# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question #2:</font></b> If the husband accepted to feed his wife's
          daughter, does it enter the calculation?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question #3:</font></b> If the widow is also fed from the estate,
          does it enter the calculation? (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If there is not enough food to feed the widow
          and the daughter, which has precedence?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (to this last question - R. Avahu):</font></b> A widow with
          respect to a daughter is like a daughter with respect to
          a son: if there is little property, the daughters are fed
          and the sons beg;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Likewise, the widow is fed and the daughter begs
               for her food.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHY DO SONS LOSE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Admon says, why should I lose, because I am
          a male?!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this mean?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Because I am a male, and it is
          proper that I learn Torah, should I lose?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> Will you say that only one who learns
          Torah should inherit?!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Rather, because I am a male and I
          inherit when there is much property, should I lose when
          there is little property?!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW A TUMTUM INHERITS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man died, and left sons, daughters, and
          a Tumtum (one whose genitals are covered; we do not know
          his or her gender), if there is much property, the Tumtum
          does not inherit. The boys say 'you are with the girls';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If there is little property, the Tumtum is not
               fed (with the girls). They say 'you are with the
               boys'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Levi (a Shechiv Mera, or he is healthy and he asked
          someone else to acquire on behalf of his child to be
          born) 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'>1.  </font></b></b> If he said 'if she will give birth to a female,
               she should receive 200', we fulfill this;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'if she will give birth to a male, he
               should receive 100. If she will give birth to a
               female, she should receive 200', if she gave birth
               to both, each receives like the stipulation;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If she gave birth to a Tumtum, he does not
                    receive.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If he said 'whatever she will give birth
                    to, the baby should receive', even a Tumtum
                    receives.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If there are no other children, a Tumtum inherits
               his parents.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> (If there is much property,) the
          Tumtum does not inherit. The boys say 'you are with the
          girls', and he is fed like a girl.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Contradiction (Seifa):</font></b> If she gave birth to a Tumtum,
          he does not receive (because a Tumtum is neither male nor
          female)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The boys say 'you are with the
          girls', but the Tumtum does not receive like a girl.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Indeed, the Tumtum is fed like a
          girl;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa is like R. Shimon ben Gamliel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> (An animal was about to give birth for
               the first time. The owner said 'if the fetus inside
               is a male, it is an Olah. If it is a female, it is a
               Shelamim.') If it gave birth to a Tumtum or
               Androginus, it has no Kedushah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beriasa):</font></b> A Tumtum inherits like a son and is
          fed like a daughter.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not difficult for Rava. A Tumtum inherits
               like a son when there is little property, and he is
               fed like a daughter when there is much property.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Abaye, he is never fed like a
               daughter!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question:</font></b> Even according to Rava, what
               does it mean 'a Tumtum inherits like a son'? (This
               implies even a large amount. According to Rava, he
               never receives more than the cost of food until
               Bagrus!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that it means that he
               <i>should</i> inherit like a son, but he does not;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Also here, he <i>should</i> be fed like a daughter,
          but he is not.
<br>

sjt:
</p><p>
<font><b>2) WHY ARE MALES BETTER</b></font><b>
<br>QUESTION:</b> In the Mishnah (139b), Admon disputes the ruling of the Tana Kama who says that in a case of 'Nechasim Mu'atim,' the daughters receive support and the sons receive nothing (if there is nothing leftover after the daughters are given their support). Admon says, 'Because I am a male, I lose out?' The Gemara asks why Admon reasons that a male should take precedence over a female. Abaye suggests that a male should take precedence because he is fit to toil in Torah, while a woman is not commanded to learn Torah. Rava challenges this and says that if a man should take precedence because he learns Torah, then if a deceased man has two sons, one of whom learns Torah and one of whom does not, the one who learns Torah should inherit the entire estate, and the one who does not learn Torah should receive nothing.
</p><p>
What is Rava's question? Perhaps it is true that in such a case, the son who learns Torah inherits the entire estate, and the son who does not learn Torah does not receive anything. Indeed, the Gemara itself (141a) cites a Beraisa that says that it is a Mitzvah for a father to support his daughters and certainly (Kal va'Chomer) to support his sons, because they learn Torah. Why does Rava assume that a son who does not learn Torah inherits equally with a son who does learn Torah? (<b>TOSFOS</b> DH Ela)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that the case of the Beraisa later is different. That Beraisa discusses the Mitzvah for a man to support his children. The Mitzvah to support children is only a proper deed and <i>not</i> an obligation. The fact that sons learn Torah can be used to prove that there it is proper to support them before other sons. With regard to a Torah obligation such as inheritance, however, the fact that certain sons learn Torah <i>cannot</i> be grounds to give them precedence over other sons who do not learn Torah.
</p><p>
(b) <b>TOSFOS</b> in Kesuvos (108b, DH Amar Rava; see <b>MAHARSHAL</b> and <b>MAHARSHA</b> there) answers further that when the Beraisa says that it is a Mitzvah to support one's daughters and certainly to support one's sons, it refers to young sons (Ketanim) who are all potentially fit to toil in Torah. There is no reason to differentiate between sons who learn Torah and sons who do not, since they all might grow up to learn Torah. Accordingly, there indeed is a difference between sons who learn Torah and sons who do not, but in the case of the Beraisa, they are all considered like sons who learn Torah. The case of the Gemara here, however, refers to adult sons. Rava asks that according to Abaye, Admon's dispute should apply only in the case of sons who learn Torah. Admon would agree that sons who do not learn Torah have no advantage over daughters (on the contrary, he would maintain that the daughters should precede the sons in such a case). Rava maintains that it is not logical to understand that Admon's question applies only to sons who learn Torah, because Admon's words do not imply such a distinction.
</p><p>
(c) The <b>SHITAH MEKUBETZES</b> in Kesuvos (108b) explains that Rava questions Abaye's implication that sons who do not learn Torah should not inherit any of their father's estate. Rava agrees that a son who learns Torah is <i>preferable</i> to a son who does not learn Torah (or to a daughter) with regard to a Mitzvah to support them. He argues, however, that it is <i>not</i> a reason to completely deprive the sons who do not learn Torah of their share of the inheritance. (I. Alsheich)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>GIFTS TO SONS AND DAUGHTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man said 'if my wife will give birth...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Inference:</font></b> A man prefers daughters to sons (he gives
          more to a daughter)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan taught that Hash-m hates one who
          dies without a son to inherit him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says '<i>v'Ha'avartem</i> Es Nachalso l'Vito',
               which is similar to 'Yom Evrah (Gehinom)'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Regarding inheritance, a son is better (the
          property is called by the father's name and stays inside
          his tribe);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When giving a gift, men give more to daughters
               (it is abnormal for them to beg for food).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> The Mishnah discusses a man about
          to have his first child.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> If the first child is a daughter,
               it is a good sign.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #1:</font></b> This is because she helps raise
               future children.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2:</font></b> This is because there is no Ayin
               ha'Ra'ah (jealousy. A male firstborn receives a
               double portion. This arouses Ayin ha'Ra'ah.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> I prefer daughters.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3:</font></b> R. Yehudah taught our Mishnah (we now
          explain this).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> From which teaching of R. Yehudah do we see
          that a man prefers (giving money to) daughters?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion (Beraisa - R. Meir):</font></b> 'Va'Shem Berach
               Es Avraham ba'Kol' - he did not have a daughter;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehudah says, this teaches that he had a
                    daughter named 'Bakol'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Yehudah teaches that Hash-m gave
               Avraham everything. This does not show that a
               daughter is preferable to a son!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Meir):</font></b> It is a Mitzvah to feed
          daughters, and all the more so to feed sons;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is because sons learn Torah;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Yehudah says, it is a Mitzvah to feed sons, and all
          the more so daughters.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is so they will not be disgraced.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If she gave birth to a male and female, he
          receives 150 (silver Zuzim, which is six gold Dinarim),
          and she receives 50 Zuz.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The father stipulated about twins,
          and made it contingent on which would be born first;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He said 'if she will give birth to a male then to
               a female, he should receive 200, and she receives
               nothing. if she will give birth to a female then to
               a male, they will receive 100 each.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> She gave birth to both, and we do not know which
               was first. In any case, the son receives at least
               100;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We are in doubt about who receives the other 100,
                    therefore they divide it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If she gave birth to a male and a female, he
          only receives 100.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Ravina):</font></b> He stipulated to pay the first person
          to inform him about his first child.
<br>
<br>

sjt:
<font><b>1) A PERSON WHO LEAVES NO SONS TO INHERIT HIM</b></font><b>
<br>OPINIONS:</b> Rebbi Yochanan says in the name of Raban Shimon bar Yochai that Hash-m becomes 'filled with anger upon' a person who does not leave a son to inherit him. What is the meaning of this statement?
</p><p>
(a) The <b>YAD RAMAH</b> (116a) writes that this occurs only when the person did not attempt to fulfill the Mitzvah of Piryah v'Rivyah. If, however, he did attempt to fulfill the Mitzvah but was unable to do so as a result of circumstances beyond his control, then Hash-m does <i>not</i> become angry with him.
</p><p>
(b) The <b>RASHASH</b> explains that Hash-m becomes angry at a person who has a son but chooses to give all of his possessions as a gift to his daughter so that his son will not inherit them.
</p><p>
(c) The <b>KOVETZ SHI'URIM</b> (#480) explains that when a person has no sons, it is not a <i>reason</i> for Hash-m to become angry him, since it is beyond his control. Rather, when a person has no sons, it is a <i>sign</i> that Hash-m is angry with him for some other reason, and Hash-m therefore has not granted him a son. (I. Alsheich)
</p><p>


<font><b>2) HAVING NO SONS</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan says in the name of Raban Shimon bar Yochai that Hash-m becomes 'filled with anger upon' a person who does not leave a son to inherit him. However, the Gemara earlier (116a) relates that Rebbi Yochanan himself would comfort mourners who had lost children by showing them the tooth or bone (see Background to the Daf there) of his tenth son who died. If Rebbi Yochanan maintains that a person who does not leave any sons is subject to Hashem's anger, then why did he publicize the fact that he himself left no sons? A lack of sons is indicative of wrongdoing (see previous Insight), and, as the Rashbam writes earlier, a person is supposed to be ashamed of his sins and hide them from others, as the verse states, 'Praiseworthy is the one who bears his iniquity, who hides his sin' (Tehilim 32:1).
</p><p>
Indeed, the Gemara there already questions Rebbi Yochanan's actions from a different statement of his. The Gemara asks how Rebbi Yochanan could comfort mourners by showing them that he had lost all of his sons, when Rebbi Yochanan himself states that the verse, 'Asher Ein Chalifos Lamo...' (Tehilim 55:20), refers to a person who leaves no sons after him. Why, though, does the Gemara there not raise a difficulty from the statement that Rebbi Yochanan quotes here in the name of Raban Shimon bar Yochai? How could Rebbi Yochanan say that Hash-m is filled with anger against a person who leaves no sons to inherit him, when Rebbi Yochanan himself would publicize the fact that he left no sons?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHASH</b> explains, based on his approach to the meaning of Rebbi Yochanan's statement in the name of Raban Shimon bar Yochai (see (b) of previous Insight), that in truth Hash-m does <i>not</i> become angry with someone who has no sons at all. He becomes angry only with a person who has sons and redirects his inheritance away from them by giving his property as a gift to other people. Accordingly, there is no contradiction in the actions and statements of Rebbi Yochanan.
</p><p>
(b) The <b>RAMBAN</b> (116a) writes that the Gemara earlier resolves its question with the explanation that 'this statement is his, and the other statement is his teacher's.' That is, when Rebbi Yochanan applied the verse, 'Asher Ein Chalifos Lamo,' to a person who leaves no sons, he was expressing his teacher's statement; he, personally, did not agree with that explanation of the verse. Accordingly, the statement that Rebbi Yochanan quotes here in the name of Raban Shimon bar Yochai might also be merely his teacher's opinion, while Rebbi Yochanan himself does not agree. (I. Alsheich)
</p><p>


