man can give his money to whomever he
          wants!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> He must establish him to be the firstborn in
          order that the son will receive an extra portion in money
          that the father will receive (after his declaration).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> According to R. Meir, one can transfer
          ownership of something that is not yet in the world. He
          can give now an extra portion in money he will get later.
          Why do we need the verse?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> It enables him to give an extra portion in
          property that the father will receive when he is Goses
          (close to death, and unable to transfer ownership,
          therefore he cannot give now what he will receive then).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If the Chazakah was that Shimon was Levi's
          firstborn, and Levi said that Yehudah is his firstborn,
          he is believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the Chazakah was that Shimon is not Levi's
               firstborn, and Levi said that he is, he is not
               believed.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	The Reisha is like R. Yehudah, and the Seifa is like
          Chachamim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS ONE BELIEVED TO RETRACT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If one said 'this is my son', and later
          said 'he is my slave', he is not believed (to retract.
          One would not call a slave 'my son');
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'he is my slave', and retracted and
               said 'he is my son', he is believed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (The first time) he meant 'he serves me like a
               slave.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The law is the opposite in the place where they collect
          taxes from slave owners. If he said 'he is my son', and
          (later, where they do not collect taxes) said 'he is my
          slave', he is believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'he is my slave', and later said 'he
               is my son', he is not believed (he would lie to
               evade the tax, but not to falsely obligate himself).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven was serving Shimon like a
          son, and Shimon said 'he is my son', and later said 'he
          is my slave', he is not believed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was serving him like a slave, and Shimon
               said 'he is my slave', and retracted and said 'he is
               my son', he is not believed.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Nachman bar Yitzchak):</font></b> The case is, he
          called him a '100 Metzar slave'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> He is like land worth 100 Dinarim. (One would
          not say this about his son.)
<br>

<p>

sjt:
</p><p>
<font><b>2) RETRACTING ONE'S STATEMENT CONCERNING A SON OR DAUGHTER</b></font><b>
<br>QUESTION:</b> The Gemara says that a father is believed to say that his son is a Bechor and, similarly, to say that his son is the son of a divorcee (thereby disqualifying him from serving as a Kohen). A father is also believed to say that his son is an Eved. Nevertheless, if a man says that the person accompanying him is an Eved and then says that he is his son, he is believed, and the son does <i>not</i> have the status of an Eved. This is because he may explain his original statement (that his son is an Eved) by saying that he merely meant that he son serves him as diligently as an Eved serves his master. It appears that even though the father was believed when he said that his son is an Eved, he now may explain himself and retract his original statement.
</p><p>
This Gemara seems to contradict the view of the <b>TESHUVOS MAHARAN LEV</b> (1:43). The Mishnah in Kidushin (64a) teaches that a father is believed to say that he married off his daughter, as long as his daughter has not yet reached the age of a Bogeres (twelve and a half years old). The Maharan Lev cites the opinion of the Chachamim of Provence who rule that once the father says that his daughter is married, he cannot retract his words, even if gives an excuse for why he said that she was married.
</p><p>
The Gemara here, though, says that a father may retract his original statement when he provides a valid excuse for why he said it. Why, when a father says that his daughter was married, can he not retract his statement, according to the Maharan Lev?
</p><p>
<b>ANSWER:</b> The <b>SHEV SHEMAITSA</b> (6:8) answers that the Chachamim of Provence were referring only to a case in which the second statement is a complete retraction of the first statement, such as when the father first said that his daughter was married and now completely denies it. In the case of the Gemara here, however, the father is only explaining the <i>meaning</i> of his first statement, but he is not denying its truth. Therefore, he is believed. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>RETRACTING AN OFFER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> Reuven charged Shimon 'you stole my slave',
          and Shimon denied it, and said 'he is with me because you
          sold (or gave) him to me', and said 'if you want to swear
          that he is yours, you may have him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Once Reuven swears, Shimon cannot retract his
               offer.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> We already learn this from a Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If Levi told Yehudah 'I
               allow you to use for judges (in our case) my father,
               or your father, or these three shepherds', Levi can
               retract;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he cannot retract.
<br>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Aba teaches that they argue in a case that
          Levi is the defendant (he agreed to pay if the invalid
          judges will obligate him. All agree that if Levi is the
          claimant, and agreed to exempt Shimon if the invalid
          judges will exempt Shimon, Levi cannot retract), and that
          the Halachah follows Chachamim. (Other Amora'im explain
          that they argue only when Levi is the claimant.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> The Halachah is, a lender can collect slaves
          from the borrower's heirs.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> He cannot collect slaves.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>INVALID WITNESSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> The Halachah is, a third (generation, i.e.
          grandson) (of Reuven) can testify about a second
          (generation of Reuven's brother, i.e. Shimon's son).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> A third can even testify about a first
          (Shimon).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mar bar Rav Ashi):</font></b> He can even testify about his own
          grandfather.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The Halachah does not follow Mar bar Rav Ashi.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> If Levi knew testimony about land, then he
          became blind, he cannot testify.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He may testify, e.g. if he knows signs
          delineating the borders of the land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot testify about a garment,
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> He can even testify about a garment,
          e.g. if he knows the length and width;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot testify about an ingot (chunk of
               metal).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> He can even testify about an ingot, e.g. if
          he knows its weight.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven knew testimony about
          Shimon, then he became Shimon's father-in-law, or deaf,
          blind, or insane, he cannot testify;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he was a valid witness when he saw the
               testimony, then he became his father-in-law, deaf,
               blind, or insane, and later became valid again
               (Reuven's daughter died, so he is no longer related,
               or he regained his hearing, sight or sanity), he can
               testify;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The general rule is, if he was an invalid witness
               at the beginning (when he saw the testimony) or the
               end (when he wants to testify), he cannot testify.
               If he was a valid witness at the beginning and at
               the end, he can testify.
<br>
<br>

sjt:
<font><b>1) ACCEPTING TESTIMONY OF A PERSON WHO CAN HEAR BUT CANNOT SPEAK</b></font><b>
<br>OPINIONS:</b> The Gemara discusses various cases of a person who saw an event but then became disqualified from testifying, such as a person who became mute. Does this imply that a person who can hear but cannot speak is disqualified from testifying?
</p><p>
(a) The <b>RASHBAM</b> (DH v'Nischaresh) maintains that a person who can hear but cannot speak is not intrinsically disqualified from being a witness. Rather, a technical problem prevents him from testifying. His only method of testifying would be through writing, and since written testimony is not valid, it is not possible for him to testify.
</p><p>
(b) The <b>ROSH</b> (8:24) writes that such a person is disqualified from testimony because the verse states with regard to witnesses, 'Im Lo Yagid' -- 'if he does not say [the testimony]' (Vayikra 5:1), which implies a requirement that the witness be able to verbally express the testimony.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (46:19) writes that one who cannot speak may not serve as a witness to sign a Shtar, even though no verbal testimony is necessary. Such a person is disqualified from all forms of testimony. This is consistent with the opinion of the Rosh. The Rashbam, however, would permit the signature of such a person on a Shtar, as the <b>DIVREI MISHPAT</b> points out. The Rashbam maintains that a person who cannot speak is essentially a valid witness but he cannot testify in a normal case because his written testimony is not accepted; however, in a case where written testimony is valid (such as a Shtar), he is a valid witness.
</p><p>
<b>RAV REUVEN GROZOFSKY</b> (Yevamos 28:3) suggests that it is possible that even the Rosh would accept the a mute person's signature on a Shtar. He explains that there are two explanations for why written testimony is not accepted. The first explanation is that writing does not have the legal status of speaking. The second explanation is that although writing does have the legal status of speaking (and thus when the witness signs it is as if he is speaking), nevertheless written testimony cannot be accepted because the court must hear testimony from the witness and not just be aware of testimony that took place at a different time (such as when the witness signed the Shtar). If the second approach is correct, then the reason why a Shtar is acceptable in court is that it is considered to be testimony that was already accepted and verified by Beis Din at the time that it was signed. Consequently, even though a person who is mute is disqualified from testifying in person because he cannot convey his testimony verbally, his signature on a Shtar is accepted. His signature attesting to what is written in the Shtar is considered to be testimony through speech, and such testimony suffices in the case of a Shtar. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PARTIAL ADMISSION TO A DOCUMENT THAT WITNESSES SAY WAS PAID</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. Aba):</font></b> If Shimon brought a loan document against
               Levi and says that he did not collect any part of
               it, and Levi says that he paid half, and witnesses
               testify that he paid it all, Levi swears that he
               paid half, and Shimon collects half from Levi's Bnei
               Chorin (unsold property). He cannot collect from
               Meshubadim (what Levi sold), for the buyer can say
               'witnesses testified that it was paid!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Bava Metzia 4b:</font></b> If a loan document says 'Sela'im'
               (this implies at least two), the lender claims five,
               and the borrower (Yehudah) admits to three, R. Akiva
               exempts Yehudah from swearing, like a Meshiv Aveidah
               (one who returns a lost object, for he could have
               said two). R. Shimon ben Elazar obligates him to
               take the oath of Modeh b'Miktzas (partial
               admission).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Bava Basra 128b (R. Aba):</font></b> Only there, R. Akiva
               considers him like a Meshiv Aveidah, for there are
               no witnesses. Here, Levi admitted to half due to
               fear of the witnesses, therefore he must swear.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection (Mar bar Rav Ashi):</font></b> Just the contrary!
               Even R. Shimon ben Elazar obligates swearing Modeh
               b'Miktzas only there, for witnesses do not support
               him. Here, witnesses support Levi (he could have
               denied owing anything), so he is like a Meshiv
               Aveidah, and he does not swear.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Mar Zutra citing Rav Ashi):</font></b> The Halachah follows R.
               Aba.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (57a and 8:26) bring our Sugya.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Shevuos 18a):</font></b> Even R. Akiva considers him to be
               a Meshiv Aveidah only when there is no document.
               Here, there is a document, so he fears.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (57a DH Afilu and Ran 18a DH
                    Garsinan):</font></b> Why must he swear that he paid at
                    least half? Witnesses say that it was paid! It
                    is because he contradicted the witnesses. We do
                    not consider it as if there were no witnesses
                    at all, and say that he is not believed even
                    with an oath, like a regular case of a
                    document. Perhaps the witnesses remember the
                    payment better than he does. It is not utter
                    contradiction. We do not totally rely on the
                    testimony, nor on the document. Rather, due to
                    the Safek we consider it as if there were no
                    witnesses and no document, and he swears Modeh
                    b'Miktzas.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Ashri:</font></b> Mar bar Rav Ashi holds that R.
                    Shimon ben Elazar obligates swearing if he
                    admitted before the witnesses testified. Then,
                    it is not like Meshiv Aveidah. Even if he knew
                    that witnesses will testify that he paid all of
                    it, if he admitted before they testify, it is
                    not Meshiv Aveidah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 14:4):</font></b> If Shimon brought a
               loan document against Levi and says that he did not
               collect any part of it, and Levi says that he paid
               half, and witnesses testify that he paid it all,
               Levi swears that he paid half and he pays half, for
               he admitted partially. He is not like a Meshiv
               Aveidah, for he was afraid of the document. Shimon
               collects the half only from Bnei Chorin, for the
               buyer can say 'I rely on the witnesses. They
               disqualified the document!'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 7:7):</font></b> If David admitted 'I
               owe 100 to Reuven', and later said 'I remembered
               that I paid the debt that I admitted to. Here are
               witnesses', we follow their testimony. He does not
               contradict the witnesses. He is not like one who
               says 'I never borrowed.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> I know of no source for this,
                    but it is reasonable. Some ask from the above
                    law (14:4). Levi should be believed to say 'I
                    remembered that I paid', for witnesses say so!
                    They answer that Levi could say so. The Gemara
                    and Rambam discuss when he does not say so.
                    However, the Rambam should have explained this!
                    Rather, there, there is a document, and if not
                    for the witnesses, he would not have been
                    believed at all. Here, he is liable only due to
                    his admission. 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 82:13):</font></b> If Shimon had a validated
               loan document against Levi, and Levi says that he
               paid half, and Shimon says that he did not pay
               anything, and witnesses testify that he paid it all,
               he (Levi) swears, and Shimon collects half from Bnei
               Chorin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH To'an):</font></b> The Tur explains 'there,
                    there are no witnesses' about the third Sela
                    that Yehudah admits to, for the document
                    connotes only two. Here, there are witnesses on
                    the document who say that he owes the entire
                    amount. It seems that the Rambam and Rif agree.
                    R. Yerucham (Meisharim 6:5 (24a)) says that
                    some Gedolim say that if witnesses came before
                    Levi said that he paid half, he is Meshiv
                    Aveidah and he is exempt form swearing. It
                    seems that the Rashbam agrees, for he says that
                    the witnesses testified after Levi said that he
                    paid half. He also says that Meshiv Aveidah is
                    when there are no witnesses, e.g. when the
                    document says 'Sela'im' (which connotes two),
                    and the witnesses do not know more than this.
                    Here, since witnesses testified in the end like
                    one of them, we can say that the borrower
                    feared lest they support the lender, and
                    therefore he admitted to half. This is like
                    Tosfos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (50):</font></b> Also the Tur holds that if witnesses 
                    came before he said that he paid half, he is
                    Meshiv Aveidah and he is exempt form swearing.
                    The Halachah follows this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (23 DH Aval):</font></b> The Rambam holds that even
                    if witnesses came before he said that he paid
                    half, he is not Meshiv Aveidah. Since there is
                    a Chazakah that if he paid, he would have taken
                    back the document, he fears to say that he paid
                    it all, lest Beis Din not heed the witnesses
                    against a strong Chazakah, and obligate him to
                    pay everything. If Shimon claimed against Levi
                    without a document, and Levi has witnesses that
                    he paid, all agree that he is Meshiv Aveidah.
                    He knows what the witnesses will say, for he
                    brought them to Beis Din! He has no fear, not
                    of a document or of witnesses. The Rif's text
                    (in Shevuos) says 'even R. Akiva considers him
                    to be a Meshiv Aveidah only when there is no
                    document. Here, there is a document, so he
                    fears.' This is unlike the Rashbam's text,
                    which says '... when there are no <i>witnesses</i>.
                    Where there are witnesses, he fears.' Even
                    though the Rosh brought the Rashbam's text, the
                    Tur rules like the Rif and Rambam. He did not
                    bring the opinion of the Rashbam and Rosh at
                    all, for it is difficult why the Gemara
                    mentioned the document at all. The Rashbam and
                    Rosh hold that he fears lest the witnesses
                    testify like the lender says!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Shach 37):</font></b> Also Agudas Ezov says so,
                    but this is wrong. The Tur says that he is not
                    a Meshiv Aveidah, since he admitted only due to
                    the document. If the witnesses already
                    testified, he need not fear the document! We
                    need not say that the Tur argues with the Rosh
                    and did not even bring his opinion. The Gemara
                    mentioned the document, for without a document
                    obviously he need not swear! The Ran explains
                    that when there is a document, the witnesses,
                    who were partially contradicted, help to
                    disqualify the document. The Chazakah (had you
                    paid, I would not have the document) helps to
                    contradict the witnesses. When there is no
                    document, they are not contradicted at all, and
                    he need not swear.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> Levi must pay half due to his admission,
                    but this is not considered contradiction of the
                    witnesses.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Beis Yosef (DH Kosav):</font></b> Sefer ha'Terumos asks
                    why the lender does not swear (and collect),
                    like a regular case of a document in which Levi
                    claims that he paid. There, Shimon swears and
                    collects it all. There is different. We do not
                    believe Levi, for there is a Chazakah that had
                    he paid, he would have taken back the document!
                    Here, he says that he paid half, so this is why
                    Shimon still has the document. The Ri mi'Gash
                    says that here, since witnesses say that he
                    paid it all, they disqualified the document.
                    Now, it is like a Milveh Al Peh (a loan without
                    a document). Levi swears and pays only half.
                    One is not believed against a document.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Shach (39, b'Sof):</font></b> Sefer ha'Terumos' first
                    words are astounding. He holds that even
                    without witnesses, we believe a borrower who
                    says that he paid half, for Shimon's possession
                    of the document does not refute this. The
                    Gemara (Bava Basra 170b, Bava Metzia 103a)
                    clearly says that he is not believed!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>SMA (51):</font></b> Levi swears mid'Oraisa due to Modeh
                    b'Miktzas, for it is considered a Milveh Al
                    Peh. This is why Shimon collects only from Bnei
                    Chorin. However, the testimony does not exempt
                    Levi, for his admission is like 100 witnesses.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Shach (39):</font></b> If after they testify, Levi says 'I
                    remembered that I paid', he is believed (CM
                    79:3). The Magid Mishneh held that it is
                    different when there is a document, but the Tur
                    does not distinguish.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MODEH B'MIKTZAS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This refutes Shmuel, Rav Sheshes and Rav Papa.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>OTHER TEACHINGS OF R. ABA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> If one says (we will explain what) about a
          child among children, he is believed;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> He is not believed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> R. Aba says that if one says about
          one of his sons 'he will inherit all my property', he is
          believed. This is like R. Yochanan ben Brokah (130a);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan says that he is not believed. This is
               like Chachamim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If so, why do they say 'believed' and
          'not believed'? They should say 'he inherits' or 'he does
          not inherit'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> R. Aba says that if one says about
          one of his children 'he is my firstborn', he is believed.
          This is like R. Yehudah (127b);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan says, he is not believed. This is
               like Chachamim.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> If Reuven says 'my wife will receive a share
          of my property like one of my sons', this takes effect.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> She receives a share of the property that he
          had when he said this. She receives a share of this (a
          half or third or quarter...) based on the number of sons
          he has when he dies.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> If Shimon brought a loan document against
          Levi and says that he did not collect any part of it, and
          Levi says that he paid half, and witnesses testify that
          he paid it all, Levi swears that he paid half, and Shimon
          collects half from Levi's free (unsold) property;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He cannot collect from what Levi sold, for the
               buyer can say 'witnesses testified that it was 
               paid!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (If a loan document says 'Sela'im' (this implies
               at least two), the lender claims five, and the
               borrower (Yehudah) admits to three, R. Akiva exempts
               Yehudah from swearing, like a Meshiv Aveidah (one
               who returns a lost object, for he could have said
               two). R. Shimon ben Elazar obligates him to take the
               oath of Modeh b'Miktzas (partial admission).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Only there, R. Akiva considers him like a Meshiv
               Aveidah, for there are no witnesses. Here, Levi
               admitted to half due to fear of the witnesses (lest
               they support Shimon), therefore he must swear.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Mar bar Rav Ashi):</font></b> Just the contrary! Even
          R. Shimon ben Elazar obligates swearing Modeh b'Miktzas
          only there, for witnesses do not support him. Here,
          witnesses support Levi (he could have denied owing
          anything), so he is like a Meshiv Aveidah, and he does
          not swear.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mar Zutra citing Rav Ashi):</font></b> The Halachah follows R.
          Aba in all these teachings.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> Rav Nachman argues! (He says that we
          do not collect from slaves, and the Halachah follows Rav
          Nachman in monetary laws.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> We learned that also R. Aba said
          that we do not collect from slaves.
<br>

<p>

sjt:
</p><p>
<font><b>2) WITNESSES WHO CONTRADICT A PERSON FOR HIS BENEFIT</b></font><b>
<br>QUESTION:</b> Rebbi Aba sent to Rav Yosef his ruling in a case in which a lender demands the repayment of a loan from the borrower, and he presents a Shtar that attests to the loan. The borrower claims that he already paid back half of the loan. Witnesses later come and testify that the borrower paid back the entire loan.
</p><p>
Rebbi Aba (according to the explanation of most Rishonim) ruled that the borrower must make a Shevu'ah of Modeh b'Miktzas in order to exempt himself from paying the half of the loan that he denies that he owes. The other part of the loan (which the borrower admits that he owes, but which the witnesses say that he paid back) may be collected by the lender, but only from Nechasim Benei Chorin and not from Nechasim Meshubadim (land which the borrower owned at the time that he took the loan and which he later sold). Since the witnesses say that the borrower already paid back the entire loan, the buyers (Lekuchos) who bought his land can claim that they are relying on the testimony of the witnesses.
</p><p>
This ruling is difficult to understand. If the testimony of the witnesses is reliable such that the lender may not collect the loan from Nechasim Meshubadim, then why does the borrower need to make a Shevu'ah on the part of the loan that he says he already paid? Whenever a person is Modeh b'Miktzas, and he admits that he owes part of the debt while he claims that he paid back the other part, and he has witnesses who support his claim that he paid back the other part, he does <i>not</i> have to make a Shevu'ah! If, on the other hand, the testimony of the witnesses is disregarded because the borrower himself contradicts them (and the borrower's word is accepted since he is believed, with regard to obligating himself, to contradict the testimony of witnesses), why, is he believed with a Shevu'ah to say that he paid back half of the loan? The lender is holding a valid Shtar that says that he owes the entire loan (and the Shevu'ah of Modeh b'Miktzas applies only when there is no Shtar)! (<b>RA'AVAD</b> cited by <b>RASHBA</b>, <b>RITVA</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RA'AVAD</b> answers that the case of the Gemara is when the borrower states only, 'I paid back half,' and he does <i>not</i> say, 'I paid back half <i>and not more</i>' (see, however, <b>RASHBAM</b> in DH v'Loveh Amar). Since he says nothing about the other half of the loan, it could be that he means that he does not remember whether he paid it back or not. Perhaps he is saying that he is certain that he paid back half of the loan, but he does not remember whether he paid back the other half. The witnesses come and say that they remember that he paid back all of the loan. Accordingly, the borrower is not contradicting the witnesses (and thus he should be exempt from paying anything, even without a Shevu'ah).
</p><p>
However, perhaps this is not his intention when he says that he paid back half, but rather he means that he <i>only</i> paid back half and not more.
</p><p>
Since there is a doubt whether he is in agreement with the witnesses or whether he is contradicting them, Beis Din rules stringently with regard to himself and say that he is contradicting the witnesses, and thus their testimony is disregarded. However, Beis Din accepts their testimony with regard to weakening the strength of the Shtar against him, and thus Beis Din treats this case like a normal case of Modeh b'Miktzas and requires the borrower to make a Shevu'ah in order to exempt himself from paying half.
</p><p>
On the other hand, with regard to the people who bought his land, Beis Din assumes that he is <i>not</i> contradicting the witnesses and Beis Din accepts their testimony. Therefore, the lender cannot collect from Nechasim Meshubadim.
</p><p>
(b) The <b>RAMAH</b> and <b>RABEINU YONAH</b> explain that, in essence, Beis Din accepts the testimony of the witnesses (and therefore the lender cannot collect from the Nechasim Meshubadim from the Lekuchos). Even though, according to the borrower's words, the witnesses are not telling the truth (and thus Beis Din should not exempt his word at all since there is a Shtar against him), Beis Din accepts his claim with a Shevu'ah because he has a Migu that he could have said that he paid back everything. He would have been believed because there are witnesses who support that claim. (The Migu does not exempt him from the Shevu'ah, though, because of the general rule that a Migu cannot exempt a person from a Shevu'ah.)
</p><p>
(c) Others (see <b>ME'IRI</b>) explain that the testimony of the witnesses (who say that he paid) is able to nullify the power of the Shtar (which says that he did not pay). However, the testimony of the borrower himself cancels the testimony of the witnesses. Consequently, the claim against him (that he owes the entire amount) is upheld only because of his own admission. Therefore, he is believed with a Shevu'ah of Modeh b'Miktzas to exempt himself from the half that he denies, while his word is not accepted to obligate the Lekuchos.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE HALACHAH FOLLOWS R. ABA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> For which teaching(s) was it necessary to
          teach that the Halachah follows R. Aba?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He must teach that the Halachah does
               not follow Rava (that Reuven's grandson can testify
               about Reuven's brother).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Aba taught a smaller Chidush (that
               Reuven's grandson can testify about Reuven's
               nephew). We cannot infer that the Halachah does not
               follow Rava (perhaps R. Aba agrees with Rava)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> He must teach that the Halachah does
               not follow Mar bar Rav Ashi (that a man can testify
               about his grandfather).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> We already taught that explicitly!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Suggestion:</font></b> He must teach that the Halachah does
               not follow Shmuel, Rav Sheshes and Rav Papa.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> They were already refuted!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> He teaches that the Halachah does not follow R.
          Yochanan (who ruled like Chachamim of R. Yehudah), and
          not like Mar bar Rav Ashi's objection (that even R.
          Shimon ben Elazar exempts from the oath in this case).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COMBINING EXPRESSIONS OF A GIFT AND INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one (a Shechiv Mera) stipulated how much
          each son should receive, and gave some sons more than
          others...(If he wrote at the beginning, middle or end
          that it is a gift, it takes effect.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of a gift at the beginning,
          middle or end?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Dimi citing R. Yochanan):</font></b> At the beginning
          is when he said 'field Plonis will be given to Ploni and
          he will inherit it';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the end is when he said 'he will inherit it
               and it will be given to him;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In the middle is when he said 'he will inherit it
               and it will be given to him and he will inherit it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This applies only to one field and one recipient.
               If there are two fields and one recipient, or one
               field and two recipients, the expression of a gift 
               takes effect, and the expression of inheritance does
               not take effect.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> Even if there are two fields and one
          recipient, or one field and two recipients, both Kinyanim
          work;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, if there are two fields and two
               recipients, the expression of gift takes effect, and
               the expression of inheritance does not take effect.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Ravin):</font></b> If he said 'field Plonis will be given to
          Ploni, Ploni will inherit field Plonis', R. Yochanan says
          that he acquires, and R. Elazar says that he does not.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Abaye):</font></b> One of your teachings we understand. The other
          contradicts what Rav Dimi taught!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You do not contradict R. Elazar. Your teach about
               two fields and two recipients, and R. Elazar teaches
               that the expression of inheritance does not acquire.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We cannot resolve R. Yochanan!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Rav Dimi and Ravin argue about R.
          Yochanan's opinion.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> For both to acquire, he must say 'Ploni
          and Almoni will inherit fields Plonis and Almonis that I
          gave them for a gift, and they will inherit them.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Other Amora'im argue as R. Yochanan and R. Elazar
          argue.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Hamnuna):</font></b> This applies only to one field and
               one recipient, but if there are two fields and one
               recipient, or one field and two recipients, the
               expression of inheritance does not take effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> Even if there are two fields and
               one recipient, or one field and two recipients, both
               Kinyanim work;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, if there are two fields and two
                    recipients, the expression of inheritance does
                    not take effect.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> Even regarding two fields and two
               recipients, both take effect.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (Rav Sheshes for himself - Beraisa):</font></b> If Reuven
          said (before he left) 'give a Shekel (of my money) to my
          sons each week', and it is proper to give to them two 
          Shekalim, we give to them two (he only intended that they
          should receive the minimum necessary);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give to them a Shekel', we give only
               one.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'if they die, others (Ploni and
               Almoni) should inherit' (instead of their sons -
               this shows that he wants the rest of his money to go
               to the others), whether he said 'give' or 'give
               only', we give only one.
<br>
<br>

sjt:
<font><b>1) GRANTING A GIFT TO ONE WHO IS FIT TO INHERIT</b></font><b>
<br>OPINIONS:</b> Rav Acha brei d'Rav Avya says that according to Rebbi Yochanan ben Berokah, when a Shechiv Mera says to a person who is fit to inherit him (such as his son), 'Nechasai Lecha v'Acharecha l'Ploni' -- 'My property shall be to you, and after you it shall be to so-and-so,' the property is given to the first person unconditionally. Even when the first person dies, the second person does not receive the property, but rather the heirs of the first person receive it. Since he is fit to inherit the Shechiv Mera, the Shechiv Mera's granting of the property to him is considered an inheritance (Yerushah) and not a gift, and an inheritance has no termination; once a person inherits property, that property is then inherited by his children when he dies and the line of inheritance is not discontinued. The Halachah follows the view of Rebbi Yochanan ben Berokah and Rav Acha brei d'Rav Avya's ruling.
</p><p>
What is the Halachah, though, when a Shechiv Mera specifically says that he wants the first person (who is fit to inherit him) to receive the property as a gift (for example, he says, 'Nechasai Lecha <i>b'Matanah</i>...')? Is it then considered a gift, such that when the first person dies the property will be given to the second person in fulfillment of the Shechiv Mera's words, or is it still considered a Yerushah?
</p><p>
(a) The <b>RASHBAM</b> (DH Im Amar l'Echad) says that Rav Acha's ruling applies only when the Shechiv Mera did not specify how he wants the property to be granted to the first person (or, obviously, if he stated explicitly that the property should be given to him as an inheritance). If, however, he explicitly states that he wants the property to be given as a <i>gift</i>, then the first person receives it only as a gift, which is then terminated upon his death and the property is transferred to the second beneficiary as a gift.
</p><p>
(b) The <b>RAMBAN</b> maintains that even when the Shechiv Mera specifies that he wants his property to be given to the first person as a <i>gift</i>, since the first person is fit to inherit him the property is given to him as an inheritance and not as a gift, and thus the second person does not receive it at all.
</p><p>
The <b>RAMBAM</b> (Hilchos Zechiyah 12:4) also rules that 'the term 'Matanah,' when used with regard to someone who is fit to inherit the giver, is considered an inheritance,' and thus even when the Shechiv Mera says that he is giving his property to the first person (who is fit to inherit him) as a gift, it is considered an inheritance and has no termination. This is also the ruling of the <b>SHULCHAN ARUCH</b> (CM 248:1).
</p><p>
However, the Rambam later (12:6) writes that when the Shechiv Mera explicitly states, 'My property shall be given to you <i>as a gift that has a termination and not as an inheritance that has no termination</i>,' the property indeed is given as a gift and not as an inheritance.
</p><p>
The Mefarshim dispute what the Rambam means. According to the <b>RIVASH</b> (#160), the Rambam means that the Shechiv Mera must say exactly this formula in order for the property to be given as a gift. According to the <b>MACHANEH EFRAIM</b> (Hilchos Zechiyah #39, and according to the 'Chacham' to whom the Rivash is addressing his response), the Rambam maintains that as long as it is clear that the Shechiv Mera has intention to give the property only as a gift, his words are upheld and the property is given only as a gift. This is also the ruling of the <b>S'MA</b> (CM 248:3).
</p><p>
(c) The <b>RA'AVAD</b> and <b>RIVASH</b> (#167; see <b>TESHUVOS HA'RASHBA</b> 3:122) maintain that regardless of the wording that the Shechiv Mera uses, the property is also given to the person who is fit to inherit him as an inheritance and not as a gift.
</p><p>
Why should this be so? If the Shechiv Mera explicitly states, as the Rambam writes, that the property should be given 'as a gift that has a termination and not as an inheritance,' why is his desire disregarded?
</p><p>
The <b>KOVETZ INYANIM</b> explains that according to these Rishonim, the enactment of the Rabanan that the verbal command of a Shechiv Mera is as binding as a written document applies only when his word does not contravene the law of the Torah. In this case, the Torah says that the one who is fit to inherit the Shechiv Mera shall receive the property as an inheritance, while the Shechiv Mera says that he shall receive the property as a gift. Since the Shechiv Mera's order contradicts the law of the Torah, in such a case the Shechiv Mera's words are disregarded (with regard to giving the property as a gift) and the property is given to the first person (as the Shechiv Mera commanded) as an inheritance (as the Torah requires).
</p><p>
(According to the other Rishonim, such as the Rashbam, the enactment of the Rabanan that a Shechiv Mera's words are binding applies even in such a case. Since the Shechiv Mera is able to give his property as a gift to anyone he chooses, the fact that he chooses to give it as a gift to someone who is fit to inherit him is not considered to be in conflict with the Torah's law.)
</p><p>