<font><b>3) DAUGHTERS ARE PREFERABLE</b></font><b>
<br>OPINIONS:</b> The Gemara discusses why a man would prefer a daughter over a son, as the Mishnah (140b) implies. The Gemara suggests that the Mishnah refers to a woman who gives birth to her first child, and it is in accordance with the view of Rav Chisda who says that having a daughter as the first child is a 'Siman Tov,' a 'good sign,' for sons (the Gemara goes on to explain why that is so). Rav Chisda adds, 'And to me, daughters are preferable over sons.'
</p><p>
Why did Rav Chisda personally prefer daughters over sons?
</p><p>
(a) The <b>RASHBAM</b> explains first that Rav Chisda was referring to the first child born to him, consistent with Rav Chisda's own statement that a daughter born first is a good sign. However, the Rashbam immediately rejects this explanation, because Rav Chisda's wording does not imply that he is referring here only to his firstborn child. Instead, the Rashbam explains that none of Rav Chisda's sons survived, and therefore he cherished his daughters. The Rashbam concludes, however, that he is not satisfied with this explanation of Rav Chisda's statement.
</p><p>
(b) <b>TOSFOS</b> also questions the Rashbam's explanation, as the Gemara records that Rav Chisda had many sons, and there is no mention that they died before he died. Among his sons mentioned throughout the Gemara are Rav Nachman bar Rav Chisda, Mar Yenuka and Mar Keshisha, Rav Chanan bar Rav Chisda, Rav Mari, and Rav Pinchas. Tosfos therefore explains that Rav Chisda said that daughters are preferable to him because even though his sons were great Amora'im, his <i>sons-in-law</i>, the husbands of his daughters, were the Gedolei ha'Dor -- Rava, Rami bar Chama, and Mar Ukva bar Chama (as mentioned in Bava Basra 12b and Berachos 44a).
</p><p>
<b>RAV YAKOV EMDEN</b> gives a similar explanation to that of Tosfos, but he adds that at the time that Rav Chisda made this statement, his daughters may have been married already to the Gedolei ha'Dor, while his sons were still young and he did not know yet whether they would achieve such greatness. He also adds that the daughters of Rav Chisda certainly were great and wise women in their own right, as the Gemara in Berachos (56a) implies. The Gemara there relates that Rava told Bar Hedya, the interpreter of dreams, that he could forgive Bar Hedya for all of the hardships that he had caused him except for the death of his wife, the daughter of Rav Chisda.
</p><p>
Rav Yakov Emden writes further (as printed in the new Wagshal edition of the Gemara) that Rav Chisda's sons-in-law were also his students, and thus he considered them to be like his own sons. Therefore, he said that his daughters were preferable to him, because not only were their husbands the Gedolei ha'Dor, but their husbands were like sons to him, since they were his students as well.
</p><p>
(c) <b>REBBI TZADOK HA'KOHEN</b> (in Divrei Sofrim) writes that Rav Chisda already had seven sons who were Talmidei Chachamim, but he did not yet have one daughter. Therefore, he prayed to Hash-m to have a daughter so that he could properly fulfill the Mitzvah of Piryah v'Rivyah, and he prayed for additional daughters because daughters bring propagation to the world (as the Gemara says earlier on 16b; see Insights there). (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A FETUS INHERIT?</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'> 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'>2.  </font></b><font color='darkgreen'>(Rav Huna):</font></b> In both cases, the baby does not acquire.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> In both cases, the baby acquires.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Support (Rav Sheshes for himself - Beraisa):</font></b> If a
               convert died, and Yisre'elim seized his property,
               and they heard that he left a son, or that his wife
               was pregnant, they must return it. If after
               returning it they heard that the son died or that
               the wife miscarried, the first Kinyanim are void.
               The property is Hefker.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a fetus does not acquire, the first Kinyanim
                    should be valid!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection #1 (Abaye):</font></b> Inheritance is different, for
               it is automatic.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection #2 (Rava):</font></b> There, the initial Kinyanim
               were insecure.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> They argue in a case when people heard that he died,
               and later that he had not died, and later (that) he
               really died.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> A one-day old baby inherits and
               bequeaths.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> Less than one day (i.e. a fetus)
                    does not inherit!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> A one-day old baby inherits
               his mother's property to bequeath it to his paternal
               brothers, but a fetus does not.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> This is because the fetus always dies before the
               mother.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 141a - Question (against Rav Huna - Mishnah):</font></b> If a
               man 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'>12. </font></b><font color='darkgreen'> Rav Huna:</font></b> I cannot explain this. No Tana holds like
               this!
<br>        <b>  <b><font color='darkgreen'>13. </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 (a Kohen's son)
                    disqualifies slaves from eating Terumah (for he
                    owns a share of them).
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> Inheritance is different than Kinyan, for it
               is automatic.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Yevamos 67a (Shmuel):</font></b> This is R. Yosi's opinion.
               Chachamim say, if the Kohen left sons, her slaves
               eat due to his sons. If he left no sons, they eat
               due to his brothers. If he left no brothers, they
               eat due to the whole family.
<br>        <b>  <b><font color='darkgreen'>16. </font></b></b> Shmuel taught that Zechiyah for a fetus is valid
               (like R. Yosi).
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> 142b (R. Yochanan):</font></b> If one acquires for a fetus, it
               does not acquire.
<br>        <b>  <b><font color='darkgreen'>18. </font></b></b> The Mishnah says that the fetus acquires, i.e. when
               one gives to his son. Since he feels great affinity
               for his son, he resolves to give.
<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 (Yevamos 22b and 7:4):</font></b> The Halachah
               follows Chachamim of R. Yosi, who say that a fetus
               does not acquire until it is born.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rosh citing Ra'avad):</font></b> We hold like R.
               Yochanan, who says that if one acquires for his son,
               even in the womb, his son acquires, because one
               feels great affinity for his son. The Gemara (141b)
               said that inheritance, which is automatic, works
               better than Zechiyah. If so, all the more so a fetus
               inherits! If so, how can we rule against R. Yosi?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rosh citing Ramban):</font></b> The Halachah follows
               Chachamim against an individual (R. Yosi), even
               regarding inheritance, which is automatic. Even
               Shmuel, who holds like R. Yosi, said 'but Chachamim
               say...' Shmuel holds like R. Yosi because Shmuel
               holds that Zechiyah for a fetus works. The Halachah
               is unlike this, even regarding inheritance. Amora'im
               argued about Zechiyah for a fetus, and Rav Sheshes
               brought a proof from people who seized property of a
               convert who died. Abaye rejected the proof, for
               inheritance, which is automatic, is different. Rava
               rejected it because the initial Kinyanim were
               insecure. Abaye holds that all agree that a fetus
               inherits. Rava holds that Rav Nachman and Rav Huna
               hold that a fetus does not inherit. Had the initial
               Chazakah been solid, and then the Yisre'elim heard
               that he did not die, and he died, according to Rava
               the first Kinyan was valid. The Halachah follows
               Rava. We challenged Rav Sheshes from a Mishnah that
               says that a fetus does not inherit. Rav Sheshes
               answered <i>according to his reasoning</i> that it is
               because the fetus died first. This implies that Rav
               Nachman and Rav Huna hold that a fetus does not
               inherit.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh:</font></b> I say that Rava agrees that inheritance is
               different. Zechiyah does not work because the fetus
               in not in the world, so one does not resolve to
               give, except for to one's son, for whom he feels
               great affinity. If not, why didn't the Amora'im
               argue about whether or not a fetus inherits his
               father?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Korban Nesanel 60):</font></b> Perhaps they
                    argue about Zechiyah to teach the extremity of
                    the opinion that Zechiyah works!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh:</font></b> All Amora'im except for Shmuel hold that
               Chachamim agree that a fetus has Zechiyah. Rav
               Nachman and Rav Huna distinguish between a gift and
               an inheritance, and Rav Sheshes does not. Rava also
               distinguishes; he rejects Rav Sheshes' proof even
               according to Rav Sheshes, who does not distinguish.
               Rav Sheshes held that the Beraisa is even like
               Chachamim. They argue about Terumah, for they are
               not concerned for a minority. (Most fetuses do not
               inherit, for half are females, and some are
               stillborn.) Surely Rava holds like this, for he
               would not try to prove that R. Yosi holds that a
               fetus has no Zechiyah!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 2:18):</font></b> If a convert died,
               and Yisre'elim seized his property, and they heard
               that he did not die yet, or left a son, or that his
               wife was pregnant, they must return it. If after
               returning it they heard that he or his son had
               really died, or that his wife miscarried, the first
               Kinyanim are void. Whoever takes the property
               afterwards keeps it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam holds that later they
                    found out that the wife had miscarried before
                    they seized. Abaye and Rava argue about when
                    people heard that the fetus died, seized
                    property, and it turned out that the fetus died
                    only after they seized. According to Rava,
                    since they heard that she miscarried, and the
                    fetus has no Zechiyah, the first Kinyanim were
                    valid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Lechem Mishneh:</font></b> According to Rava, why must
                    they return? The fetus does not acquire, even
                    if it was born later! Why didn't the Rambam
                    bring the difference between Abaye and Rava?
                    Rava holds that Zechiyah for a fetus 'when it
                    will be born' works. He merely dispels Rav
                    Sheshes' proof that Zechiyah works even without
                    saying 'when it will be born'.
<br>       <b>   <b><font color='darkgreen'>7.  </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. The Rambam rules like R. Yosi, that a
               fetus inherits.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Beis Yosef CM 210 DH v'Chosav):</font></b> What
                    is the source that the Rambam rules like R.
                    Yosi? In Hilchos Terumos (8:4), he says that a
                    Chalal does not disqualify slaves, like
                    Chachamim!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos ha'Bach (6):</font></b> The text of the Rosh
                    should say 'the <i>Rivam</i> rules like R. Yosi.
<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 275:30):</font></b> If a convert died, and
               Yisre'elim seized his property, and they heard that
               he did not die yet, or left a son, or that his wife
               was pregnant, they must return it. If after
               returning it they heard that he or his son had
               really died, or that his wife miscarried, the first
               Kinyanim are void. Whoever takes the property
               afterwards keeps it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Ger):</font></b> The Rashbam explains that
                    the convert (or his son or the fetus) died
                    after the Yisre'elim returned the property. The
                    Rambam explains like the Tur, that after they
                    returned they heard that he had already died.
                    When they heard about the mistake, they
                    withdrew from the property and their Chazakah
                    was uprooted.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (29):</font></b> The Rambam explains that at the end,
                    they heard that the first report was true.
                    Abaye holds that they acquired only if there
                    was no child or fetus. The Beraisa discusses
                    when they heard that the convert had not died.
                    (This is the Rambam's text, unlike our text
                    which says that the son or fetus had not died.)
                    The same applies in the other clauses if they
                    heard that the son or fetus had not died.
                    Hagahos Ashri says that Rivam (and the Rambam)
                    rule like Abaye. Why didn't the Rambam explain
                    the difference between Abaye and Rava? Really,
                    they do not argue. The Gemara needed to say
                    that the fetus always dies before the mother,
                    for otherwise the fetus would inherit. One
                    could reject this and say that Rav Sheshes said
                    so (but we need not say so according to other
                    Amora'im).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE ACQUIRE FOR A FETUS? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 - our text - (Beraisa):</font></b> If one said
               'the first person who will tell me that my wife gave
               birth to a male, I will give to him 100', if she
               gave birth to a male, the informer receives 100;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'the first who will tell me that she
               gave birth to a female, I will give to him 100', if
               she gave birth to a female, he receives 100;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2 - Rashbam - (Beraisa):</font></b> If one said
               'the first person who will tell me that my wife gave
               birth to a male, or who will tell me that she gave
               birth to a female, I will give to him 100', and she
               gave birth to a male or female, the informer
               receives 100; (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If she gave birth to a male and female, he only
               receives 100.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> He did not promise to give anything in
               this case!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he said also '...or who will
               tell me that she gave birth to a male and female, I
               will give to him 100'.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> In any case, the informer receives 100.
               Why didn't he say 'whoever tells me the gender of my
               first child(ren) will receive 100'? (Why did he
               specify the different cases?)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> He excludes a Nafel (stillborn baby. In
               this case, the informer receives nothing).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A KINYAN ON BEHALF OF A FETUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A man told his pregnant wife 'my property is to the
          child you are carrying.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> A Kinyan on behalf of a fetus is invalid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Nachman - Mishnah):</font></b> If a man 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'>(d)</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'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that the Mishnah is R.
          Meir, who says that one can transfer ownership of
          something that is not yet in the world?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Meir said that one can transfer ownership of
          something that is not yet in the world to someone who is
          already in the world. He never discussed giving <i>to</i>
          something not yet in the world.
<br> <b>    <b><font color='darkgreen'>(g)</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'>1.  </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. He does not permit his mother to eat
               Terumah. (Until he is born, he is not considered a 
               Kohen. The first law teaches that a fetus already
               owns what he will inherit!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Inheritance is different than Kinyan, for it
          happens automatically.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that the Mishnah is R.
          Yochanan ben Brokah, who says that a man can transfer
          inheritance in an expression of inheritance or gift?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yochanan ben Brokah):</font></b> (If Reuven
               said 'Ploni will inherit me',) it takes effect if
               Ploni could inherit him. Our Mishnah did not specify
               how the fetus should receive the money. Since the
               fetus will inherit him, presumably, it should be
               like an inheritance!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan ben Brokah said that one can
          transfer inheritance to someone already in the world. He
          never discussed giving to someone not yet in the world.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that the Mishnah is R.
          Yochanan ben Brokah, and he holds like R. Yosi (that a
          fetus inherits)?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> We have no source to say that he holds like R.
          Yosi.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that the case is that he
          stipulated to pay the first person to inform him about
          his first child?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Seifa):</font></b> If (she gave birth to a Tumtum and)
          there are no other heirs, he inherits everything.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Clearly, the Mishnah does not discuss an
               informer!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that the Mishnah discusses
          when he gave the gift after his child was born (before he
          heard its gender)?
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (Mishnah):</font></b> If he said 'whatever she will give
          birth to...'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the baby was already born, it should say
               'whatever she <i>gave</i> birth to...'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that the Mishnah discusses
          one who said '<i>when</i> she will give birth, the baby will
          receive...'
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Huna holds that even if one says '<i>when</i>
          she will give birth...', the baby does not acquire.
<br>