<font><b>2) 'TOCH KEDEI DIBUR K'DIBUR DAMI'</b></font><b>
<br>OPINIONS:</b> The Gemara mentions that the principle of 'Toch Kedei Dibur k'Dibur Dami' applies for all Halachos except for idolatry (Avodah Zarah) and marriage (Kidushin). The Gemara in Nedarim (87a) adds that it does not apply for blasphemy (Megadef) and divorce (Gerushin). (<b>TOSFOS</b> explains that the reason why the Gemara here does not mention Megadef and Gerushin is that Megadef is included in Avodah Zarah, and Gerushin is included in Kidushin, since the reason for why 'Toch Kedei Dibur' does not apply to Kidushin is equally valid with regard to Gerushin.)
</p><p>
The Rishonim differ about the source for this principle and about the mechanics of how it works.
</p><p>
(a) The <b>RAN</b> in Nedarim (87a) writes that the principle of 'Toch Kedei Dibur' and its exceptions are <i>mid'Oraisa</i>. The Torah assumes that a person is never totally committed to his speech or actions and he always reserves the right to retract within the small amount of time of 'Toch Kedei Dibur.' However, when he performs actions which are of a very severe nature (the exceptions mentioned in the Gemara), he does not begin the action until he is absolutely committed to doing it, and therefore he does not reserve in his mind the right to retract.
</p><p>
(b) <b>RABEINU TAM</b> maintains that the Halachah of 'Toch Kedei Dibur' is a Takanah d'Rabanan. The Rabanan instituted this principle in order to enable a buyer to greet his teacher while in the midst of a purchase in such a way that the greeting does not constitute an interruption between the words he said before and the words he said afterwards. <b>TOSFOS</b> in Nedarim cites this opinion in the name of Rabeinu Eliezer. Tosfos asks, however, that 'Toch Kedei Dibur' cannot be a Takanah d'Rabanan because it applies even with regard to Halachos that are mid'Oraisa.
</p><p>
(c) The <b>RASHBAM</b> here writes that the principle of 'Toch Kedei Dibur' is mid'Oraisa in all cases, including the exceptions mentioned in the Gemara. Mid'Oraisa, one may retract within 'Toch Kedei Dibur' even in cases of Megadef, Avodah Zarah, marriage, and divorce. However, the Rabanan enacted that 'Toch Kedei Dibur' does not work in those cases. They enacted that it does not work in cases of Megadef and Avodah Zarah because of the severity of the act. They enacted that it does not work in cases of marriage and divorce in order to prevent rumors from spreading which would ruin the reputation of the children born from the union.
</p><p>
The Rishonim question the opinions of the Ran and Rabeinu Tam based on the cases discussed by the Gemara in Nedarim. The Gemara says that if one tore Keri'ah for a relative before the relative died, and then the relative died within 'Toch Kedei Dibur' of the Keri'ah, the mourner need not tear again. The reasoning of the Ran certainly does not apply, for the person who tore Keri'ah was not transacting any sort of deal from which he might wish to retract. Rather, at the time he tore Keri'ah, he was not yet obligated to tear because the relative had not yet died, and thus his Keri'ah should be ineffective. The same is true in the case that the Gemara mentions in which a man annulled a Neder mistakenly thinking that it was his wife who made the Neder, and 'Toch Kedei Dibur' he discovered that it was actually his daughter who made the Neder. The Gemara applies the principle of 'Toch Kedei Dibur' even though there is no question of indecision, but merely a lack of knowledge which was rectified only after the act.
</p><p>
According to Rabeinu Tam, who explains that the principle of 'Toch Kedei Dibur' is a Takanah d'Rabanan enacted for one who needs to greet his teacher while he is in the middle of a transaction, the case of Keri'ah is similarly problematic since there is no reason to apply the principle of 'Toch Kedei Dibur' there.
</p><p>
1. <b>TOSFOS</b> in Bava Kama (73b) answers that even though Rabeinu Tam's reasoning for 'Toch Kedei Dibur' does not apply to Keri'ah, nevertheless the Rabanan instituted the leniency of 'Toch Kedei Dibur' as a special leniency in the Halachah of Keri'ah.
</p><p>
<b>TOSFOS</b> here in Bava Basra (DH v'Hilchesa) answers that 'Toch Kedei Dibur' applies to Keri'ah because the Rabanan instituted a 'Lo Plug' -- since in some situations the rule applies, they enacted that it apply in all situations.
</p><p>
2. These answers do not resolve the questions on the Ran's opinion from the Halachos of Keri'ah and Hafaras Nedarim. It must be that, according to the Ran, the basic principle of 'Toch Kedei Dibur k'Dibur Dami' is a universal rule that states that anything which happens within the time frame of 'Toch Kedei Dibur' is non-sequential; it is immaterial what happened first. Therefore, the Keri'ah is considered as though it happened <i>after</i> the death. The Ran said his reasoning only in order to differentiate between normal acts and transactions to which the principle of 'Toch Kedei Dibur' applies, and Avodah Zarah (and Megadef), Gitin, and Kidushin -- acts which are final and irrevocable once performed, due to their severity, and are therefore excluded from the rule of 'Toch Kedei Dibur k'Dibur Dami.'
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ARE WE CONCERNED FOR A DELAY TOCH KEDEI DIBUR?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Halachah is, anything said within Toch Kedei
               Dibur is like part of the previous matter, except
               for (Rashbam - designation for; Tosfos - acceptance
               of) idolatry, (blasphemy, divorce) and Kidushin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shevuos 32a (Mishnah):</font></b> If both witnesses
               simultaneously denied knowing, they are liable.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> We need not establish this like R.
               Yosi ha'Galili, who says that two events can occur
               simultaneously. Rather, the latter denied Toch Kedei
               Dibur of the first, so it is like is a continuation
               of what the first said.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Bava Kama 73b:</font></b> There are two measures of Toch Kedei
               Dibur. A Rebbi greets his Talmid 'Shalom Alecha.' A
               Talmid greets his Rebbi 'Shalom Alecha Rebbi
               v'Mori'. R. Yosi holds that within the longer time
               (to say four words) is a continuation, but within
               the shorter time (to say two words) is not.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Berachos 39a (R. Chiya):</font></b> One must finish blessing
               ha'Motzi at the same time he cuts from the loaf.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rava):</font></b> One must finish ha'Motzi before slicing from
               the loaf.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The Halachah follows Rava.
<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 (Berachos 27b and 6:20):</font></b> The Halachah
               follows Rava.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Berachos 4:10):</font></b> One may not bless on
               any food or drink until it is brought in front of
               him. If he blessed and afterwards they brought it in
               front of him, he must bless again. If one took a
               food to eat it and blessed on it and it fell from
               his hand and was burned or taken by a river, he
               takes another and blesses, even if it is the same
               species. One may bless on water in a stream, even
               though he will not drink what is in front of him
               when he blesses, for he intends for what will come
               later.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Berachos 6:20):</font></b> The Yerushalmi says that if
               one blessed on a radish (in the ground), and it did
               not come to his hand, he must bless again.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (9:13):</font></b> The Yerushalmi says that if one was in
               a privy and saw lightning, he leaves and blesses
               only if he can do so Toch Kedei Dibur.
<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 206:3):</font></b> Regarding all these
               Berachos, one may not interrupt between the Berachah
               and eating (Rema - more than Kedei Dibur).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (3):</font></b> This is the time for a Talmid to greet
                    his Rebbi, 'Shalom Alecha Rebbi v'Mori.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (15):</font></b> The Beis Yosef said so in
                    the name of Shibolei ha'Leket, and also the
                    Levush says so. Shirei Keneses ha'Gedolah says
                    that this is a printing mistake. Really, it is
                    the time to say three words, 'Shalom Alecha
                    Rebbi.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Shinuy Nusch'aos in the Frankel Bava
                    Kama/Sefer ha'Mafte'ach brings many opinions
                    that the text on 73b includes the word
                    'v'Mori', and many opinions that it does not.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (p. 320 DH V'Zeh, citing Shibolei
                    ha'Leket 166):</font></b> Rav Nisim Gaon says that if one
                    blessed before doing a Mitzvah or before eating
                    a food, and he was unable to do or eat it right
                    away, and delayed a bit and did it later, he
                    must bless again. Presumably, this refers to a
                    delay Kedei She'alas Talmid l'Rav, which is the
                    time to say 'Shalom Alecha Rebbi v'Mori.' The
                    Yerushalmi says that if one was in a privy and
                    saw lightning, he leaves and blesses only if he
                    can do so Toch Kedei Dibur. This shows that
                    Toch Kedei Dibur is not a Hefsek, but more than
                    this is a Hefsek. This applies to one who
                    blessed on a matter and could not do it
                    immediately, or a Berachah that he was
                    obligated to say but could not say immediately.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (OC 140 DH Kosav):</font></b> A case occurred
                    in which the Ba'al Korei erred about which
                    Parshah to read first. After the Kohen blessed,
                    they told him of his mistake, and he rolled the
                    Torah to the correct place. Some say that he
                    needed to bless again. The Avudraham says that
                    they learn from the Yerushalmi. If one blessed
                    on a radish and it did not come to his hand (he
                    could not pull it out by the leaves), and
                    needed to (dig and) take it from the ground, he
                    must bless again, for a long delay in silence
                    is like a Hefsek of speech. The Avudraham
                    disagreed. The Halachah follows Rabah (39b),
                    that one blesses before cutting the bread. A
                    delay in silence (while cutting), be it big or
                    small, is not a Hefsek. However, the Poskim
                    ruled that he must bless again, for this is
                    like one who blessed on a food, and it fell,
                    and he took another to eat.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Magen Avraham (4):</font></b> Surely, l'Chatchilah one may
                    not delay in silence. B'Di'eved, he need not
                    bless again unless he spoke in between.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Mishnah Berurah (12):</font></b> If he spoke one word in
                    between not necessary for the Berachah, this is
                    a Hefsek.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Mishnah Berurah (13):</font></b> B'Di'eved, one need not
                    bless again even if he delayed in silence for
                    much longer than Kedei Dibur, as long as he did
                    not divert his mind from the Berachah. One may
                    not bless on a food or drink that is too hot to
                    cold, due to concern for a Hefsek. If one wants
                    to spill off a little water before drinking, he
                    should do so before the Berachah, due to
                    concern for a Hefsek and disgrace to the
                    Berachah. One should break a nut before
                    blessing on it, due to concern for a Hefsek.
                    Also, perhaps he will find that it is not good.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Kaf ha'Chayim (22):</font></b> Likewise, if one must
                    remove something from a food before eating it,
                    he must do so before the Berachah to avoid a
                    Hefsek. Also, one should bless on something
                    clean.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Kaf ha'Chayim (21):</font></b> L'Chatchilah one may delay
                    in silence if needed to eat the food.
                    Therefore, one blesses on a whole fruit, and
                    afterwards he cuts it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (5):</font></b> One may not bless on a food or
               drink until it is brought in front of him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Ein):</font></b> This is unlike one who
                    blesses on water in a stream (what he will
                    drink is not in front of him, rather, upstream,
                    when he blesses). Here, perhaps they will not
                    bring to him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (6):</font></b> The Kesef Mishneh says that this is
                    due to the Yerushalmi brought in the following
                    Halachah (if one blessed on a food and it fell
                    and was lost, he must bless again).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishbetzos Zahav (6):</font></b> The Yerushalmi asked, if
                    one blessed on a food and it fell and was lost,
                    must he bless again? This is unlike blessing on
                    water in a stream, for there he intends for
                    what will come later. R. Chiya taught that one
                    blesses on bread only when he slices it. R.
                    Chiya bar Vah learns from this that if one
                    blessed on a radish, and was unable to pull it
                    out, he must bless again. There are three
                    explanations of this. The Rosh says that the
                    question was settled. R. Chiya taught that one
                    blesses on bread only when he slices it, lest
                    it fall, for then he would need to bless again.
                    R. Chiya bar Vah's law follows directly.
                    Shibolei ha'Leket holds that the question was
                    not settled. It is a Safek, and we are
                    stringent. (This is not clear, for Berachos are
                    mid'Rabanan, and saying Hashem's name in vain
                    is a severe Isur!) R. Chiya's law is a separate
                    matter, due to a Hefsek, and R. Chiya bar Vah
                    learns from it. The Beis Yosef explains that
                    the question was settled from R. Chiya, who
                    taught that one blesses on bread only when he
                    slices it, lest it fall, for then he would need
                    to bless again. R. Chiya bar Vah teaches a new
                    matter, that if one blessed on something and
                    afterwards they brought it to him, he must
                    bless again. Since the Shulchan Aruch (Sa'if 3)
                    brings the law that follows from Shibolei
                    ha'Leket's explanation, what is the source for
                    our Halachah? In Sa'if 3, the Shulchan Aruch
                    only means that l'Chatchilah one should not
                    delay, but b'Di'eved one does not bless again,
                    like the Magen Avraham (4) says. The source is
                    from reasoning, and not from the Yerushalmi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (296:1):</font></b> We spill from the cup of Havdalah
               after Havdalah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (4):</font></b> We spill after drinking from
                    it, like I explained (it disgraces the cup to
                    spill before drinking), and also to avoid a
                    Hefsek.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE RETRACT TOCH KEDEI DIBUR FROM HEKDESH? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Culmination of support:</font></b> This is like two fields
               (the weekly Shekalim and the remaining money) and
               two recipients (his sons and the others), and both
               acquire!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection (Rav Sheshes):</font></b> This is not a proof. Perhaps
          the others could inherit Reuven, and the Beraisa is R.
          Yochanan ben Brokah (130a, who says that an expression of
          inheritance works).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rav Ashi - Beraisa):</font></b> If Reuven said 'my
          property is (given) to you (Shimon), and after you (die),
          Ploni will inherit, and after him, Almoni', after Shimon
          dies, Ploni acquires. After Ploni dies, Almoni acquires;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ploni died before Shimon, when Shimon dies it
               goes to Shimon's heirs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is like two fields (Rashbam - Ploni does not
               receive anything in Shimon's lifetime; R. Gershom -
               Shimon only received Peros of the land, but Ploni
               inherits the land itself) and two people, and both
               acquire!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this is not a proof. Here
               also, Ploni could inherit Reuven, and the Beraisa is
               R. Yochanan ben Brokah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, Almoni would not acquire when
               Ploni dies!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Acha brei d'Rav Avya):</font></b> According to R.
                    Yochanan ben Brokah, if David said 'my property
                    is to you (Shimon), and after you to Ploni', if
                    Shimon could inherit David, Ploni does not get
                    anything. 'To you' denotes an inheritance, and
                    not a gift, and one cannot stipulate after
                    inheritance.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This refutes all the opinions (except for R.
               Yochanan according to Ravin, and Rav Sheshes).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Reish Lakish is also refuted.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection:</font></b> That cannot be. Rava said that the Halachah
          follows Reish Lakish against R. Yochanan in three places
          (and this is one of them)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, in the Beraisa he said 'after you Ploni
               will inherit' Toch Kedei Dibur (within the time to
               say three or four words, therefore the first
               expression of a gift also applies to Ploni);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reish Lakish discusses when the inheritance was
               not said Toch Kedei Dibur of the gift, therefore it
               needs its own expression of a gift.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	The Halachah is, anything said within Toch Kedei Dibur
          is like part of the previous matter, except for (Rashbam
          - designation for; Tosfos - acceptance of) idolatry,
          (blasphemy, divorce) and Kidushin.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TRANSFERRING INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven said 'Ploni (a stranger) will
          inherit me', and he has a daughter, or he said 'my
          daughter will inherit me', and he has a son, this does
          not take effect;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yochanan ben Brokah says, it takes effect if he
          gives to someone who could inherit him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> It does not take effect because he
          chose a stranger when he has a daughter, or a daughter
          when he has a son, but had he chosen one of his daughters
          (when he has no sons) or one of his sons to inherit
          everything, it would take effect!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Seifa - R. Yochanan ben Brokah):</font></b> It takes
          effect only if he gives to someone who could inherit him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like the first Tana!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Yochanan ben Brokah says
               that it takes effect even regarding a (more distant)
               relative to inherit in place of a daughter, or a
               daughter in place of sons.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Beraisa - R. Yishmael, son of R.
               Yochanan ben Brokah):</font></b> Chachamim and my father did
               not argue about a relative in place of a daughter,
               or a daughter in place of sons. All agree that the
               stipulation does not take effect;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They argue in a case that he stipulates that one
                    daughter will inherit in place of all the
                    daughters, or one son in place of all the sons.
                    My father says that it takes effect, and
                    Chachamim say that it does not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Since R. Yishmael says that they did not
          argue, we infer that the first Tana (of the Beraisa) says
          that they did argue (and the Tana of our Mishnah also
          says so).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> R. Yochanan ben Brokah taught the entire
          Mishnah. It is abbreviated. It means as follows: if one
          said 'Ploni will inherit me', and he has a daughter, or
          'my daughter will inherit me', and he has a son, this
          does not take effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Had he said 'this daughter will
               inherit in place of all the daughters', or 'this son
               in place of all the sons', it takes effect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is R. Yochanan ben Brokah's opinion, that if
               he bequeaths to someone who could inherit him, it
               takes effect.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yehudah and Rava):</font></b> The Halachah follows R.
          Yochanan ben Brokah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> R. Yochanan ben Brokah learns from 'b'Yom
          Hanchilo Es Banav' - the Torah allows the father to
          bequeath to anyone he wants.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> We learn that from 'Lo Yuchal
          Levaker' (he cannot command that a regular son will
          inherit like the firstborn should, but he can bequeath as
          he wishes among his sons)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We need that verse for the following law.
<br>
<br>

sjt:
<font><b>1) ALTERING THE INHERITANCE TO ONE'S BROTHER AMONG OTHER BROTHERS</b></font><b>
<br>QUESTION:</b> The Gemara states that the Halachah follows the view of Rebbi Yochanan ben Berokah who says that one may bequeath, as inheritance, to one of his heirs (who is fit to inherit him) more property than he would receive through the normal channel of Yerushah.
</p><p>
The <b>RASHBAM</b> and <b>TOSFOS</b> point out that Rebbi Yochanan ben Berokah's ruling is limited to cases in which one alters the inheritance of one of his sons among other sons, or, when there are only daughters, one of his daughters among other daughters. He may not redirect the inheritance to a daughter when there are sons, or bequeath to someone else a portion when there are only daughters. This is the ruling of the <b>TUR</b> and <b>SHULCHAN ARUCH</b> (CM 381).
</p><p>
Does the ruling of Rebbi Yochanan ben Berokah apply only to altering the inheritance among one's sons or daughters, or also in cases when other relatives are fit to inherit him?
</p><p>
<b>ANSWER:</b> The <b>RAMBAM</b> (Hilchos Nachalos 6:2), when he writes that the Halachah follows the view of Rebbi Yochanan ben Berokah, adds that when a man has no children to inherit his property but rather his brothers will inherit his property, he may allot to one of his brothers a larger portion than the others, in accordance with the principle of Rebbi Yochanan ben Berokah. This is also the ruling of the <b>SHULCHAN ARUCH</b> (loc. cit.).
</p><p>
<b>REBBI AKIVA EIGER</b> (on the Shulchan Aruch) comments that the Rambam apparently understands the concept of sibling inheritance in the way that the <b>BEIS YOSEF</b> describes. The Beis Yosef (CM 253) writes that one inherits the property of his brother <i>directly</i>, just as one inherits from his father. The <b>DARCHEI MOSHE</b> (CM 253:8) disagrees and maintains that one does not inherit his brother directly. Rather, when a man dies with no children to inherit him, his estate goes to his father, and if his father is not alive, then his estate still goes to his father 'in the grave,' so to speak, and it is then passed to the heirs of his father (i.e. his father's other, living sons, who are the brothers of the deceased).
</p><p>
Rebbi Akiva Eiger suggests that had the Rambam understood the concept of sibling inheritance as the Darchei Moshe explains it, then he would not have ruled that one may alter the inheritance of his brother. According to the Darchei Moshe, the brother does <i>not</i> inherit him -- he is not considered 'Ra'uy l'Yorsho'; rather, his father inherits him and then his brother inherits the estate from his father.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (281:2), however, asserts that it is possible that the Rambam understands the concept of sibling inheritance as the Darchei Moshe explains it. Nevertheless, the Rambam maintains that since it is the deceased person who causes the father to inherit (in his grave), which in turn causes his brother to inherit, the deceased retains the right to alter the inheritance before he dies as he chooses. (Y. Marcus)
</p><p>
(The Acharonim discuss the issue of the nature of the inheritance of brothers at length. See sources cited here by the <b>YOSEF DA'AS</b>.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE ALTER INHERITANCE WHEN THERE IS A BECHOR?</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'> 126b (Mishnah):</font></b> If one said 'Ploni my Bechor will
               not receive a double portion', or 'Almoni my son
               will not inherit with his brothers', this does not
               take effect, for he stipulated against the Torah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If one stipulated how much each son should receive,
               and gave to some sons more than others, or gave the
               Bechor as much as the others, this takes effect. If
               he said that this was their inheritance, it does not
               take effect. If he wrote at the beginning, middle or
               end that it is a gift, it takes effect.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 130a (Mishnah):</font></b> If Reuven said 'Ploni (a stranger)
               will inherit me', and he has a daughter, or he said
               'my daughter will inherit me', and he has a son,
               this does not take effect;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yochanan ben Brokah says, it takes effect if he
               gives to someone who could inherit him.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rava):</font></b> R. Yochanan ben Brokah learns from 'b'Yom
               Hanchilo Es Banav' - the Torah allows the father to
               bequeath to anyone he wants.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> We learn that from 'Lo Yuchal
               Levaker' (he cannot command that a Pashut (regular
               son) will inherit like the Bechor should, but he can
               bequeath as he wishes among his sons)!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> We need that verse for the following law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Aba Chanan):</font></b> A Pashut inherits Ra'uy
                    (property that was destined to come to the
                    father), but a Bechor does not. A father can
                    bequeath to any son he wants.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps all the more so, he can
                    give the extra portion of the Bechor to another
                    son!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rejection:</font></b> 'Lo Yuchal Levaker' teaches that he
                    cannot.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Yehudah, Rava, R. Zerika citing Rav):</font></b> The
               Halachah follows R. Yochanan ben Brokah.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> R. Aba:</font></b> (A case occurred, and) Rav ruled like R.
               Yochanan.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (58b):</font></b> Yochanan ben Brokah holds that the Torah
               allows one to bequeath to anyone he wants. This is
               when there is no Bechor. If there is a Bechor, and
               he gave to some sons more than to others, or gave to
               the Bechor as much as to the others, and called this
               inheritance, his words have no effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Nimukei Yosef (57b Sof DH Masnisin):</font></b> If one gave to
               some sons more than others, or gave the Bechor as
               much as the others, and called this inheritance, it
               does not affect the Bechor, but it is fulfilled for
               the Peshutim. If he specified particular land for
               each son, they give proportionally, so the Bechor
               receives his double portion. If he did not specify
               land for each son, the Bechor gets a double portion
               in one place.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 6:2):</font></b> If one said 'Ploni my
               Bechor will not receive a double portion', this does
               not take effect.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (3):</font></b> If he said 'Ploni my son will inherit
               half my property, and the rest of my sons will
               inherit the other half, his words are fulfilled.
               However, if he said that his Bechor 'will inherit
               like a Pashut' or 'he will not receive a double
               portion', or 'he will not inherit double with his
               brothers' this does not take effect, for it says 'Lo
               Yuchal Levaker (he cannot make the son of the
               beloved wife to be the Bechor). He will acknowledge
               the son of the hated wife (to be the Bechor).'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Mishnah says 'if he gave to
                    some sons more than others, or gave the Bechor
                    as much as the others, this takes effect.' The
                    Mishnah says that if he called this
                    inheritance, it does not take effect, for he
                    equated the Bechor to the others. If there is
                    no Bechor, whatever he says takes effect, even
                    if he called it inheritance. The Rambam says
                    that one can decree that one son inherit all or
                    half when there is no Bechor. If there is a
                    Bechor, what he says does not affect the
                    Bechor, for he called it an inheritance. Even
                    though he did not mention the Bechor, since it
                    decreases the Bechor's share, 'Lo Yuchal
                    Levaker' applies. The Ri mi'Gash says so, and
                    adds that when there is a Bechor, just like the
                    command is Batel regarding the Bechor, it is
                    Batel regarding the Peshutim. Acharonim
                    disagree, and say that the other brothers lose,
                    in order that Ploni will get what was commanded
                    for him, and the Bechor will get what he is
                    entitled to. Here, the Rambam's opinion is not
                    clear. From Halachah 5, it seems that he holds
                    like his Rebbi (the Ri mi'Gash).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If a Shechiv Mera divided his property
               and gave for a gift more to one son and less to
               another and equated the Bechor to them, his words
               are fulfilled. If he said that it is an inheritance,
               his words have no effect.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (8:28):</font></b> Yochanan ben Brokah holds that the
               Torah allows the father to bequeath to anyone he
               wants regarding Peshutim. He agrees that he cannot
               change the Bechorah.
<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 281:4):</font></b> If one said that his
               Bechor 'will inherit like a Pashut', or 'he will not
               inherit double', this does not take effect, for it
               says 'Lo Yuchal Levaker.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (15):</font></b> This is even like R. Yochanan ben
                    Berokah (130a).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (4):</font></b> A case occurred in which
                    Yakov's Bechor Reuven died and left a son
                    Chanoch, and before Yakov died, he commanded
                    'my son Shimon and Chanoch will divide my
                    property equally.' The Maharit (CM 71) said
                    that the command is Batel. Saying that they
                    should divide is like an expression of
                    inheritance, and one cannot change the extra
                    share of Bechorah. However, the Ramban (Devarim
                    21:16) says that one cannot do so 'Al Pnei...
                    ha'Bechor', i.e. while the Bechor is alive. If
                    he died, the father can command like when there
                    is no Bechor. The Maharit did not cite the
                    Ramban. Presumably, had he seen it, he would
                    agree.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Nesivos ha'Mishpat (Bi'urim 5):</font></b> If he commands
                    about inheritance, also regarding a Pashut his
                    words have no effect! Perhaps regarding a
                    Bechor, even if he gives a gift and says that
                    the sons will inherit the rest, his words have
                    no effect, but regarding Peshutim it would take
                    effect.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Even where the custom is that the Bechor does
               not receive double, we do not follow the custom, for
               it is against Torah law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (16):</font></b> Even though the Mishnah (2a) says 'we
                    follow the local custom', Tosfos (2a DH
                    bi'Gvil) says that this includes a wall of
                    laurel and palm branches, but anything less
                    than this is an inferior custom and we do not
                    follow it. Maseches Sofrim (14:18) says that a
                    custom of Chachamim overrides Halachah, but a
                    custom without a proof from Torah is like an
                    error in judgment. All the more so, a custom
                    that uproots Torah law is Batel!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (6):</font></b> If a Shechiv Mera has a Bechor
               and Peshutim, and he commanded that a Pashut inherit
               extra, e.g. Ploni my son will inherit this amount,
               his words have no effect. Some say that the Peshutim
               divide like he said, and each gives the proper
               amount from his share to pay to the Bechor.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (129a DH Hishveh, cited in Beis Yosef DH
                    v'Chosav):</font></b> The Mishnah says 'if he gave for a
                    gift more to one son and less to another, and
                    equated the Bechor to them, his words are
                    fulfilled. If he said that it is an
                    inheritance, his words have no effect.' The
                    Rashbam (DH 126b v'Im) explains that it does
                    not work to equate the Bechor, nor to give more
                    to a Pashut. This is like Chachamim, unlike R.
                    Yochanan ben Berokah. Some say that all agree
                    to the Mishnah. His words have no effect
                    regarding the Bechor. R. Yochanan ben Berokah
                    admits regarding the Bechor. The Re'em says
                    that even according to R. Yochanan ben Berokah,
                    the entire command is Batel. Since it is Batel
                    regarding the Bechor, it is Batel regarding the
                    Peshutim. It seems that the Rambam agrees. This
                    is wrong. It is Batel regarding the Bechor, but
                    his words are fulfilled regarding the Peshutim.
                    R. Yonah (129a DH v'Im) says so. The Peshutim
                    give proportionally and pay the Bechor. The
                    Acharonim agreed
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tur:</font></b> Some say that the division among the
                    Peshutim is fulfilled, and they give
                    proportionally and pay the Bechor. He is like a
                    creditor, who collects proportionally from
                    them. The Rosh holds like this.<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Aba Chanan):</font></b> We know that the
               inheritance of a regular son is stronger than the
               extra portion of a firstborn. The former is
               collected from Ra'uy (property that was destined to
               come to the father), and the latter applies only to
               Muchzak (what the father had when he died);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'B'Yom Hanchilo Es Banav' - a father can bequeath
                    to any son he wants.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps all the more so, he can
                    give the extra portion of the firstborn to
                    another son!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Rejection:</font></b> 'Lo Yuchal Levaker' teaches that
                    he cannot.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> The Torah should have said only 'Lo
               Yuchal Levaker', and we would have inferred that he
               cannot give the extra portion to another son, but he
               can bequeath the regular portions as he wishes!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We would have learned a Kal va'Chomer.
               Inheritance of the extra portion is weaker than that
               of a regular portion (as we said above), and the
               father cannot transfer it. All the more so, he
               cannot transfer a regular portion!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Therefore, we need 'b'Yom Hanchilo Es Banav.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Zerika citing Rav):</font></b> The Halachah follows R.
          Yochanan ben Brokah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	R. Aba:</font></b> (A case occurred, and) Rav ruled like R.
          Yochanan ben Brokah.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue about which is preferable (to rely
          on): a Chacham who taught a Halachah, or a ruling given
          in an actual case.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN MAY WE APPLY WHAT WAS TAUGHT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> We do not learn the Halachah from what was
          taught that or from a ruling, unless the Rebbi said 'this
          is the Halachah in practice'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one asked and was told 'this is the Halachah
               in practice', he may apply it, but he may not
               compare one case to another.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean? We always compare
               one case to another!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> It refers to Treifos;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> In Treifos, we do not compare similar
                    cases, for if an animal is cut in one place, it
                    can live, but if it is cut in another place, it
                    will die.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Asi (to R. Yochanan):</font></b> When you tell us the
          Halachah, may we act on it?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Yochanan:</font></b> You may not, unless I say 'this is the
          Halachah in practice.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rava (to Rav Papa and Rav Huna brei d'Rav Yehoshua):</font></b> If
          my rulings (written down) come before you (in cases) and
          you have questions against them, do not tear them up
          until you come to me. If I cannot answer, then I will
          retract;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If my rulings come before you after my death and
               you have questions, do not tear them up - perhaps I
               could have answered them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Do not learn from them to other cases. A judge
               can rule only according to what he sees (and
               understands).
<br>

sjt:
</p><p>
<font><b>2) REDIRECTING THE FIRSTBORN'S DOUBLE PORTION</b></font><b>
<br>QUESTION:</b> The Gemara derives from the verse, 'Lo Yuchal l'Vaker' (Devarim 21:16), that it is not possible to take away the double portion from the Bechor and bequeath it to another son, even though it is possible, according to Rebbi Yochanan ben Berokah, to redirect the inheritance of one son (who is not a Bechor) to another son.
</p><p>
Does this verse teach only that such a diversion of inheritance is not possible, or does it also teach that it is <i>prohibited</i> to attempt to divert the double portion from the Bechor?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAM</b> (Hilchos Nachalos 6:3) maintains that a man who attempts to divert the double portion from his Bechor transgresses no Isur. When the Torah says, 'Lo Yuchal l'Vaker,' it does not mean that to do so is forbidden, but rather that the father lacks the power to do so.
</p><p>
(b) The <b>RAMBAN</b> (in his commentary to Devarim 21:16, and in his commentary to the Rambam's Sefer ha'Mitzvos, Lo Sa'aseh #12) maintains that not only does the father not have the power to do so, but it <i>is</i> forbidden for the father to attempt to divert the Bechor's double portion away from him. The Ramban maintains that when the verse says, 'Lo Yuchal l'Vaker,' it means, 'You are <i>not permitted</i> to make the son of the beloved inherit before the son of the hated who is the firstborn,' as the <b>TARGUM ONKELUS</b> translates the verse.
</p><p>
<b>QUESTION:</b> The <b>KETZOS HA'CHOSHEN</b> (251:1) challenges the view of the Ramban from the Gemara here. Rava says that Rebbi Yochanan ben Berokah's ruling (that one may alter the inheritance and redirect it to one of those who is fit to inherit him) is derived from the words, 'v'Hayah b'Yom Hanchilo Es Banav' -- 'And it shall be that on the day that he bequeaths to his sons' (Devarim 21:16), which implies that he has the power to cause any of his sons to inherit as he chooses. Abaye asks that the source could be the words, 'Lo Yuchal l'Vaker,' which imply that the father is incapable only of diverting the double portion away from the Bechor, but he <i>may</i> alter the inheritance of the other sons.
</p><p>
The Ketzos ha'Choshen asks that if the Ramban is correct and the father is not only incapable of diverting the Bechor's double portion but he is prohibited from attempting to do so, then how can the verse which teaches that he is prohibited from diverting the Bechor's double portion serve also as the source for the father's ability to alter the inheritance of the other sons? Perhaps the verse means that the father is prohibited only from attempting to divert the Bechor's inheritance, but he is not <i>prohibited</i> from attempting to divert the other sons' inheritance, while he nonetheless is still <i>incapable</i> of diverting their inheritance!
</p><p>
<b>ANSWER:</b> The Ketzos ha'Choshen answers that even according to the Ramban, had the verse intended only to teach the prohibition against diverting the Bechor's double portion, it would have said, 'Lo Yevaker,' and not, 'Lo <i>Yuchal</i> l'Vaker.' The added word indicates that even if he attempts to divert the Bechor's portion, his attempt is meaningless. This, however, is stated only with regard to the Bechor. Hence, it is possible to deduce from the fact that one cannot successfully divert the Bechor's double portion that one <i>can</i> alter the portions of any other son, as Abaye states. (Y. Marcus)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN A HEALTHY PERSON TRANSFER INHERITANCE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If a healthy person transferred
          inheritance, does R. Yochanan ben Berokah say that it
          takes effect?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps his law applies only to a Shechiv Mera,
               for he can bequeath, but a healthy person cannot;
<br>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps his law even applies to a healthy
               person.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Mesharshiya):</font></b> We learn from the following
          episode.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Noson ha'Bavli (to Rebbi):</font></b> You taught a Stam
               Mishnah according to R. Yochanan ben Berokah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If a husband did not write Kesuvas
                    Benin Dichrin (a stipulation in the Kesuvah,
                    i.e. 'sons you will have from me will inherit
                    your Kesuvah, above their share with their
                    brothers (from my other wives))', he must give
                    to them in any case, because it is an enactment
                    of Beis Din.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebbi:</font></b> The Mishnah (does not say inherit, rather
               it) says it will be given to them, it is even like
               Chachamim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rebbi later retracted:</font></b> I did not answer him
               properly! The Halachah is, sons cannot collect
               Kesuvas Benin Dichrin from property that the father
               sold;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it were a gift, it would be collected. We are
                    forced to say that it is considered an
                    inheritance.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Conclusion:</font></b> Kesuvas Benin Dichrin is based on R.
               Yochanan ben Berokah's law that a father can
               stipulate how much each son will inherit, and it
               applies in all cases, even when the father is
               healthy!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIKE WHOM IS OUR MISHNAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> (Why did Rebbi later admit that
          the Mishnah is like R. Yochanan ben Berokah?)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Whether the text is 'inherit' or 'will be given',
               a person cannot transfer ownership of something that
               is not yet in the world!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even R. Meir, who says that one can transfer
                    ownership of something not yet in the world,
                    requires that the recipient is already here,
                    but one cannot transfer ownership <i>to</i>
                    something that is not yet in the world!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  You must say that enactments of Beis Din
                    are different (Chachamim are empowered to
                    transfer ownership as they wish) - also
                    regarding inheritance, enactments of Beis Din
                    are different! (Ra'avad - for the same reason,
                    we have no proof that a healthy person can
                    transfer inheritance; Rashbam - Rav Papa does
                    not dispute this point.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The word 'inherit' in the Mishnah
          teaches like R. Yochanan ben Berokah, that inheritance
          can be transferred.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Retraction (Abaye):</font></b> What I said is wrong!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a man did not write in the Kesuvah
               'daughters you will have from me will dwell (after
               my death) in my house and be fed from my property
               until they get married', the daughters are entitled
               in any case, because it is an enactment of Beis Din.
               ('They will be fed' denotes a gift. This enactment
               was right after the enactment of Kesuvas Benin
               Dichrin);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even Chachamim agree that if two gifts are given
               together, one in an expression of inheritance and
               the other in an expression of a gift (like these two
               enactments), that both take effect.
<br>
<br>