<p>

sjt:
</p><p>
<font><b>4) WHEN A GIFT OF A 'SHECHIV MERA' DOES NOT TAKE EFFECT</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a man said to his pregnant wife, 'My property is hereby given to the fetus you are carrying.' Rav Huna ruled that the gift was invalid because a fetus cannot acquire property (since it is not considered to have come into the world yet).
</p><p>
It is clear from the continuation of the Gemara that the case under discussion is a case of a gift given by a Shechiv Mera, a dying man. Even though the instructions of a Shechiv Mera are binding as if they are written in a Shtar, here the Shechiv Mera's gift does not take effect. <b>TOSFOS</b> points out that even if a healthy man attempts to grant ownership to a fetus and performs a Kinyan to commit himself to give the gift, the gift does not take effect.
</p><p>
Why, though, does the gift of a Shechiv Mera not take effect in this case? The Gemara later (148a) says that a Shechiv Mera's gift takes effect even in a case in which a healthy person cannot give a gift even if he performs a Kinyan. The Gemara there discusses a case of a person who wants to transfer ownership of a debt to another person. The Gemara states that if a Shechiv Mera gives a debt (that is, the right to collect it from the debtor) to another person, the recipient acquires it, even though a healthy person cannot transfer a debt to someone else even if he makes a Kinyan. (A debt is an intangible entity which cannot be transferred to a different owner; the ownership of a debt can be transferred only when it is written in a Shtar and the Shtar is given to the recipient, or when the debt is transferred through the rabbinical instrument of 'Ma'amad Sheloshtan'). The Gemara here, however, says that because a healthy person cannot transfer the ownership of a gift to an unborn fetus even with a Kinyan, a Shechiv Mera also cannot transfer the ownership through the enactment of Matnas Shechiv Mera. This seems to be in contradiction to the statement of the other Gemara.
</p><p>
<b>TOSFOS</b> writes that the cases are different and cannot be compared, but he does not write why they are different. What is the difference between the case of the Gemara here and the case of the Gemara later (148a)?
</p><p>
<b>ANSWER:</b> The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Zechiyah u'Matanah 9:13) writes that in the Gemara later, Rav Papa says that a Shechiv Mera is able to transfer the ownership of a loan 'because it is inherited by his heirs.' The <b>RASHBAM</b> there explains that the Gemara later (149a) says that the Rabanan made a Matnas Shechiv Mera work like an inheritance, and therefore it can be used to transfer the ownership of a loan, since when a man dies his heirs inherit any loans owed to him.
</p><p>
This added efficacy of a Matnas Shechiv Mera, however, applies only to a case such as a loan. In general, a loan cannot be transferred to another person because the loan itself is not an object whose ownership can be transferred. A loan <i>can</i> be inherited, however, and it therefore can be given to someone else through a Matnas Shechiv Mera. In contrast, when the object itself is subject to acquisition but the recipient of the Kinyan is not fit to acquire it (as in the case here, in which the recipient does not yet exist and thus he cannot be Koneh), the mechanism of Matnas Shechiv Mera cannot make the Kinyan any more effective. The added efficacy of a Matnas Shechiv Mera has no bearing on the fact that the intended recipient cannot inherit or be Koneh the object.
</p><p>
(<b>RAV SHMUEL ROZOVSKY</b> zt'l explains (in <b>SHI'UREI REB SHMUEL</b>, Gitin 14:2, #278) that when the Rabanan enacted that a Matnas Shechiv Mera works like Yerushah, they did not give the recipient the status of a Yoresh. Rather, they decreed that the manner in which the transfer of ownership works would be similar to that of Yerushah. Consequently, when the recipient is able to be Koneh, the Rabanan made the transfer of ownership work like Yerushah, but when the recipient is not able to be Koneh, such as in the case of a fetus, the fetus cannot acquire the object because a fetus cannot be Koneh anything, regardless of the way the transfer of ownership works.) (See <b>SHI'UREI REB SHMUEL</b> there for an alternative approach.) (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>KINYAN ON BEHALF OF A FETUS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If one acquires on behalf of a fetus,
          the fetus does not acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the giver said '<i>when</i> she will give
               birth...', the baby acquires.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> Even if he said '<i>when</i> she will give
          birth...', the baby does not acquire.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> In both cases, the baby acquires.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Rav Sheshes for himself - Beraisa):</font></b> If a
          convert died, and Yisre'elim grabbed his property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If they heard that he left a son, or that his
               wife was pregnant, they must return it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If after they returned it, they heard that the
               son died or that the wife miscarried, the first
               Kinyanim are void. What anyone takes now, he keeps.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If a fetus did not acquire, the first Kinyanim
               would be valid (even after they heard that his wife
               was pregnant)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection #1 (Abaye):</font></b> Inheritance is different, for it
          happens automatically.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection #2 (Rava):</font></b> There, the initial Kinyanim were
          invalid (because they did not know whether or not there
          were heirs).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the difference between Abaye and
          Rava?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> They argue in a case when people heard that the
          fetus died, grabbed property, and it turned out that the
          fetus died only after they grabbed, and others grabbed
          property after the fetus (truly) died. (According to
          Rava, the first people acquire, for they were sure that
          there were no heirs. According to Abaye, the second
          people acquire.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES A FETUS INHERIT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (against Rav Sheshes - Mishnah):</font></b> A one-day old
          baby inherits and bequeaths.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> Less than one day (i.e. a fetus) does
               not inherit!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Sheshes):</font></b> A one-day old baby inherits
          his mother's property to bequeath it to his paternal
          brothers, but a fetus does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why not?
<br>
<br>

sjt:
<font><b>1) GIVING OWNERSHIP TO A FETUS</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a man said to his pregnant wife, 'My property is hereby given to the fetus you are carrying.' Rav Huna ruled that the gift was invalid because a fetus cannot acquire property (since it is not considered to have come into the world yet). The Gemara challenges Rav Huna's ruling from the Mishnah (140b) which implies that a fetus <i>can</i> acquire ownership of a gift. Rav Huna answers that he found no Tana who could be the author of the Mishnah (and thus it presumably is mistaken). The Gemara suggests several ways in which Rav Huna could explain the Mishnah, but it refutes them.
</p><p>
The Gemara then quotes the Seifa of the Mishnah which states that when a man says, 'Whatever my wife will give birth to (a boy, girl, or Tumtum) shall receive a Maneh,' the gift takes effect and the child receives a Maneh when born. The Gemara suggests that the Seifa may refer to a case in which the father says, 'l'cheshe'Teled' -- for when she gives birth. That is, his intention is not to give the Maneh to the fetus immediately, but rather after the child is born. If the Mishnah may be understood in this way, then it does <i>not</i> imply that a fetus can be Koneh.
</p><p>
The Gemara answers that Rav Huna cannot explain the Mishnah in this way, because Rav Huna himself says that even such a Kinyan does not work, since <i>at the time</i> that the man makes the Kinyan (and says that the gift should be given to the child after the child is born), the fetus is not fit to acquire it and thus the gift does not take effect.
</p><p>
Rav Nachman, however, disagrees and says that a gift given with the stipulation of 'l'cheshe'Teled' <i>does</i> take effect. The <b>RASHBAM</b> (DH l'cheshe'Teled Kanah) points out that even though Rav Nachman himself maintains that a person <i>cannot</i> be Makneh a 'Davar she'Lo Ba l'Olam,' here Rav Nachman agrees that the Kinyan works because both the object exists and the fetus exists. The one who gives the gift, though, must phrase the gift in the appropriate way ('l'cheshe'Teled') so that it refers to when the fetus is <i>completely fit</i> to acquire ownership (i.e. after it is born).
</p><p>
Why, though, must he phrase the gift in such a manner? If the fetus is considered in existence already, then it should be able to be Koneh the gift immediately. It must be that even though the fetus is in existence, it lacks the ability to acquire ownership, to be Koneh. However, if the fetus cannot be Koneh immediately for this reason, then why should it be Koneh later, when it is born? At the time that the statement of the gift is made, the fetus is not fit to be Koneh. This should be comparable to a case in which a man says to a woman (who is married to a different man) that he is Mekadesh her for after she gets divorced. In such a case, even though the woman is 'in the world,' she does not become Mekudeshes to him after her divorce, because at the time of his statement she is not fit to become Mekudeshes to him. Why, then, is the case of a fetus different? (<b>KOVETZ SHI'URIM</b>)
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> answers that in the case of a woman who is presently married, the Kidushin to a different man cannot take effect because there is an essential action that is missing ('Mechusar Ma'aseh') -- the act of Gerushin, divorce, from the present husband. Therefore, the Kidushin that a second man gives her cannot take effect later, because an essential act has not been done. In the case of a fetus, though, there is no essential act missing; rather, the only thing that must take place is the child's birth, and the birth is something that inevitably will occur with the passage of time. Therefore, a person <i>can</i> be Makneh a gift to a fetus for after it is born. (See Kovetz Shi'urim for a question on this approach. See also <b>CHIDUSHEI HA'GAON RABEINU CHAIM</b>, Hilchos Ishus 7:16, and <b>KETZOS HA'CHOSHEN</b> 210:2.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A NEFEL INHERIT?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav 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'>2.  </font></b><font color='darkgreen'>(Rav Sheshes):</font></b> In both cases, the baby acquires.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Support (Rav Sheshes for himself - Beraisa):</font></b> If a
               convert died, and Yisre'elim seized his property,
               and they heard that he left a son, or that his wife
               was pregnant, they must return it. If after
               returning it they heard that the son died or that
               the wife miscarried, the first Kinyanim are void.
               The property is Hefker.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a fetus does not acquire, the first Kinyanim
                    should be valid!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection #1 (Abaye):</font></b> Inheritance is different, for
               it is automatic.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection #2 (Rava):</font></b> There, the initial Kinyanim
               were insecure (the people did not know whether or
               not there were heirs).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> A one-day old baby inherits and
               bequeaths.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> Less than one day (i.e. a fetus)
                    does not inherit!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> A one-day old baby inherits
               his mother's property to bequeath it to his paternal
               brothers, but a fetus does not.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> This is because the fetus always dies before the
               mother. A dead son does not inherit his mother to
               pass the property to his paternal brothers.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Nidah 43b:</font></b> A one-day old obligates his brother's
               widow to do Yibum (or Chalitzah), he exempts his
               mother from Yibum... he permits to eat (Terumah) and
               forbids to eat, he inherits and bequeaths...
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 44a (Rav Sheshes):</font></b> The Mishnah discusses a Kohen
               with children from a permitted wife, and a child (a
               Chalal) from a forbidden wife. The Kohen died,
               leaving slaves to his children. The Chalal inherits
               a share in the slaves, and he forbids them to eat
               Terumah. Our Tana argues with R. Yosi, who says that
               even a fetus (partially owns the slaves, and)
               forbids.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Yevamos 67a (Mishnah - R. Yosi):</font></b> If a Bas Yisrael
               was widowed from a Kohen and she was pregnant, her
               slaves do not eat Terumah because the fetus owns
               part of them. A fetus forbids eating, but does not
               permit;
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Chachamim:</font></b> If so, this should apply even if she is a
               Bas Kohen!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> If he left sons, her slaves
               eat.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> He is not concerned for the minority (that the fetus
               is a viable male).
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Kesuvos 38b - Question (Rava):</font></b> If a Na'arah died,
               does she become a Bogeres in the grave (six months
               after she became a Na'arah)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If she became a Bogeres, if a fine was owed to
                    her, she gets it and her child inherits it. If
                    she didn't become a Bogeres, her father gets
                    it.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Question:</font></b> She cannot become pregnant (and give birth
               before becoming a Bogeres)!
<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 (56a and 8:18):</font></b> A fetus does not
               inherit its mother's property to bequeath it to his
               paternal brothers, for it dies before the mother.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 1:13):</font></b> If the mother died,
               and afterwards her son died, even if he died the day
               he was born and he was premature, since he lived for
               a moment, he inherits his mother and bequeaths to
               his paternal heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> This is wrong. He bequeaths
                    only if he was born after a full term
                    pregnancy. If not, his heir is Safek, and the
                    baby's maternal brothers are Vadai, and a Safek
                    cannot take from a Vadai.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> Perhaps the Rambam learns from
                    the Gemara, which says that a fetus does not
                    inherit. He infers that a born baby inherits,
                    even if it was premature. This not a proof;
                    this requires investigation.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magid Mishneh (Hilchos Yibum 1:5):</font></b> The Rambam
                    discusses when the Simanim were finished.
<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 276:5):</font></b> If the mother died, and
               afterwards her son died, even if he died the day he
               was born and he was premature, since he lived for a
               moment, he inherits his mother and bequeaths to his
               paternal heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Be'er ha'Golah (50):</font></b> The Rambam says that this
                    is even if he was premature. It seems that the
                    Shulchan Aruch omitted this, for he holds like
                    the Ra'avad. Still, he should have made this
                    clear!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is only if he was born. A fetus does not
               inherit his mother, who died while pregnant, to
               bequeath to his paternal heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> If the mother was killed, or the fetus
                    began to leave, it can live after the mother
                    dies. There is such a case in which a fetus
                    inherits. The Mishnah taught that a baby
                    inherits, for this is Pesika (always true).
                    Tosfos says so. The Ir Shushan says that in
                    every case it is a Nefel. This is wrong. The
                    Rambam says that even if he was premature, if
                    he lived for a moment, he inherits and
                    bequeaths. The Magid Mishneh says that this is
                    when his Simanim were finished,. If so, the
                    same applies to a fetus.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (8):</font></b> It is not Pesika that a born baby
                    inherits! Tosfos (Nidah 44b DH Ha) says that he
                    inherits only if he lived 30 days according to
                    Chachamim, or if we know that the pregnancy was
                    full term according to R. Shimon ben Gamliel!
                    This is when it died through an accident, but
                    if it yawned and died, all agree that it is a
                    Nefel! The Tur wrote Stam, like the Rosh, for
                    he saw that the Rambam connotes that a one day
                    old inherits even if it yawned and died. I say
                    that one cannot take property from a Muchzak.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chasam Sofer (EH 2 161):</font></b> The Bach holds like
                    the Ran, that even if the baby fell sick and
                    died, it is considered a Nefel. The Pri Megadim
                    toiled to explain the Shulchan Aruch simply,
                    that <i>any</i> one-day old inherits, for we follow
                    the majority of women, who deliver viable
                    babies. It is stronger than a Stam majority; we
                    rely on it to transfer money. Really, no one
                    says so! It is a weak majority, and we do not
                    rely on it to take money from a Muchzak.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Ketzos ha'Choshen (1):</font></b> The Acharonim rejected
                    the Rambam. Lechem Rav (188) says that one who
                    inherits a Nefel cannot say 'I hold like the
                    Rambam', for all Chachamim disagree. I say that
                    the Gemara supports the Rambam. R. Efrayim
                    asked, in Bava Basra, why didn't we ask from
                    the Reisha of the Mishnah, which says that only
                    a born child forbids slaves to eat Terumah? We
                    could not answer like we answer the Seifa (a
                    born baby inherits his mother to bequeath to
                    his paternal brothers, but a fetus does not,
                    for it dies before the mother)! The Ri answered
                    that Rav Sheshes holds that Chachamim hold that
                    a fetus can acquire, but they rely on the
                    majority (half of all fetuses are females, and
                    some are miscarried). The Gemara said that
                    seizure of property before the convert's wife
                    miscarried is invalid (even though the fetus
                    was a Nefel)! Tosfos (Yevamos 67b DH Ein)
                    answers that a fetus inherits until it is
                    miscarried. Chachamim add the minority of
                    fetuses that <i>already</i> died to show that the
                    majority do not inherit. This is a proof for
                    the Rambam, that a Nefel inherits. Why do
                    Poskim say that the Rambam is a lone opinion?
                    Tosfos agrees! The Ramban, Rashba, Nimukei
                    Yosef, Magid Mishneh and Kesef Mishneh
                    disagree. The Ramban dispels this proof by
                    saying that 'Hepilah' means that the forehead
                    came out, and afterwards the baby died. This is
                    difficult, for Hepilah connotes that she
                    miscarried. Also, if so what was the proof that
                    a fetus inherits? Emergence of the forehead is
                    full birth! The Nimukei Yosef (Yevamos 10b)
                    says (according to Reish Lakish, whom the
                    Halachah follows) that if a woman miscarried,
                    this does not reveal retroactively that she was
                    not properly pregnant. Perhaps the fetus was
                    viable, and afterwards something caused a
                    miscarriage! If so, we can say that since most
                    women give birth to viable babies, we assume
                    that when the first people seized, she was
                    pregnant with a viable child.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal (Nesivos ha'Mishpat 2):</font></b> Perhaps Tosfos
                    does not hold like the Rambam, rather, like the
                    Nimukei Yosef! Rav Sheshes holds that a fetus
                    inherits, for we assume that it is viable, but
                    if a baby was born with unfinished Simanim,
                    this shows that it is a Nefel and it does not
                    inherit!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Question (Ketzos ha'Choshen):</font></b> In Kesuvos, Rava
                    asked about Bagrus after death. The Gemara
                    asked that she cannot have a child to inherit
                    her before Bagrus. If a Nefel inherits, what
                    was the question?!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Answer (Nesivos ha'Mishpat 2):</font></b> This is not
                    difficult for the Rambam. The Magid Mishneh
                    explained that the Rambam holds that a Nefel
                    inherits for we assume that it was really a
                    seven-month baby that was delayed. We cannot
                    say so if it was born before six months! Also,
                    perhaps a baby born before six months does not
                    live at all.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES ONE INHERIT IN THE GRAVE? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The fetus always dies before the mother.
               A son does not 'inherit' his mother after his own
               death in order that the property should pass to his
               paternal brothers.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Is it really true that the fetus dies
               first?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  There was a case of a fetus that quivered two
                    times after its mother died!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Mar bar Rav Ashi):</font></b> Quivering does not
               show that it is alive. If a rodent's tail is cut
               off, also it quivers!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Mar brei d'Rav Yosef):</font></b> A one-day old baby is
          considered a son in the calculation of the extra share of
          the firstborn.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> A fetus does not decrease the extra
               share of the firstborn. 'V'Yoldu Lo' (we consider
               only sons who were already born when the father
               died).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Version #1 - Chachamim of Sura (Mar brei d'Rav Yosef):
          A son born posthumously does not decrease the extra share
          of the firstborn - 'v'Yoldu Lo'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - Chachamim of Neharde'a (Mar brei d'Rav
          Yosef):</font></b> A firstborn born posthumously does not receive an
          extra share (e.g. if another son was also born
          posthumously) - 'Yakir' (the father must (be fitting to)
          make known his firstborn. Here, he was unable to do so).
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah follows Mar brei d'Rav Yosef in these
          three laws.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> If one acquires on behalf of a fetus,
          the fetus does not acquire;
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that the fetus acquires!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah discusses a man giving to his son.
          Because he feels great affinity for his son, he resolves
          more firmly to give, so the Kinyan works;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In any other case, the fetus does not acquire.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Shmuel expounded in front of 10 people that if one
          acquires on behalf of a fetus, the fetus acquires.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	The Halachah is, if one acquires on behalf of a fetus,
          the fetus does not acquire.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>A GIFT FOR THE FUTURE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Yakov told his wife Sarah 'my property is to the sons I
          will have from you.' His oldest son (Reuven, from a
          different wife) asked 'what will I get?!' Yakov said 'go
          acquire like one of her sons.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Clearly, nothing takes effect now regarding
               Sarah's (future) sons. They are not yet in the world
               (she was not even pregnant).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> (When Yakov dies,) does Reuven get an extra
          share of the estate (above his normal share) equal to
          what he would receive if he were a son of Sarah (and they
          received all the property)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (R. Avin, R. Meisha, and R. Yirmeyah):</font></b> Yes,
          he gets an extra share.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (R. Avahu, R. Chanina bar Papa, R. Yitzchak
          Nafcha):</font></b> He does not get an extra share.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	R. Avahu:</font></b> Does the Halachah follow you, or us?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	R. Yirmeyah:</font></b> The Halachah follows us. We are older than
          you.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	R. Avahu:</font></b> The Halachah does not depend on age, rather,
          on reason!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Yirmeyah):</font></b> What is your reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Avahu):</font></b> It is as if he said to him 'acquire
          like the donkey.' (Since Sarah's sons cannot acquire, and
          he said 'acquire like her sons', also Reuven does not
          acquire.)
<br>

<p>

sjt:
</p><p>
<font><b>2) A PERSON FEELS ESPECIALLY CLOSE TO HIS OWN SON</b></font><b>
<br>QUESTION:</b> Rebbi Yitzchak says in the name of Rebbi Yochanan that 'ha'Mezakeh l'Ubar Lo Kanah' -- if a person attempts to give ownership of an object to a fetus, the fetus does not acquire it (because a fetus is not considered to be 'in the world' yet). Rebbi Yitzchak adds that although the Mishnah (140b) says that a fetus <i>can</i> be Koneh, the Mishnah refers only to a gift that a father gives to his unborn child, and 'Da'ato Shel Adam Kerovah Etzel Beno' -- a man feels close to his own son. Thus, the Mishnah does not contradict the general rule that a fetus cannot acquire anything.
</p><p>
How does the fact that a person feels close to his own son account for the efficacy of a Kinyan? How does it allow a Kinyan to take place to a 'Davar she'Lo Ba l'Olam' (the fetus)?
</p><p>
The Acharonim give three basic reasons as to why, in general, a Kinyan cannot be made on an item that has not yet come into the world ('Davar she'Lo Ba l'Olam'), or to a recipient who has not yet come into the world ('l'Davar she'Lo Ba l'Olam'). One reason is that the Makneh (the person who transfers the ownership of the item to the recipient) or the Koneh (the person who acquires the item) does not have absolute resolve ('Gemirus Da'as') when the item (or recipient) does not yet exist. This is the simple explanation of the Gemara in Bava Metzia (16a) which says that the reason a person cannot be Koneh a 'Davar she'Lo Ba l'Olam' is that 'Lo Samchah Da'atei' -- 'he did not have full intention.' (See <b>RA'AVAD</b> to Terumos 8:4.)
</p><p>
Others explain that the Makneh does not have full ownership of the item (since it does not exist), and it therefore is not considered to be within his domain to allow him to transfer its ownership. Likewise, the Koneh cannot acquire its ownership because it does not yet exist.
</p><p>
A third explanation is that the Kinyan itself has nothing upon which to take effect, since the item is not in existence.
</p><p>
According to the first reason -- that a person does not have absolute resolve to make a Kinyan when the item or the recipient does not yet exist, it is understandable that the logic of 'Da'ato Shel Adam Kerovah Etzel Beno' can make the Kinyan take effect. Since a person feels especially close to his own son, he <i>will</i> have absolute resolve to be Makneh an object to his son, even if the object does not yet exist or his son has not yet been born.
</p><p>
According to the other two explanations, however, it is difficult to understand how the logic of 'Da'ato Shel Adam Kerovah Etzel Beno' causes the Kinyan to work. If the problem with a 'Davar she'Lo Ba l'Olam' is that the Makneh does not have the requisite ownership of the object in order to make a Kinyan, or that the Kinyan itself cannot take effect when the object does not exist, then the Makneh's feelings toward his son should be irrelevant.
</p><p>
Indeed, the <b>TOSFOS HA'ROSH</b> (cited by the Shitah Mekubetzes) proves from this Gemara that the reason why a Kinyan does not work for a 'Davar she'Lo Ba l'Olam' is only the lack of 'Gemirus Da'as,' absolute resolve, on the part of the Makneh.
</p><p>
According to the third understanding for why a Kinyan cannot take effect on a 'Davar she'Lo Ba l'Olam,' it is possible to suggest an explanation for why the Kinyan takes effect in the case of the Gemara here. In the case of the Gemara here, the problem is not that the object being transferred does not yet exist; rather, the <i>recipient</i> of the Kinyan (the child) does not yet exist. If a person cannot acquire (or give over) a 'Davar she'Lo Ba l'Olam' because a Kinyan cannot take effect on a nonexistent item, that would <i>not</i> be a problem in this case, since the object <i>does</i> exist (and only the recipient does not yet exist). Since the object is 'in the world,' a Kinyan can take effect on it. In general, even the Acharonim who take the third approach would have to explain that when the recipient does not yet exist, the reason why the Kinyan cannot take effect is that the owner does not have absolute resolve to give the item to a person who does not exist. However, when the recipient is his own unborn son, then he <i>does</i> have absolute resolve to be Makneh it to him and the Kinyan takes effect.
</p><p>
How, though, can the second approach of the Acharonim be reconciled with the Gemara here? According to the second approach of the Acharonim, a person cannot fully own an object that has not yet entered the world. Similarly, a person who has not yet entered the world cannot make a Kinyan even on an object that does exist, even if the Makneh has absolute resolve to give it to him. How, then, can the Gemara state that a person can be Makneh an item to his unborn son due to the logic of 'Da'ato Shel Adam Kerovah Etzel Beno'? (See <b>TOSFOS HA'ROSH</b> as cited by the Shitah Mekubetzes, <b>NIMUKEI YOSEF</b> to Bava Metzia 66a, <b>NODA B'YEHUDAH</b> EH 2:54, <b>KOVETZ SHI'URIM</b> #276, and <b>YOSEF DA'AS</b> here.)
</p><p>
<b>ANSWER:</b> Several Acharonim (<b>TESHUVOS CHEMDAS SHLOMO</b>, cited by <b>IMREI BINAH</b> in Kuntrus ha'Kinyanim #2; <b>HA'GAON REBBI SHIMON SHKOP</b>) posit that the primary force that effects a Kinyan is the Makneh's intention. The Koneh, the recipient, merely receives the object from the Makneh, while the Makneh effects the actual transfer of ownership.
</p><p>
According to this approach, when an object exists but the recipient does not exist, the Kinyan <i>can</i> take effect, since the intention of the Makneh is the primary force behind the Kinyan, and since the object already exists, the Makneh has full ownership to be Makneh it. The fact that the recipient cannot acquire full ownership over the item (because he does not yet exist) is not a factor that prevents the Kinyan from taking effect, since the Kinyan depends primarily on the Makneh's ability to transfer the object and not on the Koneh's ability to acquire it. The only possible problem is that the Makneh might not have 'Gemirus Da'as' to be Makneh the object to someone who does not yet exist. This problem is resolved by the logic of 'Da'ato Shel Adam Kerovah Etzel Beno' when the recipient is his son. (I. Alsheich)
</p><p>