sjt:
<font><b>1) HALACHAH: A HEALTHY MAN WHO REDIRECTS HIS INHERITANCE</b></font><b>
<br>OPINIONS:</b> Rava asks whether Rebbi Yochanan ben Berokah's principle -- that a person may bequeath as much of his estate as he wants, as an inheritance, to one of his heirs (who is fit to inherit him) -- applies only to a Shechiv Mera, or whether it also applies to a Bari, a healthy person. Perhaps only a Shechiv Mera is able to redirect the inheritance, because he is preparing to die and the verse, 'On the day that he bequeaths to his sons' (Devarim 21:16), applies, since he is expressing his final will concerning his estate. The verse does not apply to a Bari, though, and thus perhaps a Bari is not able to redirect the inheritance. The Gemara cites proof from an exchange between Rebbi Nasan and Rebbi that shows that a Bari <i>is</i> able to redirect inheritance among his sons. From the fact that the Chachamim instituted that Kesuvas Benin Dichrin (see Background to the Daf) be written in the Kesuvah as an inheritance, redirecting part of the Bari's estate to particular sons (such that the sons cannot collect the additional money from Nechasim Meshubadim, like a Ba'al Chov, but only from Nechasim Benei Chorin, like an inheritance), it is clear that a Bari is also able to redirect the inheritance of his estate, according to Rebbi Yochanan ben Berokah.
</p><p>
The Gemara seems to conclude that a Bari may instruct who shall inherit what parts of his estate as an inheritance and not merely as a gift. Is this the Halachah?
</p><p>
(a) The <b>RASHBAM</b> (DH u'Shema Minah, and 131b, DH l'Olam) explains that the Gemara's resolution of this question is conclusive, and a Bari <i>may</i> dictate the terms of the inheritance. This is also the view of the <b><b><b>RI</b></b></b> (cited by Tosfos) and the <b>BA'AL HA'ME'OR</b>.
</p><p>
(b) Other Rishonim, including <b>TOSFOS</b>, the <b>RIF</b>, <b>ROSH</b>, <b>RAMBAN</b>, and <b>TUR</b>, maintain that the Gemara does <i>not</i> resolve this question. Accordingly, a Bari may <i>not</i> dictate the terms of the inheritance. This is the Halachah as recorded by the <b>SHULCHAN ARUCH</b> (CM 381:5).
</p><p>
Tosfos explains that the Gemara's inference (that a Bari may redirect the inheritance of his heirs) from the exchange between Rebbi Nasan and Rebbi is not conclusive, because perhaps that ruling applies only in the case of Kesuvas Benin Dichrin. The Chachamim enacted that a man is able to redirect part of his estate to his sons (from one mother) for the benefit of those sons and their mother. In all other cases, however, a Bari cannot dictate the terms of his sons' inheritance. (See Tosfos' explanation of the flow of the Gemara.)
</p><p>
The <b>NIMUKEI YOSEF</b> maintains that not only can a Bari not dictate the terms of the inheritance, but even if he attempted to do so and the beneficiary of his terms seized the portion that the Bari designated for him, Beis Din takes it away from him.
</p><p>
The <b>HAGAHOS ASHIRI</b> cites the opinion of the <b><b><b>OR</b></b> ZARU'A</b> who maintains that even though the Gemara does not resolve its question (as Tosfos explains), if the beneficiary of the terms seized the portion designated for him, Beis Din does <i>not</i> take it away from him. Since the matter is in doubt, he is able to argue that he is certain that a Bari <i>is</i> empowered to dictate the terms of the inheritance. This is also the opinion of the <b>RA'AVYAH</b>.
</p><p>
The <b>SHACH</b> (in <b>TAKFO KOHEN</b> #72) asks that the Ra'avyah elsewhere maintains that, in general, when the Gemara leaves a question unresolved, one who seizes the item in question on the grounds that he is certain that the Halachah is in his favor is <i>not</i> entitled to keep the item, and Beis Din takes it away from him. Why, then, in this case, does the Ra'avyah allow the person who seized the property to keep what he seized?
</p><p>
The Shach suggests that the Ra'avyah is of the opinion expressed by the <b>MAHARSHAL</b>, who writes that only when the Gemara leaves its question unresolved with the word, 'Teiku,' is seizing the object ineffective. When the Gemara does not end with 'Teiku' but rather it merely does not answer its question, one who seizes the item in question and argues that he is certain that the Halachah is in his favor may keep the object.
</p><p>
The <b>TUMIM</b> notes that the Shach himself maintains that whenever there is a dispute among the Poskim about what the Halachah is, if one of the litigants seizes the item in question and claims that he is certain that the Halachah follows the opinion of those Poskim who rule in his favor, he may keep the item. Accordingly, in the case of the Gemara here in which some Rishonim (the Rashbam and the Ri) maintain that the Gemara resolved its question and a Bari indeed may alter the inheritance, if the beneficiary of the Bari's terms seizes his portion he may keep it and Beis Din cannot take it away from him. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HONORING OLDER SIBLINGS</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'> Bava Basra 131b (Rav Yehudah):</font></b> If a man wrote a
               document giving all his property to his wife, or to
               his oldest son, he only made him an overseer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If he wrote all his property to a younger
               son, what is the law?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Chanilai bar Idi):</font></b> Even if he wrote to a baby
               in a crib, the son is only an overseer.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If he wrote to a daughter and he has sons,
               what is the law?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Kesuvos 103a - Question:</font></b> Why did Rebbi need to
               instruct his sons to honor his wife after he dies?
               This is mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'Kaved Es Avicha v'Es Imecha Lema'an
                    Ya'arichu Yomecha' - the first 'Es' includes
                    your father's wife. The second includes your
                    mother's husband. The 'Vov' (in v'Es) includes
                    your older brother.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The Torah commands only in the parent's
               lifetime.
<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 (Kidushin 12b and 1:45):</font></b> 'Kaved Es
               Avicha v'Es Imecha' includes your father's wife and
               your mother's husband. The 'Vov' (in v'Es) includes
               your older brother. This is only in the parent's
               lifetime, but not after death.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rambam (Hilchos Mamrim 6:15):</font></b> One must honor his
               father's wife (and his mother's husband), even if he
               (she) is not his parent, as long as his father
               (mother) is alive, but not after he (she) dies. This
               is included in Kivud Av v'Em. Mi'Divrei Sofrim, one
               must honor his older brother like Kivud Av.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam considers honoring
                    step-parents to be explicit in the Torah
                    because it is expounded from 'Es'. He calls
                    honoring an older brother 'mi'Divrei Sofrim';
                    it is included from an extra Vov.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Lev Some'ach, Sefer ha'Mitzvos Reish
                    Shoresh 2 DH va'Anochi):</font></b> What is the
                    difference? 'Es' and 'Vov' are both Ribuyim
                    (inclusions)!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #1 (Lev Some'ach):</font></b> The Rambam would have
                    said that also honoring step-parents is
                    mi'Divrei Sofrim had the Gemara not said that
                    it is mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #2 (Shitah Mekubetzes Kesuvos 103a DH
                    Vov):</font></b> We expound 'Es' everywhere. Here it
                    includes step-parents; it is part of Kivud Av
                    v'Em, and applies only in their lives. The Vov
                    includes an older brother; this is an
                    independent Mitzvah.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> The Rambam (Sefer ha'Mitzvos Shoresh 2)
                    and Sefer Chasidim (1015) say that honoring an
                    older brother is learned from 'Es'. R. Yerucham
                    (Nesiv 2:5) says that our Gemara learns from
                    'Es' (it seems that this was his text).
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> Ramban (beginning of Shoresh 2 DH ha'Ikar):
                    BaHaG did not count honoring step-parents and
                    an older brother to be separate Mitzvos because
                    they are due to Kivud Av v'Em. There is no
                    Mitzvah after the death of the parents.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Megilas Esther (Shoresh 2, DH uv'Inyan):</font></b> The
                    Rambam did not say that honoring an older
                    brother applies only in the father's lifetime.
                    It seems that he holds that it applies even
                    after his death.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rashbam (Bava Basra 131b):</font></b> If a man gave all his
               property to his wife (or his oldest son), he only
               made her (him) an overseer, so that his (other)
               children will honor her (him). We expound that one
               must honor his older brother. We know that a man
               does not want his daughter to be disgraced and need
               to beg. We ask whether he wants her brothers to
               honor her.
<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 (22):</font></b> One is obligated to honor his
               older brother, whether he is a paternal or maternal
               brother.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Teshuvas ha'Rosh (15:6, cited in Beis
                    Yosef DH u'Mah she'Chosav Chayav): The Torah
                    wrote the Ribuy to include an older brother
                    regarding the mother, to teach that it applies
                    to a maternal brother, and all the more so to a
                    paternal brother.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (7 DH uvi'Teshuvas):</font></b> The Maharik
                    (44) and Ramban say that the obligation to
                    honor step-parents and an older brother are due
                    to Kivud Av. It is not clear whether or not the
                    father can pardon his honor (to exempt his son
                    from honoring them).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Pischei Teshuvah (18):</font></b> Keneses Yechezkeil says
                    that the Ramban and Rambam argue about whether
                    or not the Mitzvah to honor an older brother is
                    due to Kivud Av, and does not apply after the
                    father dies.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Birkei Yosef (17):</font></b> The Rambam, Rashi, SMaG, Ran
                    (Kidushin 12b), Tur, Shitah Mekubetzes and
                    others all obligate honoring an older brother
                    even after the father dies. We do not abandon
                    them due to the Ramban's Safek.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shirei Berachah (12):</font></b> Mishkenos Yakov says that
                    the Mitzvah to honor a step-father is surely no
                    greater than the Mitzvah to honor a step-
                    mother. We learn about honoring an older
                    brother from (the Vov in) the same word
                    ('v'Es') that teaches about a step-father, so
                    also this should not apply after death!
                    However, the kinship of a brother does not go
                    away after the father dies. We find that Rami
                    bar Yechezkeil said 'Do not heed these rules
                    that my brother quotes in the name of Shmuel'
                    (Kesuvos 21a), even though his brother (Rav
                    Yehudah) was older (Sanhedrin 80b). He would
                    not speak this way if the Mitzvah was
                    mid'Oraisa! I say that this is not a proof.
                    Surely, one need not honor a brother as much as
                    a father. Further, he was not in front of his
                    brother when he said this.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> Gilyon Maharsha (11, citing Hilchos Ketanos
                    1:28 (it seems that the reference is wrong)):
                    The Mitzvah is to honor only the oldest
                    brother.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Beis Lechem Yehudah (12):</font></b> The Ari Zal says that
                    the Mitzvah is only to honor the oldest
                    brother, and certainly not an older sister.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Shevus Yakov (1:76, cited by Pischei Teshuvah
                    19):</font></b> There is no source in Shas or Poskim for a
                    Mitzvah to honor an older sister. Even though
                    Rachel was punished for speaking before Leah,
                    we do not learn from Agadata. Further, this is
                    not a matter of honor. Rather, it is a disgrace
                    to speak in front of someone greater than
                    himself, even if he is not a relative (Avos
                    5:7). The Mitzvah to honor an older brother
                    applies only to the oldest, who inherits his
                    parents' greatness. Nevertheless, we find that
                    Yisachar and Zevulun would not speak in front
                    of their older brothers (Rashi Bereishis 49:5).
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Rebuttal (of the last three entries - Birkei
                    Yosef 17):</font></b> The Rambam (Hilchos Tzara'as 16:10)
                    connotes that it is a Mitzvah to honor an older
                    sister. (He says that we should remember how
                    Miryam was punished... even though she was
                    Moshe's older sister...) The Bach brings a
                    Mitzvah to honor a mother-in-law, even though
                    the Gemara mentions only a father-in-law. We
                    must say that a mother-in-law is included.
                    Likewise, perhaps the Mitzvah to honor an older
                    brother includes the oldest sister! R. Yonah
                    includes a Mitzvah to honor uncles due to Kivud
                    Av v'Em. Shevus Yakov himself (2:94) includes a
                    Mitzvah to honor a grandmother from 'Va'Yasem
                    Kisei l'Em ha'Melech', i.e. for Rus, the
                    matriarch of the kingship (Bava Basra 91b). The
                    Ramban holds that there is a Mitzvah to honor
                    all older brothers. The correct text of the Ari
                    Zal explicitly says that the Mitzvah is to
                    honor all older brothers, even after the father
                    died. This includes an older sister. Beis
                    Yehudah (YD 28) says that since women must
                    stand for Zekenim, others must stand for a
                    Zekenah. Likewise, since a woman must honor an
                    older brother, brothers must honor an older
                    sister.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Shirei Berachah (14):</font></b> Maharhal learns from the
                    Rashbam that there is no Mitzvah to honor an
                    older sister. He explains that an oldest son
                    was merely made an overseer, so that the other
                    children will honor him. He did not suggest
                    this at all regarding a daughter! This is not a
                    proof. Once we said that even an infant brother
                    was made an Apotropos, we retract from saying
                    that it is due to the Mitzvah to honor an older
                    brother.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is even if the younger brother is a
               Chacham and greater in Torah. This seems correct,
               unlike those who disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (7 DH Kosav):</font></b> Binyamin Ze'ev says
                    that a Chacham comes before his older brother.
                    His proofs are invalid. Rather, he must honor
                    his older brother, just like all agree that a
                    Chacham must honor his father unless the father
                    is his Talmid.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HONORING STEP-PARENTS, GRANDPARENTS, AND IN-LAWS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Nechumi):</font></b> What is the source that one
          Beis Din made both these enactments?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye - Mishnah - R. Elazar ben Azaryah):</font></b> The
          sons inherit and the daughters are fed. Just like the
          sons inherit only after the father dies, the daughters
          are fed only after the father dies.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is reasonable to learn from one enactment to
               another only if one Beis Din made both enactments!
<br>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps a different Beis Din made the second
          enactment, and they were careful to enact like the first
          Beis Din, lest the enactments contradict each other!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN A GIFT IS NOT A GIFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If a man wrote a document giving all his
          property to his wife, (surely he did not deprive his sons
          from inheriting. He merely wants to ensure that his sons
          honor her, i.e.) he merely made her an overseer.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Obviously, if wrote a document giving all his property
          to his oldest son, he only made him an overseer (because
          he wants to ensure that the brothers honor him, like the
          Torah commands).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If he wrote all his property to a younger
          son, what is the law?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Chanilai bar Idi):</font></b> Even if he wrote to an
          infant in a crib, the father is concerned for the son's
          honor. The son is only an overseer.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	The following are obvious:</font></b> if he wrote all his property
          to a son, he only made him an overseer (like above);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote all his property to a stranger, it is
               a gift (he is not concerned that the sons honor a
               stranger),
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he wrote to his Arusah (he was Mekadesh her,
               but did not do Nisu'in) or ex-wife, it is a gift (he
               is not concerned that the sons honor her).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Questions:</font></b> If he wrote to a daughter and he has sons,
          what is the law? (We know that a man is concerned for his
          daughter's honor (that she not have to beg for food). Is
          he concerned that his sons honor her?)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote to his wife and his only heirs were
               his brothers, what is the law? (Is he concerned that
               they honor his wife, even though they are not
               commanded?)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he wrote to his wife, and all his sons were
               from other wives, what is the law? (One is commanded
               to honor his father's wife, but not as much as he
               must honor his mother.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Ravina):</font></b> The only case (when he writes to a
          woman) in which the gift stands is regarding his Arusah
          or ex-wife.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Avira):</font></b> In all cases she acquires,
          except for his wife in two cases: when his heirs were his
          brothers (R. Gershom's text - when her sons inherit him),
          and when he left sons (even) from other wives.
<br>

<p>

sjt:
</p><p>
<font><b>2) MAKING ONE'S SON A CARETAKER OF THE ESTATE</b></font><b>
<br>OPINONS</b>: The Mishnah (130a) teaches the ruling of Rebbi Yochanan ben Berokah, who says that one may redirect his estate to any one of his heirs as he chooses. The Gemara here assumes that one who gives all of his property to one of his sons merely intends to make that son an Apotropos, a manager to take care of the estate, so that his other sons will respect him and his decisions. He does not intend to give the son actual possession of the property.
</p><p>
What determines whether the beneficiary actually receives possession of the property or whether he merely becomes a caretaker of the property?
</p><p>
(a) The <b>RASHBAM</b> (130a, DH Halachah) maintains that whenever the father stipulates that the son should 'inherit' him, the son becomes the actual owner of the property. By saying that he wants his son to 'inherit' the property, he implies that he wants the son to own it in the same way that he himself owns it. It is only when the father stipulates that he wants to give his son a 'gift' that we assume that he does <i>not</i> intend to grant his property to the son, but rather he intends only to appoint his son as the caretaker over the property. It is likely that when he expressed his will to give the property to his son, he intended that the property should be under his son's control, but not in his ownership. (Accordingly, it does not matter whether the father communicated his will in writing or orally, or whether he included all of the estate or part of the estate in the gift.)
</p><p>
(b) <b>RABEINU CHANANEL</b> (cited by the <b>ROSH</b> 8:31) maintains that only when one <i>orally</i> dictates his will does the son take possession of the estate, but when one puts his will in <i>writing</i> he only makes his son a caretaker of the property. The <b>ROSH</b> disputes this view, because he does not agree that the son should lose just because the will was written (a written statement of intent is usually <i>stronger</i> than a verbal one). He suggests that perhaps Rabeinu Chananel means that since it can be assumed that the written word becomes more well-known than the spoken word, when the father wrote his will it is likely that he meant merely to publicize his high regard for his son so that others would honor him as well.
</p><p>
(c) The Rosh cites another explanation in the name of Rabeinu Chananel. It is assumed that when only <i>part</i> of the estate was given to one son, the father intended for him to own what he gave him, but when the <i>entire</i> estate was given, he intended to make the son a caretaker over the estate.
</p><p>
(d) The <b>ROSH</b> explains simply that it is always assumed that the father wants to make his son a caretaker of the estate unless he specifies that he intends that his son actually own the estate.
</p><p>
(e) The <b>BA'AL HA'ME'OR</b> maintains that it is assumed that the father intended to make his son a caretaker of the estate only when the other sons are minors, or when they are overseas. In such a case there is a practical need for a caretaker. In all other cases, the son actually becomes the owner of the estate. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE GIFT OF A HEALTHY PERSON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> What is the law regarding a healthy
          person?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps only a Shechiv Mera intends that they
               will honor her, but if he is healthy, they will
               honor her (in his lifetime) whether or not she is an
               overseer!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps he wants them to start showing more
               honor to her from now!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If a man wrote the Peros of his
          property to his wife, she collects her entire Kesuvah
          from the land (i.e. the gift was in addition to her
          Kesuvah, and not in place of it);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he wrote to her a half, a third or quarter of
               his property, she collects her entire Kesuvah from
               the rest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Eliezer says, if he wrote all his property to
               her, and a creditor presents a loan document (dated
               before the gift but after the Kesuvah) against him,
               she tears up the gift document, (and he collects. If
               later she is widowed or divorced and the husband did
               not leave property to pay the Kesuvah,) she can
               collect her Kesuvah from what the creditor took.
               (This is because her husband intended that the gift
               take effect only if it benefits her.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, through accepting the gift, she
               forfeited the lien of her Kesuvah on that land (so
               she cannot take it from the creditor).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehudah ha'Nachtom says, a case occurred with
               my daughter-in-law, and Rabanan ruled like
               Chachamim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Inference:</font></b> This is because a creditor had a claim
               against the land. If not, she would acquire the
               gift.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If her husband was Shechiv Mera, we said that he
                    only made her an overseer!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> He was healthy (this answers Rava's
               question).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Really, he was Shechiv Mera. The gift was to
          his Arusah or ex-wife. (Ravina and Rav Avira agree that
          she does not acquire.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The Halachah follows Chachamim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Elsewhere, Rav Nachman follows estimation!
          (He should rule like R. Eliezer, that presumably, he
          intended only for his wife's benefit.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven went overseas, and his
               father heard that Reuven died, and wrote all his
               property to others, and later Reuven returned, the
               gift stands;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Menasiya says, the gift is void.
               Had he known that his son was alive, he would not
               have given it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The Halachah follows R. Shimon ben
               Menasiya.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Our case is different. She is happy that people
          hear that her husband wrote her the property, so she
          pardons the lien of her Kesuvah.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN A WIFE FORFEITS HER LIEN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Shimon wrote his property to his sons,
          and gave to his wife any amount of land, she forfeits her
          (lien on all the land designated to collect her) Kesuvah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Does she really forfeit her lien for any
          amount of land?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav):</font></b> The case is, she acquired on behalf of
          the sons. (This shows that she consents.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> It is even if he gave the property
          in front of her and she was silent. (This shows her
          consent.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3 (R. Yosi b'Rebbi Chanina):</font></b> The case is, he
          said 'take this land in place of your Kesuvah' (and she
          was silent).
<br>
<br>

sjt:
<font><b>1) GIVING AWAY ONE'S PROPERTY WITH A MISTAKEN ASSUMPTION</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which a man's son went overseas, and the father heard that his son died. Consequently, the father gave his entire estate to others. His son then returned alive. Rebbi Shimon ben Menasya states that the man may retract the gift that he gave on the grounds that he gave it based on a mistaken assumption (i.e. that his son was dead).
</p><p>
Does the same Halachah apply in a case in which the man had no children, and he gave away his property to others assuming that he would never have children, and, later, he was blessed with a child? May he revoke the gift in order to give the property to his child?
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> writes that this Halachah applies only when the man had a son at the time that he gave his estate to others. If he had no children at all when he gave away his estate to others on the assumption that he would never have children, and, later, he was blessed with a child, then he <i>cannot</i> retract the gift. Since -- at the time that he gave the gift -- he indeed had no children, there were no mistaken assumptions, and thus he has no grounds on which to retract his gift. The subsequent birth of a child is a later development which did not exist at the time he gave the gift.
</p><p>
However, <b>TOSFOS</b> in Kesuvos seems to contradict this view. Tosfos (Kesuvos 47b, DH she'Lo Kasav) writes that a person who bought a cow which died shortly after the purchase may not claim that the sale was a 'Mekach Ta'us,' a transaction in error. This is because the death of the cow was a later development which occurred after the time of the sale. Tosfos there proves that this ruling applies only in the case of a sale, since a sale depends not only on the intention of the buyer, but also on the will of the seller ('Da'as Makneh'), and the seller is not willing to accept responsibility for a later mishap. In contrast, in the case of a gift, the transaction depends only on the intention of the benefactor. Hence, when circumstances change (to the benefit of the giver of the gift) after the gift was given, it is deemed to be a transaction made in error, and the Kinyan is annulled.
</p><p>
In the case of the Gemara here, the father is giving a gift, and therefore he should be able to retract the gift even if he had no children at the time that he gave it and was later blessed with a child!
</p><p>
Perhaps the case which the Kovetz Shi'urim discusses is different. In that case, there is no particular event that occurred to which one can point and say that it was based on <i>that</i> event that he gave away his property. In contrast, when a man gave away his property after he heard that his son died, it is clear that he gave away his property based on that information. That is not so clear when a man has no children and he gives away his property to others; it is not clear that he is giving away his property to others for the sole reason that he has no children to inherit his property. While it is true that he <i>might</i> not have given away his property had he had children, it cannot be assumed (unless he explicitly states otherwise) that he certainly would not have given away his property to his close friends had he known that he would have children. (It is evident that a person does not think about future children from the Rishonim (see <b>RITVA</b>, <b>NIMUKEI YOSEF</b>) to 142b, who write that the concept of 'Kerovah Da'ato Shel Adam Etzel Beno' applies only to a child who has been conceived but who has not yet been born, but not to a child who has not yet been conceived.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE REMNANT THAT SHOWS THAT A GIFT WAS CONDITIONAL</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> If Reuven went overseas, and his father
               heard that Reuven died, and got up and wrote all his
               property to others, and later, Reuven returned, the
               gift stands;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Menasiya says, the gift is void. Had
               he known that his son was alive, he would not have
               given it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The Halachah follows R. Shimon ben
               Menasiya.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 146b (Mishnah):</font></b> If a Shechiv Mera (one who fears
               lest he die from his illness) gave away all his
               property and retained any amount of land for
               himself, he cannot retract (it is like a gift of a
               healthy person). If he did not keep land for
               himself, he can retract.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> Our Tana is R. Shimon ben Menasiya,
               who follows Umdena (estimation of intent).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 149b Question:</font></b> What it considered 'any amount'?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1 (Rav Yehudah):</font></b> It is land to support
               himself from it.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (R. Yirmeyah bar Aba):</font></b> It is enough
               Metaltelim to support himself.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (R. Zeira):</font></b> These are great teachings! If he left
               over any amount of land, he cannot retract, for he
               made provisions to support himself (in case he will
               live). The same reasoning applies when he leaves
               over Metaltelim!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objections (Rav Yosef):</font></b> The Mishnah discusses
               leaving over only land, but not Metaltelim! The
               Mishnah discusses leaving over any amount, even if
               it is not enough to support himself!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Abaye):</font></b> Sometimes a Mishnah says 'land' (or
               'any amount'), but it also applies to Metaltelim
               (and there is a Shi'ur! Abaye gave exampes of this.)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rebuttal (Rav Yosef):</font></b> Those Mishnayos say 'land' and
               'any amount' for parallel structure or contrast to
               the Reisha.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 150b (Rava citing Rav Nachman):</font></b> Five laws apply only
               if one gave away all his property: a Shechiv Mera, a
               slave, a wife, sons, and a gift to evade.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (70a):</font></b> Rav Yehudah said that a Shechiv Mera must
               leave enough land to support himself from it. The
               Halachah does not follow him, for Rava said in the
               name of Rav Nachman that Matanas (the gift of a)
               Shechiv Mera applies only if he gave all his
               property. This shows that any amount is a Shiyur
               (remnant).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Rosh 9:26):</font></b> The only one who disagrees
               with Rav Yehudah, R. Yirmeyah bar Aba, and R. Zeira,
               who praised their teachings, is Rav Yosef. Abaye
               challenged Rav Yosef, and Rav Yosef's answer was
               inadequate.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> The Gra (CM 250:20) nearly copies the
                    Rosh's words, but says that Rav Yosef merely
                    questioned why R. Zeira praised their 
                    teachings, but Rav Yosef himself did not argue
                    with their teachings. This is unlike our text
                    of the Rosh, which says 'Abaye was astounded
                    that Rav Yosef was astounded by <i>their</i> words.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> The Rif assumes that the same Shiyur
               applies to all five matters. This is wrong.
               Metaltelim is a Shiyur for everything except for
               Kesuvah, which was enacted from land. Likewise,
               there is good reason why the Shiyur for Shechiv Mera
               is enough to live on! If he left less, surey he
               intended to give only if he will die! For a farmer,
               the Shiyur is enough to support his family. If he
               does business or lends (to Nochrim) on Ribis, the
               Shiyur is enough to support himself from the
               profits.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 6:1):</font></b> We always estimate 
               the intent of the giver. If circumstances indicate
               his intent, we follow Umdena, even if he did not
               specify. If Reuven went overseas, and his father
               heard that Reuven died, and give all his property
               for an open, absolute gift to someone else, and
               later, Reuven returned, the gift is void. Clearly,
               had he known that his son was alive, he would not
               have given all his property. Therefore, if he left
               over anything from his property, be it land or
               Metaltelim, the gift stands.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Rav Nachman taught five laws
                    that apply only if one gave away all his
                    property. He did not need to teach about this
                    case, for he taught Shechiv Mera, and Rav
                    Nachman (146b) equated this case to Shechiv
                    Mera.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (CM 246:2):</font></b> In one answer, Tosfos (150b DH
                    v'Ilu) says that Rav Nachman did not list
                    matters about which Tana'im argue.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (8:15):</font></b> If a Shechiv Mera left anything for
               himself, be it and or Metaltelim, this is a partial
               gift, and the giver cannot retract.
<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 246:1):</font></b> We always estimate the
               intent of the giver. If circumstances indicate his
               intent, we follow Umdena, even if he did not
               specify. If Reuven went overseas, and his father
               heard that Reuven died, and give all his property
               for an open, absolute gift to someone else, and
               later, Reuven returned, the gift is void.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> This excludes a concealed gift.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Clearly, had he known that
               his son was alive, he would not have given all his
               property. Therefore, if he left over anything from
               his property, be it land or Metaltelim, the gift
               stands.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (2):</font></b> All agree that any amount is a Shiyur.
                    This is unlike the gift of a Shechiv Mera.
                    There (CM 250:4), one opinion says that he can
                    retract only if he kept enough to live on.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Taz):</font></b> The Rosh, who holds that a
                    Shiyur for a Shechiv Mera must be enough to
                    live on, holds similarly here. The Gemara
                    (146b) said that R. Shimon ben Menasiya, who
                    follows Umdena here (that he gave his property
                    to a stranger only because he thought that his
                    son was dead), holds that Matanas Shechiv Mera
                    with a Shiyur is like a healthy person's gift.
                    There is an opinion that there is a greater
                    Umdena here than regarding Shechiv Mera (that
                    he gave his property only because he expected
                    to die). The Umdena of Shechiv Mera applies
                    unless he left enough to live on, so all the
                    more so the Umdena here applies unless he left
                    this much. The Rosh says that unless a Shechiv
                    Mera left this much, surely he did not expect
                    to starve and die. All the more so here, surely
                    he did not abandon his sons, unless he left
                    this amount for his son. Also the Magid Mishneh
                    equates them.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>R. Akiva Eiger:</font></b> The Gemara says 'he heard...
                    and got up and wrote...' Perhaps this shows
                    that there is an Umdena only if he did so right
                    after he heard (see Tosfos Kesuvos 109a DH
                    Teshev). Lechem Rav (205) says that there is an
                    Umdena only when he gave to a stranger, but not
                    if he gave to one of his sons.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (250:4):</font></b> If a Shechiv Mera left
               anything for himself, be it land or Metaltelim, this
               is like a gift of a healthy person.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav ba'Meh, citing
                    the Rashbam):</font></b> If he did not leave any land,
                    surely he gave only because he expected to die.
                    He did not intend that if he recovers, he will
                    starve to death and need to take from others!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Omar):</font></b> The Rambam
                    holds like the Rif. They must explain that if
                    he left less property than needed to live from,
                    he intends to live very meagerly.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (16):</font></b> The Shulchan Aruch equates this to
                    other matters, e.g. one who wrote his property
                    to others. Sometimes a person is able to
                    support himself from any amount. If brothers
                    divide and we find that one has great wealth,
                    we say that perhaps he economized on food and
                    saved up!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that he must leave enough to live on.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> SMA (17):</font></b> The Tur says in the name of the Rosh that
               for a farmer, the Shiyur is enough to support his
               family. If he does business or lends on Ribis, the
               Shiyur is enough to support himself from the
               profits. Ba'al ha'Itur suggests that 'enough to live
               on' is income for 12 months, like we say about a big
               estate (139b). Ir Shushan says that the Rosh agrees
               that this is the Shi'ur. I disagree. The Rosh said
               'enough to support himself from the profits.' If the
               profit from the principal can finance him for 12
               months, surely it can finance him (forever) after
               this! It is difficult to say that he commanded that
               the principal be taken after 12 months. Ba'al
               ha'Itur learns 12 months from Rav, but the Halachah
               follows Shmuel, that a big estate is enough to feed
               the orphans until Bagrus or Kidushin of the girls.
               The Rema says 'enough to live on', which connotes
               permanently, like the Rosh. If there is any doubt,
               ha'Motzi mi'Chavero Alav ha'Re'ayah; the giver is
               Muchzak in the property, and the recipient must
               prove that the gift was valid. The Rema did not say
               'enough to support <i>his family</i>', like the Rosh
               said. Do not say that he did not need to specify.
               Regarding Sidur (if one owes, we leave him with what
               he needs) for one who owes Erchin or a debt, we do
               not leave for needs of his family (CM 97:23)! It
               seems that the Rema holds that the Rosh requires
               leaving enough to support his family only when he
               left land, for one cannot plow, plant, harvest,
               thresh, and do other difficult farming chores all by
               himself. The Rema discusses business and related
               profits, which do not require others' help.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (According to all three opinions,) this is a
               leniency of Kesuvos. (We assume that she forfeits
               her lien).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Seifa - R. Yosi):</font></b> If she said that she forfeits the
          lien, this takes effect even if he did not write any
          property to her.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> This implies that the first Tana holds that
          he must write and she must say that she pardons the lien!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The entire Mishnah is like R. Yosi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Beraisa - R. Yehudah):</font></b> When does this
               law (of the first Tana) apply? It is only if she was
               there <i>and</i> accepted to pardon the lien. If only one
               of these applies, she does not forfeit it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This refutes all three Amora'im.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rava (to Rav Nachman):</font></b> Like which opinion do you hold?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> I say that if he wrote any amount of
          land to her, that suffices for her to forfeit her lien
          (like R. Yosi. Receiving land or accepting suffices.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> What is the law regarding a healthy
          person?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps only regarding a Shechiv Mera, her
               silence shows that she forfeits her lien, because
               she knows that he will not acquire any more
               property;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  But regarding a healthy person, perhaps she is
                    silent because she thinks that he may acquire
                    more property, she does not want to protest
                    until she sees that she must!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since she knows that now he has no other
               property from which she can collect, her silence
               shows that she forfeits her lien?
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	This question is not resolved.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	A case occurred in which Reuven said 'half to my
          daughter, half to my daughter, and a third of the Peros
          to my wife.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman citing Shmuel):</font></b> Even if he gave to
               his wife a date tree to eat its fruit (until it
               dries up), she forfeited her lien.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> Shmuel said that only because he
               gave to her a Kinyan in the land. Here, he gave only
               detached Peros!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If the Peros were detached, surely
               she did not forfeit her lien.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	A case occurred in which Reuven said 'a third to my
          daughter, a third to my daughter, a third to my wife.'
          One of the daughters died.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> His wife gets only a third (she forfeited
          her lien on the rest).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Rejection (Rav Kahana):</font></b> She did not forfeit her lien
          from property her husband will acquire in the future.
          Here also, he acquired back what he gave to the daughter
          who died!
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN DOES A WOMAN FORGO HER KESUVAH</b></font><b>
<br>QUESTION:</b> The Gemara (end of 132a) cites the Mishnah in Pe'ah (3:7) which states that when a husband allots all of his property to his sons with the exception of a small portion which he allots to his wife, her acceptance of that portion is interpreted as implicit consent to forgo her claim (the Shibud of her Kesuvah) on all of the rest of her husband's property (which he has allotted to his sons). The Gemara asks how the wife showed her consent to forgo her claim on his property. The Gemara records the answers of three Amora'im as to how the woman showed her consent to forgo the Shibud on his property. Shmuel answers that the Mishnah there refers to a situation in which the wife was present when her husband gave away his property and wrote that he was giving only a small portion to her. Her silence (and lack of protest) is interpreted as a sign that she forgoes any claim to the rest of the property.
</p><p>
The Gemara challenges the answer of Shmuel (as well as the answers of the other Amora'im). According to Shmuel, the Tana Kama of the Mishnah in Pe'ah and Rebbi Yosi in that Mishnah are saying the same thing! Rebbi Yosi states that either an explicit statement that she forgoes her Shibud, <i>or</i> her silence when the husband writes in her presence that he is giving to her only a small portion of the property, indicates that she forgoes her right to collect her Kesuvah. The words of Rebbi Yosi imply that the Tana Kama (with whom Rebbi Yosi argues) requires <i>both</i> that the husband write to her in her presence that he is giving her only a small portion, <i>and</i> that the woman explicitly state that she forgoes the Shibud. This contradicts the explanation of Shmuel, who explains that the Tana Kama maintains that the woman's silence alone is enough to indicate that she forgoes the Shibud.
</p><p>
The Gemara continues and quotes Rav Nachman who says that when a husband makes his wife a partner with his sons in the allotment of his property to them, the wife loses her right to claim her Kesuvah from the rest of the property.
</p><p>
This statement, however, clearly seems to be in agreement with the explanation given by Shmuel, which the Gemara just refuted! How does the Gemara reconcile this statement with its challenge to the explanation of Shmuel?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>ROSH</b> says in the name of <b>RABEINU CHANANEL</b> that when the husband allots to his wife a portion <i>equal</i> to the portions he allots to his sons, the Tana Kama agrees that she consents to forgo the Shibud even without explicitly stating so, since she benefits considerably. Only when he gives her only a small portion does the Tana Kama require that she explicitly express her consent to forgo the Shibud.
</p><p>
(b) The <b>CHIDUSHEI HA'RAN</b> cites <b>RABEINU CHANANEL</b> who explains that since the husband made his wife a <i>partner</i> with his sons in the property, the Tana Kama agrees that she presumably consents to the gift and forgoes the Shibud even if she does not explicitly say so. This is because a person would not agree to become a partner with others without full desire to do so.
</p><p>
(c) The <b>RASHBAM</b> (DH Shutaf) explains that Rav Nachman is ruling like Rebbi Yosi, and not like the Tana Kama, in the Mishnah in Pe'ah. Accordingly, the Gemara is saying that it is a sign of the wife's consent to forgo her Kesuvah when she is silent at the time that her husband makes her a partner together with the sons to receive his property, in accordance with the view of Rebbi Yosi. The Gemara rejects Shmuel's explanation of the Tana Kama of that Mishnah, but his ruling is still true according to Rebbi Yosi.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN A WIFE FORFEITS HER LIEN (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven divided his property among his wife and sons,
          but there was one date tree he did not command about.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Ravina):</font></b> She can collect (the rest of her Kesuvah)
          only from the date tree.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rav Yemar):</font></b> If she cannot collect from what
          the sons received (because she forfeited her lien), then
          also she cannot collect from the date tree (she also
          accepted that the sons will inherit it)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, just like she did not forfeit her lien
               from the date tree, she did not forfeit her lien
               from what the sons received!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN A GIFT WORKS LIKE INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If a Shechiv Mera wrote all his property to
          Ploni:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ploni could inherit him, he receives it for an
               inheritance;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Ploni could not inherit him, he receives it for a
               gift.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Why do you say this in your own name, as
          if all agree to it?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Your teaching is like R. Yochanan ben Berokah.
               You should say 'the Halachah follows R. Yochanan ben
               Berokah'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps you discuss when Reuven was a
               Shechiv Mera, and they asked him 'who should receive
               your property - Ploni?', and he answered 'who else?'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In this case, you said that if Ploni could
                    inherit him, he receives it for an inheritance,
                    and if not, he receives it for a gift.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rav Huna:</font></b> Yes, I discuss that case.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What difference does it make if he receives
          it like an inheritance or a gift?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ada bar Ahavah):</font></b> If it is like an
          inheritance, his widow is fed from the property. If it is
          like a gift, she is not.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> If it is like an inheritance, Ploni
          acquires mid'Oraisa, and Reuven's widow is fed from the
          property. If it is like a gift, Ploni acquires through
          the Rabbinical enactment of a gift of a Shechiv Mera, and
          all the more so the widow is fed!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> It makes a difference in Rav Acha's
          case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Acha brei d'Rav Avya):</font></b> According to R.
               Yochanan ben Berokah, if David said 'my property is
               to you (Shimon), and after you to Ploni', if Shimon
               could inherit David, Ploni does not get anything.
               'To you' does not connote a gift, rather, an
               inheritance, and one cannot stipulate after
               inheritance.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> He did stipulate after inheritance!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> He thought that one can stipulate
          after inheritance. The Torah says that he cannot.
<br>
<br>