<font><b>3) 'THE HALACHAH IS LIKE US BECAUSE WE ARE OLDER'</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a man allocated his property to the children who would be born to him in the future from his second wife. He then said that a certain son from his first wife should receive an equal portion together with the future children of his second wife. The Gemara inquires whether later, when the father dies, the older son receives a portion as a gift in addition to the portion that he receives as his inheritance (the Rashbam explains that in such a case the total amount of property would be divided by the total number of sons, and that son would receive one of those portions as a gift, after which the remaining property would be divided as an inheritance among all the sons), or whether he receives only one portion as a Yerushah but not an additional portion as a gift (because his gift was compared to the gift given to the unborn children, which does not take effect).
</p><p>
Rebbi Avin, Rebbi Meyasha, and Rebbi Yirmeyah ruled that the older son <i>does</i> receive an additional portion as a gift. Rebbi Avahu, Rebbi Chanina bar Papi, and Rebbi Yitzchak Nafcha ruled that he does <i>not</i> receive an additional portion as a gift.
</p><p>
The Gemara relates that Rebbi Avahu asked Rebbi Yirmeyah, 'Does the Halachah follow our opinion, or does the Halachah follow your opinion?'
</p><p>
Rebbi Yirmeyah answered, 'It is obvious that the Halachah follows our opinion, because we are older than you, and the Halachah does not follow your opinion, because you are young.'
</p><p>
Rebbi Avahu retorted, 'Does the matter depend on who is older? It depends on [whose] reasoning [is more logical]!' and he proceeded to explain why the older son should not receive an additional portion as a gift.
</p><p>
Why, in the first place, did Rebbi Avahu ask Rebbi Yirmeyah, 'Does the Halachah follow our opinion, or does the Halachah follow your opinion?' What was Rebbi Avahu's doubt, if he knew (as he stated later) that his opinion was supported by more logical reasoning? Moreover, on what basis did Rebbi Yirmeyah state that the Halachah follows his opinion 'because we are older than you'?
</p><p>
<b>ANSWER:</b> The <b>KOVETZ SHI'URIM</b> explains that whenever the Gemara rules in favor of one sage over another, there are two ways to explain the ruling: (a) the view of that sage was found to be more logical, and the Gemara reasoned that the Halachah follows his opinion (such as in disputes between Rebbi Meir and Rebbi Yehudah, wherein -- the Kovetz Shi'urim suggests -- all of the issues of dispute were researched and the opinion of Rebbi Yehudah was always found to be more logical, and therefore a principle was established that the Halachah always follows Rebbi Yehudah when he argues with Rebbi Meir); or (b) there was no way to determine whether the view of that sage was more logical with regard to this particular issue, but the Halachah was determined based on the fact that this sage was more reliable ('Bar Samcha') to establish the Halachah in accordance with his view, and therefore the Halachah follows his opinion.
</p><p>
Accordingly, this is what Rebbi Avahu asked Rebbi Yirmeyah: in cases in which it is not possible to examine the Halachah itself to determine which opinion is correct, which of the two of them is more reliable for the Halachah to be decided in accordance with his opinion? In such cases it is necessary to determine which of the sides in the dispute is more of a 'Bar Samcha' so that the Halachah may decided in accordance with his opinion.
</p><p>
Rebbi Yirmeyah responded that because of his advanced age, he was considered more reliable to decide the Halachah. Rebbi Avahu argued that such a matter does not depend on age. (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>'ACQUIRE WITH THE DONKEY'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If Levi told Yehudah 'acquire like a donkey', he does
          not acquire;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If he said 'you and the donkey should
          acquire', Yehudah receives half.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Hamnuna):</font></b> Yehudah receives nothing.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> Yehudah receives everything.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Support (Rav Sheshes for himself - Beraisa - R. Yosi):
          The most bitter part of a cucumber is the inside;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Rashbam):</font></b> Therefore, when taking
               Terumah, he should take extra from the outside, lest
               he take from the bitter part to be Terumah on the
               good part.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Tosfos):</font></b> (Even if the inside of a
               cucumber separated to be Terumah is bitter, it is
               still considered food. The separation was valid. He 
               need not take (all the) Terumah again.) Therefore,
               it suffices to add on extra Terumah from the
               outside. (end of Version #2)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This is like 'acquire with a donkey'! Even though
               he tried to make the sweet and bitter parts Terumah,
               and the bitter cannot become Terumah, the sweet
               becomes Terumah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, mid'Oraisa the bitter part becomes
          Terumah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Ila'i):</font></b> If one separates Terumah from the bad
               on the good, it takes effect - 'v'Lo Sis'u Alav Chet
               ba'Harimechem Es Chelbo Mimenu';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it did not take effect, he would not bear sin!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Mordechai citing Rav Avya - Mishnah):</font></b> A
          case occurred in which five women owned a field. Two of
          them were sisters. Reuven gathered a basket of dates from
          the field in Shemitah, gave it to them, and said 'all of
          you are Mekudashos to me with this basket.' One of them
          received it on behalf of all of them. Chachamim ruled
          that the sisters are not Mekudashos.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> The other women are Mekudashos, even
               though the sisters cannot be. This is like 'acquire
               with a donkey', and it takes effect!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Ashi:</font></b> This explains why I saw Rav Huna bar
               Avya in a dream last night, because his father asked
               a question!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> We established that the case is, he
          said 'whoever among you that may have Bi'ah with me is
          Mekudeshes to me.' (This is excludes the sisters, for
          surely both have the same status, and both cannot be
          Mekudashos.)
<br>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> If Yakov told his wife 'my property is to
          you and your sons', she gets half, and her sons get half;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn from the following Beraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> 'V'Haysah l'Aharon ul'Vanav' -
               Aharon (the Kohen Gadol) gets half (of the Lechem
               ha'Panim), and his sons (the other Kohanim) get
               half.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> There, had the verse not mentioned
          Aharon, he would have received a share. Surely, he is
          mentioned to teach that he gets half;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Normally, a wife does not inherit. Yakov
               mentioned her to teach that she gets a share like
               her sons!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question #1:</font></b> Cases occurred, and Shmuel and R. Yochanan
          ruled that she gets half! (Normally, we do not challenge
          one Amora from another, for they may argue with each
          other. However, all Chachmei Bavel were Talmidim of Rav
          or Shmuel (or their Talmidim), and the Halachah follows
          R. Yochanan against Rav.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question #2:</font></b> Rav Yitzchak bar Yosef taught that once,
          the king demanded that the rich people and the (less
          rich) nobles buy a crown for him. Rebbi ruled that the
          rich pay half, and the nobles pay half!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (to Question #2):</font></b> Initially, the king wrote only
          that the rich must pay. The nobles used to help a small
          amount. When the king found out, he included the nobles
          to (increase the demand and) teach that each group pays
          half.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (R. Zeira - Beraisa):</font></b> If one said 'it is upon
          me to bring a Minchah (flour-offering) of 100 Esronim
          (the volume of 4320 eggs) in two Kelim', he brings 60 in
          one Keli, and 40 in another Keli;
<br>
<br>

sjt:
<font><b>1) SEPARATING BITTER CUCUMBERS AS TERUMAH FOR SWEET CUCUMBERS</b></font><b>
<br>QUESTION:</b> Rebbi Yosi in the Beraisa states that since the center of a cucumber is more bitter than its outside, when a person separates Terumah (such as at a ratio of one cucumber for every fifty), there is a concern that he may take a bitter part as Terumah for a sweet part. Therefore, there is a requirement to separate an additional amount from the outer part of a cucumber in order to ensure that one part of sweet cucumber has been taken as Terumah for every fifty parts of sweet cucumber that are left behind.
</p><p>
Why is this necessary? In every cucumber, the center is bitter and the outer part is sweet, so it should suffice to take one cucumber as Terumah for every fifty cucumbers. The bitter part of this cucumber will serve as Terumah for the bitter parts of the other fifty cucumbers, while the sweet part of this cucumber will serve as Terumah for the sweet parts of the other fifty. Why does Rebbi Yosi require that an additional amount of sweet cucumber be separated? Why is he concerned that the amount of sweet cucumber left behind will be out of proportion to the amount taken as Terumah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> explains that Rebbi Yosi is concerned that the bitter part of the cucumber that was taken as Terumah may be <i>greater</i> than the bitter part in the other cucumbers. (Each cucumber may have a different ratio of bitter part to sweet part.) If the bitter part of this cucumber is greater than that of the others, then the amount of sweet cucumber taken as Terumah will not be sufficient to cover the amount of sweet cucumber left behind. Therefore, one must add additional sweet parts to the Terumah.
</p><p>
The <b>TOSFOS HA'ROSH</b> (cited by the Shitah Mekubetzes) rejects this explanation. He explains that the Rashbam's reason is not strong enough grounds to require the separation of additional Terumah. Mid'Oraisa, a person may separate a single kernel of wheat as Terumah for an entire pile of grain and thereby fulfill his obligation of Terumah ('Chitah Achas Poteres Es ha'Kri'). Since the d'Oraisa obligation of Terumah will have been fulfilled even if the bitter part of the Terumah cucumber is larger than its counterpart in the other cucumbers, it would not be necessary to act stringently in a case of doubt about whether a proper one-fiftieth of the grain was separated as Terumah.
</p><p>
(b) <b>TOSFOS</b> and the <b>TOSFOS HA'ROSH</b> explain that Rebbi Yosi made his ruling specifically in a case in which only the cucumbers that were separated as Terumah were found to contain a bitter part, while all the other cucumbers were completely sweet. Rebbi Yosi's statement refers to the Mishnah in Terumos (3:1) which states that if a person separated cucumbers as Terumah and then found that they were bitter, the cucumbers he separated have the status of Terumah but he must separate more cucumbers in order to permit the remaining ones. (This is because of a doubt about when the cucumbers he separated became bitter. If they became bitter after he separated them, then they became Terumah. If they were already bitter at the time he separated them, then they did not become Terumah and the remaining cucumbers remain prohibited.) Rebbi Yosi disagrees with the Mishnah's ruling and maintains that it suffices merely to add from the outer part of other cucumbers in order to reach the appropriate amount for Terumah. Rebbi Yosi's reasoning is that even cucumbers found to be bitter are not bitter on the outside to the extent that they are inedible. They therefore may be separated as Terumah for the other cucumbers (although not in a proportion of one to fifty, and that is why additional cucumbers must be added to the Terumah).
</p><p>
The Tosfos ha'Rosh adds that this approach also explains why Rav Sheshes attempts to use the Beraisa as support for his position in the case of a Kinyan made to a person and to a donkey. Rav Sheshes maintains that when a person makes a Kinyan to two recipients (such as a person and an animal), and one of the recipients (the animal) is not able to be Koneh, the recipient who is able to be Koneh acquires everything; the Kinyan takes effect in its totality for him. Rav Sheshes cites this Beraisa in support of his view, since the Beraisa implies that when a person intends for Terumah to take effect on an entire fruit, but the Terumah cannot take effect on part of the fruit (such as the bitter part), the rest of the Terumah nevertheless takes effect on the good part of the fruit. According to Tosfos and the Tosfos ha'Rosh, the proof of Rav Sheshes is clear; the case of the Beraisa is comparable to that of a Kinyan made to a person and a donkey. In the Beraisa's case, a person separates a cucumber as Terumah without being aware that it contains a bitter part, so he declares the entire cucumber to be Terumah. The status of Terumah, however, cannot take effect on the bitter part, yet his declaration causes it to take effect on the sweet part and to remove the status of Tevel from the remaining cucumbers. (He is required to add to the Terumah only mid'Rabanan, in order to make it a proper one-fiftieth.) This is similar to the position of Rav Sheshes, that when a person makes a Kinyan to two recipients, one of whom is unfit to be a recipient of the Kinyan, the Kinyan nevertheless takes effect for the one who is an eligible recipient.
</p><p>
(According to the way the Rashbam explains the case, there seems to be no proof from the Beraisa to the view of Rav Sheshes. In the case of the Beraisa, the person knows that part of the cucumber is bitter, and he does not intend for it to become Terumah. That is why the bitter part does not become Terumah and the sweet part becomes Terumah for all of the rest. If, however, he intends for whatever he separates (both bitter and sweet) to be Terumah, then the bitter part would not become Terumah and the sweet part would become Terumah only for <i>half</i> of the remaining cucumbers (in proportion to the quantity of sweet fruit in the pile). Accordingly, the Beraisa is in accordance with the ruling of Rav Nachman, and not that of Rav Sheshes. See also <b>MAHARSHAL</b> and <b>MAHARSHA</b>.) (I. Alsheich)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>'YOU AND THE DONKEY SHOULD ACQUIRE'</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Levi told Yehudah 'acquire like a donkey', he
               does not acquire;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If he said 'you and the donkey should
               acquire', Yehudah receives half.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Hamnuna):</font></b> Yehudah receives nothing.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> Yehudah receives everything.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Kidushin 51a (Abaye):</font></b> Kidushin that forbids Bi'ah is
               Kidushin;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rava):</font></b> It is not Kidushin;
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Rava - Mishnah):</font></b> A case occurred in which
               a man gave dates to five women, two of whom were
               sisters, and said 'all of you are Mekudashos to me.'
               Chachamim ruled that the sisters are not Mekudashos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This implies that the three other women are
                    Mekudashos. He did not say 'all of you are
                    Mekudashos to me', for this is like saying 'you
                    and the donkey should acquire', which does not
                    work. Rather, he said 'one of you is Mekudeshes
                    to me', and neither sister is even Safek
                    Mekudeshes!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, he said 'I am Mekadesh
               whichever of you may have Bi'ah with me.' Chachamim
               ruled that the sisters are not Mekudashos.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Kidushin 27a (Mishnah):</font></b> Metaltelim are acquired Agav
               (along with) land, through money, a document, or
               Chazakah.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> The Halachah is, the giver must say 'Agav'.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> The Halachah follows Rav Nachman in monetary
               laws.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 22:12):</font></b> If one was Makneh
               (transferred ownership) to any kind of animal, it
               does not acquire. If one was Makneh part of his
               property to an animal or someone (a fetus) not yet
               in the world, and then told Yehudah 'acquire like
               this animal or like this fetus', he does not
               acquire. If he said 'you and the donkey' or 'you and
               the fetus should acquire', Yehudah receives half.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 9:2):</font></b> If one was Mekadesh many
               women at once, and said 'all of you are Mekudashos
               to me', and among them were two sisters, none of
               them are Mekudashos. If he said 'I am Mekadesh
               whichever of you may have Bi'ah with me', they are
               all Mekudashos, except for the two sisters.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Kidushin 2:22):</font></b> The Rif did not bring this,
               for he holds that Rava's question (this is like 'you
               and the donkey...') is unlike the Halachah. We hold
               like Rav Nachman in monetary laws, and he holds that
               if one said 'you and the donkey...', the recipient
               acquires half. Abaye establishes the Mishnah to be
               when he said 'all of you.' The Gemara often tries to
               establish the Mishnah like all Amora'im, even if the
               Halachah does not follow them. However, Bahag
               establishes the Mishnah when he said 'whoever among
               you that may have Bi'ah with me is Mekudeshes to
               me.' The Ri says that Rava, who asked 'this is like
               'you and the donkey...'', does not argue with his
               Rebbi, Rav Nachman. Rather, he asks according to the
               opinion that Yehudah does not acquire at all. That
               opinion surely establishes the Mishnah to be when he
               said 'one of you is Mekudeshes to me', and we do not
               find that Amora'im argued about how to establish the
               Mishnah! Some say that Rav Nachman says that Yehudah
               acquires half only when the Makneh's statement had
               two parts, 'you and the donkey...'. Here, when he
               said one thing, 'all of you', he agrees that nothing
               is acquired.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Mordechai (605):</font></b> A case occurred in which one was
               Makneh, through Chalipin, land, Metaltelim and money
               at once. Some Chachamim said that this is like 'you
               and the donkey....' Just like money is not acquired
               through Chalipin, also the land and Metaltelim are
               not acquired. Some say that he acquires everything.
               Migo (since) he acquires the land and Metaltelim, he
               acquires also the money. R. Simchah says that even
               though the money is not acquired, the land and
               Metaltelim are acquired. He learns from Kidushin
               27a. One acquires Metaltelim Agav land only if the
               giver said 'Agav'. If not, we do <i>not</i> say 'Migo he
               acquires the land, he acquires the Metaltelim.' Do
               not say that this is like 'you and the donkey...'
               (Hagahah - and even the land is not acquired). A
               donkey cannot acquire. Money can be acquired through
               Meshichah, Hagbahah, or Chatzer.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (203:10):</font></b> If one was Makneh, through Chalipin,
               money and Metaltelim or money and land, some say
               that since money is not acquired through Chalipin,
               the entire Kinyan is Batel. Some say that the entire
               Kinyan is valid. Some say that he acquires the land
               or Metaltelim, but not the money. The same applies
               if one acquired something that can be acquired with
               something that cannot be acquired.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (19):</font></b> R. Simchah holds that he acquires
                    only the land. He gave good reasons to reject
                    the previous opinions, and the Mordechai cited
                    him last. This is why the Rema (209:4) brought
                    only R. Simchah's opinion. Here the Rema
                    brought all three opinions, for R. Simchah
                    discussed this law. He brought R. Simchah last
                    to hint that he holds like him. Also, in Siman
                    209 the Rema brought only R. Simchah, for the
                    opinion that says that he acquired nothing
                    holds that 'you and the donkey...' acquires
                    nothing, but we hold that it acquires half.
                    This is why the Rema compares it to 'you and
                    the donkey...'. The opinion that he acquires
                    even the money says so because the money is in
                    the world, and it can be acquired through
                    Meshichah and Hagbahah, therefore Chalipin
                    helps for it through Migo. It does not help for
                    Davar she'Lo Ba l'Olam, which cannot be
                    acquired at all. Terumas ha'Deshen 173 was
                    unsure whether we say Migo. Why do the
                    Mordechai and Terumas ha'Deshen suggest that
                    this is like 'you and the donkey...' (and
                    nothing is acquired), when we hold that 'you
                    and the donkey...' acquires half? This is
                    because the Stam Gemara in Kidushin asked
                    according to this opinion. Since Amora'im argue
                    about this, we leave the money with the
                    Muchzak, and the recipient does not acquire at
                    all.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (203:42):</font></b> Why did the Rema bring the first
                    opinion? We hold that 'you and the donkey...'
                    acquires half! This opinion is Batel, for we
                    follow Rav Nachman in monetary laws. R.
                    Simchah's proof is strong. Even so, the
                    Mordechai pondered the law according to Rav
                    Hamnuna. He rules like Rav Hamnuna against Rav
                    Nachman, for the Sugya in Kidushin is like him.
                    We hold like Rav Nachman. It seems that the
                    Mordechai and Rema hold like Bahag and the
                    Rambam (Hilchos Ishus 9:2), that the Sugya in
                    Kidushin is even like Rav Nachman. Rav Nachman
                    agrees that nothing is acquired when the Makneh
                    said one inclusive statement. This answers R.
                    Simchah's question, for there he included
                    everything in one statement. When he makes
                    separate statements, both opinions agree that
                    this is like 'you and the donkey...' This is
                    why the Rema brought two opinions here, but not
                    in Siman 209.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (209:4):</font></b> If one was Makneh Davar she'Lo Ba
               l'Olam with Davar she'Ba l'Olam, some say that this
               is like 'you and the donkey...', which will be
               explained in Siman 210.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (210:3):</font></b> If Levi told Yehudah 'buy my
               property, or this item, you and this donkey' or 'you
               and this fetus', Yehudah receives half.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (8):</font></b> If one told his son David 'acquire,
                    you and the fetus that my wife will become
                    pregnant with', David receives half initially,
                    and later he divides the remaining half with 
                    the fetus, when it is born.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 41:3):</font></b> If one was Mekadesh many
               women at once, and among them were two sisters, if
               he said 'I am Mekadesh whichever of you may have
               Bi'ah with me', they are all Mekudashos, except for
               the two sisters. The same applies if he said 'all of
               you are Mekudashos to me'. Some say that none are
               Mekudashos, therefore, the oter women are Safek
               Mekudashos.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav, citing the Ran):</font></b> The
                    Rif brought the Mishnah simply, for we needed
                    to say that he was Mekadesh 'whichever of you
                    may have Bi'ah with me' only due to the
                    question from 'you and the donkey...', which
                    was according to the opinion that it does not
                    acquire at all. We hold that it acquires half,
                    so we establish the Mishnah simply. Bahag and
                    the Rambam explain the Mishnah the way we
                    answered for Abaye, but if he was Mekadesh all
                    of them, none are Mekudashos. They hold that
                    the question was according to Halachah. A
                    Makneh wants whoever can acquire to acquire.
                    The Mekadesh gave the basket (only) with intent
                    to acquire all of the women. A buyer often
                    takes good and bad together. They hold like
                    this so that the Sugya will be like the
                    Halachah. We should not be lenient, for often
                    the Gemara asks unlike the Halachah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (4,5):</font></b> Most hold like the first opinion in
                    the Shulchan Aruch. The Rosh in Kidushin holds
                    like the latter opinion.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he brought 50 in one Keli and 50 in another
               Keli, he fulfilled his obligation.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only b'Di'eved. According to Rav Yosef,
               l'Chatchilah he should bring half in each!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> There, he clearly intends to bring a big
          Korban. He specified to bring in two Kelim, because he
          knows that he cannot bring it all in one Keli;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He should bring as much as is possible (60) in
               one Keli.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	The Halachah follows Rav Yosef regarding a field (12b),
          what is considered engaging in the same matter (to be
          able to retract - 114a), and giving half to one
          recipient. (Everywhere else (in Bava Basra, or the entire
          Gemara), the Halachah follows Rabah against Rav Yosef.
          Here Rabah does not argue, but one might have thought
          that the Halachah does not follow Rav Yosef due to the
          question against him - Rosh Bava Metzia 2:17).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>UNDERSTANDING TO WHOM A MAN LEFT PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Ami):</font></b> If a man (without a wife) sent pieces of silk
          garments to his house. His sons receive the male garments
          (what is appropriate for males), and his daughters
          receive the female garments.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if he does not have a daughter-in-
               law. If he has, she receives the female garments.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This is only if his daughters are married. If
               not, he gives to them before his daughter-in-law.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A Shechiv Mera told witnesses 'my property is l'Vanai
          (to my sons/children).' He had a son and a daughter.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Would a man call one son 'Banai'? (If so, the
          son gets everything.) If not, his daughter receives half?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> We refer to one son in the plural -
          'u'Vnei Dan Chushim.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Perhaps one son is not called
          'Banai'. The verse says 'Benei' because Chushim's
          children would be numerous like Chushim (clusters) of
          reeds.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'U'Vnei Falu Eli'av.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (Rav Yosef):</font></b> 'U'Vnei Eisan Azaryah.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	A Shechiv Mera told witnesses 'my property is to my
          sons.' He had a son, and a grandson from a (deceased)
          son.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Would a man call a grandson 'my son'?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chaviva):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Mar bar Rav Ashi):</font></b> No.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Support (for Mar bar Rav Ashi - Beraisa):</font></b> One who is
          forbidden by a vow from benefiting from his children is
          permitted to benefit from his grandchildren.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>POSTHUMOUS IMPROVEMENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven died, and left minor and adult
          sons, and the adults improved the property, the minors
          share in the improvements;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the adults said 'this is what father left. We
               want to divide, and we will improve our share', they
               keep their improvements.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Similarly, if his widow improved the property, the
          children share the improvements;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she said 'this is what my husband left. I will
               improve my share', she keeps her improvements.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - R. Chaviva brei d'Rav Yosef):</font></b> This is only if
          the brothers did not have expenditures. If they had
          expenditures, they keep their improvements.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Chanina taught that even if the father
          only left a pit of water (Rashbam; Tosfos - a guard
          post), they share the revenue;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like improvements that come from
               expenditures (they must guard)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Even minors can guard it (the adults have no
          more expenditures than the minors).
<br>

<p>

sjt:
</p><p>
<font><b>2) 'MY PROPERTY SHALL BE GIVEN TO MY SONS'</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a man declared that his estate should be given to his sons, but he had only a son and a daughter. The Gemara asks whether it is normal for a person to call one son 'my sons,' or whether he was referring to both his son and his daughter when he said 'my sons.' The Gemara cites the verse, 'And the sons of Dan were Chushim' (Bereishis 46:23), as proof that it is normal to refer to an only son as 'my sons,' in the plural. Rava rejects the proof from the verse, because the Tana of Bei Chizkiyah derives from the verse that the sons of Dan were as numerous as the 'Chushim' (strands or leaves) of reeds. Instead, Rava cites proof from the verse, 'And the sons of Palu were Eli'av' (Bamidbar 26:8). Rav Yosef cites proof from a third verse, 'And the sons of Eisan were Azaryah' (Divrei ha'Yamim I 2:8).
</p><p>
The Gemara's conclusion is clearly that a person <i>does</i> refer to an only son as 'my sons.'
</p><p>
If, however, the man in this incident meant that his son, and not his daughter, should receive all of his property, then why did he make this statement altogether? Even without such a statement, the laws of Yerushah dictate that his son -- and not his daughter -- should inherit all of his property. (<b>TOSFOS</b> and Rishonim)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> and the <b>RASHBA</b> answer that the man may have written a will document ('Daiteki') which granted his property as a gift to someone else, and he wished to retract that gift (which he has the power to do if he wrote the first document while he was a Shechiv Mera, because 'Daiteki Mevateles Daiteki,' as the Gemara teaches on 135b). In order to retract the gift, he would be required to make a new statement regarding to whom he wishes his property to be given, and that is why he made this statement. (Even a healthy person would be able to retract such a gift if he specifically wrote that he was giving it on condition that he not change his mind.)
</p><p>
(b) The <b>MAHARSHAL</b> points out that the words that have been removed from the text of the Gemara (contained within the parentheses) answer this question. Those words indicate that although the son would have inherited the entire estate anyway, the man specifically stated that he wanted his son to inherit all of his property because he wanted to prevent his daughter from receiving a tenth of the property. Although a daughter does not inherit any part of her father's estate when there are sons to inherit it, the Rabanan enacted that she receives a tenth of the estate upon her engagement, to provide for her needs for marriage. When the father declared, 'All of my property shall be given to my sons,' his intention was that a tenth of his estate should not be given to his daughter.
</p><p>
The <b>MAHARSHA</b> explains that Tosfos does not give this answer because it does not apply to the next case of the Gemara, in which a man said, 'All of my property shall be given to my sons,' and he had a son and a grandson. The Gemara concludes in that case as well that a man does not refer to a grandson as his son, and thus he meant to give all of his property to his son. The same question may be asked in that case: why did the father make this statement, if his son would inherit all of his property anyway? In that case, only the answer of Tosfos and the Rashba applies; the Maharshal's explanation does not apply (since, in that case, there is no daughter). (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>POSTHUMOUS IMPROVEMENTS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the adults said 'this is what father
          left. We want to divide, and we will improve our share',
          they keep their improvements.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rav Safra's father died, and left money. Rav Safra
          invested it. His brothers took him to Beis Din.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava:</font></b> Rav Safra is a great Chacham. He would not
               take time from learning for the sake of others! (It
               is as if he said 'I will improve my share.')
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Similarly, if his widow improved the
          property, the children share the improvements...
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> A widow does not share the property!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (R. Yirmeyah):</font></b> The Mishnah discusses a widow who
          inherits (her husband stipulated that she will get a
          share with his children. Alternatively, Reuven married
          Sarah, the only child of his brother Shimon. Reuven and
          Shimon died, and then their father Yakov died. Sarah
          inherits her father's share, and divides Yakov's property
          with her children from Reuven).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, obviously the law is like the case of
          adult and minor brothers!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that since a woman
          normally does not deal with property, she did not do so
          for the sake of others, and it is as if she said 'I will
          improve my share.' The Mishnah teaches that this is not
          so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If she said 'this is what my husband left. I
          will improve my share', she keeps her improvements.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that because people
          would praise her for toiling on behalf of the orphans,
          she retracts from her stipulation and toils on behalf of
          them. The Mishnah teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A SON ACQUIRES THE HOUSE IN WHICH HE MARRIES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Chanina):</font></b> If Levi marries off his oldest son
          (Kehas) in a house (in which Levi does not live), Kehas
          acquires the house.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This applies only to his oldest son, and only if
               he marries a virgin, and only if this is his first
               marriage, and only if he is the first son that Levi
               marries off.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The following is obvious. If Levi designated for him a
          house that has an upper story, he acquires the house, and
          not the upper story.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Questions:</font></b> If Levi designated for him a house that has
          an Achsadra (a hall in front of a house), does he acquire
          the Achsadra? If he designated an outer house and an
          inner house, does he acquire also the outer house?
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	These questions are unsettled.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Levi designated a house and
          house Kelim, he only acquires the Kelim.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (R. Yirmeyah):</font></b> The case is, Levi used the
          house as a storehouse.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Chachamim of Neharde'a):</font></b> Even if Levi had a
          dovecote there, Kehas does not acquire.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (Rav Yehudah and Rav Papi):</font></b> Even if he had a
          Keli of fried fish there, Kehas does not acquire.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Mar Zutra hung his sandal in the house in which he
          married off his first son (so the son would not acquire).
          Rav Ashi hung a cup of oil.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> Chachamim made three enactments without
          explaining (how they work). This is one of them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (The second - 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,)
               he only made her an overseer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (The third - Rav):</font></b> If Reuven tells Shimon in
               front of Levi 'you have money of mine. Give it to
               Levi', Levi acquires it.
<br>
<br>