sjt:
<font><b>1) HALACHAH: COLLECTING 'MEZONOS' FROM PROPERTY THAT WAS GIVEN AWAY</b></font><b>
<br>QUESTION:</b> The Gemara states that when a Shechiv Mera distributes his estate to several people, the people who are fit to inherit him receive their share of the estate as an inheritance, while the people who are not fit to inherit him receive their share as a gift. The Gemara inquires what is the practical difference between receiving property as an inheritance and receiving it as a gift. The Gemara suggests that one difference is when the widow of the benefactor comes to collect her Mezonos from the estate. The Halachah is that a widow may collect her Mezonos only from portions of the estate which were inherited by the heirs, for on those portions her Shibud still exists. She may <i>not</i> collect her Mezonos from property that was sold or given away. Thus, the widow may not collect her Mezonos from the property that the recipients -- who are <i>not</i> fit to inherit the benefactor -- received as a gift, while she <i>may</i> collect from the property that the recipients -- who <i>are</i> fit to inherit the benefactor -- received as an inheritance.
</p><p>
The Gemara refutes this difference based on the logic that if a widow may collect her Mezonos from the property inherited by heirs even though that property now belongs to them mid'Oraisa (since Yerushah is mid'Oraisa), then certainly she should be able to collect her Mezonos from the property received as a gift by others, since this gift is only mid'Rabanan. The gift given by her husband was a Matnas Shechiv Mera, a gift given by a dying man through making a verbal statement (and not through a written document). Such a gift is binding only mid'Rabanan; the Chachamim instituted that a Shechiv Mera may effect a Kinyan and transfer his property by a simple verbal request that the transfer take place (normally, such a request is not binding). Since the gift given by the Shechiv Mera is binding only because of a rabbinic enactment, certainly the widow should be able to collect her Mezonos from that property!
</p><p>
May a widow collect her Mezonos from the recipient of a gift that was given by her husband when he was healthy?
</p><p>
<b>ANSWER:</b> The Mishnah in Gitin (48b) states that a widow is entitled to receive Mezonos from her deceased husband's estate. However, she may collect her Mezonos only from property inherited by the heirs, but not from property which was sold to others (Nechasim Meshubadim). <b>TOSFOS</b> in Kesuvos (49b, DH Hu) is in doubt about whether the widow is restricted only from collecting property that was <i>sold</i>, but she <i>may</i> collect property that her husband had <i>given</i> away as a gift, or whether she also may not collect from property given away as a gift. This doubt is based on the Gemara in Gitin (50b) which states that some of the enactments that the Rabanan made in order to protect a buyer (such as the enactment that a widow may not collect her Mezonos from property that a buyer purchased from her husband) do not apply to one who received a gift (since he has nothing to lose).
</p><p>
One of the proofs that Tosfos writes that a widow may <i>not</i> collect her Mezonos from property that was given as a gift (even though the recipient of the gift has nothing to lose) is from the Gemara here. The Gemara states that a widow may collect her Mezonos from the recipient of the gift because the gift he received from the Shechiv Mera was only a Kinyan mid'Rabanan. This implies that a widow may <i>not</i> collect her Mezonos from the recipient of a normal gift (a gift given by a 'Bari,' a healthy person) which is a Kinyan mid'Oraisa. This is also the Halachah as recorded by the <b>SHULCHAN ARUCH</b> (EH 93:20). (Y. Marcus)
</p><p>


<font><b>2) WHO IS 'MUCHZAK'</b></font><b>
<br>OPINIONS:</b> The Gemara (132a-133a) discusses whether a woman forgoes her rights to collect her Kesuvah from property owned by her husband when he gives away all of his property as a gift to others and to his wife. The Gemara says that in the case of a Shechiv Mera who gives away part of his property to others and part to his wife, the wife's lack of protest shows that she forgoes the Shibud on his property (see Insights to 132b). Rava (on 132b) asks whether the same applies in the case of a 'Bari,' a healthy person, who gives away all of his property to others, including to his wife. In such a case, perhaps the woman does <i>not</i> intend to forgo her right to collect her Kesuvah because she expects that he will acquire new property from which she can collect, and the only reason why she was silent when he gave away all of his property is that she did not want to upset him. The Gemara leaves this question unresolved.
</p><p>
What is the Halachah in such a case? It seems that the principle of 'ha'Motzi me'Chaveiro Alav ha'Re'ayah' should apply. However, it is not clear who is considered the 'Motzi' and who is considered the one who is in possession of the property ('Muchzak'). Perhaps the woman is considered the one in possession of the property, since she has a Shibud on it. On the other hand, perhaps the husband is considered the 'Muchzak,' and the woman is the 'Motzi,' since he (or the recipient of the gift that he gave) is in actual possession of the property.
</p><p>
(a) The <b>RASHBAM</b> (end of DH Amar Lei Rav Yeimar) comments that since the Gemara does not resolve its question concerning whether or not a widow forgoes her Shibud to her husband's property when he gives it away while he is a 'Bari,' in practice she may <i>not</i> collect her Kesuvah because she is considered the 'Motzi.'
</p><p>
(b) The <b>KOVETZ SHI'URIM</b> here refers to the <b>TESHUVOS HA'RASHBA</b> (6:5) who disagrees with the Rashbam. The Rashba asserts that since the husband's property was certainly Meshubad to the woman before the doubt about her Mechilah arose, the woman is now considered the one who is 'Muchzak.' The question is whether or not she relinquished her Shibud, and since that question is unresolved it is assumed that she still has the Shibud.
</p><p>
The Rashba understands that a Shibud on property is considered like a partial Kinyan. Hence, if a doubt arises about whether she lost that Shibud, she is considered 'Muchzak' and the other party must bring proof to prevent her from collecting from that property.
</p><p>
The Rashbam, in contrast, views a Shibud merely as a commitment granted to the woman to allow her to collect her Kesuvah from that property; it does not involve any actual Kinyan or partial Kinyan. Accordingly, the husband and his heirs are considered 'Muchzak' and the woman must bring proof (that she did not forgo the Shibud) in order to collect. (Y. Marcus)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHOULD ONE DIVERT INHERITANCE FROM IMPROPER CHILDREN?</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 wrote all his property to
               others, and did not leave any for his sons, it takes
               effect, but Chachamim are displeased with him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, if his sons were acting
               improperly, Reuven is praised for this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Gemara) Question:</font></b> Do Chachamim argue with R.
               Shimon?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Beraisa):</font></b> Yosef ben Yo'ezer's son was
               acting improperly. Yosef had a Keli full of coins;
               he made it Hekdesh. His son found a pearl. Hekdesh
               appraised it for 13 Kelim of coins, but Hekdesh had
               only seven Kelim. The son said 'I will take seven.
               The other six is my gift to Hekdesh.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Version #1:</font></b> They wrote down 'Yosef ben Yo'ezer
                    brought one Keli of coins to Hekdesh, and his
                    son gave six.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Version #2:</font></b> They wrote down 'Yosef brought one
                    Keli of coins to Hekdesh, and his son took
                    seven from Hekdesh.' (end of Version #2)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Conclusion:</font></b> (In Version #1) they wrote that his
                    son also gave to Hekdesh. This shows that they
                    were (also) pleased with Yosef, i.e. Chachamim
                    agree with R. Shimon.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> In Version #2, they wrote that his son
               took from Hekdesh. This shows that they were (also)
               displeased with Yosef, i.e. Chachamim argue!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Conclusion:</font></b> The two versions contradict one another.
               We cannot settle our question from here.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> Shmuel told Rav Yehudah 'do not be party
               to transfers of inheritance, even from a bad son to
               a good son, and all the more so from a son to a
               daughter! (I.e. Chachamim argue, and Shmuel rules
               like them.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A case occurred in which Reuven's sons
               were acting improperly. He wrote his property to
               Yonason ben Uzi'el. Yonason sold a third of it, made
               a third Hekdesh, and returned a third to Reuven's
               sons.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Kesuvos 53a:</font></b> Rav Papa was marrying off his son to
               Aba Sura'ah's daughter. He went to Aba Sura'ah's
               house to write the Kesuvah. Yehudah bar Meremar did
               not want to enter (to pressure Aba Sura'ah to give a
               big dowry).
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Papa:</font></b> Are you concerned for Shmuel, who said 'do
               not take part in transferring inheritance, even from
               a bad son to a good son. Perhaps the bad son will
               have good offspring!' You hold that all the more so,
               one should not transfer from a son to a daughter!
               This is wrong. Chachamim decreed to encourage
               dowries, like R. Yochanan taught
<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 (8:37):</font></b> The Yerushalmi says about one
               who writes his property to others 'their sins were
               on themselves.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> All the general rules, e.g. the
                    Halachah follows R. Shimon ben Gamliel in the
                    Mishnah, do not apply when the Gemara
                    explicitly rules otherwise.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 6:11):</font></b> If Reuven wrote all
               his property to others, and abandoned his heirs,
               even if his heirs were treating him improperly,
               Chachamim are displeased with him. The others
               acquired what was given to them. It is Midas
               Chasidus for a Chasid not to testify about a command
               to transfer inheritance, even from a son acting
               improperly to his brother, who is a Chacham who acts
               properly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mordechai (625):</font></b> If one commanded to do with
                    his property 'what is best', we give all of it
                    to his heirs, and not to Tzedakah. We learn
                    from the case of Yosef ben Yo'ezer. It is clear
                    there that he did improperly. We conclude that
                    this is even if one's sons act improperly. The
                    Halachah follows the first Tana. There is no
                    difference between sons and other heirs. Both
                    of them inherit mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (CM 282:3):</font></b> We learn from the case of Yosef
                    ben Yo'ezer that it is improper to give even to
                    Hekdesh.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Our texts say that we cannot answer the
                    question from the case of Yosef ben Yo'ezer.
                    Even though we conclude that Chachamim argue
                    and Shmuel rules like Chachamim, if there is a
                    Hava Amina that Tzedakah or Hekdesh is
                    different, there is no proof from Shmuel!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rivash (168):</font></b> In a Teshuvah, Rav Hai Gaon
                    writes 'if one gave all of his property to
                    others, it does not take effect, for he
                    stipulated against the Torah. In Parshas
                    Nachalos, it says 'it will be a statute to
                    Yisrael' - it cannot be changed.' I do not
                    understand this. If he commanded that the
                    others will 'inherit', even if he left some for
                    his sons, it does not take effect. If he
                    commanded that the others will get a gift, even
                    if he gave all his property, it takes effect,
                    but Chachamim are displeased. If Rav Hai means
                    that he commanded about a gift, and it takes
                    effect, and if he left some for his sons,
                    Chachamim are not displeased, he should not
                    have attributed the reason to stipulating
                    against the Torah.
<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 282:1):</font></b> If Reuven wrote all his
               property to others, and abandoned his heirs, even if
               his heirs were treating him improperly, Chachamim
               are displeased with him. The others acquired what
               was given to them. It is Midas Chasidus not to
               testify about a command to transfer inheritance,
               even from a son acting improperly to his brother,
               who is a Chacham who acts properly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (1):</font></b> The Gemara and Tur say 'were acting
                    improperly.' The Shulchan Aruch adopted the
                    Rambam's text, which says 'they were treating
                    him improperly', but they were proper in other
                    matters of Shamayim. Even so, he should not
                    give the money to others.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Tashbatz (3:147, cited in Ketzos ha'Choshen 1):
                    Early documents (to transfer inheritance) leave
                    over four Zuz for the heirs. A Ga'on says that
                    this is so that Chachamim will be pleased, like
                    the Itur explains.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chasam Sofer (CM Teshuvah 151):</font></b> This shows that
                    whenever one leaves a proper amount for the
                    heirs, Chachamim are pleased. However, there is
                    no proof from the Itur. The Itur cites the
                    Yerushalmi, in which a man gave his money to R.
                    Aba bar Mamal, and told him to keep half, and
                    to give half to his sons when they will act
                    properly. R. Aba gave half to the sons even
                    though they were not acting properly. They
                    complained about the other half, and he
                    threatened to take back what he gave to them.
                    The Itur says that this refers only to sons,
                    and only if he did not leave anything for them.
                    He may leave for them and also give to poor and
                    rich people. I say that he refers only to the
                    Yerushalmi, which discusses when 'their sins
                    were on themselves', which is a great sin,
                    applies. Our Mishnah says only that Chachamim
                    are displeased; this is not such a great sin.
                    R. Aba transgressed the command and gave half
                    to the sons, for he was unwilling to assist the
                    severe transgression of not giving anything to
                    the sons. Even though he kept half, the giver
                    merely displeased Chachamim. A Chasid should
                    not be party to such a command, but the
                    receiver may keep it, for it takes effect. Also
                    Yonason ben Uzi'el returned a third of Reuven's
                    estate to Reuven's sons for this reason.
                    However, Chachamim are displeased whenever any
                    amount is diverted from the sons, and a Chasid
                    should not be party to the command. People
                    without children often command to use their
                    money for good things. One who dies without a
                    son angers Hash-m (116a), so they seek to save
                    themselves from Gehinom. One's own needs come
                    before needs of his heirs. The concern lest his
                    heirs have proper children applies only when
                    one intends to divert from improper children.
                    When the Halachah is shaky, we follow the
                    custom. Perhaps the concern is only for a gift
                    of a Shechiv Mera, which takes effect after
                    death. The property already fell to the heirs,
                    and he seeks to uproot this. A healthy person
                    may give permanent rights to the property from
                    today, and the Peros after death. However,
                    Kesuvos 53a refutes this. I say that one may be
                    party to a command to use much of his money for
                    good things, as long as he left a proper amount
                    for his heirs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If one commanded to do with his property 'what
               is good and proper', we give it to his heirs, for
               there is nothing better than this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> This is best because the Torah awarded
                    heirs to receive inheritance, and be in place
                    of those who bequeath to them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chasam Sofer (CM Teshuvah 151):</font></b> We learn from
                    Bava Basra that Chachamim are displeased with
                    one who writes is property to others, and even
                    to Hekdesh. We learn from Kesuvos 53a that
                    Chachamim are displeased even if he gives some
                    property to others. (Yehudah did not want to
                    encourage any amount to go to the daughter in
                    place of the sons). Since we are concerned that
                    the bad sons will have proper children, any
                    amount is improper. This applies to all heirs.
                    The <b>SMA</b> (1) cannot discuss one who treated his
                    father improper but was proper in other
                    matters. Mistreating a father is the most
                    blatant Aveirah. It is unreasonable that he
                    transgresses only this! Rather, he discusses
                    other heirs, and one should not assist such a
                    command, even to Hekdesh.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	A case occurred in which Reuven said 'my property is to
          you (Levi), and after you to Ploni', and Levi was fitting
          to inherit Reuven. Levi died, and Ploni came to claim the
          property.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Ilish):</font></b> Ploni gets it (Rashbam; R. Gershom - he
          divides it with Levi's heirs).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> No, this is like Rav Acha's case. One
          cannot stipulate after inheritance.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Ilish was embarrassed. Rava consoled him.
               'B'Itah Achishenah' (Hash-m saves Tzadikim in due
               time, i.e. before you gave a mistaken ruling).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TRANSFERING INHERITANCE FROM WICKED CHILDREN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven wrote all his property to others,
          and did not leave any for his sons, it takes effect, but
          Chachamim are displeased with him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Gamliel says, if his sons were acting
          improperly, Reuven is praised for this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Do Chachamim argue with R. Shimon
          ben Gamliel?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> Yosef ben Yo'ezer had a son who
          was acting improperly. Yosef had a Keli full of coins; he
          made it Hekdesh. His son married the daughter of the man
          who made crowns for Yanai ha'Melech. He bought a fish for
          her (after she gave birth) and found a pearl inside.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> His wife:</font></b> Do not take it to the king, for he will
               appraise it cheaply. Rather, take it to the Gizbarim
               (overseers) of Hekdesh;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Do not appraise it yourself, for what one says to
               (give or sell to) Hekdesh is a Kinyan. Rather, let
               them appraise it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They appraised it for 13 Kelim of coins, and told
               him that Hekdesh has only seven.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> The son:</font></b> Give to me the seven. The other six is
               my gift to Hekdesh.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Version #1:</font></b> They wrote down 'Yosef ben Yo'ezer
               brought one Keli of coins to Hekdesh, and his son
               gave six.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Version #2:</font></b> They wrote down 'Yosef ben Yo'ezer
               brought one Keli of coins to Hekdesh, and his son
               took seven from Hekdesh.' (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Culmination of answer:</font></b> Since they wrote
               (according to Version #1) that his son also gave to
               Hekdesh, this shows that they were (also) pleased
               with Yosef, i.e. Chachamim agree with R. Shimon ben
               Gamliel.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection:</font></b> According to Version #2, since they
               wrote that his son took from Hekdesh, this shows
               that they were (also) displeased with Yosef, i.e.
               Chachamim argue with R. Shimon ben Gamliel!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Conclusion:</font></b> The two versions contradict one another. We
          cannot settle our question from here.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Shmuel told Rav Yehudah 'do not be party to
          a father who transfers inheritance, even from a bad son
          to a good son, and all the more so from a good son to a
          bad son! (We must say that Chachamim argue, and Shmuel
          holds that the Halachah follows Chachamim.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A case occurred in which Reuven's sons were
          acting improperly. He wrote his property to Yonason ben
          Uzi'el (a Talmid of Hillel);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Yonason ben Uzi'el sold a third of it, made a
               third Hekdesh, and returned a third to Reuven's
               sons.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shamai thought that the return of the property
               was invalid, because Reuven was adamant that his
               sons not get it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Yonason:</font></b> You have no more ability to undo this
               than the sale and Hekdesh. If you cannot undo them,
               the return also stands.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shamai:</font></b> You refuted me.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AN INVALID GIFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> What did Shamai originally think?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> He thought that this is like the gift of Beis
          Choron.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A case occurred in Beis Choron in
               which a vow forbade Shimon to benefit from his son
               Levi. Levi was marrying off his son. He told his
               friend Yehudah 'I give to you the courtyard and the
               banquet (that I prepared), just so my father can
               come and eat (and he will benefit from you, and not
               from me).'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Yehudah:</font></b> If they are mine, I hereby make them
               Hekdesh!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Levi:</font></b> I did not give to you in order that you
               will be Makdish them!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Yehudah:</font></b> You gave me so your father can come and
               eat, and the vow will be transgressed through me
               (for this is not a real gift)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Chachamim:</font></b> Any gift like this, in which the
               recipient cannot be Makdish it (Tosfos - because the
               giver stipulated exactly what must be done with it)
               is not a gift.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE TALMIDIM OF HILLEL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Hillel had 80 Talmidim. Thirty were worthy
          that the Divine Presence rest on them like Moshe (but the
          generation was not worthy for this), 30 were worthy that
          the sun should stop for them as it did for Yehoshua, and
          20 were intermediate;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> His greatest Talmid was Yonason ben Uzi'el, and
               his smallest was R. Yochanan Ben Zakai.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yochanan Ben Zakai learned everything - Torah,
               Nevi'im, and Kesuvim, Mishnah, Gemara (resolutions
               of difficulties between Mishnayos), Halachos,
               Agados, Drashos, Rabbinical enactments, laws learned
               from Kal va'Chomer and Gezerah Shavah, calculation
               of the Tekufos (equinoxes and solstices),
               Gematriyos, parables about launderers and foxes, the
               speech of Shedim, of date trees and of angels, and
               big and small matters;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A big matter is Hashem's chariot (mentioned in
                    Yechezkeil). A small matter is the questions of
                    Abaye and Rava.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  He fulfilled 'Lehanchil l'Ohavai Yesh
                    v'Otzroseihem Amalei.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He was the smallest Talmid. All the more so the
               greatest (knew all this)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> When Yonason ben Uzi'el engaged in Torah, a bird
               flying over him would be burned.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN A MAN CAN EXEMPT HIS WIFE FROM YIBUM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven says 'this is my son', he is
          believed (this will be explained);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he says 'this (Ploni) is my brother', he is not
          believed (to make his brothers share their inheritance
          with Ploni). He divides his share with Ploni;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When Ploni dies, Reuven gets back what Ploni took
               from Reuven's share.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Ploni had received property from another
               place, all the brothers share it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> When he says 'this (Ploni) is my
          son', regarding what is he believed?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> Ploni inherits Reuven, and
          exempts Reuven's wife from Yibum.
<br>
<br>