sjt:
<font><b>1) A WOMAN WHO INHERITS</b></font><b>
<br>OPINIONS:</b> The Mishnah (143b) states that if a woman increases the value of an estate before it is divided among the heirs, she does not receive the increased value for herself; rather, it is shared by all of the heirs. If, however, she explicitly stated that she was ready to receive her portion and Beis Din delayed dividing the estate, then she <i>does</i> receive the value of the increase that she caused to her portion of the estate.
</p><p>
The Gemara asks what right a woman has to any portion of the estate. A woman does not inherit any part of her deceased husband's estate; she receives only her Kesuvah (or Mezonos (support) from the estate until she receives her Kesuvah, in which case all of her income is given to her husband's heirs, who support her from the estate).
</p><p>
The Gemara answers that the Mishnah refers to a case in which the woman inherits. What case is this?
</p><p>
(a) The <b>RASHBAM</b> gives several possible scenarios in which a woman would inherit property. In one case, a man dies and is survived by several sons, as well as the daughter of another son who is deceased. That daughter inherits the share that her father was entitled to receive from <i>his</i> father's estate. The Mishnah may refer to a granddaughter in such a case. In another case, a man dies and leaves only daughters, in which case the daughters inherit his property. The Mishnah may refer to a case in which one of those daughters increases the value of the property.
</p><p>
The Rashbam describes a third scenario in which a woman can inherit: A man marries his brother's daughter, who is the brother's only child, and then both brothers die. Subsequently, the father of the two brothers dies. The offspring of both brothers take the place of their fathers to inherit their grandfather's property. Thus, the daughter, who was her father's only child, inherits the property together with the sons of the other brother (her husband).
</p><p>
There is a problem with all of these explanations. The Mishnah says that if the woman states, 'See what <i>my husband</i> left for me,' then she receives the increase that she caused to the value of the property. This clearly implies that she inherits <i>her husband's</i> property. How is it possible for a woman to inherit her husband's property?
</p><p>
Apparently, the Rashbam intends to answer this question (see end of <b>MAHARSHA</b> to Tosfos here) when he says that the Mishnah there does not refer to its previous case of a woman who inherits, but rather it refers to a different case altogether -- the case of a widow who has not yet collected her Kesuvah but who has demanded payment from her husband's estate. In such a case, the Mishnah rules that if she increases the value of the property, then she keeps the increase in value. According to the Rashbam, the wording used by the woman in the last case of the Mishnah does not reflect at all on the previous case of the Mishnah, which is the case which the Gemara explains as referring to a woman who inherits.
</p><p>
The Rashbam suggests one more scenario which resolves this problem. The Rashbam presents a case in which a man, before he died, specifically stated that his wife should receive a portion (as a gift) together with his sons. In such a case, the woman indeed receives a portion of her husband's estate. However, there is a different problem with this explanation: the Mishnah seems to be discussing cases of Yerushah, inheritance, and in this case the woman receives a portion of the property as a <i>gift</i>, and not as an inheritance.
</p><p>
(b) <b>TOSFOS</b> in the name of the <b><b><b>RI</b></b></b> gives an answer to support one of the cases that the Rashbam describes (the case in which one of the sons married his brother's daughter). He explains that since a husband is entitled to all of the produce of any property that his wife inherits, and she may not use, sell, or consume that produce for herself, it is indeed relevant for her to say, 'See what my husband left for me,' because she had no rights to the use of the field while he was alive.
</p><p>
This explanation of Tosfos differs slightly from the way the Rashbam explains the scenario. The Rashbam presents a case in which both brothers die before their father dies, and all the grandchildren inherit directly from the grandfather immediately upon his death. Tosfos, however, implies that the property was already in the possession of the granddaughter's husband before the grandfather's death. According to Tosfos, the woman's father died first, and then her grandfather died and his property was inherited by his living son and by the daughter of his other son who died earlier. However, at the time that the daughter inherits her father's share of the grandfather's property, she is married to her father's brother, and thus he receives all of the rights to the produce of her newly inherited property. Then, when her husband dies, she gains the rights to the produce of her property. That is why she says, 'See what my husband left for me.'
</p><p>
(c) Tosfos gives another explanation in the name of the <b>RIVAM</b>. In the Rivam's scenario, there are several brothers whose father died long ago. One of the brothers has a daughter as an only child, and she marries another brother and then her father dies. Subsequently, her husband dies without children. When a person dies without children, his brothers inherit his property. In this case, the widow of the deceased inherits a portion of her husband's property in place of her father, who was her husband's brother. Thus, it certainly is appropriate for her to say, 'See what my husband left for me.' The <b>RIF</b> gives a similar explanation.
</p><p>
(The <b><b><b>RI</b></b></b> rejects this explanation, because the Gemara implies that the other heirs who inherit Reuven's property are the 'Yesomim,' the orphans, of Reuven, and not his brothers or their offspring. The <b>RITVA</b>, however, says that it is standard for the Gemara to use the term 'Yesomim' to refer to any heirs, not just to the orphans left by the deceased. Alternatively, the other heirs are children, and that is why the Gemara refers to them as Yesomim.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN MA'AMAD SHELOSHTAN TRANSFER A LOAN WITH A DOCUMENT?</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'> (Mar Zutra):</font></b> Chachamim made three enactments without
               reason (how they work). One of them is Rav's law:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> If Reuven says to Shimon 'you have money
                    of mine. Give it to Levi', and all three are
                    present, Levi acquires the money.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Gitin 13b (Ameimar):</font></b> It is as if Shimon said when he
               borrowed the money 'I am indebted to you, or anyone
               who will come in your stead.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection (Rav Ashi):</font></b> If so, one should not be able
               to give the loan to someone who was not born at the
               time the loan was given!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Mar Zutra):</font></b> Rather, this is an enactment without
               reason.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Kidushin 47b (Beraisa #1 - R. Meir):</font></b> If one was
               Mekadesh a woman with a loan document, or gave her
               rights to collect a debt owed to him, she is
               Mekudeshes;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Chachamim say, she is not Mekudeshes.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Regarding a loan document, they argue about Shmuel's
               law (a lender who sold his loan document can pardon
               it). Alternatively, all hold like Shmuel. Chachamim
               holds that she lacks resolve to accept Kidushin, due
               to fear lest he pardon.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Regarding a Milveh Al Peh (a loan without a
               document), they argue about Ma'amad Sheloshtan.
               Chachamim hold that it applies only to deposits, but
               not to loans. R. Meir holds that it applies even to
               loans.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Kama 89a (Mishnah):</font></b> If a married woman damaged,
               she is exempt (she cannot pay). We do not say that
               she must sell (collection rights) of her Kesuvah,
               due to Shmuel's law. Surely, she will pardon the
               Kesuvah to please her husband!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Bava Metzi'a 19b (Beraisa):</font></b> If one found a receipt
               for payment of a Kesuvah, if she admits that she was
               paid, he returns it to her husband.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rava):</font></b> We are not concerned lest it was given after
               the date written, and she sold her Kesuvah in
               between (and the receipt 'proves' that he paid the
               Kesuvah beforehand), for in any case she could
               pardon the Kesuvah, like Shmuel taught.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection (and Answer #2 - Abaye):</font></b> This is not a
               proof for Shmuel. The case is, she is holding her
               Kesuvah (so we are not concerned lest she sold it).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Gitin 1:17) and Tosfos (13b DH Tenu):</font></b> If one
               gave a debt through Ma'amad Sheloshtan, he cannot
               pardon it. The Gemara (Kidushin 47b) did not
               conclude that all agree that Ma'amad Sheloshtan
               applies even to loans, and they argue about whether
               or not she fears lest he pardon the debt.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rebuttal (Ramban Bava Basra 144a DH va'Ani):
                    According to the answer that they argue about 
                    Shmuel's law regarding a loan document, the
                    same applies to a Milveh Al Peh!
<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 66:19):</font></b> If Reuven had a loan
               document against Levi, and said 'give the money you
               owe to me to Shimon', in the presence of all of
               them, Shimon acquires, even if he did not get the
               document. Buyers (who bought Levi's property) have a
               Shibud to pay Shimon, like they were obligated to
               pay (Reuven). Shimon cannot force Reuven to give to
               him the document. Rather, Shimon claims from Levi,
               and if Levi denies it or Shimon needs to collect
               from sold property, Beis Din forces Reuven to
               produce the document, and we rule according to it.
               If Levi paid Shimon, we take the document from
               Reuven and give it to Levi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (49):</font></b> This helps even for a Milveh Al Peh.
                    The Tur and Shulchan Aruch teach that even
                    though Shimon acquires the debt, he cannot
                    force Reuven to give to him the document. This
                    is because there are two Kinyanim on documents:
                    the document itself, and the lien. Neither is
                    acquired through transfer of the other.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (97):</font></b> Throughout Shas we say that the
                    seller can pardon, and do not say that Ma'amad
                    Sheloshtan is different. This is difficult for
                    Tosfos. Rav Huna said that if one who bought a
                    document is clever, he will pay the borrower to
                    write a loan document obligating himself to the
                    buyer, so that the seller will be unable to
                    pardon it (Kesuvos 86a). He did not counsel to
                    buy through Ma'amad Sheloshtan, which would
                    give a better lien, from when he bought the
                    loan, before the latter document. The Gemara
                    taught that Shmuel agrees that if a woman
                    brings a loan document into the marriage
                    (Kesuvos 85b), or if a Shechiv me'Ra (one who
                    fears lest he die from his illness) gave a loan
                    for a gift (Bava Basra 147), he or she cannot
                    pardon it. It did not say that he admits about
                    Ma'amad Sheloshtan! The Gemara always says that
                    Ma'amad Sheloshtan acquires. It never mentions
                    that the giver can pardon! This is difficult
                    for the Ramban. His answer in Kidushin (the
                    Gemara did not need to say that the latter
                    opinions hold that they argue similarly about a
                    Milveh Al Peh) is poor. I can answer all this,
                    unlike the Rishonim. A loan document is not
                    acquired through Ma'amad Sheloshtan, even the
                    debt itself. It is worse than a Milveh Al Peh.
                    Ma'amad Sheloshtan transfers a Milveh Al Peh,
                    for the borrower is totally freed from the
                    lender. Chachamim enacted as if he paid him,
                    and the lender gave to the recipient, who then
                    lent back to the borrower. When there is a
                    document, as long as the lender or one in his
                    stead holds it, the borrower cannot say 'I
                    paid.' Even if the lender gives the document to
                    the buyer, since Ma'amad Sheloshtan does not
                    transfer the power of the document, the
                    recipient must rely on the lender to use the
                    document. We cannot say that it is as if he
                    paid the lender, for then the document would be
                    Batel. It is unreasonable to say that Ma'amad
                    Sheloshtan totally erases the old loan with a
                    document, and creates a new Milveh Al Peh.
                    Ma'amad Sheloshtan is a Halachah without a
                    reason. We may not add to it! If the document
                    was torn, the loan becomes a Milveh Al Peh.
                    Only then Ma'amad Sheloshtan can work. This is
                    why Kidushin 47b discussed Ma'amad Sheloshtan
                    only regarding a Milveh Al Peh. The questions
                    from Bava Kama 89a and Bava Metzi'a 19b are no
                    longer difficult. Those who say that Ma'amad
                    Sheloshtan works for loans with a document say
                    so only for the debt. The recipient is owed a
                    Milveh Al Peh. No one says that Ma'amad
                    Sheloshtan can transfer a document. The Rambam
                    (Hilchos Ishus 5:17) says that Ploni can be
                    Mekadesh a woman by transferring a loan through
                    Ma'amad Sheloshtan. We must say that Ploni
                    cannot pardon it. He also rules (Hilchos
                    Mechirah 6:12) that one who sells a loan
                    document can pardon it! If he holds that
                    Ma'amad Sheloshtan does not help for a loan
                    document, there is no contradiction.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question (Tumim 54):</font></b> The Rishonim understood
                    better than we do. The Shach says that Tosfos
                    agrees that Ma'amad Sheloshtan cannot transfer
                    the document. This is wrong. Tosfos (Bava
                    Metzi'a 20a DH Shema) asks why we are not
                    concerned lest she sold the Kesuvah through
                    Ma'amad Sheloshtan. If the buyer gets only a
                    Milveh Al Peh, in any case the husband would be
                    believed to say that he paid him! And even if
                    he is not believed because Kesuvah is a Tanai
                    Beis Din, the Rishonim connote that a borrower
                    is never believed to say that he paid a
                    document sold through Ma'amad Sheloshtan.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Nesivos ha'Mishpat, Urim 39):</font></b> The
                    concern is lest she sold the Kesuvah through
                    Ma'amad Sheloshtan and gave the document
                    through another document, in which case she
                    cannot pardon the debt.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> One is not believed to say that he paid a 
                    loan document, for he should have asked for the
                    document. Perhaps one is not believed to say
                    that he paid a document sold through Ma'amad
                    Sheloshtan, for he should have asked for the
                    document or a receipt, lest the lender give the
                    document to the buyer!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Tumim (54):</font></b> We would expect the buyer's lien to
                    be from the day he bought. However, Ma'amad
                    Sheloshtan is a Halachah without a reason;
                    perhaps they enacted a lien from the date of
                    the initial loan. Why did Tosfos struggle to
                    answer the questions from Bava Kama and Bava
                    Metzi'a? We could say that the Beraisos are
                    like Chachamim, who hold (Kidushin 48a) that
                    Ma'amad Sheloshtan does not apply to loans
                    (even though this is not the Halachah)!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Nesivos ha'Mishpat (ibid.):</font></b> The Shach says that
                    Ma'amad Sheloshtan cannot transfer a document.
                    This seems correct. Rav Huna (Kesuvos 86a)
                    counsels one who bought a document to pay the
                    borrower to write a loan document obligating
                    himself to the buyer, so the seller will be
                    unable to pardon it. He did not suggest Ma'amad
                    Sheloshtan, for it does not work after the
                    document was sold, for the lender has no power
                    over the loan (the borrower is not indebted to
                    him). We cannot extend Ma'amad Sheloshtan to
                    new situations!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Gra (82):</font></b> Ameimar explained that when one
                    borrows the money, he obligates himself to
                    anyone who will be in place of the lender. Even
                    though Ameimar was rejected, we learn that
                    Ma'amad Sheloshtan applies even to documents.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Gra (119):</font></b> The simple reading of the Gemara in
                    Kidushin supports the Shach, who says that
                    Ma'amad Sheloshtan does not help for any
                    document.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ARE WE CONCERNED LEST ONE PARDON A LOAN DOCUMENT GIVEN THROUGH MA'AMAD SHELOSHTAN? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN BROTHERS SHARE INCOME AND EXPENSES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If brothers inherited together and one of
          them received a well-paying position, the brothers share
          the income.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a brother fell sick, he pays for his own cure.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> The Mishnah refers to a son
          conscripted for the king's service. (Normally, one person
          per house is taken for this for a certain period of time.
          The brother did not receive it due to his efforts).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one of the brothers was appointed to be
          tax collector or officer: if a person from each house is
          normally appointed for a certain time, they share the
          income;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he got it due to himself, he keeps the income.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The first clause is obvious!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he is very sharp. One might have
          thought that he got the position due to himself. The
          Beraisa teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If one of the brothers took 200 Zuz (of his
          share of the estate) to learn Torah or a trade, the
          others can say 'you will receive food from the estate
          only if you are with us'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why isn't he fed wherever he is?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The reason is as Rav Huna taught (and the
          Beraisa supports him).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> There is a bigger blessing in the
               house when more people are there. (R. Chananel - it
               is more economical when more people live together,
               e.g. one lamp suffices for everyone.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Even after taking this into account, he
          should receive something!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, he receives accordingly.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a brother fell sick, he pays for his own
          cure.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Ravin):</font></b> This is only if he got sick through
          negligence. If it was Ones, they share the cost.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of negligence?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> It is a case like R. Chanina taught.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Chanina):</font></b> 'Tzinim Pachim... Shomer Nafsho
               Yirchak Mehem' - whatever befalls one is decreed by
               Heaven, except for chills and fevers (which is from
               his lack of caution).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>SHUSHVINUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (The custom is, if David brings Shushvinus
          (gifts that one brings to a Chasan) to Levi, when David
          marries, Levi brings such gifts to David.) If the father
          sent Shushvinus with some of his sons, and the Chasan
          returned Shushvinus after the father died, all his sons
          share them, for Shushvinus can be collected in Beis Din
          (like a debt);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If Reuven sent wine and oil to Moshe (who is not a
          Chasan), Beis Din does not force Moshe to reciprocate,
          for this was mere Chesed.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Contradiction (Beraisa):</font></b> If the father sent
          Shushvinus with David, and the Chasan returned Shushvinus
          after the father died, David keeps it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Ploni sent Shushvinus to the father, and Ploni
               married after the father died (and the heirs must
               return Shushvinus), they all pay for it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (R. Asi citing R. Yochanan):</font></b> Also our Mishnah
          means that the Shushvinus was sent to the father, and all
          his sons must return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says 'if some of the sons
               <i>Asu</i> (did, i.e. brought Shushvinus)'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It should say (or means) 'if Shushvinus
               <i>was done</i> to some of the sons.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says 'and Shushvinus was
               returned (to the heirs)'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It means, if the <i>obligation</i> reverted to
               the heirs, they all pay.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Asi):</font></b> The Mishnah discusses when the
          father did not stipulate. The Beraisa discusses when he
          stipulated that the Shushvinus will return to the son who
          brought it (the father gave it to him for a gift).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If Yakov sent Shushvinus with his son
               Yosef, and Shushvinus was returned (after Yakov
               died), Yosef keeps it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Yakov sent Shushvinus without specifying, and
               Shushvinus was returned, his heirs share it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Shmuel):</font></b> The Mishnah discusses when the son
          (Reuven) who brought Shushvinus died, a brother (Shimon)
          did Yibum, and Shushvinus was returned;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> (Even though the Shimon inherits Reuven by
               himself,) since (Shushvinus is Ra'uy, like a debt,
               and) a Yavam does not inherit Ra'uy, all the
               brothers share it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> This implies that Moshe (one who received
          Reuven's Shushvinus) must return it to the Yavam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Moshe should be able to say 'give to me Reuven,
               and I will (return the Shushvinus and) rejoice with
               him!' (Since he died, I am exempt.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> In a place where the custom is to
               return Kidushin money (this will be explained), we
               return it. Where it is not returned, we do not
               return it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Yosef bar Aba):</font></b> It is returned only when she
               died (during Eirusin), but not if he died.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> She can say 'give to me my husband, and I
               will rejoice with him (have Nisu'in. It is not my
               fault that he died)!'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> Likewise, Moshe should be able to say 'give to me
               Reuven, and I will rejoice with him!'
<br>