sjt:
<font><b>1) A HUSBAND'S CREDIBILITY TO SAY THAT HE DIVORCED HIS WIFE</b></font><b>
<br>QUESTION:</b> The Gemara teaches that a husband is believed to say that he divorced his wife (since it is in his hands to divorce her now). However, his word is accepted only from now, but not retroactively from the time that he specifies that he divorced her. That is, he is believed that he divorced her for all matters subsequent to this moment, but he is not believed that he divorced her with reference to the past. This is because his credibility is based on his ability to give her a Get now ('b'Yado'). He cannot give her a Get to take effect in the past, and therefore his credibility does not extend to the past.
</p><p>
A similar concept is expressed by the Gemara in Gitin (54b). If a person was kneading dough and upon finishing he told the owner of the dough that it became Tamei, he is believed. He is believed because it was in his ability to make the dough Tamei while he was kneading it.
</p><p>
However, there is an obvious difference between the person's credibility in these two cases. In the case in Gitin, the person kneading the dough is believed to say that the dough became Tamei even though the dough is no longer in his hands. Rava there explains that in questions of Isur (prohibited matters), such as whether the item became Tamei, one is believed by virtue of the fact that it was <i>once</i> in his ability to do to the object that which he says was done (see also <b>RASHI</b> to Gitin 54a, DH Rava). In contrast, in cases of monetary law, one is believed only when he presently has the ability to do what he says was done.
</p><p>
Why, then, in the case of the Gemara here, is the husband believed only with regard to the present time and onward, and not with regard to the past? The case of a Get is also a case of Isur (the Isur of Eshes Ish), and thus the husband should be believed with regard to the past as well, since his credibility is based on 'b'Yado.'
</p><p>
<b>ANSWER:</b> The <b>SHEV SHEMAITSA</b> (end of 6:1) explains that just as there is a leniency in cases of Isur in that one witness is believed in such cases, so, too, a person is believed because of 'b'Yado' even though it is no longer in his hands. The case of the Gemara here, however, involves the question of whether the woman was divorced or not, and thus it is a matter of a 'Davar sheb'Ervah' in which a single witness is <i>not</i> believed. The credibility of testimony in a case of a 'Davar sheb'Ervah' must be of a higher degree than that which is required for normal cases of Isur. Hence, a proper 'Migu' is required, and for the husband to have a proper 'Migu' it must be in his hands to divorce his wife right now. He is not believed about the past based on a 'Migu' that he <i>could</i> have divorced her at that time, because that would be a 'Migu l'Mafre'a' which does not work (see <b>TOSFOS</b> to Bava Basra 30a). (Y. Marcus)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS ONE BELIEVED ABOUT WHETHER HIS WIFE WILL FALL TO YIBUM?</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 says 'this is my son', he is
               believed. If he says 'this (Ploni) is my brother',
               he is not believed. Reuven and Ploni divide what
               Reuven inherited from his father. When Ploni dies,
               Reuven gets back what Ploni took from Reuven's
               share. If Ploni had received property from another
               place, all the brothers share it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> Reuven is believed (to say 'this is
               my son') to exempt Reuven's wife from Yibum.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We already learn this from a Mishnah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If Reuven said just before he died
                    'I have sons', he is believed. If he said 'I
                    have brothers', he is not believed.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> There, he is Muchzak not to have brothers
               (he is believed because even without his words, the
               Chazakah is that his wife will be permitted when he
               dies). Here, he is believed even if he is Muchzak to
               have brothers.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> Rav Yehudah taught that he is believed
               because he could exempt her from Yibum if he wants
               by divorcing her.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 135a - Question:</font></b> When Reuven said 'this (Ploni) is
               my brother', what did the other brothers say?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they admit 'he is our brother', they all
                    divide equally! (If not, after Ploni dies, why
                    do they share what Ploni received from
                    elsewhere?)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Kidushin 64a (Mishnah):</font></b> If Reuven said just before
               he died 'I have sons', he is believed. If he said 'I
               have brothers', he is not believed.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Suggestion:</font></b> He is believed to permit, but not to
               forbid. Our Mishnah is not like R. Noson:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Rebbi):</font></b> If at the time of Kidushin,
                    Reuven said 'I have no children', and at the
                    time of death he said 'I have children', or at
                    the time of Kidushin he said 'I have no
                    brothers'; and at the time of death he said 'I
                    have brothers', he is believed to permit, but
                    not to forbid;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Noson says, he is believed even to forbid.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rejection #1 (Rava):</font></b> The Beraisa is different. Since
               at the time of death he contradicted what he said
               earlier, surely he is not lying.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Objection (Abaye):</font></b> If in the Mishnah, even though he
               doesn't contradict himself, he is not believed to
               forbid. All the more so in the Beraisa, when he
               contradicts himself, he should not be believed to
               forbid!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rejection #2 (Abaye):</font></b> In the Mishnah, the Chazakah
               was that he had no children or brothers (so his wife
               will not fall to Yibum). He is believed to say that
               he has children, for this supports the Chazakah, but
               not to say that he has brothers, which opposes the
               Chazakah. In the Beraisa, the Chazakah was that his
               wife will fall to Yibum. He would not lie (at the
               time of Kidushin) to exempt her from Yibum, for he
               could divorce her. Rebbi holds that this reasoning
               (he need not lie) is like witnesses, so it overturns
               the original Chazakah. R. Noson holds that this
               reasoning is like a Chazakah. It does not override
               the original Chazakah (so he is believed to forbid
               at the time of death).
<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 (8:39):</font></b> One is believed to say that he
               has a son even if he is Muchzak to have brothers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Yibum 3:1):</font></b> If Reuven said 'this is
               my son' or 'I have sons', he is believed, and he
               exempts his wife from Chalitzah and Yibum.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (2):</font></b> If he said 'this is my brother' or 'I
               have brothers', he is not believed to forbid his
               wife and force her to do Chalitzah or Yibum with the
               Yavam (before remarrying), for he intends to forbid
               her after his death.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (8:39):</font></b> Surely the latter Mishnah cited
               discusses exempting his wife from Yibum. If it
               discussed inheritance, there would be no reason to
               believe him about having sons, but not to believe
               him about having brothers.
<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 157:6):</font></b> If Reuven was Muchzak not
               to have brothers, and he said 'I have brothers' he
               is not believed. If a man came and said 'I am his
               brother', he is not believed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav Rabeinu):</font></b> R. Yerucham
                    says that even Rebbi holds that he is believed
                    to say that he has sons when there is a
                    Chazakah that he has brothers, but not if there
                    are witnesses that he has brothers.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (15):</font></b> The Gemara assumes that when Reuven
                    said 'this (Ploni) is my brother', Ploni
                    agreed. The Gemara (135a) asked 'what do the
                    other brothers say'. It did <i>not</i> ask what
                    Ploni says in the Reisha, when he gets half of
                    Reuven's share. Even so, Ploni is not believed
                    (against a Chazakah) regarding Yibum.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Even if one witness (Rema -
               or relative) testifies that he is his brother, he is
               not believed to remove the Chazakah of Reuven's wife
               (that she will be permitted when Reuven dies).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (16):</font></b> The Shulchan Aruch (YD 127:3) rules
                    that one witness is not believed about Isurim
                    to be stringent. This is like the Rosh (Gitin
                    5:8)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (6):</font></b> The Mordechai (Yevamos
                    58,59) says that we do not heed testimony of
                    relatives that he is a brother, because he was
                    not Muchzak to have brothers.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Shmuel (8 and Gra 17):</font></b> The text of the
                    Rema should say 'relative<i>s</i>', like it says in
                    Darchei Moshe.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav ha'Rosh):</font></b> A case
                    occurred in which Leah married David. We never
                    heard that David had a brother, but Levi's
                    brother went abroad and found a man who said
                    that he is David's brother. David died. The
                    Rosh (52:5) ruled that she keeps her Chazakah,
                    and may remarry. All agree that a husband is
                    not believed to forbid her against her
                    Chazakah. Even though the Halachah follows
                    Rebbi, Rebbi says only that he is believed to
                    <i>permit</i> her against her Chazakah. All the more
                    so, her brother is not believed to forbid her.
                    We would not be concerned even for a Kosher
                    witness against her Chazakah! Gitin 54b teaches
                    that one witness is not believed to forbid
                    against Chezkas Heter (unless he is able to
                    make the matter Asur). Also, her brother only
                    said that Ploni claimed to be David's brother.
                    If Ploni came and said so, he would not be
                    believed regarding money, and not regarding
                    Isur. We are concerned only when there is a Kol
                    (rumors) that (two) witnesses know that he has
                    a brother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 127:3):</font></b> One witness is believed
               to be lenient about Isurim, but not to be stringent.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that one witness is believed even to
               be stringent about something without a Chazakah for
               Heter or Isur.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (156:7):</font></b> In YD, the Rema says that
                    one witness is believed when there is no
                    Chazakah. Here, since he is not Muchzak to have
                    brothers, it is as if she is Muchzekes that she
                    will not fall to Yibum. Kidushin 64a considers
                    this like Chezkas Heter. However, this is
                    difficult for the Nimukei Yosef (Bava Basra 61b
                    DH Leyorsho), who says that (one is believed
                    when there is no Chazakah. This shows that he
                    holds that) no Chazakah for children is <i>not</i>
                    like a Chazakah that he has no children. If so,
                    one witness should be believed! Rashi and the
                    Ran (Kidushin 64a DH d'Lo and 27b DH Omar)
                    connote that if he did not say 'I have sons',
                    even if he did not say that he has brothers,
                    and he was not Muchzak to have either, if
                    someone comes and says 'I am his brother', we
                    are concerned. (They say that 'he is believed
                    to say that he has sons' means that we will
                    <i>not</i> be concerned if this happens.) If so, all
                    the more so one witness can forbid! We can say
                    that the Nimukei Yosef agrees. He, Rashi and
                    the Ran hold that one is believed to say 'I
                    have sons' even if witnesses say that he has
                    brothers. Some Poskim say that he is not
                    believed (EH 156:6), but only because they hold
                    that it is considered Vadai that she wil fall
                    to Yibum.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>HOW TO GIVE TO A MUDAR HANA'AH </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> Obviously, Reuven is believed to say that
          Ploni inherits him. He could give his money to him for a
          gift if he wants! (This applies to what Reuven owns now.
          He is not believed regarding property he will receive
          later.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Chidush is that Reuven is believed to
          exempt his wife from Yibum.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> We already learn this from a Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven said just before he died 'I
               have sons', he is believed (to exempt his wife from
               Yibum);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'I have brothers', he is not believed
               (to forbid his wife from remarrying).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> There, he is Muchzak not to have brothers (he
          is believed because even without his words, the Chazakah
          is that his wife will be permitted when he dies);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, he is believed even if he is Muchzak to
               have brothers.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Yosef citing Rav Yehudah):</font></b> He is believed because
          a husband is believed to say that he divorced his wife.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Rav Yosef):</font></b> What I said is improper. It
          attributes the reason for a Mishnah to a law not taught
          in a Mishnah!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Correction (Rav Yosef):</font></b> Rather, surely Rav Yehudah
          taught that he is believed because he could exempt her
          from Yibum if he wants by divorcing her.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN A MAN IS BELIEVED TO SAY THAT HE DIVORCED HIS WIFE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> Since we believe a person based on what he
          could do, a man is believed to say that he divorced his
          wife, because he could divorce her.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yitzchak bar Yosef citing R. Yochanan):</font></b> A man is
          not believed to say that he divorced his wife.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> This disproves Rav Yosef's reasoning!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Chiya bar Avin cited R. Yochanan to say
          that a man is believed to say that he divorced his wife!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yitzchak taught that he is not believed
          about the past (e.g. to exempt her if she committed
          adultery). R. Chiya bar Avin taught that he is believed
          about the future.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If a man said that he divorced his wife at a
          specific time in the past, (he is not believed about the
          past, but) is he believed about the future?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we divide his statement (and believe that he
               divorced her, but not when this was), or not (and
               since we cannot believe his entire statement, we do
               not believe him at all)?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Mari or Rav Zvid):</font></b> We divide his words.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (the other of Rav Mari and Rav Zvid):</font></b> We do
          not divide his words.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than Rava's law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If Reuven says 'Ploni had Bi'ah with my
               wife', he can join with another witness to kill
               Ploni, but not to kill his wife. (Even though Reuven
               is not believed about his own wife, it is as if he
               said 'Ploni had Bi'ah with a married woman' and 'a
               man had Bi'ah with my wife'. He is believed about
               the former.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> When he discusses two people we divide his
          words, but not when he discusses one.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IS A MAN BELIEVED TO PERMIT HIS WIDOW TO REMARRY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Reuven was about to die. (The Chazakah was that he has
          brothers, but not children.) They asked him 'will your
          wife need Yibum or Chalitzah?'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reuven:</font></b> She is fit for a Kohen Gadol. (He means
               only that she need not do Yibum or Chalitzah. The
               next line shows that he does not permit her to any
               Kohen.)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> He is believed. R. Chiya bar Avin cited R.
          Yochanan to say that a man is believed to say that he
          divorced his wife (and surely, that is what he means).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Rav Yitzchak bar Yosef cited R.
          Yochanan to say that a man is not believed to say that he
          divorced his wife!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> We already answered this. He is believed
          about the future, but not about the past.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Will we rely on this answer?!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rava (to Rav Noson bar Ami):</font></b> Be stringent. (Require
          Chalitzah, like Abaye.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Reuven was about to die (he was Muchzak not to have
          brothers). He said 'I do not have brothers.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> We are not concerned (lest he has
          brothers):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Firstly, he was Muchzak not to have brothers.
               Also, he said 'I do not have brothers'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Abaye:</font></b> People are saying that witnesses overseas know
          that he has brothers!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rav Yosef:</font></b> Since there are no witnesses in front of us
          we are not concerned, like R. Chanina taught:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chanina):</font></b> (A woman told Beis Din that she was
               captured, but was not defiled. She is believed.)
               Will we forbid her because people are saying that
               witnesses overseas know that she was defiled?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> We are lenient about a captured woman
          (because she makes herself repulsive, so her captors will
          not desire her). We cannot learn to be lenient to permit
          a woman to marry (when perhaps she needs Chalitzah)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rava (to Rav Noson bar Ami):</font></b> Be concerned for her
          (Rashbam - require Chalitzah (unless you can verify that
          he has no brothers); some say, permit her (R. Gershom)).
<br>
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE DUBIOUS BROTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven said 'this (Ploni) is my brother',
          he is not believed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What do the other brothers say?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they admit 'he is our brother', they all
               divide equally!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> They say 'he is not our brother'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Seifa):</font></b> If Ploni received property from
          another place (and died), all the brothers share it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why do the others share it? They say that he is
               not their brother!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> They say 'we do not know whether he is our
          brother'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> This teaches that if Shimon says 'you owe to me
          100 Zuz' and Levi says 'I do not know', he is exempt.
          (The brothers do not know whether they must share their
          inheritance with him, and they are exempt.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> Perhaps Levi is liable. Here is
          different, for Reuven claims on behalf of someone else
          (Ploni himself did not claim).
<br>
<br>

sjt:
<font><b>1) 'MY WIFE IS FIT TO MARRY A KOHEN GADOL'</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which the friends of a dying man -- who was not known to have any children -- wanted to know whether his wife will need to do Yibum after his death. They said to him, 'Who will marry your wife?' The dying man replied, 'She is fit to marry a Kohen Gadol (Chazya l'Kahana Rabah)!'
</p><p>
Rabah ruled that 'there is nothing to be concerned about,' and we accept the dying man's word. Since a man is believed to say that he divorced his wife (since, if he wanted, he could give her a Get now), the dying man is believed and the woman does not need to do Yibum.
</p><p>
Why did the dying man saying that his wife was 'fit to marry a Kohen Gadol'? When he dies, his wife becomes a widow, and a Kohen Gadol is not allowed to marry a widow! Moreover, the Gemara explains that the woman does not need to do Yibum because her husband is believed to say that he divorced her. Accordingly, since she is divorced, she is not fit to marry even an ordinary Kohen!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> cites an opinion which maintains that the word 'Rabah' (from 'Kahana Rabah') must be erased from the text of the Gemara since, at best, the woman is a widow whom a Kohen Gadol may not marry. This is also the explanation of <b>RABEINU GERSHOM</b>.
</p><p>
Tosfos asks, however, that erasing the word 'Rabah' from 'Kahana Rabah' does not resolve the difficulty, because the woman still is prohibited to an ordinary Kohen since she is a Gerushah, a divorcee.
</p><p>
(b) Tosfos says, therefore, that the word 'Rabah' does not need to be erased from the statement, 'Chazya l'Kahana Rabah.' Rather, that statement must be interpreted to mean that the woman is fit to marry a Kohen Gadol <i>as far as the laws of Yibum are concerned</i>; that is, she has absolutely no obligation to do Yibum, and thus there is no obligation of Yibum holding her back from marrying even a Kohen Gadol. Of course, the fact that she is an Almanah or a Gerushah prevents her from marrying a Kohen Gadol or an ordinary Kohen, but as far as the laws of Yibum are concerned she may marry anyone.
</p><p>
Similarly, the <b>RASHBAM</b> answers that the statement 'she is fit to marry a Kohen Gadol' is Lav Davka, and it means merely that she may remarry after her husband's death without having to do Yibum.
</p><p>
The <b>RITVA</b> also explains that it is Lav Davka, and that the man merely said it as an exaggeration to emphasize that his wife has no obligation to do Yibum.
</p><p>
(c) Tosfos cites <b>RABEINU MENACHEM</b> who had the text, 'Chazya <i>l'Kehunah</i>' -- 'she is fit for the Kehunah,' meaning that she was the daughter of a Kohen, and upon her husband's death she is permitted to return to her father's home and eat Terumah, since she is not obligated to do Yibum (and since she has no sons). She may not marry a Kohen, though, since she is an Almanah (or a Gerushah).
</p><p>
(d) <b>RABEINU CHANANEL</b>, the <b><b><b>RI</b></b> MI'GASH</b>, and the <b>RE'AH</b> explain that the dying man said that he was Mekadesh the woman with a condition and that condition was never fulfilled. Hence, there never was any Kidushin, and she indeed is permitted to marry a Kohen Gadol.
</p><p>
The <b>RAMBAN</b>, <b>RAN</b>, and <b>RITVA</b> question this explanation. The woman has a Chazakah that she was fully married; on what basis is he believed to say that he married her originally with a condition that was not fulfilled? A 'Migu' does not give him believability with regard to what happened earlier, but only with regard to what he could do now (such as divorce her).
</p><p>
The <b>YOSEF DA'AS</b> suggests that perhaps these Rishonim (Rabeinu Chananel, Ri mi'Gash, and Re'ah) maintain that the man is believed only with regard to what is relevant from now on, and not with regard to what happened earlier. That is, the 'Migu' that he could divorce her now permits Beis Din to believe him that -- with regard to requiring Yibum -- it is true that he was never married to her because he was Mekadesh her with a condition that was never fulfilled. (This is a form of 'Palginan Ne'emanus.') Consequently, he is believed even with regard to permitting her to marry a Kohen, since he has no vested interest in her marrying a Kohen. (I. Alsheich)
</p><p>


<font><b>2) PERMITTING THE WOMAN TO MARRY BASED ON HER HUSBAND'S WORD</b></font><b>
<br>QUESTION:</b> The Gemara discusses a case in which the friends of a dying man, who was not known to have children, wanted to know whether his wife will need to do Yibum after his death, and they said to him, 'Who will marry your wife?' The dying man replied, 'She is fit to marry a Kohen Gadol (Chazya l'Kahana Rabah)!' (See previous Insight.)
</p><p>
Rabah ruled that 'there is nothing to be concerned about,' and we accept the dying man's word. Since a man is believed to say that he divorced his wife (since, if he wanted, he could give her a Get now), the dying man is believed and the woman does not need to do Yibum.
</p><p>
Rava said to Rav Nachman bar Ami, 'Chush Lah.' The <b>RASHBAM</b> explains that Rava was arguing with Rabah, and he required that the woman perform Chalitzah out of doubt. Rava maintained that we must be concerned for the opinion that maintains that a man is <i>not</i> believed to say that he divorced his wife. (According to one explanation cited by <b>RABEINU GERSHOM</b>, Rava was <i>agreeing</i> with Rabah, and he was saying that we may rely on the answer that says that a man is believed to say that he divorced his wife with regard to whatever is relevant from now on, 'l'Haba.')
</p><p>
Why, though, does Rava not accept the 'Migu'? Since the man could give his wife a Get right now, he should believed to say that he divorced her! (<b>RITVA</b>)
</p><p>
<b>ANSWER:</b> The <b>RITVA</b> answers that this 'Migu' is especially weak. Whenever a man divorces his wife, it becomes publicly known that they are divorced. In this case, there was no rumor at all that the man had divorced his wife, and thus it is likely that it is not true.
</p><p>
The Ritva writes further that the 'Migu' is especially weak because, in this case, the man said that he divorced her 'today' (since, if he said that he divorced her earlier, he would not be believed, because that would be a 'Migu l'Mafrei'a'; he is believed to say only that he divorced her today, since it is in his hands to divorce her today). If it is true that he divorced her today, then he or his wife should be able to display the Get itself (as the Gemara says in Kesuvos 22b). (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ARE WE CONCERNED FOR A RUMOR THAT THERE ARE WITNESSES?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Reuven was about to die (he was Muchzak not to have
               brothers). He said 'I do not have brothers.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> We are not concerned (lest he has
               brothers). Firstly, he was Muchzak not to have
               brothers. Also, he said 'I do not have brothers'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Abaye:</font></b> People are saying that witnesses overseas
               know that he has brothers!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> Since there are no witnesses in front of
               us we are not concerned, like R. Chanina taught:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Chanina):</font></b> (A woman told Beis Din that she
                    was captured, but was not defiled. She is
                    believed.) Will we forbid her because people
                    are saying that there are witnesses overseas?!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> We are lenient about a Shevuyah (a
               captured woman. She makes herself repulsive, so her
               captors will not desire her). We cannot learn to
               permit a woman to marry (perhaps she needs
               Chalitzah)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rava (to Rav Noson bar Ami):</font></b> Be concerned for her.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Kidushin 12a:</font></b> Reuven was Mekadesh Leah with a piece
               of marble. Rav Chisda was calculating whether it is
               worth a Perutah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rabanan (to Rav Chisda):</font></b> There are witnesses abroad
               that the rock was worth a Perutah that day!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rav Chisda:</font></b> Since they are not here, we are not
               concerned for them.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Suggestion:</font></b> This is like R. Chanina's ruling!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rejection (Abaye and Rava):</font></b> R. Chanina is lenient
               only about a captured woman. Here, if the Kol
               (rumor) is true, she is married to Reuven!
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> Leah married someone else. In Sura, Chachamim
               refused to intermarry with her children, because
               they hold like Abaye and Rava.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (Bava Basra 8:39) bring our Gemara.
               (It seems that our Gemara's text is correct, that he
               was Muchzak <i>not</i> to have brothers.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Nimukei Yosef (DH Im):</font></b> We are more lenient about a
               Shevuyah for it is a lighter Isur, and even that
               Isur we need not be concerned for, for she guards
               herself from Zenus (illicit relations). Can we be
               lenient about an Eshes Ish, who until now was
               Muchzak to be forbidden due to a severe Isur?! Can
               we permit her due to Safek and overturn her
               Chazakah?! Rava admitted, and commanded not to
               permit her until we see if there are witnesses, and
               what they have to say. A Mishnah teaches that if a
               man said that he has sons; he is believed, for he
               could have permitted his wife through a Get. There
               is different, for there is no Kol. Here, there is a
               Kol that there are witnesses, so we must be
               concerned for them. We do not silence the Kol. The
               case is, we know that he has no sons. The Ramban
               says that we discuss a Kol that was established in
               Beis Din, for we hold (Gitin 89a) that if not, we
               need not be concerned for the Kol.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Yibum 3:3):</font></b> If a man was not Muchzak
               to have brothers, and there was a Kol that there are
               witnesses overseas who will testify that he has
               brothers, even if he said at the time of death that
               he has no brothers, she is concerned and must wait
               until the mentioned witnesses come, and we ask them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ramban and Rashba say that
                    we discuss a Kol that was established in Beis
                    Din. Some do not require this. The Rambam holds
                    like the latter opinion.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tosfos (Kidushin 12b DH Im):</font></b> We are more
                    lenient about a Shevuyah, for even if there
                    were witnesses that she was captured, the Torah
                    permits her. She is forbidden only mid'Rabanan.
                    Some say that a Shevuyah is more lenient for it
                    is a lighter Isur (a Lav), whereas Eshes Ish
                    has a Chiyuv Misah. This is wrong. Also a
                    Shevuyah can entail a Chiyuv Misah, e.g. if she
                    marries a Kohen, her son is a Chalal. If he
                    will serve in the Mikdash on Shabbos, he will
                    be Chayav Misah!
<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 157:8):</font></b> If a man was not Muchzak
               to have brothers, and there was a Kol that he has
               brothers and there are witnesses overseas, even if
               he said at the time of death that he has no
               brothers, she is concerned and must wait until the
               mentioned witnesses come, and we ask them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (10):</font></b> This is even if he said that
                    he has no brothers before the Kol began. The
                    Gemara connotes like this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (Kidushin 6b DH understand'Amrinan):</font></b> We
                    discuss a Kol that was not supported. If it was
                    supported, Rav Chisda would agree that we are
                    concerned. Abaye and Rava hold that even though
                    normally we are not concerned for a Kol that
                    was not supported, this is to keep the old
                    Chazakah, e.g. a single girl and there is a Kol
                    of Kidushin. If she accepted Kidushin, but we
                    are unsure whether it was a Perutah, we are
                    concerned even for an supported Kol. We are
                    lenient about a Shevuyah. Similarly, we are
                    concerned for a Kol that witnesses know that
                    there are brothers.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>Mahari Ben Lev (2:19, cited in Be'er Heitev 9):
                    Since regarding Isur we are concerned for the
                    witnesses, also regarding money (Beis Din does
                    not give it to the heirs until the witnesses
                    come and testify). How can the Ran compare the
                    case of a stone to the Yevamah? In the former
                    case, she accepted Kidushin, like the Ran
                    himself distinguished! The Yevamah had Chezkas
                    Heter. Only a supported Kol can forbid her! Rav
                    Yosef said 'firstly, he was Muchzak not to have
                    brothers.' This implies that without the
                    Chazakah, we would forbid, even without a Kol!
                    Regarding the stone, we are concerned only due
                    to the Kol of witnesses, and Rav Chisda is not
                    concerned even with a Kol! Since we know that
                    she has no children, like the Rashbam says, she
                    has Chezkas Isur, until we know that there are
                    no brothers. Therefore, without a Chazakah we
                    would forbid due to Safek, for it is common to
                    have brothers. If a stone is not worth a
                    Perutah today, it was probably not worth a
                    Perutah at the time of Kidushin. We do not
                    forbid due to such a Safek (by itself). The Tur
                    forbids only when there is a Kol about
                    witnesses. He could agree with the Rashbam that
                    she is forbidden even without a Kol when we
                    know that there are no children. The Tur
                    discusses when merely he is not Muchzak to have
                    children. The Rivash says that we do not give
                    inheritance if there is a Safek of relatives
                    elsewhere, unless we are Muchzak that there are
                    no closer relatives elsewhere. However,
                    Teshuvah ha'Rosh says that we give, unless we
                    are Muchzak that there is a closer relative
                    elsewhere.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mahari Veil (88):</font></b> The Rambam holds that one
                    witness is believed even to say that the Yavam
                    died, against the Chazakah. The Rosh says that
                    it is difficult to permit a Yevamah through one
                    witness, i.e. against Chezkas Isur, but he
                    agrees that one witness is believed (to say
                    that her son is still alive) to support the
                    Chazakah. Even if there is a Kol that he died,
                    the witness is believed to silence the Kol. If
                    we know that Reuven's father was a Kohen, and
                    there was a Kol that Reuven's mother was a
                    divorcee or Chalutzah, we demote him (from
                    Kehunah). If one witness testified that he is a
                    (Kosher) Kohen, we reinstate him (Kesuvos 26a).
                    This shows that the Torah believes one witness
                    against a Kol. Perhaps one will say that we
                    suspect lest the witness tries to ruin her.
                    When a witness says that first her husband died
                    and then her children died, Tosfos and the Rosh
                    say that we are concerned lest the children
                    died first, and the witness seeks to ruin her.
                    This is only because he did not need to testify
                    about her children's death to permit her.
                    Normally, we are not concerned. If not, we
                    would not believe one witness to permit an
                    Eshes Ish or a Yevamah to remarry! Even a child
                    who became an apostate is believed to give her
                    (initial Yisrael) name and her mother's name to
                    permit her mother. This is like the man who
                    said 'I, Ploni ben Almoni, was bitten by a
                    snake, and I am dying.' They checked and did
                    not recognize him, and Chachamim permitted his
                    wife to remarry.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Tosfos (135a DH Ha):</font></b> The Kol says that there
                    are witnesses overseas. The text does not say
                    'there are witnesses overseas', for if we know
                    that there are witnesses, why do we say 'now,
                    there are no witnesses'? If there is no Kol, we 
                    are not concerned, for we permit a woman who
                    says 'I was captured, but I was not defiled.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Mahari Veil (88):</font></b> Therefore, we are not concerned
               for a Kol that her husband said that it is not his
               daughter, or that he was not with his wife for the
               12 months before she was born, if the Kol does not
               mention witnesses. The Rashbam says that we must
               wait until we hear what the witnesses say. This
               implies that the Kol says who the witnesses are.
               Also the Rambam connotes like this. He connotes that
               the witnesses already testified. If there is
               evidence that the Yavam himself started the Kol, we
               are not concerned. Even when there are enemies we
               are not concerned for a Kol, and all the more so if
               the Yavam started the Kol. We are concerned for a
               Kol that there are witnesses when it is likely that
               witnesses saw what is needed, e.g. that a man has
               brothers, that a stone was worth a Perutah, or that
               a woman (who admits that she had relations) was not
               forced. However, it is unlikely to find witnesses of
               Zenus or something very close to it. Normally, a
               woman who has Zenus does so in private. Tosfos
               (Kidushin 12b) distinguished between when the
               witnesses need to testify about one thing or more
               than one (i.e. testimony of captivity does not
               forbid mid'Oraisa). One witness is believed to
               silence a Kol about Kashrus of a Kohen, even without
               a reason to support him. Therefore, he is believed
               to silence a Kol about a Yevamah, even if we cannot
               say that she will be careful to check. We can learn
               a Kal va'Chomer. One witness can silence a Kol
               regarding Chayavei Krisos, and all the more so for a
               Lav!
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>ONE WHO IS UNSURE WHETHER HE OWES </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> When Ploni dies, Reuven gets back what Ploni
          took from Reuven's share.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rava):</font></b> If the property increased in value by itself,
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ploni worked to increase the value (e.g. he
               farmed the land and it is laden with fruit), surely
               it is like property he received from elsewhere (the
               brothers share it);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The question is when it increased in value by
               itself, e.g. a date tree became stronger or a river
               deposited soil on the land.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This question is not resolved.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE GIFT OF A SHECHIV MERA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven died, and Daitiki (gift documents
          of a Shechiv Mera) were tied to his thigh, we ignore
          them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven said 'I give to Ploni what is written in this
          document', whether or not Ploni could inherit Reuven,
          Ploni acquires.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A Daitiki is one that says 'Da Tehei
          l'MeiKam v'Lihyos' (this should be fulfilled, i.e. after
          death).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A gift (of a healthy person) is one that says
               'from today and after I die.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If it says 'from now', is this not a gift?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> It means, a gift (of a healthy person)
          that is like a gift of a Shechiv Mera (it does not
          acquire until after he dies) is one that says 'from today
          and after I die'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Version #1 (Rabah bar bar Chanah citing R. Yochanan):
          If a Shechiv Mera said 'write and give 100 Zuz to Ploni'
          and died, we do not write and give after his death.
          Perhaps he wanted Ploni to acquire only through a
          document, and a document does not work after he died;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Elazar:</font></b> This is the Halachah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Version #2 - Rav Shizbi:</font></b> R. Elazar said the law, and R.
          Yochanan confirmed that this is the Halachah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> Presumably, Version #2 is
          correct. R. Elazar said the law and R. Yochanan confirmed
          it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had R. Yochanan said the law, we would not need
               R. Elazar his Talmid to confirm it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Also, Ravin said that R. Elazar sent a message to Bavel
          saying this law in Rav's name, and R. Yochanan said 'it
          must be checked'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What does it mean 'it must be checked'? (The
          second teaching of Rav Dimi below will answer this
          question.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Dimi):</font></b> A Daitiki nullifies a previous
          Daitiki (it does not take effect until after death, so
          the giver can retract. The latter Daitiki shows that he
          retracted from the former);
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	If a Shechiv Mera said 'write and give 100 Zuz to
          Ploni' and died, we check. If he authorized the document
          to help Ploni (so he will have a proof of the gift), we
          write and give it. If not, we do not give it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (R. Aba bar Mamal - Beraisa):</font></b> If a healthy
          person said 'write and give 100 Zuz to Ploni' and died,
          we do not write and give it after his death.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If a Shechiv Mera said 'write and give
               100 Zuz to Ploni' and died, we write and give it (in
               any case)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (R. Aba bar Mamal):</font></b> We write and give it only if
          it was to help Ploni.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> In what case is the document to help Ploni?
<br>

sjt:
</p><p>
<font><b>3) 'ZICHAH BAH L'ACHER'</b></font><b>
<br>OPINIONS:</b> The Mishnah states that when a man dies and a will ('Daitiki') is found on his person, it is not binding (because a Shtar does not take effect until it is given over, and it is assumed that he did not intend for the document to be honored since he did not give it to anyone). If, however, the dying man was 'Zichah Bah l'Acher,' then the will is binding and valid.
</p><p>
What does 'Zichah Bah l'Acher' mean?
</p><p>
(a) The <b>RASHBAM</b> explains that 'Zichah Bah l'Acher' means that the dying man said to another person that 'the property written in this Shtar hereby is given to you upon your receipt of this Shtar from me.' (That is, even if the person to whom the dying man says he is giving his property is <i>not</i> the same person who is mentioned in the Shtar, he still acquires the property.)
</p><p>
(b) The <b><b><b>RI</b></b> MI'GASH</b> explains that the dying man asked a third party to acquire the property on behalf of the recipient (by using the principle of 'Zachin l'Adam she'Lo b'Fanav'), and thus the recipient acquired the property.
</p><p>
(c) The <b>RITVA</b> in the name of the <b>RE'AH</b> explains that the dying man deposited the document into the hands of someone else (even to his wife or Eved) to publicize the document and show it to others. He thereby demonstrated that he had full intent for the document to be honored. (I. Alsheich)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WE GIVE THE GIFT OF A SHECHIV MERA AFTER DEATH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> Elsewhere, Rav Chisda said that (a document is
          merely to help the recipient if) it says 'v'Kanina Minei
          (we did Chalipin with the giver, to acquire for the
          recipient), to add to this document';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Likewise, here we can say that he said '<i>even</i>
               write, sign and give a document to Ploni.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yehudah and Rava):</font></b> We write and give after death
          (if it was to help Ploni).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOCUMENTS THAT TAKE EFFECT AFTER DEATH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Yehudah):</font></b> If one wants to write his
          property to his children (e.g. before he marries a woman,
          so his children will receive it after he dies, and she
          will not be able to collect her Kesuvah from it) he must
          write 'from today and after I die';
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Yosi says, he need not write this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If one wrote his property to his son (for after his
          death), the father may not sell it because he already
          wrote it to the son. The son may not sell it because (the
          Peros) still belongs to the father.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the father sold it, the buyer may use it until
               the father dies. if the son sold it, the buyer does
               not receive anything until the son dies.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Even if he writes 'from today and
          after I die', why does it help?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one gave a Get and said 'this is
               your Get from today and after I die', she is Safek
               divorced. If he died without children, she does
               Chalitzah, she may not do Yibum.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> There, we are unsure if he intended to make a
          condition (this is your Get from today, on condition that
          I die (from this sickness)), or if he originally wanted
          the Get to take effect from today, and retracted, and
          said '(no, rather,) after I die';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, we are sure that he wants the son to
               receive permanent rights to the property from today,
               and to receive the Peros after the father's death.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah - R. Yosi):</font></b> He need not write this.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> Does the Halachah follow R.
          Yosi?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rabah bar Avuha):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> R. Yosi's reason is that the date on a
          document proves that it should take effect (at least
          partially, i.e. regarding permanent rights to the
          property) from that day.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (Beraisa - R. Yosi):</font></b> He need not write this,
          because the date on a document proves that it should take
          effect from that day.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #1 - Question (Rava):</font></b> What is the law regarding
          a Hakna'ah document (it says that a Kinyan (Chalipin) was
          done. Does R. Yehudah admit that it need not say 'from
          today and after I die')?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> He agrees that it need not say
          this (because the Kinyan took place today).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> Some Hakna'ah documents must say this.
          Others need not;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it says 'Aknei (... and later) u'Kanina
               Minei', Aknei means that the witnesses acquired for
               him. U'Kanina is an extra expression to show that
               the giver wants the Kinyan to take effect
               immediately, therefore it need not say 'from today
               and after I die';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it says 'Kanina Minei (...) v'Aknei', Aknei
               merely explains that Kanina Minei was a Kinyan. If
               it does not say 'from today and after I die', it is
               like a document after death (it is invalid).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection (R. Chanina of Sura):</font></b> Most Chachamim do not
          know the difference between these expressions. Do the
          scribes know it?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They asked the scribes of Abaye and Rava, and
               they knew the difference.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> Whether it says 'Aknei
          u'Kanina Minei' or 'Kanina Minei v'Aknei', it need not
          say 'from today and after I die';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah and R. Yosi argue about documents that
               do not mention a Kinyan.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Version #2 - Rav Zvid of Neharde'a:</font></b> Rava taught (like
          Rav Huna brei d'Rav Yehoshua) in the name of Rav Nachman.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IS KINYAN PEROS LIKE KINYAN HA'GUF?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If the son sold the property and then he
          died in the father's lifetime, the buyer never gets it;
<br>
<br>

sjt:
<font><b>1) 'KINYAN HA'PEROS K'KINYAN HA'GUF'</b></font><b>
<br>QUESTION:</b> The Mishnah says that when a man gifts his property to his son and gives him the Guf (the actual land) immediately and the Peros (produce) after he dies, neither the father nor the son may sell the property in its entirety to a third party. Since the father owns only the Peros, he cannot sell the Guf, and since the son owns only the Guf, he cannot sell the Peros. Accordingly, the Mishnah says that if the son sells the property before the father dies, the buyer does not have rights to the land (to receive the Peros) until after the father dies.
</p><p>
The Gemara discusses a case in which the son sells the property (the Guf), but then he dies before his father dies. The Gemara asks whether, in such a case, the buyer receives the Peros and Guf after the father's death, even though the property never entered the son's possession (since he died before his father). Rebbi Yochanan maintains that the buyer does <i>not</i> acquire the property at all. This ruling of Rebbi Yochanan follows his general position that 'Kinyan ha'Peros k'Kinyan ha'Guf Dami' -- whoever has the rights to the Peros (in this case, the father) also has the rights to the Guf of the land. According to this view, the son -- who never acquired the Peros -- did not have ownership of the property in order to sell it.
</p><p>
According to Rebbi Yochanan, why is the sale valid when the son does <i>not</i> die before his father? The Mishnah says that when the son sells the land, the buyer <i>does</i> receive the Guf and the Peros after the father dies. If, as Rebbi Yochanan maintains, the father owns the Guf by virtue of his ownership of the Peros, then why is the son's sale valid?
</p><p>
<b>ANSWER:</b> The <b><b><b>RI</b></b> MI'GASH</b> answers that Rebbi Yochanan's position of 'Kinyan ha'Peros k'Kinyan ha'Guf' does not mean that the person who owns the Peros also owns, fully and absolutely, the Guf of the land. Rather, it means that <i>for all matters concerning the Peros</i>, the owner of the Peros is considered the owner of the Guf. In this case, as long as the father is alive and owns the Peros, he also has a Kinyan on the Guf of the land <i>with regard to the Peros</i>. His ownership of the Guf allows him to receive its Peros. The actual Guf, though, belongs to the son, and that is why he is able to sell it while his father is alive. The sale takes effect retroactively after the father's death, when the remaining aspect of the Guf comes into the son's possession.
</p><p>
When the son dies before the father, however, the son's sale of the land is not valid, because at the time that he sold it he lacked an absolute and exclusive ownership of the Guf; he did not own the Guf with regard to the Peros, since the father owned the Guf with regard to the Peros. (See <b>RAMBAN</b> and <b>KOVETZ SHI'URIM</b>.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHO EATS THE PEROS OF A GIFT TO A MARRIED WOMAN?</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'> 51b (Rava):</font></b> The Halachah is, if one gave a gift to
               his wife, she acquires and she eats the Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 136b:</font></b> R. Yochanan holds that Kinyan (the right to
               the) Peros is like Kinyan ha'Guf (owning the
               property itself). Reish Lakish holds that Kinyan
               Peros is not like Kinyan ha'Guf.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Yevamos 36b (Rava):</font></b> The Halachah follows Reish
               Lakish.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Nedarim 88a (Mishnah):</font></b> If Reuven vowed not to
               benefit his son-in-law, he can give money to his
               daughter 'on condition that your husband has no
               Reshus over it. It is only for you to buy food with
               it and to eat the food.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav):</font></b> This is only if he says 'it is given only for
               you to buy food with it and to eat the food.' If he
               says 'do like you want with it', her husband
               acquires the money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Shmuel):</font></b> In either case, her husband does not
               acquire the money.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Gitin 77b:</font></b> A dying man wrote a Get to his wife
               shortly before Shabbos. He was not able to give it
               before Shabbos. He did not expect to survive until
               after Shabbos. Rava suggested that he should give to
               her (on Shabbos), for a gift, the place where the
               Get is resting. She should close the door there (on
               Shabbos) to acquire it through Chazakah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rav Ilish:</font></b> She will not acquire the area! What a
               wife acquires belongs to her husband!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 88b (Mishnah):</font></b> If Reuven wrote a document
               giving his property to his son after Reuven's death,
               the son may not sell the property, because it is
               under the father's Reshus. If he son sold it, the
               buyer does not get it until the father dies.
<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 Basra 27b):</font></b> All agree that if one gave a
               gift to his wife, he does not eat the Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Kidushin 8b DH Rav):</font></b> Rashi (Sanhedrin 71a
                    DH Al) says that a husband (totally) acquires a
                    gift given to his wife, like he acquires her
                    Metzi'os. This is wrong.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nedarim 7:17):</font></b> If Reuven vowed not
               to benefit his son-in-law, he may not give money to
               his daughter 'on condition that your husband has no
               Reshus over it' unless he specifies what it is for
               or that it is for her desires. It is forbidden
               without specifying, for her husband acquires the
               right to eat the Peros.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 22:27):</font></b> If one gave a gift to 
               his wife, whether land or Metaltelim, she acquires
               and he does not eat the Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (cited in Magid Mishneh):</font></b> If she dies,
                    he inherits the gift. This is like one who gave
                    a gift to his son. The son eats the Peros, and
                    if he dies his father inherits him. Even if she
                    sold or gave the gift to another, her husband
                    takes it after she dies, unless he authorized
                    her to do so. A Gaon holds that this permits
                    her to sell or give it and the recipient keeps
                    it during her lifetime, but her husband takes
                    it back after her death unless he explicitly
                    stipulated not to. I lean to disagree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (EH 85:18):</font></b> After Nisu'in a husband cannot
                    stipulate not to inherit from her even her
                    property (and all the more so, what he gives to
                    her)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (ibid.):</font></b> Similarly, if someone else gave a
               gift to her on condition that her husband will not
               eat the Peros, rather, the Peros will be for what
               she wants, he does not eat the Peros.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Basra 3:54):</font></b> Here we say that one does
               not eat the Peros of a gift that he gave to his
               wife. Why did Rav Ilish (Gitin 77b) say that she
               would not acquire the place, and Rava was initially
               embarrassed? Some say that there, he did not give a
               true gift. It was only a loan until divorce. I
               disagree. R. Tam answers that a husband's rights of
               acquisition do not depend on eating the Peros. Rava
               holds like Reish Lakish, who says that Kinyan Peros
               is not like Kinyan ha'Guf. Therefore, even if the
               husband has Kinyan Peros, this does not uproot her
               Kinyan ha'Guf. Rather, she cannot acquire through it
               because she cannot sell or give the property. Even
               though he gave to her generously, and gave her
               Kinyan Peros for her entire life, he did not intend
               to lose the land. It returns to him after she dies.
               Also, even though she eats the Peros, the Peros
               become Nichsei Melug and he eats the Peros of the
               Peros.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rosh (Kidushin 1:29):</font></b> A woman can totally acquire a
               gift from her husband. He does not eat the Peros.
               She cannot acquire a gift from someone else. I.e.
               she acquires the Guf, but her husband eats the
               Peros, like he does from Nichsei Melug. They buy
               land with the gift, and he eats the Peros. Even
               though he totally acquires her Metzi'os (Hefker
               objects that she finds), we do not find that
               Chachamim enacted that he totally acquires gifts
               given to her. The Yerushalmi says that they enacted
               that he receives her Metzi'os, lest she steal from
               him and say that she found a Metzi'ah. It asked,
               perhaps she will steal and claim that she received a
               gift! It answered that a gift has publicity.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (EH 85:12):</font></b> The first Tana in the
                    Yerushalmi says that her husband gets her
                    Metzi'os to avoid enmity. We must say that we
                    are not concerned for enmity regarding gifts,
                    for the giver did not want to give to her
                    husband. The husband's creditor cannot collect
                    from Peros of the gift, for this would reduce
                    the standard of living in the 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 85:7):</font></b> If a woman received a gift
               after Nisu'in, it becomes Nichsei Melug, like
               property she brought into the marriage. If her
               husband gave a gift to her, whether land or
               Metaltelim, she acquires and he does not eat the
               Peros. However, she cannot sell or give what he gave
               to her. It remains with her, and if she dies he
               inherits her. The Peros she gets from it are like
               Nichsei Melug. They sell them and use the money to
               buy land, and he eats the Peros.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH uv'Chidushei, citing the Rashba,
                    Ge'onim and Nimukei Yosef):</font></b> If one gave a gift
                    to his wife, she acquires and she eats the
                    Peros. If she sold it and died, he takes it
                    from the buyers, like Nichsei Melug. The Ramah
                    holds that her husband does not get it back,
                    since he has no Peros.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Meir:</font></b> I say that the Rambam holds like the
                    Ramah. He says that the husband does not eat
                    the Peros of a gift he gave to his wife, or if
                    someone gave it to her a gift on condition that
                    her husband not get the Peros. Just like in the
                    latter case they are totally hers, also in the
                    former case. R. Tam holds that her sale is
                    Batel. This is unlike property he did not know
                    about; even though he inherits it, if she sold
                    it, the sale stands. This is because his gift
                    depends on his will, and he did not want to
                    uproot his inheritance. Alternatively, Takanas
                    Usha was not made for property he does not know
                    about. I say that also the Rashba holds like
                    the Ramah, therefore the sale is Batel only
                    after she dies.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (18):</font></b> It seems that she may sell the
                    land from today to take effect if (and when)
                    her husband will die in her lifetime, like for
                    Nichsei Melug. The Tur just teaches that we do
                    <i>not</i> say that since he gave to her a gift, she
                    can immediately sell it totally, Guf and Peros.
                    He still eats the Peros, and inherits it if she
                    dies first.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rebuttal (Taz 4):</font></b> The Rashbam (50a DH ha'Ba'al)
               explains that her sale helps for when her husband
               will die in her lifetime. Then, the buyer gets it.
               R. Tam (brought in the Rosh) says that a husband's
               rights of acquisition do not depend on eating the
               Peros. Even though he generously gave her Peros for
               her entire life, he did not intend to lose the land.
               Also, even though she eats the Peros, the Peros
               become Nichsei Melug and he eats the Peros of the
               Peros. This connotes that she cannot sell at all. We
               do not find an argument about whether or not she can
               sell the way the Prishah says. According to R. Tam's
               first reason, he wanted her to benefit from the
               Peros her entire lifetime, and then it will return
               to him or to his heirs. Therefore, even a sale to
               take effect after he dies is invalid. R. Tam's
               second reason was that the Peros become Nichsei
               Melug and he eats the Peros of the Peros. Due to 
               Takanas Usha, all agree that a husband's Kinyan
               Peros is like Kinyan ha'Guf. She can sell fo after
               he dies, just like a son can sell the property (that
               his father wrote to him) for after his father will
               die (Bava Kama 88b). The Rashbam taught regarding
               Nichsei Melug that her sale helps for when her
               husband will die in her lifetime. R. Tam's first
               reason teaches that this does not apply to a gift
               that he gave to her.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>STIPULATIONS TO DIVERT PROPERTY </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> The buyer gets it (after the father
          dies).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yochanan says that the buyer never gets it. He holds
          that Kinyan Peros (rights to the produce) is like Kinyan
          ha'Guf (ownership of the matter itself. The son never
          properly owned it, therefore the buyer does not get it);
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Reish Lakish says that the buyer gets it, for Kinyan
          Peros is not like Kinyan ha'Guf.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> They argued about this elsewhere!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If one sold his land for a limited
               amount of time, the buyer brings Bikurim and recites
               the declaration;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (Reish Lakish) The buyer brings Bikurim, but he
               does not recite the declaration;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yochanan says that he recites the declaration.
                    Since Kinyan Peros is k'Kinyan ha'Guf, he can
                    thank Hash-m for 'ha'Adamah Asher Nosata Li';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Reish Lakish says that he cannot say this,
                    for Kinyan Peros is not like Kinyan ha'Guf.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan had to teach here that the buyer
          does not get it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though normally, Kinyan Peros k'Kinyan
               ha'Guf, one might have thought that a father (even
               when he retains the Peros) concedes full ownership
               to the son, and the son's sale stands. R. Yochanan
               teaches that this is not so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Also, Reish Lakish had to teach here that the
               buyer gets it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even though normally, Kinyan Peros is not like
               Kinyan ha'Guf, one might have thought that one
               always favors himself (even against his son), and
               when he retains the Peros, he also keeps full
               ownership, and the son's sale is void. Reish Lakish
               teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (R. Yochanan - Beraisa):</font></b> If one said 'my
          property is (given) to you (Shimon), and after you (die)
          Ploni will inherit, and after him Almoni', after Shimon
          dies, Ploni acquires. After Ploni dies, Almoni acquires;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ploni died before Shimon, when Shimon dies it
               goes to Shimon's heirs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> If Kinyan Peros is not
               like Kinyan ha'Guf, Shimon never really owned it, it
               should go to the heirs of the giver!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> R. Hoshaya answered, the law is
          different when he says 'after you...' This expression
          shows that he wants each recipient to get full ownership.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Rabah bar Rav Huna asked similarly of Rav. Rav answered
          like R. Hoshaya.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> If Ploni died before Shimon,
          when Shimon dies it goes to the heirs of the giver.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Tana'im argue about whether or not 'after you'
          is different.
<br>

<p>

sjt:
</p><p>
<font><b>2) BRINGING 'BIKURIM' FROM A FIELD WHICH ONE DOES NOT FULLY OWN</b></font><b>
<br>QUESTION:</b> The Mishnah says that when a man gifts his property to his son and gives him the Guf (the actual land) immediately and the Peros (produce) after he dies, neither the father nor the son may sell the property to a third party in its entirety. Accordingly, the Mishnah says that if the son sells the property before the father dies, the buyer does not have rights to the land (to receive the Peros) until after the father dies.
</p><p>
The Gemara discusses a case in which the son sells the property (the Guf), but then he dies before his father dies. The Gemara asks whether, in such a case, the buyer receives the Peros and Guf after the father's death, even though the property never entered the son's possession (since he died before his father). Rebbi Yochanan maintains that the buyer does <i>not</i> acquire the property at all. This ruling of Rebbi Yochanan follows his general position that 'Kinyan ha'Peros k'Kinyan ha'Guf Dami' -- whoever has the rights to the Peros (in this case, the father) also has the rights to the Guf of the land. According to this view, the son -- who never acquired the Peros -- did not have ownership of the property in order to sell it. Reish Lakish argues and maintains that 'Kinyan ha'Peros' is <i>not</i> 'k'Kinyan ha'Guf,' and thus the son, and not the father, owns the Guf, and thus his sale is binding even if he dies before his father does.
</p><p>
The Gemara cites another case in which Rebbi Yochanan and Reish Lakish argue as to whether 'Kinyan ha'Peros k'Kinyan ha'Guf Dami.' When a person sells the rights to the Peros of his field, Rebbi Yochanan maintains that the buyer is obligated to bring the first fruits as Bikurim and to read the Parshah of Bikurim ('Mevi v'Korei'). Reish Lakish argues and says that while he must bring the first fruits as Bikurim, he does not read the Parshah of Bikurim ('Mevi v'Eino Korei').
</p><p>
If the buyer is not obligated to read the Parshah of Bikurim, then why is he obligated to bring the fruits as Bikurim?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b> explains that there is a doubt in Halachah as to whether a Kinyan Peros (according to Reish Lakish, who rules that it is not like a Kinyan ha'Guf) fulfills the qualification of 'Asher Tavi me'Artzecha' (Devarim 26:2), which is the criterion described in the verse that teaches the obligation to bring Bikurim. In any case of a Safek as to whether a person is obligated to bring Bikurim, the Halachah is that he must bring them but he does not read the Parshah of Bikurim. (See Insights to Bava Basra 81:3.)
</p><p>
(b) <b>TOSFOS</b> explains that the obligation to bring Bikurim in this case is only mid'Rabanan. The buyer does not have an obligation mid'Oraisa to bring Bikurim because he does not own the land. The Rabanan, however, did not institute that the buyer must read the Parshah of Bikurim, which contains the phrase 'from the land that You gave to me,' because if he were to read that phrase, he would appear to be saying an untruth, since he does not own the actual land.
</p><p>
(c) The <b>RASHBAM</b> explains that according to Reish Lakish, the buyer does not read the Parshah of Bikurim because he cannot say the words, '... ha'Adamah Asher Nasata <i>Li</i>' -- 'from the land that You gave <i>to me</i>' (Devarim 26:10), since the land does not belong to him but to the original owner (since 'Kinyan ha'Peros' is <i>not</i> 'k'Kinyan ha'Guf'). However, the buyer <i>is</i> obligated to bring Bikurim because he <i>does</i> own the land in the sense that his fruits may derive nourishment from the ground. The verse that teaches the obligation to bring Bikurim states, 'Asher Tavi me'Artzecha' (Devarim 26:2), and such a form of ownership is sufficient to fulfill the criterion of that verse.
</p><p>
<b>TOSFOS</b> questions this explanation. Why does the buyer's partial ownership of the land (which allows his fruits to be nourished from it) fulfill the verse of 'Asher Tavi me'Artzecha' (Devarim 26:2) with regard to the obligation to bring Bikurim, and not the verse of '... ha'Adamah Asher Nasata Li' (Devarim 26:10), with regard to the obligation to read the Parshah? Tosfos maintains that the buyer's partial ownership should qualify either for both or for neither, but there is no difference between the forms of ownership required by each verse.
</p><p>
1. The Rashbam might have understood the Gemara the way the <b>TOSFOS RID</b> explains earlier (27a). The Tosfos Rid writes that the obligation to <i>bring</i> Bikurim differs from the obligation to <i>read the Parshah</i> of Bikurim. Although a person cannot read the Parshah of Bikurim unless he actually owns the land beneath the tree, he can <i>bring</i> Bikurim even though he does not own the land, since he has permission to keep his tree there. The verses that discuss bringing Bikurim -- 'Artzecha' (Devarim 26:2) and 'Admascha' (Shemos 23:19) -- exclude only fruit from trees that were planted on land that the person is not permitted to use (see Sukah 9a). If, however, a person planted a tree on land that does not belong to him, he still would be obligated to bring Bikurim as long as he was permitted to plant the tree. The verse that discusses <i>reading the Parshah</i> of Bikurim says 'ha'Adamah Asher Nasata Li' (Devarim 26:10), which implies that the land was actually given to him and he owns it. (See Insights to Bava Basra 27:1:b, and 81:2.)
</p><p>
The Tosfos Rid derives this from the words of Reish Lakish here as well as from the reply of Rebbi Elazar in the Gemara earlier (81a). When Rebbi Elazar was asked why a person who owns two trees must bring Bikurim but does not read the Parshah, Rebbi Elazar replied that the 'early authorities did not tell the reason, and you are asking me to teach it in the Beis Midrash?!' This implies that there <i>is</i> a reason to distinguish between the obligation to bring Bikurim and the obligation to read the Parshah of Bikurim, but Rebbi Elazar did not want to teach it in the Beis Midrash. Rebbi Elazar maintained that the two obligations are not comparable to each other.
</p><p>
This also seems to be the opinion of the Rashbam here, who writes that a person must bring Bikurim even if he does not own the land beneath the tree, but he does need to own the land in order to read the Parshah of Bikurim.
</p><p>
2. The <b>KETZOS HA'CHOSHEN</b> (257:3) explains the Rashbam based on the words of <b>RABEINU AVIGDOR KOHEN TZEDEK</b> cited by the <b>TESHUVOS HA'ROSH</b> (#35). Rabeinu Avigdor discusses why a person fulfills his obligation of Arba'as ha'Minim with an Esrog that was given to him as a gift on condition that he return it ('Matanah Al Menas l'Hachzir'; see Gemara later, 137b). He explains that even though the recipient's right to use the Esrog temporarily is a Kinyan Peros (the 'Peros' being the usage of the object), and a person can fulfill the Mitzvah of Arba'as ha'Minim only with an Esrog that he owns ('v'Lakachtem <i>Lachem</i>'; Vayikra 23:40), a temporary ownership suffices to meet this requirement. Even though the recipient does not have the right to eat the Esrog (since he must return it eventually to the giver), which indicates that he does not have full ownership over it, his ownership of the Esrog is considered a Kinyan ha'Guf for the moment that he is in possession of it. The Torah requires only that it be considered his object for the moment that he uses it for the Mitzvah. Thus, even if the Esrog will not belong to him after he has performed the Mitzvah, he still will have fulfilled the Mitzvah due to his temporary ownership of the Esrog.
</p><p>
Based on this, the Ketzos ha'Choshen explains that the obligation to bring Bikurim, according to the Rashbam, is also based on the ownership of the land at the moment that the fruits are brought (as the verse says 'Asher <i>Tavi</i>'). Since the seller sold the land with regard to reaping the fruits, the land is considered to belong to the buyer with a temporary Kinyan ha'Guf. It is called a 'Kinyan Peros' because the Kinyan ha'Guf is only temporary; however, the nature of the Kinyan is that of a Kinyan ha'Guf, similar to the case of a temporary gift. Just as the temporary ownership of an Esrog qualifies as ownership with regard to the Mitzvah of Arba'as ha'Minim, the temporary ownership of land qualifies as ownership with regard to the Mitzvah to bring Bikurim. On the other hand, the buyer does not read the Parshah of Bikurim because he cannot say the words, '... ha'Adamah Asher Nasata Li' -- 'from the land that You gave to me' (Devarim 26:10). These words denote a permanent ownership of the land (even beyond the moment at which the owner brings the Bikurim), and the buyer's ownership of the land is not permanent.
</p><p>
<b>RAV SHACH</b> zt'l (in <b>AVI EZRI</b>, Hilchos Ishus 8:24, end of #2) explains the intent of the Ketzos ha'Choshen as follows. The verse that teaches the obligation to bring Bikurim, 'Asher Tavi me'Artzecha' (Devarim 26:2), implies that the obligation depends on whether the land is in his possession. Thus, the buyer is obligated to bring Bikurim because the land is in his possession at this moment. In contrast, the verse that teaches the obligation to read the Parshah of Bikurim, 'ha'Adamah Asher Nasata Li' (Devarim 26:10), implies that in order to read the Parshah of Bikurim, the person who brings the fruits must be the absolute and unconditional owner of the land, with complete sovereignty over it. If he is required to give the land back at some later time (i.e. when the trees die, or when the term of the sale of the fruits is over), then he does not have complete sovereignty over the land and is not the absolute and unconditional owner, and therefore he does not read the Parshah of Bikurim. (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE CASE OF 'AFTER YOU'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - Rebbi):</font></b> If one said 'my property is (given)
          to you (Shimon), and after you (die) to Ploni', and
          Shimon sold the property and spent the money from the
          sale, after Shimon dies, Ploni takes the property from
          the buyer. (Even in a case of 'after you', Shimon owns
          the Peros, but not the property, therefore his sale is
          void);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon ben Gamliel says, Ploni receives only what
          Shimon leaves over (in this case, nothing. This is
          because Shimon owned the property.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction (Beraisa - Rebbi):</font></b> If one said 'my
          property is to you (Shimon), and after you to Ploni,
          Shimon may (l'Chatchilah) sell the property and spend the
          money;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon ben Gamliel says, Shimon is entitled
               only to eat the Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Both Tana'im contradict themselves!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer - part 1 (for Rebbi):</font></b> In Beraisa #1, Rebbi
          teaches that Shimon cannot sell the (permanent rights to
          the) property. In Beraisa #2, he teaches that he may sell
          the Peros (for the rest of his life).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer - part 2 (for R. Shimon ben Gamliel):</font></b> In Beraisa
          #1, R. Shimon teaches that (b'Diavad) if Shimon sold the
          property, the sale stands. In Beraisa #2, he teaches that
          he should not sell the property (because the giver wanted
          Ploni to receive it after Shimon).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Abaye):</font></b> A crafty Rasha is one who counsels Shimon (in
          the above case) to sell the property, according to R.
          Shimon ben Gamliel.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> The Halachah follows R. Shimon ben
          Gamliel;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon admits that if Shimon gave the property
               for a Matnas (gift of a) Shechiv Mera, this gift is
               void. Ploni gets it after Shimon dies.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> A Matnas Shechiv Mera only
               acquires after death. Ploni already acquired the
               moment Shimon died.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Abaye said differently!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When does a Matnas Shechiv Mera take
               effect?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> It takes effect at the moment
               of death.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2 (Rava):</font></b> It takes effect after death.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Abaye retracted from this (Answer i:2).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps Abaye retracted from the above
          teaching (Answer h:3)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Rejection:</font></b> (Presumably, one does not give his property
          until after his death, just like (if he did not specify
          otherwise, we assume that) a man does not decide
          absolutely to divorce until after death.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one said 'this is your Get if I die
               (from this illness)', 'this is your Get from this
               illness', or 'this is your Get after I die', the Get
               is void.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> The Halachah follows R. Shimon ben Gamliel,
          even if he received slaves and freed them (they are
          free).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the giver did not
          give in order that Shimon will transgress with the gift
          (i.e. free them), and this invalidates the gift. R. Zeira
          teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> The Halachah follows R. Shimon ben
          Gamliel, even if he made the gift shrouds for a dead
          person.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the giver did not
          give in order that Shimon will make it forbidden to
          benefit from it. Rav Yosef teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GIVING AN ESROG</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman bar Rav Chisda):</font></b> If Reuven told Shimon 'I
          give to you this Esrog for a gift, and after you to
          Ploni', and Shimon took it to fulfill the Mitzvah, Rebbi
          and R. Shimon ben Gamliel argue about whether or not he
          was Yotzei..
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rav Nachman bar Yitzchak):</font></b> The Tana'im argue
          only about whether or not Kinyan Peros is k'Kinyan
          ha'Guf;
<br>
<br>

sjt:
<font><b>1) SELLING ONE'S RIGHTS TO THE PRODUCE OF PROPERTY</b></font><b>
<br>QUESTION:</b> The Gemara points out a contradiction in the opinion of Rebbi. In one Beraisa, Rebbi states that when a dying man (a Shechiv Mera) gives away his property to one person on condition that the property be given to a second person after the first person's death, the first person <i>cannot</i> sell or consume the property. If he does sell the property, the second recipient may take it from the buyers. However, in a different Beraisa, Rebbi says that the first recipient <i>may</i> sell or consume the property.
</p><p>
The Gemara answers that the first Beraisa refers to the Guf, the actual property itself, which the first recipient is not entitled to sell. The second Beraisa, however, discusses the rights to the Peros, the produce of the property. The first recipient is entitled to sell his rights to the produce of the property.
</p><p>
If the second Beraisa refers to the sale of the Peros, then why must Rebbi state that the first recipient can sell them? It should be obvious that the recipient of the Peros may sell his rights to the Peros, because he has full ownership of those rights and may do whatever he wants with them.
</p><p>
<b>ANSWER:</b> The <b><b><b>RI</b></b> MI'GASH</b> answers that Rebbi teaches that although the Peros do not exist yet (and they are a 'Davar she'Lo Ba la'Olam'), <i>and</i> the first recipient does not own the actual property (the Guf) itself, his sale of the Peros is valid nonetheless. This is because the Guf of the property is considered to be his <i>with regard to the Peros</i>; the Guf is Meshubad to him for its Peros, as long as he is alive. When he sells the Peros, he sells this Shibud on the Guf of the property. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A LULAV OF PARTNERS</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'> (Rabah bar Rav Huna):</font></b> If orphans bought an Esrog
               with money of the estate and one of them took it for
               the Mitzvah, he was Yotzei only if the others would
               allow him to eat it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if there is an Esrog for each brother.
               If there are (only) other fruits for the others, he
               was not Yotzei.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Sukah 41b - Beraisa:</font></b> 'Lachem' teaches that on the
               first day one is not Yotzei with another's Lulav,
               unless he gave it for a gift.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Sukah 20a) and Rosh (8:47 and Sukah 3:31)
               bring our Gemara.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Why are the orphans Yotzei if there
                    are other Esrogim? They did not split the
                    inheritance!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Ran, DH v'Sham'inan):</font></b> The case is, they
                    do not mind if he takes one, therefore he is
                    Yotzei. This is even if he took the nicest one.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> The Shulchan Aruch (649:5) allows to take
                    another's Lulav without his knowledge only
                    after the first day. Even though the owner does
                    not mind, it is no better than a loan. We must
                    say that partners are different, for the
                    partners who are not using it need not be
                    Makneh (transfer ownership of it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif:</font></b> We learn from Bava Basra that if two people buy
               a Lulav together, neither is Yotzei on the first day
               unless the other gives it to him for a gift.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Lulav 8:11):</font></b> If partners bought a
               Lulav or Esrog, none of them are Yotzei on the first
               day unless the other gives to him his share for a
               gift. If brothers bought an Esrog with money of the
               estate and one of them took it for the Mitzvah, he
               was Yotzei only if he could eat it and the others
               would not mind. If they would mind, he is Yotzei
               only if they give him their shares for a gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishnah:</font></b> According to the primary text,
                    when there is an Esrog for each brother, even
                    if it is inferior, they are not particular, and
                    their pardon helps. If there is not an Esrog
                    for each brother, even if they are not adamant,
                    their pardon does not help. They must give to
                    him for a gift.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Magid Mishneh (citing the Rashba, and Nimukei
                    Yosef DH Omar ha'Mechaber citing the Ritva):
                    This is when they bought an Esrog to eat or
                    smell. But if they bought it for the Mitzvah,
                    they cannot divide it (that part will be for
                    each). Rather, they intended that whoever takes
                    it will own it at the time! This is like
                    partners in a Chatzer who vowed not to benefit
                    from each other. They may enter the Chatzer
                    because (in such a case) Yesh Breirah. They
                    divide it so that each <i>totally</i> owns the place
                    he occupies at the time. This is why in many
                    places they buy one Lulav and the entire
                    congregation is Yotzei with it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Sukah 3:31):</font></b> Where Esrogim are scarce, the
               entire Tzibur buys one in partnership and everyone
               is Yotzei with it. The Rashbam says that it is as if
               they stipulated that everyone gives his share to
               whoever takes it, on condition that he will return
               it. Rav Shrirah Gaon said that this is good after
               the first day, but on the first day an individual
               should buy it and give it to others. The Tzibur can
               give money as a gift to the Chazan or someone else
               to buy it. In Ashkenaz and France the custom is like
               the Rashbam.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> R. Gershom (137b DH Notlo):</font></b> We say that he was
               Yotzei only if there is an Esrog for each brother,
               i.e. enough money left in the estate to buy one for
               each.
<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 658:7):</font></b> If partners bought a
               Lulav or Esrog, neither of them is Yotzei on the
               first day unless the other gives to him his share
               for a gift.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is when they bought an Esrog to eat or
               smell. If they bought it for the Mitzvah, presumably
               this was their intent.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (DH v'Davka):</font></b> We rely on Breirah, just like
                    partners who are Mudar Hana'ah from each other.
                    No Kinyan is needed before or after taking it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magen Avraham (10):</font></b> In a Teshuvah, the Rashba
                    says that he wrote this l'Halachah, but not to
                    rely on it in practice. There are many opinions
                    about this in Hilchos Nedarim. Therefore, they
                    should declare that they give their shares to
                    whoever takes it (on condition to return it).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (8):</font></b> If brothers bought Esrogim with
               money of the estate and one of them took it for the
               Mitzvah, he was Yotzei only if he could eat it and
               the others would not mind. If they would mind, he is
               Yotzei only if they give to him their shares for a
               gift.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If each brother bought a
               different species, or if together they bought
               different species from the estate:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If one of them took it for the Mitzvah, even if
                    he could eat it and the others would not mind,
                    he was Yotzei only if they give to him their
                    shares for a gift. Because there is only one
                    Esrog, their Stam Mechilah (lack of objection)
                    does not help.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (36):</font></b> Even though they do not
                    mind if he eats it, they also want to be
                    Yotzei, therefore they object to him using it
                    for the Mitzvah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If there are other Esrogim,
               their Stam Mechilah helps, even if his is nicer than
               others.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (9):</font></b> Where Esrogim are scarce, the
               custom is that the entire Tzibur buys one in
               partnership. The reason is that since they bought it
               to be Yotzei, it is as if they stipulated that
               everyone gives his share to whoever takes it, on
               condition that he will return it to them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (38):</font></b> Our custom is that
                    everyone gives as much as he wants. It seems
                    that one who could have given, but did not give
                    anything is not Yotzei.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rema:</font></b> We collect for it according to people's
               wealth, for Hidur Mitzvah is incumbent more on the
               wealthy. Everyone should be zealous to get his own
               four Minim to fulfill the Mitzvah properly.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (4):</font></b> If one has Yir'as Shomayim
                    and cherishes Mitzvos he will get his own Minim
                    to shake them properly (at the proper times in
                    Hallel). Also, most people think that one may
                    bless on a jointly owned Esrog. The Maharil
                    says that even when the first day is Shabbos
                    one should strive to have his own Minim.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (39):</font></b> It is best to take one's
                    own Minim, even if they are inferior to his
                    friend's, for not everyone knows how to be
                    Makneh properly. Taking a friend's is better
                    than taking the Tzibur's, for perhaps someone
                    in the Tzibur did not intend to Makneh his
                    share to the others.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (81):</font></b> The SHLaH says that it is
                    better to bless on the Tzibur's Minim than on
                    those of a friend given on condition to return,
                    for the Tzibur's is called 'Lachem'. This is
                    unlike all the Poskim.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (89):</font></b> Some say that to fulfill
                    'Lachem' absolutely, one should not give his
                    Lulav to another before he himself blesses on
                    it. Others disagree, for after the gift is
                    returned it is fully his.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (19):</font></b> If a Tzibur elsewhere has
                    no Minim, it is better to give one's Minim to
                    them and to perform the Mitzvah with those of
                    his Tzibur. Some say that one should not do so
                    to enable an individual to fulfill the Mitzvah,
                    especially if the Tzibur's Minim become Pasul
                    through great usage after a few days.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A LULAV NOT EXPLICITLY GIVEN FOR A GIFT </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, all agree that (Reuven gives it in a way
               that) Shimon is Yotzei. If not, what was the point
               of the gift?!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> Rather, all agree that
          Shimon was Yotzei. They argue about when he sold it
          (Rebbi invalidates the sale, and R. Shimon upholds it) or
          ate it (Rebbi says that he must pay Ploni its value, and
          R. Shimon exempts him).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah bar Rav Huna):</font></b> If orphans bought an Esrog with
          money of the estate, and one of them took it to be Yotzei
          (fulfill the Mitzvah), he was Yotzei only if the others
          would allow him to eat it (this shows that he owns it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if there is an Esrog for each
               brother. If there are (only) other fruits for the
               others, he was not Yotzei (they do not consent that
               he should own it).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rava):</font></b> If one said 'take this Esrog on condition that
          you return it to me', and the recipient took it for the
          Mitzvah, he was Yotzei only if he returned it afterwards.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava teaches that a gift on condition to return
               it is a valid gift.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A GIFT ON CONDITION TO GET IT BACK</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Leah owned a date tree in Rav Bivi bar Abaye's
          property. Whenever she would go to take the fruit, he was
          upset. She transferred ownership to him for the rest of
          his life. He gave it to his son.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna brei d'Rav Yehoshua):</font></b> He cannot do
               that! Even R. Shimon ben Gamliel said that a gift to
               someone else takes effect only when the giver said
               'after you to Ploni' (because the giver gave away
               the Peros and the permanent rights to the property);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here, she stands to get back the tree after Rav
                    Bivi dies. All agree that he cannot give it
                    away!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava citing Rav Nachman):</font></b> If one said 'I give to you
          this ox for a gift on condition that you return it to
          me', if Shimon was Makdish it and returned it, it is
          Hekdesh, and he fulfilled the stipulation.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Why is it considered that he returned
          it? (The giver wanted to get it back to use it!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> Nothing is missing (he returned
          the ox intact, even though the owner may not use it).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> If he said 'on condition that you return
          it', this was fulfilled;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'on condition that you return it <i>to
               me</i>', he stipulated that he will be able to use it.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ONE WHO REFUSES TO RECEIVE A GIFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If Reuven wrote his property to Levi,
          and Levi said 'I do not want it', he acquires it anyway,
          even if he screams in protest;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> He does not acquire it.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE REQUIREMENTS FOR A CONDITIONAL STATEMENT</b></font><b>
<br>QUESTIONS:</b> Rava rules that when a person receives an Esrog as a gift on condition that he return it, that Esrog is considered his and he may fulfill the Mitzvah with that Esrog, as long as he returns it later. This is because a 'Matanah Al Menas l'Hachzir' is considered a valid gift. If, however, he fails to fulfill the giver's condition and return the Esrog, then the gift is not valid and the Esrog does not belong to him, and he cannot fulfill the Mitzvah with it.
</p><p>
(a) The Rishonim ask that regardless of whether the recipient gives back the Esrog, the Esrog should be his and he should be able to fulfill the Mitzvah with it, because the giver did not use the necessary formula for conditions. The Torah establishes that a conditional statement is valid only if its wording follows a specific formula (Kidushin 61a). One requirement is that the condition be double-sided ('Tenai Kaful'), i.e. both the positive and the negative possibilities must be stated explicitly. In addition, the positive side must precede the negative side. An example of such a statement is, 'If you do such-and-such (e.g. return the Esrog to me), then the Kinyan will take effect; if you do not do it, then the Kinyan will not take effect.' If the Tenai is not formulated properly, then the Tenai is disregarded and the action (the Kinyan) takes effect even if the parties do not fulfill the specified conditions.
</p><p>
In the case of Rava, the condition was not doubled; only the positive side was expressed, but not the negative side. Why, then, should the condition be binding?
</p><p>
(b) Moreover, the case of Rava does not meet another requirement of a conditional statement. In order for a conditional statement to be binding, the condition and the action cannot affect the same object ('Tenai u'Ma'aseh b'Davar Echad'; see Gitin 75a). Here, the condition (that the Esrog be returned) and the Kinyan (that the Esrog will belong to the recipient) affect the same object: the Esrog itself.
</p><p>
<b>ANSWERS:</b>
<br>(a) There are two basic approaches in the Rishonim to answer this question.
</p><p>
1. <b>TOSFOS</b> (Sukah 41b, DH Heilach; see also <b>MAHARSHA</b> here), the <b>RAMBAN</b>, and the <b>ROSH</b> answer that the case that Rava discusses indeed <i>is</i> a case in which the condition is doubled, and Rava simply does not quote the entire conditional statement. Since Rava's purpose is to teach a Halachah about the laws of gifts, and not about how a condition must be formulated, he does not bother to quote the entire phraseology necessary for the condition to be valid. (There are many places where the Mishnah or Gemara discuss a conditional statement without quoting its required formula, since, in those places, the purpose is not to teach the formula of a condition, but rather to teach a different Halachah.)
</p><p>
2. The <b>RASHBAM</b> answers that Rava's case is a case of monetary law, and in monetary matters (as opposed to matters of Isur, such as Gitin and Kidushin) a 'Tenai Kaful' is not necessary. As long as the intent of the giver is clear, a single-sided condition suffices and the condition takes effect. (See also <b>RAMBAM</b> and <b>RA'AVAD</b>, Hilchos Zechiyah u'Matanah 3:8, and <b>RIF</b> cited by the <b>RAMBAN</b> in Gitin 76a.)
</p><p>
Other Rishonim question the Rashbam's answer from the fact that the very source for the requirement of a 'Tenai Kaful' is a case of a monetary matter. The format for conditional statements is learned from the agreement that Moshe Rabeinu made with the men of the tribes of Gad and Reuven. They received portions in the land of Ever ha'Yarden on condition that they fight alongside the other tribes to conquer Eretz Yisrael proper (Kidushin 61a). Moshe Rabeinu's conditional statement related to the acquisition of Ever ha'Yarden, which certainly was a monetary matter. Why, then, does the Rashbam say that a 'Tenai Kaful' is not necessary in monetary matters?
</p><p>
The <b>RAMBAN</b> explains that the Tana who requires a 'Tenai Kaful' for a conditional statement is Rebbi Meir (Kidushin ibid.). Although Rebbi Meir teaches this requirement with regard to monetary matters, the Halachah does not follow Rebbi Meir because his position is a minority opinion. The only reason why a 'Tenai Kaful' is required in cases of Gitin and Kidushin is that there is an added stringency due to the severity of those matters (see Gitin 75b).
</p><p>
(b) The Rishonim give a number of answers to this question as well.
</p><p>
1. <b>TOSFOS</b> and the <b>RAMBAN</b> answer that Rava in Gitin (75a) seems to maintain that there is no requirement of 'Tenai u'Ma'aseh b'Davar Echad,' and thus his statement here is consistent with his position there. The Gemara in Gitin cites a Beraisa which says that when a man gives a Get to his wife and says, 'This is your Get, but the paper [on which it is written] will remain mine,' the Get is not valid. If, however, he says, 'This is your Get on condition that you return the paper to me,' the Get is valid and the divorce takes effect. The Gemara asks how the two cases differ from each other. Rava answers that in the second case, the action (the divorce) is stated before the condition, and the formula for a conditional statement requires that the condition precede the statement of the action. If a person makes a conditional statement but reverses the order, the condition is invalidated, and the action takes effect even if the condition is not fulfilled. Rav Ada bar Ahavah responds to Rava that even if the condition would be mentioned first, the condition still would be invalid and the Get would take effect, because the condition and the action involve the same object (the Get). Since Rava does not give that answer, it seems that he does not require that the condition and the action relate to two separate objects.
</p><p>
2. Tosfos answers further that the requirement of 'Tenai u'Ma'aseh b'Davar Echad' exists only according to Rebbi Meir, while the Rabanan argue and maintain that the condition is valid even when the condition and the action involve the same object. Rava here rules in accordance with the view of the Rabanan.
</p><p>
3. Tosfos and the Ramban suggest another answer. They explain that the problem with a 'Tenai u'Ma'aseh b'Davar Echad' is that the fulfillment of the condition makes the Kinyan impossible. For instance, in the case of a man who says, 'This is your Get on condition that you return the paper to me,' the Get cannot take effect until after the condition has been fulfilled (i.e. she returns the paper to him), but at that point the Get is no longer in the wife's possession and it cannot cause her to become divorced. However, Rebbi (in Gitin 74a, Kidushin 60b) maintains that when a person uses the phrase, 'Al Menas' ('on condition that...') in his Tenai, the person intends for the Kinyan to take effect retroactively from that moment, provided that the condition is fulfilled subsequently. (This is in contrast to the word 'Im' ('if'), which implies that the Kinyan should take effect only when the condition is fulfilled.) According to this opinion, when a man gives a Get and imposes a condition that states '*Al Menas* that you return the paper to me,' the Get takes effect retroactively from the time that it was given to her, provided that she returns the paper. Consequently, such a case is not subject to the problem of 'Tenai u'Ma'aseh b'Davar Echad.' Perhaps Rava (here and in Gitin) agrees with Rebbi that 'Al Menas' is like 'me'Achshav' and the Kinyan takes effect retroactively. Hence, in the case of the Gemara here, when the recipient returns the Esrog, he is considered retroactively to have owned it from the time that he received it. Since it is possible for the Kinyan to take place and the condition to be fulfilled, the conditional statement is not subject to the limitation of 'Tenai u'Ma'aseh b'Davar Echad.' (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO REFUSES TO RECEIVE A GIFT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Aba bar Mamal):</font></b> They do not argue. R. Yochanan
          discusses one who protested from the beginning. Rav
          Yehudah discusses one who was initially quiet and later
          protested.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> If Shimon acquired a gift
          on behalf of Yehudah, and Yehudah was initially quiet and
          later protested, R. Shimon ben Gamliel and Chachamim
          argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Reuven wrote his property, which
               included slaves, to Levi, and Levi said 'I do not
               want it', if Levi is a Kohen, the slaves may eat
               Terumah (they are his slaves);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Gamliel says, since he said 'I do
               not want it', (Reuven or) his heirs acquire.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Does the first Tana say that he
               acquires, even if he screams in protest?!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> If he protested from the
               beginning, all agree that he does not acquire;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he was initially quiet and later protested,
                    all agree that he acquired;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  They argue about when Shimon acquired on
                    behalf of Levi, and Levi was initially quiet
                    and later protested. Chachamim say that once he
                    was silent, he acquired. Now he protests for he
                    wants to (but cannot) retract;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  R. Shimon ben Gamliel says, his later
                    protest shows that he never wanted the
                    property. Initially, he felt no need to
                    protest, for the property did not yet come to
                    him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ADDITIONAL GIFTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Ploni (a Shechiv Mera) said 'give 200 Zuz
          (worth of land) to Reuven, 300 to Shimon, and 400 to
          Levi', we do not say that they acquire in this order (and
          Ploni's creditor would collect first from the last land
          given, i.e. from Levi). Rather, a creditor (with a loan
          document) collects from all of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give 200 to Reuven, after him give
               (300) to Shimon, and after him (400) to Levi', they
               acquire in this order. A creditor collects first
               from Levi, then (if he was owed more than 200) from
               Shimon, and then from Reuven.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Shechiv Mera said 'give 200 Zuz to
          Ploni my son, the firstborn, like is fitting for him', he
          receives it in addition to his extra share;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give to him 200 for his Bechorah
               (i.e. his extra share)', Ploni has the upper hand.
               He can take 200 in place of his Bechorah, or he can
               take his normal Bechorah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If a Shechiv Mera said 'give 200 Zuz to my wife, like
          is fitting for her' - she receives it in addition to her
          Kesuvah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give to her 200 for her Kesuvah' (not
               in a case in which she pardons the rest of her
               Kesuvah), she has the upper hand. She can take 200
               in place of her Kesuvah, or she can take her
               Kesuvah.
<br>
<br>

sjt:
<font><b>1) A SHECHIV MERA'S GIFT TO THREE CONSECUTIVE RECIPIENTS</b></font><b>
<br>QUESTION:</b> The Gemara teaches that when a Shechiv Mera gives away all of his property to three different people with the instructions, '[A field worth] 200 shall be given to Reuven, 300 to Shimon, and 400 to Levi,' the person who received the first gift cannot claim that the Shechiv Mera intended to give him precedence and make him the first of the recipients. Hence, if the Shechiv Mera's creditor comes to collect the debt owed to him, the recipient of the first gift may <i>not</i> insist that the creditor collect first from the other recipients. Rather, it is assumed that the Shechiv Mera intended to give away all of his property at the same time, but it was not possible to make three statements (giving three gifts to three different people) simultaneously.
</p><p>
Why does the Beraisa give an example of gifts of increasing value (200, 300, 400)? Will the same Halachah apply if the Shechiv Mera gives gifts of equal value (he gives 200 to each person)?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RAMBAN</b>, <b>RASHBA</b>, and <b>RITVA</b> cite an opinion (in the name of 'Yesh Omrim'; see also <b>ROSH</b>) which maintains that the ruling of the Beraisa applies <i>only</i> when the gifts are <i>not</i> of equal value. When the gifts are not of equal value, the fact that they were given separately does not indicate that the Shechiv Mera intended to leave over some property after each one. He may have given the gifts separately merely because it was not possible to give them simultaneously. However, when a Shechiv Mera gives gifts of equal value to three people, Beis Din assumes that he gave them in a specific order of precedence, and the creditor must collect from the later recipients first. If the Shechiv Mera had not intended to give the gifts in any particular order, he would have phrased them differently; he could have said simply, 'Give 600 to Reuven, Shimon, and Levi, equally.'
</p><p>
The Ramban, Rashba, and Ritva question this explanation. The second case in the Beraisa teaches that if the Shechiv Mera says, '[A field worth] 200 shall be given to Reuven, and after him, to Shimon, and after him, to Levi,' then Beis Din assumes that he intended to give the gifts in that order, and the creditor must collect from the later recipients before he can collect from the earlier ones. According to the explanation cited by these Rishonim, the Beraisa does not need to formulate such a different case (in which the Shechiv Mera uses the term 'ul'Acharav' -- 'and after him') in order to show the contrasting Halachah; rather, it could have discussed the same case (without the term 'ul'Acharav'), in which the Shechiv Mera gives equal portions to each recipient. In such a case, the Halachah would be that the creditor must collect first from the later recipients, because the fact that the Shechiv Mera did not include all of the recipients in one statement (such as 'Give 600 to all three') indicates that he intended to give the gifts in a specific order.
</p><p>
(b) Because of this question, the <b>RITVA</b> explains differently. He says that it does not matter whether the Shechiv Mera's gifts were of different values or of equal values. In either case, Beis Din assumes that he meant to give them all at the same time (unless, of course, he says 'ul'Acharav'). This is also the view of the <b>RASHBA</b>.
</p><p>
However, this explanation is also problematic. According to this explanation, why does the Beraisa formulate a case in which the Shechiv Mera gave gifts of different values, if the Halachah is the same when the Shechiv Mera gives gifts of equal value?
</p><p>
The Ritva gives two answers to this question.
</p><p>
In his first answer, he says that it is the normal style of the Tana to describe separate gifts as gifts of different amounts.
</p><p>
In his second answer, he says that the Beraisa teaches an additional Chidush by describing the case in this way. In a case in which the gifts are of varying amounts, there might have been a different reason to assume that a creditor must collect from the Shechiv Mera's beneficiaries in a specific order. Beis Din might have assumed that the recipient of the largest gift is the one that the Shechiv Mera favored the most, and therefore the creditor must collect from the other recipients first. The Beraisa teaches that Beis Din does not make such an assumption, and the creditor collects equally from all of the recipients.
</p><p>
The <b>RAMBAN</b> and <b>RASHBA</b> suggest a similar approach to answer the question on the first explanation (in (a) above). They explain that there is a Chidush in the case that the Beraisa discusses, in which the Shechiv Mera says 'ul'Acharav,' that would not have been conveyed if the Beraisa had discussed a case in which the gifts were of equal value. The Beraisa teaches that although the last recipient was given a larger <i>amount</i>, which implies that the Shechiv Mera favors him the most, Beis Din does not infer that the Shechiv Mera also intended for a creditor to collect from the <i>last</i> recipient after the other two. Rather, the Shechiv Mera's use of the term 'ul'Acharav' indicates that the gifts were given in that order, even though the last recipient was given a larger gift. (This is also the explanation of the <b>RASHBAM</b> (end of DH Goveh) when he explains why the first case of the Beraisa discusses gifts of increasing amounts (and not decreasing amounts). He explains that the Beraisa teaches a Chidush with regard to the second case: that even though the last recipient received a larger gift, Beis Din does not assume that the Shechiv Mera also intended for his gift to be the first (so that a creditor would have to collect from him last). Rather, since the Shechiv Mera said 'ul'Acharav,' Beis Din assumes that the last recipient was, indeed, given the last gift, and a creditor may collect from him first. See, however, the <b>RAMBAN's</b> understanding of the Rashbam, and see the footnote of Rav Avraham Sofer zt'l to the <b>CHIDUSHEI HA'RAN</b> here.)
</p><p>
Why, though, does the Ritva not give this answer, which is similar to the way he answers the question on his own explanation? The Ritva seemingly maintains that this answer cannot explain why the end of the Beraisa discusses a case of 'ul'Acharav.' Since the Shechiv Mera explicitly said 'ul'Acharav,' there would be no reason to assume that the Shechiv Mera meant to protect the last recipient from a creditor, even though he was given a larger gift. The Ritva maintains that it is unnecessary for the Beraisa to teach such a Halachah at all. Thus, the Ritva rejects the first explanation for lack of a suitable answer to the question he raises on it. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ARE WE CONCERNED LEST BEIS DIN ERR?</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'> 40a (Chachamim of Neharda'a):</font></b> If the witnesses on a
               Moda'ah (a document saying that the seller is
               coerced to sell) did not write 'we know the Ones',
               it is invalid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 138b (Beraisa - R. Meir):</font></b> If a Shechiv Mera said
               'Ploni owes me 200 Zuz', the witnesses write this,
               even though they do not know whether it is true.
               Therefore, the heir must bring proof to collect it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, the witnesses may not write this
               unless they know that it is true. Therefore, the
               heir collects it without proof.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> The opinions must be switched. R.
               Meir forbids writing if they do not know, lest a
               Beis Din err (and not require the heir to bring
               proof). Chachamim permit, for they are not
               concerned.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Dimi of Neharde'a):</font></b> The Halachah is, we are not
               concerned lest a Beis Din err.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Why is this different than Rava's law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> Beis Din oversees Chalitzah only if
                    they recognize (that she is a Yevamah and that
                    this is her Yavam). Beis Din oversees Mi'un (a
                    girl annulling her marriage) only if they
                    recognize (the couple, and that she is married
                    only mid'Rabanan). Therefore, witnesses (who
                    see Chalitzah or Mi'un in front of Beis Din)
                    may write a document of Chalitzah or Mi'un even
                    if they do not recognize.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Inference:</font></b> We require Beis Din to know because
                    we are concerned lest another Beis Din err.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> Regarding Chalitzah and Mi'un, we are
               concerned lest (a second) Beis Din will not check
               for themselves. Rather, they will rely on the Beis
               Din that witnessed it. We are not concerned lest a
               Beis Din rely on witnesses (e.g. who signed a gift
               of a Shechiv Mera). Surely, Beis Din themselves will
               verify what is written.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 155a (Reish Lakish):</font></b> There is a Chazakah that
               witnesses do not sign unless the parties in the
               document are adults.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Yevamos 106a (Rava citing Rav Huna):</font></b> We oversee
               Chalitzah or Mi'un, even if we do not recognize the
               parties. Therefore, witnesses may write a document
               of Chalitzah or Mi'un only if they recognize the
               people.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rava himself):</font></b> We oversee Chalitzah or Mi'un only
               if we recognize. Therefore, witnesses may write a
               document even if they do not recognize them.
<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 (8:54):</font></b> The Halachah is, we are not
               concerned lest a Beis Din err.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (21a DH Lav):</font></b> We say that if the
                    witnesses did not know the Ones, the Moda'ah is
                    invalid. We did not say that they may not write
                    it. The Rashba and Ran derive that they may
                    write it without knowing, and if later we learn
                    about the Ones, the Moda'ah is valid. R. Yonah
                    forbids to write without knowing. We are
                    concerned lest people say that there is a
                    Chazakah that witnesses do not sign (until they
                    know that the document is true, just like sign
                    only if the parties in the document are
                    adults).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 10:2):</font></b> Witnesses who sign a
               Moda'ah must know that he sells due to Ones. They
               may not rely on what the seller says.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Yevamos 12:18):</font></b> The Halachah follows Rava,
               that we oversee Chalitzah or Mi'un even if we do not
               recognize.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> R. Simchah says that in pressed
                    circumstances, if the Yavam wants to go
                    overseas, and we do not find witnesses who
                    recognize, we rely on Rav Huna and do Chalitzah
                    even without recognizing, and afterwards we
                    seek witnesses who recognize. The Get Chalitzah
                    is only for a proof. Witnesses of Chalitzah
                    permit her, and enable her to collect her
                    Kesuvah.
<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 205:5):</font></b> Some say that even if one
               said 'write for me a Moda'ah, and when it will
               become known through witnesses that I was forced,
               your testimony will join to nullify the sale' we do
               not heed him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav):</font></b> The Magid Mishneh
                    (10:2) brought only the Rashba, who permits
                    writing a Moda'ah without knowing the Ones.
                    Even R. Yonah agrees that if the Moda'ah was
                    written and afterwards we learned about the
                    Ones, the Moda'ah is valid. He only forbids
                    writing it l'Chatchilah, lest Beis Din not
                    require proof of the Ones.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (14):</font></b> This is difficult, for we say that
                    Beis Din will rely on another Beis Din, but
                    they will not rely on witnesses! See 255:1.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If they wrote a Moda'ah, and later the Ones
               became known, the sale is Batel.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (255:1):</font></b> If a Shechiv Mera (Reuven)
               said 'Ploni owes me 100 Zuz', the witnesses write
               'Reuven commanded such and such', even though they
               do not know whether or not it is true. Therefore,
               the orphans must bring a proof in order to collect.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> The Ramah says that witnesses may write
                    without knowing only when he commanded to whom
                    to give the money. They testify only about the
                    command, and not on the claim that Ploni owes
                    to Reuven. If he said only 'Ploni owes me 100
                    Zuz', the witnesses may not sign this (unless
                    they know). I say that we do not distinguish.
                    In either case they may write.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (1):</font></b> The Shulchan Aruch holds like the Tur.
                    Even though the heirs must bring a proof, the
                    document helps, for Ploni is unlikely to be
                    brazen and deny when there is a written
                    command. If nothing is written, he is brazen,
                    for perhaps the witnesses will go away or die
                    before the case comes to Beis Din.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (1):</font></b> The Ramah holds that surely we
                    discuss when he commanded to whom to give it.
                    This is the command of a Shechiv Mera! The Tur
                    learns from the Beraisa, which says only 'Ploni
                    owes me 100 Zuz.' Also, witnesses may write
                    without knowing because we are not concerned
                    lest Beis Din err. This is even if he said only
                    'Ploni owes me 100 Zuz'!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Bach (DH u'Mah):</font></b> The Ramah holds that surely we
                    discuss when he commanded to whom to give it.
                    If not, why would R. Meir permit writing it?!
                    Chachamim are concern lest Beis Din err. Why
                    should he argue, since there is no benefit from
                    writing! Also, why does it say 'when he
                    collects'? It should have said only 'he must
                    bring a proof'! Rather, we discuss a Shechiv
                    Mera who commanded to give to Almoni. R. Meir
                    says that we write, in order that Almoni will
                    be able to collect. We do not annul his rights
                    due to concern lest Beis Din err.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Panim Me'iros (2:2):</font></b> Reuven told witnesses
                    'write and give a document to Shimon, so he
                    will have testimony about the house of our
                    brother-in-law Levi; we legally bought half of
                    it. That half belongs to Shimon (I sell my
                    share to him). Levi's creditor says that Reuven
                    has no proof that he bought from Levi. Others
                    say that the witnesses testify to everything in
                    the command, including that they bought from
                    Levi. I say that the witnesses only say that
                    Reuven said all this and gave his rights to
                    Shimon. They do not testify about anything
                    else. Levi's admission does not help. If
                    something is Muchzak to a borrower, the Poskim
                    agree that he is not believed to say that it is
                    not his (so his creditor cannot take it). This
                    is unlike witnesses who say 'Yosef the Kohen
                    told us...', which connotes that they know that
                    Yosef is a Kohen (CM 49). 'The Kohen' is not
                    part of Yosef's words. A proof is from Moda'ah.
                    If the witnesses did not write that they know
                    the Ones, it is invalid (unless we can verify
                    the Ones). We do not say that since they
                    signed, presumably they knew the Ones he claims
                    is true! Also Bava Basra 138b concluded that
                    one must bring a proof to collect. We do not
                    assume that the witnesses themselves verified
                    what is written. Why do the Tur and Shulchan
                    Aruch bring R. Yonah, who does not allow
                    writing a Moda'ah without knowing the Ones? The
                    Beis Yosef, <b>SMA</b>, Levush and Bach say that this
                    is like Rava, who is concerned lest Beis Din
                    err. How did all these Poskim err? The Gemara
                    explicitly said that we are concerned lest a
                    Beis Din rely on another Beis Din, but we are
                    not concerned lest a Beis Din rely on
                    witnesses! R. Yonah is not difficult. Perhaps
                    he holds like the Ramah. Why does the Shulchan
                    Aruch (205) bring R. Yonah's opinion, when in
                    Siman 255 it holds that Beis Din will not rely
                    on witnesses?!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Pischei Teshuvah (205:6):</font></b> Sha'ar ha'Mishpat (2)
                    says that the Shitah Mekubetzes (40b DH v'Zeh)
                    explains that R. Yonah holds that we should not
                    write a document to weaken the sale, for the
                    sale was Vadai, and we are unsure about the
                    Ones. The Moda'ah will cheapen the land in the
                    eyes of people, for they will assume that it
                    was not written for nothing. The concern is not
                    lest Beis Din err! The <b>SMA</b> (238:5) explains in
                    this way why we do not write a document of sale
                    for the buyer if the seller is not here.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If a Shechiv Mera said 'give 200 Zuz to Ploni my
          creditor, like is fitting for him', he receives it in
          addition to the debt;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give to him 200 for the loan', he
               takes it in place of the loan.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> When he said 'like is fitting for him', why
          does Ploni receive it in addition to the debt? Perhaps he
          meant 'like I owe him'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The Beraisa is R. Akiva, who
          expounds extra words.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Akiva):</font></b> If Reuven sold his house to
               Shimon, Shimon does not acquire the pit and cistern,
               even if Reuven wrote 'the depth and height';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (If Reuven wants to use them) he must buy the
               rights to a path to them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, (he may use them, and) he need not
               buy a path.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Akiva admits, if Reuven sold his house 'except
               for the pit and cistern', he need not buy a path.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since he wrote this, even though there was no
                    need for it, it comes to add something (a
                    path).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Culmination of answer:</font></b> Here also, the extra words
               'like is fitting for him' add (that the 200 is in
               addition to the debt).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ARE WE CONCERNED LEST BEIS DIN ERR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> If a Shechiv Mera said 'Ploni owes
          me 200 Zuz', the witnesses write this, even though they
          do not know whether or not it is true;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, the heir must bring proof to collect
               it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, the witnesses may not write this unless
          they know that it is true. Therefore, the heir collects
          it without proof.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> The opinions must be switched. R. Meir
          forbids writing if they do not know, and Chachamim
          permit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir forbids them to write because we are
               concerned lest a Beis Din err (and not require the
               heir to bring proof).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Dimi of Neharde'a):</font></b> The Halachah is, we are not
          concerned lest a Beis Din err.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why is this different than Rava's law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> Beis Din oversees Chalitzah only if they
               recognize (that she is a Yevamah and that this is
               her Yavam). Beis Din oversees Mi'un (a girl
               annulling her marriage) only if they recognize (the
               couple, and that she is married only mid'Rabanan).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Therefore, witnesses (who see Chalitzah or Mi'un
               in front of Beis Din) may write a document of
               Chalitzah or Mi'un even if they do not recognize.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> We require Beis Din to know, for we
               are concerned lest another Beis Din err.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Regarding Chalitzah and Mi'un, we are concerned
          lest (a second) Beis Din will not check for themselves.
          Rather they will rely on the Beis Din that witnessed it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We are not concerned lest a Beis Din rely on
               witnesses (e.g. who signed a gift of a Shechiv
               Mera). Surely Beis Din themselves will verify what
               is written.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ARE ATTACHED PEROS INCLUDED IN A GIFT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (If a father wrote his property to a son
          'from today and after I die',) the father may harvest the
          Peros and give it to whomever he wants;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> After he dies, if he left harvested Peros, they
               belong to the heirs.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> What is attached does not belong to
          the heirs.
<br>

<p>

sjt:
</p><p>
<font><b>2) GIVE 200 ZUZ AS BEFITS HIM</b></font><b>
<br>QUESTION:</b> The Beraisa teaches that if a Shechiv Mera says, 'Give 200 Zuz to my son the Bechor as befits him,' his son receives <i>both</i> 200 Zuz <i>and</i> the double portion of a Bechor. Similarly, if he says, 'Give 200 Zuz to my wife as befits her,' his wife receives both the 200 Zuz and her Kesuvah. The same applies if the Shechiv Mera says, 'Give 200 Zuz to my creditor as befits him'; the creditor receives not only the money that is owed to him, but also an additional 200 Zuz.
</p><p>
The Gemara asks that perhaps when the Shechiv Mera says, 'Give 200 Zuz to my creditor as befits him,' he means that 200 Zuz should be given to his creditor as befits him <i>as repayment for the loan</i>, and he does <i>not</i> mean to give the creditor an additional 200 Zuz.
</p><p>
Why does the Gemara ask this question only with regard to a creditor, and not with regard to a firstborn son or a wife? The Gemara should also ask that when the Shechiv Mera says to give 200 Zuz to his son (or to his wife) 'as befits him (or her),' he may mean merely that 200 Zuz should be given as befits his son for the portion of a Bechor, or as befits his wife for her Kesuvah!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b><b><b>RI</b></b> MI'GASH</b> answers that it is obvious to the Gemara that since a man feels close to his son and to his wife, he wants to give them <i>more</i> and not to detract from what they will receive. Therefore, when he says 'as befits him (or her),' his intention is to increase their share and not to decrease it. This is not the case with regard to a creditor. A person does not feel close to a creditor, and there is no reason to assume that a person would want to increase the amount of money given to a creditor. Therefore, the Gemara asks only with regard to a creditor that 'perhaps he means 'as befits him' as payment for his debt.'
</p><p>
The <b>RAMBAN</b> rejects this answer, because it is clear from the end of the Beraisa that a person <i>may</i> feel close to his creditor. The end of the Beraisa teaches that if a Shechiv Mera says, 'Give 200 Zuz to my creditor <i>for the debt owed to him</i>,' the creditor receives only the value of his debt (if it is less than 200 Zuz). This is clearly a case in which the Shechiv Mera attempted to give his creditor more money than was due to him, which indicates that it is possible for a person to feel close to his creditor. Nevertheless, the Gemara asks that when the Shechiv Mera says 'as befits him,' he may mean 'as befits him as repayment for the loan.' Why does the Gemara not ask the same question with regard to the Shechiv Mera's son and wife, to whom he also feels close?
</p><p>
(b) Due to this question, the <b>RAMBAN</b> gives a different explanation for why the Gemara does not ask this question with regard to the man's son and wife as well. The Gemara asks its question only with regard to a creditor because there is a logical reason to assume that the Shechiv Mera means to say 'as befits him <i>for his debt</i>.' If his intent was that the creditor be given a larger amount of money, that would appear like Ribis, interest. Thus, it is logical to assume that the Shechiv Mera wants only to pay back his debt and not to give any extra money to the creditor, since that would appear like Ribis.
</p><p>
(c) The <b>RASHBA</b> answers (in the name of 'Yesh Mi she'Omer') that indeed the Gemara could have asked this question with regard to a son and a wife as well. It asks this question only with regard to a creditor since that is the last case mentioned in the Beraisa. (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ARE ATTACHED PEROS INCLUDED IN A GIFT? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Beriasa):</font></b> (If the son sold the property and
          the father died,) we evaluate the attached Peros. The
          buyer (is entitled only to the land itself. He) must pay
          its value to the heirs.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Ula):</font></b> In our Mishnah, the father gave the
          property to his son. He gives generously, and the son
          receives whatever is attached;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Beraisa, the son sold to a stranger. The
               buyer only gets the land itself.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE HEIRS DIVIDE EQUALLY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man died, and left big and small sons,
          the big sons do not receive extra money to buy clothing
          (which costs more than clothing for small sons), and the
          small sons do not receive extra money for their food
          (which costs more than food for big sons);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, they divide the estate equally.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If the big sons married, the small sons also marry
          (this will be explained);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The small sons cannot say 'we will marry like you
               did';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> What the father gave to the big sons was a gift.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If a man died, and left big and small daughters, the
          big daughters do not receive extra for clothing, and the
          small daughters do not receive extra for food. Rather,
          they divide equally.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If the big daughters married, the small daughters also
          marry;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The small daughters cannot say 'we will marry
               like you did'. What the father gave to the big
               daughters was a gift.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rava):</font></b> If the oldest brother (who deals on
          behalf of all the brothers) buys nice clothing from money
          of the estate, they do not get a corresponding amount of
          money (because he is more respected, they benefit from
          this).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> The big sons do not receive extra
          money to buy clothing!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> That refers to sons who do not deal on behalf
          of the others.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Obviously, he does not get extra for
          clothing!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that in any case they
          allow him to buy nice clothing, to look proper. The
          Mishnah teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the big sons married...
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> If the big sons married from the
          joint money of the estate (after the father died), the
          small sons also marry from the estate;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the father married off the big sons, the small
               sons cannot say 'we will marry from the estate, like
               father did for you';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> What the father spent to marry off the big sons
               was a gift.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>RIGHTS OF A HUSBAND IN HIS WIFE'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the big daughters married...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Avuha bar Geneiva):</font></b> If a woman borrowed
          money, consumed it and married, is the husband considered
          like a buyer (in his wife's property), or like an heir?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he is like a buyer, a Milveh Al Peh (a loan
               without a document) cannot be collected from him;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he is like an heir, a Milveh Al Peh is
               collected from him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rava - Mishnah):</font></b> If the big daughters
          married, the small daughters also marry.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This means that if a big daughter (borrowed from
               her small sisters, and) married David (and entered
               the marriage with money of the estate), the small
               daughters marry from David's property (he is like an
               heir, and he must pay the loan).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No, the small daughters marry from money
          left in the estate.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (of rejection):</font></b> R. Chiya taught that if a big
          daughter married David, the small daughters marry from
          David's property!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Perhaps dowries are different. Since they
          are publicized, they are like loans with a document. (We
          cannot learn to a Milveh Al Peh.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> Ravin taught that if a man died,
          and left a widow and daughter, the widow is fed from the
          estate (this is a condition of the Kesuvah);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the daughter married, (her husband uses the
               property, on condition that) the widow is still fed
               from it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Yehudah the nephew of R. Yosi bar Chanina
               says, a case occurred in which the daughter married
               and died. Chachamim said that (her husband gets the
               property, but) the widow is still fed from it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We understand this if the husband is like an heir
               (she is normally fed from the estate after it fell
               to the heirs).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If the husband is like a buyer, why is
               she fed? (She is not fed from sold property!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Abaye:</font></b> A Mishnah teaches Ravin's law!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> The following do not return in Yovel:
               the extra portion of the firstborn, and one who
               inherits his wife.
<br>
<br>

sjt:
<font><b>1) THE 'PARNASAH' OF DAUGHTERS WHO INHERIT AN ESTATE WITH OTHER DAUGHTERS</b></font><b>
<br>QUESTION:</b> Rava cites the Mishnah as proof that a husband is considered like an heir (Yoresh) when he gets possession of his wife's property, and not like a buyer (Loke'ach). The Mishnah says that if the older daughters of a deceased person used the money of their father's estate (including the share of the younger daughters) to get married, then the younger daughters may also get married using the money of the estate. Rava explains that this means that they may collect their share of the estate from the husbands of the older daughters. This proves that a husband has the status of an <i>heir</i> with regard to his wife's property (and debts), and not the status of a <i>buyer</i>. Since the husband has the status of an heir, he is obligated to pay his wife's debts (even a debt that is a Milveh Al Peh, with no Shtar). If his status would be that of a buyer, he would <i>not</i> be obligated to pay his wife's debts (when they are from a Milveh Al Peh).
</p><p>
The Gemara attempts to refute Rava's proof and explain that the Mishnah means only that the younger daughters may also get married using the money of the estate, but not that they may take the money from the husbands of the older daughters. The Gemara defends Rava's proof by quoting the Beraisa of Rebbi Chiya which states explicitly that if the older daughters take money from the estate and get married, the younger daughters may collect their share of that money from the husband. This again seems to prove that a husband has the status of an heir and not a buyer.
</p><p>
The Gemara refutes this proof and says that perhaps a husband does have the status of a buyer and, normally, does not need to pay back his wife's debts. However, in this case, her debt has the status of a Milveh b'Shtar, a loan taken with a Shtar (which everyone hears about, including potential buyers, and therefore it may be collected even from a buyer). This is because the money that she took was for her Parnasah, her general support (food, clothing, etc.), and when a daughter takes money from the estate for such a purpose, everyone hears about it (it has a 'Kol'). Consequently, even if the husband has the status of a buyer, he should have heard about the money that she took and that she now owes, and therefore he is obligated to pay her debt.
</p><p>
The <b>AVNEI MILU'IM</b> (91:7) asks how can it be that the money for Parnasah which the older daughter took has a 'Kol' and everyone hears about it. After all, a daughter is not entitled to take money for Parnasah when there are <i>only</i> daughters (Kesuvos 69a). Only when there are <i>sons</i> who inherit the estate is a daughter entitled to receive money for Parnasah. Hence, the money that the daughter takes from the estate (when there are only daughters) is an ordinary loan from the estate, and it does not matter for what purpose she uses it. How, then, does the loan have a special 'Kol' if it is not uniquely for Parnasah? This question is also asked by the <b>KOVETZ SHI'URIM</b>.
</p><p>
<b>ANSWER:</b> The <b>AVNEI MILU'IM</b> answers that when the Gemara refutes the attempted proof from Rebbi Chiya's statement, it understands that Rebbi Chiya's statement does not refer to the case in the Mishnah of a person who passes away and has only daughters who inherit his estate. Rather, the Gemara understands that Rebbi Chiya refers to a case in which there is a son, in which case there is a specific requirement to pay Parnasah to the daughters. (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>IS A HUSBAND LIKE A BUYER, OR LIKE AN HEIR?</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'> Question (Avuha bar Geneiva):</font></b> If a woman borrowed
               money, consumed it and married, is the husband
               considered like a buyer (in her property), or like
               an heir?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he is like a buyer, a Milveh Al Peh (a loan
                    without a document) cannot be collected from
                    him. If he is like an heir, it is collected.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (Rava - Mishnah):</font></b> If the big daughters
               married, the small daughters also marry.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The case is, a big daughter married David (and
                    brought money of the estate). R. Chiya taught
                    that small daughters marry from David's
                    property!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps dowries are different. Since they
               are publicized, they are like loans with a document.
               (We cannot learn to a Milveh Al Peh.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #2 (Rav Papa):</font></b> Ravin taught that if a man
               died, and left a widow and daughter, the widow is
               fed from the estate. If the daughter married, (her
               husband uses the property, on condition that) the
               widow is still fed from it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We understand this if the husband is like an
                    heir (she is normally fed from the estate after
                    it fell to the heirs). But if the husband is
                    like a buyer, why is she fed? (She is not fed
                    from sold property!)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Support (for Ravin - Abaye - Mishnah):</font></b> The
                    following do not return in Yovel: the extra
                    portion of the Bechor, and one who inherits his
                    wife.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> R. Yosi bar Chanina taught that in
               Usha, they enacted that if a wife sold her Melug
               property, and she died, her husband takes the
               property from the buyer.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (Granted, if a husband is like a buyer at the
                    time of marriage, he takes from the second
                    buyer. However, if he is like an heir, why can
                    he take from the buyer? He inherits only after
                    she dies, and she already sold it!)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Ashi):</font></b> Sometimes Chachamim made the
               husband like an heir, and sometimes they made him
               like a buyer, whichever is better for him. Regarding
               Yovel, they made him like an heir, so he will keep
               the property. Regarding Takanas Usha, he is like a
               buyer, so he will not lose his wife's property
               (after he improved it). Regarding feeding the widow,
               he is like an heir, so she will not lose (what she
               was promised in the Kesuvah).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Why are we concerned for her loss, but not
               for the loss of buyers (regarding Takanas Usha)?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> There, the buyers caused their own loss.
               They should not have bought from a married woman.
<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 (8:56):</font></b> The question was not settled.
               Therefore, one cannot collect a Milveh Al Peh from
               the husband. He caused his own loss by borrowing
               without a document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (EH 91 DH Hayah):</font></b> The Rashbam says
                    in the name of R. Tam that Chachamim make her
                    husband like an heir, lest the lender lose.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nimukei Yosef (DH Parnasah):</font></b> It is known that
                    there is a liien for Parnasah, i.e. clothing,
                    against the estate, so it is like a loan with a
                    document. It is collected from buyers, for they
                    should have known to be careful. However, we
                    can say that small daughters do not collect
                    food for the needs of Nisu'in from the husbands 
                    of older daughters, even though the older
                    daughters brought everything to their husbands.
                    This is if the property is not intact, but was
                    consumed. If the property is intact, all agree
                    that theft is returned wherever it is. The same
                    applies if she borrowed and then married. Her
                    husband is a buyer, so the lender cannot
                    collect from him. If the lender comes before
                    she marries and protests that she pay him or
                    designate property for payment, lest he lose,
                    or if a borrower is squandering his property or
                    wants to leave the city before the loan is due,
                    we stop him. In the latter two cases, the Rif
                    said in a Teshuvah that we force him to leave
                    enough money to pay the debt, lest everyone
                    borrow and squander the money or go overseas,
                    and people will be deterred from lending.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hagahos Ashri:</font></b> R. Chananel, the Rashbam and R.
                    Baruch rule that the husband is like an heir,
                    so the lender will not lose and people be
                    dissuaded from lending. This is reasonable. The
                    Halachah follows them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 26:12):</font></b> If a woman borrowed
               with a document, or became an Arev (guarantor) with
               a document, and married, she must pay after she
               married. If it was a Milveh Al Peh, she does not pay
               until she is widowed or divorced. A husband is like
               a buyer. If the money of the loan was intact, it is
               returned to the lender.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh (9,12):</font></b> Rav Shrirah Gaon and Rav
                    Hai Gaon say that if the money is intact, it is
                    returned, even if she borrowed after marrying.
                    This is difficult, for a loan is given to be
                    spent. Even if the money is intact, it is as if
                    it was spent! Perhaps this is because the
                    Gemara asked about one who borrowed money,
                    <i>consumed it</i> and married, but if the money is
                    intact, it is returned.
<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 90:9):</font></b> If a woman sold her
               Nichsei Melug (property she brought into the
               marriage, and when she is widowed or divorced, she
               gets it back without compensation for change in
               value), (her husband takes it back;) if the money
               paid is intact, the buyer gets it back.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Meir (DH Kayamim):</font></b> The sale is Batel, so
                    the money or what it was exchanged for is in
                    the buyer's Reshus. This is unlike a married
                    woman who borrowed. The Magid Mishneh said that
                    it should not matter whether the money is
                    intact, for a loan was given to be spent.
                    However, in Halachah 12 the Magid Mishneh
                    agreed that we distinguish, for the Gemara
                    asked only about one who borrowed money,
                    <i>consumed it</i> and married.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 91:4):</font></b> If a woman owed a Milveh
               Al Peh and she married, it is not collected from her
               husband, for a Milveh Al Peh is not collected from
               buyers.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav):</font></b> The Tur cites
                    Teshuvas ha'Rosh (35:7) in which he says that
                    if Reuven sent Sivlonos (pre-nuptial gifts) to
                    Leah, and she married David, Reuven collects
                    from David, for Sivlonos is like a loan with a
                    document. We infer that one cannot collect a
                    Milveh Al Peh.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (9):</font></b> Chachamim made the husband
                    like a buyer if no one else will lose, or if
                    the one who loses caused his own loss. Some
                    Poskim say that here he is like an heir, lest
                    the lender lose. The Shulchan Aruch rules that
                    the lender cannot force the husband to pay, but
                    if he seized, we do not take from him. We
                    discuss paying from property she brought to
                    him. All agree that he need not pay with his
                    own property. This is like Tosfos, the
                    Mordechai and Maharik, but unlike R. Baruch.
                    The Rashbam and Rambam hold that our Sugya is
                    even in her lifetime.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If the money of the loan was intact, he must
               pay. If the lender comes before she marries and
               wants to protest against her marriage before she
               pays him, lest he lose, we heed him, even if the
               loan is not due yet.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Hayah):</font></b> The Nimukei Yosef (DH
                    Lovsah) says that the question was even when
                    the money is intact. It is considered Nichsei
                    Melug, for a loan is given to be spent. R.
                    Yerucham says that if it is intact, surely the
                    lender collects it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (6):</font></b> He need not pay from
                    something that came due to the money she
                    borrowed (EH 90:9). However, the Nimukei Yosef
                    (Sof DH Sholach) says that if there is
                    something that came from the money she took,
                    and all the more so if the money itself is
                    intact, the lender collects from the buyer. The
                    same applies here.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Beis Shmuel 10):</font></b> The Nimukei Yosef
                    (DH Lavsah) says that even if the money is
                    intact, her husband need not pay! In DH
                    Sholach, he discusses one who sold her Nichsei
                    Melug.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Beis Meir 90:9 DH Kayamim):</font></b> The Chelkas
                    Mechokek merely brings from the Nimukei Yosef
                    that when intact money must be returned, the
                    same applies to what the money was exchanged
                    for.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If she owed a loan with a document, it is
               collected from property that she brought to her
               husband.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav):</font></b> The Rosh (39:1) says
                    that a loan document can be collected even
                    before she dies, from property she brought to
                    her husband.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (12):</font></b> It is collected from Nichsei
                    Melug and Nichsei Tzon Barzel (property she
                    brought into the marriage, and when she is
                    widowed or divorced, she gets it back, and
                    there is compensation if its value changed).
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>A HUSBAND GETS BACK WHAT HIS WIFE SOLD </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> A different source teaches that the
          husband is like a buyer!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> In Usha, they enacted that
               if a wife sold her Melug property, and she died, her
               husband takes the property from the buyer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (We understand this if the husband is like one
               who bought the property at the time of marriage. He
               takes from the second buyer. However, if he is like
               an heir, why can he take from the buyer? He does not
               inherit until she dies, and she already sold it!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> Sometimes Chachamim made the
          husband like an heir, and sometimes they made him like a
          buyer, whichever is better for him.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Regarding Yovel, he is like an heir, so he will
               keep the property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Regarding the enactment of Usha, he is like a
               buyer, so he will not lose his wife's property
               (after he improved it);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Regarding feeding the widow, he is like an heir,
               so she will not lose (what she was promised in the
               Kesuvah).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why are we concerned for her loss, but not
          for the loss of buyers (regarding the enactment of Usha)?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> There, the buyers caused their own loss. They
          should not have bought from a married woman.
<br>
<br><center><font color='ff0000' size='+1'><b>*****<b>PEREK <b><b>MI</b></b> SHE'MES</b>*****
<br><font color='ff0000' size='+1'><b>
<br><p><b>
<br><b></b><b><b><font color='blue'>4) </font></b><font color='blue'>DAUGHTERS ARE FED AND SONS INHERIT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man died, and left sons and daughters,
          if there is much property (this will be explained), the
          sons inherit and the daughters are fed;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If there is little property, the daughters are fed and
          the sons beg for their food.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Admon says, why should I lose, just because I am a
          male?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Raban Gamliel agrees with Admon.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is considered much property?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah citing Rav):</font></b> It is enough to
          feed all the children for 12 months.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> This is the opinion of Raban
          Gamliel bar Rebbi, but Chachamim say, it is enough to
          feed all the children until Bagrus (when the girls
          mature, six months after adulthood).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Support (Ravin):</font></b> Enough to feed all the children until
          Bagrus is called 'much'. Less than this is 'little'.
<br>

<p>

sjt:
</p><p>
<font><b>2) SUPPORTING THE DAUGHTERS FROM THE INHERITED ESTATE</b></font><b>
<br>QUESTION:</b> The Mishnah teaches that when a man who dies, and who is survived by both sons and daughters, leaves over a lot of property ('Nechasim Merubim'), the sons inherit it and the daughters receive support. When he leaves over only a small amount of property ('Nechasim Mu'atim'), the daughters receive support and the sons must fend for themselves. The Gemara (in the second opinion) explains that 'a lot of property' is defined as any property which can provide for both the sons and the daughters as long as the daughters are still minors, until they reach the age of Bagrus. Any property less than that constitutes a small amount of property.
</p><p>
Why does the Mishnah divide the Halachah into two separate cases, one case of 'Nechasim Merubim' and another case of 'Nechasim Mu'atim'? In both cases, the Halachah is the same: the daughters are entitled to be supported until they reach the age of Bagrus. The Mishnah could have stated simply, 'When a person dies and leaves sons and daughters, the daughters receive support, and the sons receive the rest,' and this would have included all circumstances.
</p><p>
<b>ANSWER:</b> From the rest of the Gemara and from the words of the Rishonim, it is clear that there is a fundamental difference between the support that the daughters receive when there are 'Nechasim Merubim' and the support that they receive when there are 'Nechasim Mu'atim.' It is necessary, therefore, for the Mishnah to divide them into two separate cases.
</p><p>
In the case of 'Nechasim Merubim,' the sons inherit the entire estate, as the Torah mandates. They then must provide support for the daughters from the estate, at regular intervals, as the Chachamim enacted. In contrast, in the case of 'Nechasim Mu'atim,' the <i>entire sum</i> of the daughters' estimated needs for support is allocated to them immediately from the estate (it is separated from the estate and deposited with Beis Din or with an estate manager). Whatever is leftover is inherited by the sons (and if nothing is leftover, then the sons receive nothing). (Indeed, the Gemara (140a) suggests that in a case of 'Nechasim Mu'atim,' the sons are completely removed from the estate and have no rights of inheritance; if there is anything leftover after the daughters receive their support, then the sons receive it, but not as 'heirs' per se. The Gemara concludes, however, that the sons <i>do</i> have rights to inherit the estate; they have a 'Tefisas Yad' in the property (<b>RASHBAM</b> 140a, DH Yesomim she'Kadmu). Nevertheless, the daughters still receive a lump sum for their support, and the sons receive as their inheritance the remaining property, if there is any.)
</p><p>
This difference manifests itself in a number of additional Halachic ramifications.
</p><p>
(a) In the case of 'Nechasim Merubim,' although the sons must take care of the estate and not cause it to be lost through negligence (in which case Beis Din takes control of the estate (<b>NIMUKEI YOSEF</b>; see <b>SHULCHAN ARUCH</b> EH 112:11)), they are permitted to sell the property if there is a great need, even though the daughters will lose their support. This is because the estate is the property of the sons. In contrast, in the case of 'Nechasim Mu'atim,' the sons are not permitted (l'Chatchilah) to sell the property at all, even for a great need (<b>TOSFOS</b> 140a, DH Yesomim). Even though the sale would be valid if they did sell it (as the Gemara says), it is Asur l'Chatchilah for them to do so, since the daughters' right to receive support comes before the sons' right to inherit the property.
</p><p>
(b) If the father left 'Nechasim Merubim' which decreased in value until they became 'Nechasim Mu'atim,' the Halachah does not change to that of a normal case of 'Nechasim Mu'atim,' in which the daughters receive their support as a lump sum and the sons receive nothing. Rather, the daughters receive their support (at intervals) together with the sons, from the fund of the estate, since the sons initially inherited the estate (when it was 'Nechasim Merubim'). In contrast, when the estate consists of 'Nechasim Mu'atim' from the initial moment of inheritance, the daughters receive a lump sum for their support and the sons do not receive ownership of the property (except for what is leftover after the daughters' support has been given to them). (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS CONSIDERED A LARGE ENOUGH ESTATE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If there is less than this, do the girls get
          everything?!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> No. We separate enough money to feed the
          girls until Bagrus, and the boys are fed from the rest.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The following is obvious. If there was 'much' property,
          and then it became 'little', the boys already inherited
          (Rashbam - we calculate how much everyone should have
          received (at the time of death), and everyone receives
          (proportionally) according to this. The boys will still
          have money after the girls consumed their portion; Rosh -
          all are fed until the property runs out);
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If there was 'little' property, and then it
          became 'much', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps the profit goes to the heirs (the girls
               are fed until Bagrus, and the boys get the rest);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps inheritance does not apply here. (We
               calculate what everyone should have received at the
               time of death, and all receive accordingly. The
               girls keep the excess above what they will eat.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Asi):</font></b> If there was little property and the
          boys sold it, the sale stands. (This shows that they
          inherited.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #1 - Question #1 (R. Yirmeyah of R. Avahu;
          also, all the coming questions):</font></b> In calculating whether
          there is much or little property, do we consider that
          also the widow is fed from the estate?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since also she is fed, this enters the
               calculation;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since if she will remarry, she will no longer
               be fed, it does not enter the calculation.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question #2:</font></b> If it does not enter the calculation, if
          the husband accepted to feed his wife's daughter (e.g.
          from a prior husband), does this enter the calculation?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since she is fed even if she will remarry, it
               enters the calculation;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since perhaps she will not be fed the entire
               time (she might die), it does not enter the
               calculation.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question #3:</font></b> If it does not enter the calculation, if
          the husband left a creditor, does it enter the
          calculation?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since even if he dies, the debt will be collected
               (by his heirs), it enters the calculation;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since he has not yet collected the debt, it
               does not enter the calculation.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2 - Question #1:</font></b> If the husband left a
          creditor, does it enter the calculation? (The sides of
          the question are like above.)
<br>
<br>

sjt:
<font><b>1) THE SALE OF AN ESTATE OF 'NECHASIM MU'ATIM'</b></font><b>
<br>OPINIONS:</b> Rav Asi in the name of Rebbi Yochanan rules that when the heirs of a deceased person sell 'Nechasim Mu'atim' (an estate which does not have enough property to support the daughters and sons until the daughters reach adulthood), the sale is valid even though they are prohibited from selling it l'Chatchilah.
</p><p>
When does this sale take place? Does it take place before Beis Din issues its ruling to allocate a lump sum of support for the daughters, or after Beis Din issues its ruling?
</p><p>
(a) The <b>RASHBAM</b> writes that Rav Asi's ruling applies only if the estate is sold before the daughters and sons appear in Beis Din. Once Beis Din has made its ruling that the daughters must receive a lump sum, the sons do not have the right to sell the property, and if they do attempt to sell it, the sale is not valid. This is also the view of <b>RASHI</b> in Kesuvos (103a).
</p><p>
(b) <b>TOSFOS</b> (DH Yesomim) proves at length from several sources that even if the sons sell the estate after the daughters have already taken possession of their share, or after Beis Din has collected it for them, the sale is still valid.
</p><p>
The view of Tosfos is difficult to understand. In general, when Beis Din allows a creditor to collect what is owed to him, the creditor becomes the owner of the property that he collects, and the debtor and his family may not sell it. If they do attempt to sell it, the sale is not valid. How does the daughters' claim to the property differ from that of any other creditor? (<b>KOVETZ SHI'URIM</b>)
</p><p>
1. The <b>SHITAH MEKUBETZES</b> (139b) explains the reasoning of Tosfos that the share that the daughters receive for their support is given to them from Karka (land) and not from Metaltelin. The land, however, is owned by the heirs (the sons) as long as the daughters have not sold it (in order to buy food with the proceeds). Beis Din does not actually appropriate the land and give it to the daughters (unlike the explanation of the Rashbam); rather, Beis Din gives the daughters the right to sell <i>the land that belongs to the sons</i> and thereby obtain money for their support. Therefore, as long as the daughters have not sold the property, it is still in the possession of the sons (and thus if they sell it, the sale is valid, even though they are prohibited from selling it l'Chatchilah).
</p><p>
2. The <b>KOVETZ SHI'URIM</b> explains the reasoning of Tosfos as follows. The daughters do not obtain rights to the property because they do not have an immediate claim to the full sum required for their support throughout the coming years. The sons do not become obligated at the moment of inheritance to provide the daughters with full support until they reach adulthood. Rather, the sons incur a new obligation each day to provide the daughters with their needs for that day, but each day's obligation is limited to that day alone. Therefore, the daughters' claim to the property extends only to the amount needed for their support for that particular day. (According to this explanation, if the sons sell the property of 'Nechasim Mu'atim,' then they are obligated to pay to the daughters the support for the day on which Beis Din ruled that they must give support, because the daughters already acquired the property needed for that day's support. The Kovetz Shi'urim's approach is unlike that of the Shitah Mekubetzes, who says that the daughters do not acquire any ownership over the property. The Kovetz Shi'urim understands that they do acquire ownership over the property but only for the amount of that day's support.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE ACQUIRE FOR A FETUS?</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'> 131a (Rav Papa):</font></b> Even R. Meir says only that one can
               be Makneh (transfer ownership to) Davar she'Lo Ba
               l'Olam (something not here now), but he must be <i>to</i>
               Davar she'Ba l'Olam!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 140b (Mishnah):</font></b> If one said 'if my wife will give
               birth to a male, he should receive 100 Zuz', we
               fulfill his words;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 141b (Rav Huna):</font></b> If one told his pregnant wife 'my
               property is to the one inside you', a Kinyan on
               behalf of a fetus is invalid.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Rav Nachman - Mishnah):</font></b> If one said 'if my 
               wife will give birth to a male, he should receive
               100 Zuz', we fulfill his words.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Huna:</font></b> I cannot explain our Mishnah. I do not
               know a Tana who holds like this!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't he say that the Mishnah is R.
               Yosi?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Yosi):</font></b> A fetus disqualifies
                    slaves (that he will inherit from his father, a
                    Kohen) from eating Terumah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> Inheritance is different than Kinyan, for it
               is automatic.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 142a (Rav Nachman):</font></b> If one acquires on behalf of a
               fetus, the fetus does not acquire. (If the giver
               said) '<i>when</i> she will give birth...', he acquires.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'>(Rav Huna):</font></b> In both cases, the baby does not acquire.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> In both cases, the baby acquires.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 142b (R. Yochanan):</font></b> If one acquires for a fetus, he
               does not acquire.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says that the fetus acquires!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah discusses a man giving to his
               son. Since he feels great affinity for his son, he
               resolves to give, so the Kinyan works.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> The Halachah is, Zechiyah for a fetus does not
               acquire.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (66a):</font></b> The Halachah is, Zechiyah for a fetus
               does not acquire.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (Yevamos 22b and 7:4):</font></b> The Halachah
               follows Chachamim, who say that a fetus does not
               acquire until it is born.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 22:10):</font></b> Zechiyah for a
               fetus does not acquire. If one acquires for his own
               son, since he feels great affinity for his son, he
               acquires.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Bava Basra 9:5):</font></b> The Halachah follows Rav
               Nachman in monetary laws. If one acquires on behalf
               of a fetus, the fetus does not acquire. (If the
               giver said) 'when she will give birth...', the baby
               acquires. This is if the giver did not die or
               retract until it was born. If he retracted or died,
               and the property fell to the orphans, Rav Nachman
               agrees that he did not acquire. The Kinyan is not
               finished until it is born. This is when he did not
               acquire through Kinyan Sudar (Chalipin with a
               garment), for when it is born, the Sudar returned to
               its owner (and the Kinyan lapsed). Also, we do not
               discuss Chazakah. Rather, Meshichah was done, and it
               is still in the Reshus of the Zocheh (the one who
               acquired for it) when he is born, or in the swamp,
               or land was given through a document and the Zocheh
               has the document when he is born.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> When the giver is healthy or a
                    Shechiv Mera, the fetus acquires only if he
                    said 'when it will be born.' However, if one
                    sold dates that will grow or a calf that will
                    be born, (Ri; perhaps this should say 'Rav
                    Nachman') holds that the seller can retract,
                    for it is harder to be Makneh Davar she'Lo Ba
                    l'Olam than <i>to</i> Davar she'Lo Ba l'Olam,
                    opposite to Rav Huna. The Rashbam holds that
                    Rav Nachman holds that regarding this, a fetus
                    is like Davar she'Ba l'Olam.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (Bava Basra 9:6):</font></b> The Halachah follows Rav
               Nachman in monetary laws. Zechiyah for a fetus does
               not acquire, but inheritance, which is automatic,
               acquires.
<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 210:1):</font></b> One cannot be Makneh to
               something not in the world. Therefore, if one was
               acquired for another's fetus, it did not acquire,
               even if he said 'it should acquire when it will be
               born.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH k'Shem):</font></b> The Rashbam explains
                    that Rav Nachman holds that if he said 'when it
                    will be born', since there is no Kinyan until
                    it is born, this is not like Zechiyah for a
                    fetus (which does not acquire). We conclude
                    that Zechiyah for a fetus does not acquire. We
                    must investigate whether we rule like R.
                    Yochanan, or like Rav Nachman. If it is like
                    Rav Nachman, when he says 'when it will be
                    born', he acquires. The Rosh and R. Yerucham
                    rule like Rav Nachman. The Rif and Rambam did
                    not mention Rav Nachman. Theh hold that we
                    conclude that Zechiyah for a fetus does not
                    acquire because R. Yochanan says so, not
                    because Rav Nachman says so. R. Yochanan did
                    not mention that if he said 'when it will be
                    born', he acquires. This shows that he does not
                    distinguish, so also we do not distinguish. The
                    Ran proves this from R. Yochanan's need to say
                    that the Mishnah is because one feels great
                    affinity for his son. He did not say that the
                    case is, he said 'when it will be born'! This
                    is not a proof. Perhaps R. Yochanan holds that
                    regarding his son, he acquires; the Mishnah
                    discusses his son! The Rashbam holds like this.
                    He says that the Halachah follows R. Yochanan,
                    and if one acquires for a fetus that is not
                    his, he does not acquire.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (2):</font></b> The Shulchan Aruch rules like R.
                    Yochanan. The Gemara (131a and Gitin 13b) says
                    that even R. Meir says only that one can be
                    Makneh Davar she'Lo Ba l'Olam, but he must be
                    <i>to</i> Davar she'Ba l'Olam. Tosfos (13b DH
                    l'Davar) says that this is like Rav Huna; Rav
                    Nachman says oppositely! The Rashbam rules like
                    Rav Nachman, for he holds that a fetus is like
                    Davar she'Ba l'Olam.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (1):</font></b> This is like Davar she'Lo Ba l'Olam,
                    so he can retract even after the baby was born.
                    The opposing opinion in the Rema holds that
                    Adam Makneh Davar she'Lo Ba l'Olam. If one was
                    Makneh Davar she'Lo Ba l'Olam, we do not take
                    from one who seized. It seems that the same
                    applies here.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Taz):</font></b> The opposing opinion is the
                    Rosh, who rules like Rav Nachman, that when he
                    said 'when it will be born', he acquires. The
                    Tur (212:9) brings from the Rosh (Bava Kama
                    4:3) that if one said 'when I get this debt, it
                    will be Tzedakah', he is obligated <i>due to the
                    power of Tzedakah</i>. This implies that for
                    commoners, Ein Adam Makneh Davar she'Lo Ba
                    l'Olam! We must resolve Rav Nachman, for
                    regarding dates that will grow, he allows
                    retracting even after they grew! We must say
                    like the Rashbam, that regarding his son it is
                    as if it is already in the world. Also, the
                    property is in the world.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is unlike those who say that if the giver
               did not die or retract until he was born, he
               acquires. I.e. if he acquired through Meshichah, and
               it is still in the Reshus of the Zocheh (the one who
               acquired for it) when he is born, he acquires if the
               giver said 'when it will be born.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (4):</font></b> Rav Huna holds that when one acquires
                    Davar she'Lo Ba l'Olam, he can retract before
                    it comes. Tosfos (Yevamos 93b DH v'Rav) says
                    that Rav Nachman holds about <i>l</i>'Davar she'Lo
                    Ba l'Olam like Rav Huna says about Davar she'Lo
                    Ba l'Olam.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Tumim (61:1, cited by Gilyon R. Akiva Eiger):
                    The Rosh rules like Rav Nachman. Therefore,
                    since we hold that one can give a lien on Davar
                    she'Lo Ba l'Olam, all the more so one can give
                    a lien <i>to</i> Davar she'Lo Ba l'Olam. The Rashba
                    rules like Rav Huna, therefore, one can give a
                    lien only to one who was born already.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (DH u'Mah):</font></b> Even if he made a fence and
                    the fence is still standing when the baby is
                    born, since the Kinyan did not take effect when
                    he made the fence, later it does not take
                    effect retroactively.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A FETUS INHERIT? </b></b>(</font><font color='blue'>