<p>

sjt:
</p><p>
<font><b>2) SENDING A GIFT FOR WHICH ONE MAY NOT DEMAND RECIPROCATION</b></font><b>
<br>QUESTION:</b> The Mishnah states that -- in contrast to the practice of sending Shushvinus -- if a person sends to his friend a gift of wine or oil, he does not have the right to demand in court that his friend reciprocate the gift, because he has merely done an act of Gemilus Chasadim.
</p><p>
The <b>RASHBAM</b> suggests two possible cases that the Mishnah may be discussing. Perhaps the Mishnah's case is one in which a person sends a gift to a friend who is not getting married or having a wedding feast (and thus the gift clearly is not a gift of Shushvinus). The second explanation is that, indeed, the gift is sent to the wedding feast of a friend, but the sender does not go there personally to partake in the feast and to rejoice with his friend. Since he does not go there to rejoice, the gift is not considered a gift of Shushvinus; rather, it is an ordinary present and thus the giver may not demand reciprocation.
</p><p>
Both of these explanations are problematic.
</p><p>
(a) With regard to the first explanation, the <b>TORAS CHAIM</b> asks that there seems to be no reason for the Mishnah to teach the Halachah about a gift that is sent when there is no wedding. It is obvious that when a person sends an unconditional gift to a friend and does not say that he is doing so only in order to receive a gift in return, he cannot demand later that his friend send him a gift in return.
</p><p>
(b) With regard to the second explanation, the <b>TORAS CHAIM</b> asks that if the Mishnah is discussing gifts sent to a wedding feast, then the Mishnah should mention that fact, since it is a great Chidush to say that if a person gives a gift but does not participate in the wedding feast, he does not have the right to receive gifts in return. Moreover, the Mishnah should not have described the case merely as, 'One who sends jugs of wine and jugs of oil....' Rather it should have said, 'But one who sends <i>Shushvinus</i> and does not partake in the wedding feast....'
</p><p>
<b>ANSWERS:</b>
<br>(a) In defense of the first explanation, the <b>PNEI SHLOMO</b> answers that the Rashbam's intent is to explain as the <b>ALIYOS D'RABEINU YONAH</b> explains in the name of 'Yesh Mefaresh' (which is also the explanation of the <b>RAV AVAD</b>). They explain that in the Mishnah's case, the recipient of the gift is making a 'Se'udas Mar'us,' a feast for all of his beloved friends. In such a case, when a person sends gifts to his friend who is making the feast, it certainly would be logical that he does so with the intention that when he, too, makes such a feast, this friend will send him gifts as well. Therefore, the Mishnah must teach that such a gift is only an act of generosity and reciprocation cannot be demanded in court.
</p><p>
(b) The <b>PNEI SHLOMO</b> answers the second question as well and contends that the Mishnah's wording indeed implies the case that the Rashbam suggests. The word, 'ha'Shole'ach' -- 'one who sends,' implies that the giver merely <i>sends</i> gifts and does not come personally, because only when he comes personally are his gifts considered gifts of Shushvinus. Thus, it is not possible for the Mishnah to use the term, 'One who <i>sends Shushvinus</i>...,' because if he sends the gifts rather and does not bring them personally, they are not considered gifts of Shushvinus! (I. Alsheich)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>KIDUSHIN THAT DOES NOT RESULT IN NISU'IN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> The case is, Moshe rejoiced with
          Reuven for the seven days of celebration, and before he
          returned the Shushvinus, Reuven died.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about whether one may say
          'give to me my husband, and I will rejoice with him'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Noson):</font></b> If one was Mekadesh a woman
               (and he died or divorced her), if she was a virgin,
               she collects (a Kesuvah of) 200. If not, she
               collects 100;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In a place where the custom is to return Kidushin
               money, we return it. Where it is not returned, we do
               not return it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi says, a tradition from Moshe from Sinai
               teaches that in a place where the custom is to
               return it, we return it. Where it is not returned,
               we do not return it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Rebbi is just like R. Noson!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> They argue about whether she may say
               'give to me my husband, and I will rejoice with
               him'. The Beraisa is abbreviated, it should say as
               follows. R. Noson says, if one is Mekadesh a woman,
               if she was a virgin she collects 200; if not, she
               collects 100;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is only if he retracted. If she died, in a
                    place where the custom is to return Kidushin
                    money, we return it. Where it is not returned,
                    we do not return it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  This is only if she died. If he died, she
                    may say 'give to me my husband, and I will
                    rejoice with him'.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  Rebbi says, whether he or she died, a
                    tradition from Sinai teaches that in a place
                    where the custom is to return it, we return it.
                    Where it is not returned, we do not return it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  (In a place where they return it,) she
                    cannot say 'give to me my husband, and I will
                    rejoice with him'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (and Answer #2):</font></b> No, all agree that she can
          say 'give to me my husband....' When he died, all agree
          that she keeps the money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue in a case when she died, about whether
               Kidushin money is given l'Tivu'in (to stay, even if
               she dies before Nisu'in);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Noson says, Kidushin money is not given
               l'Tivu'in. Rebbi says that it is.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa - Rebbi):</font></b> In a place where the custom
          is to return it, we return it; where it is not returned,
          we do not return it'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Rebbi means that regarding Savlonos (gifts that
          a Chasan gives to the Kalah during Eirusin), in a place
          where the custom is to return them, we return them. Where
          they are not returned, we do not return them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Noson and Rebbi argue as the following Tana'im
          argue.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Shimon was Mekadesh Leah
               with a Kikar (2500 Zuz), if she was a virgin, she
               collects 200. If not, she collects 100 (this will be
               explained);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, a virgin keeps 200, and a widow
               keeps 100. She returns the rest;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi says, if he was Mekadesh with 80 Zuz, he
               gives to her half of 120. If he was Mekadesh with
               120 Zuz, he gives to her half of 80 (this will be
               explained).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If she died, the Kesuvah is not paid!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, he died.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, why does R. Yehudah say that
               she returns the rest? Why can't she say 'give to me
               my husband...'?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, Shimon is a Yisrael. Leah had
               Bi'ah with another man (and became forbidden to
               him).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection:</font></b> If she willingly had Bi'ah, she does
               not receive a Kesuvah. If she was raped, she is
               permitted to Shimon!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #3:</font></b> Rather, Shimon is a Kohen. Leah was
               raped. The Tana'im argue about whether or not
               Kidushin money is given l'Tivu'in;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir holds that it is given l'Tivu'in. R.
                    Yehudah holds that it is not. R. Yosi is in
                    doubt;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Therefore, according to R. Yosi, half the
                    Kidushin money counts towards payment of the
                    Kesuvah (for we are unsure whether Kidushin
                    money must be returned);
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  (He discusses a widow.) If Shimon was
                    Mekadesh with 80 Zuz, 40 counts towards the
                    Kesuvah, so he owes her another 60. If he was
                    Mekadesh with 120 Zuz, 60 counts towards the
                    Kesuvah, so he owes another 40.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yosef bar Minyomi):</font></b> Wherever the custom is to
          return, we return.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He refers to Neharde'a.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the custom in the rest of Bavel?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rabah and Rav Yosef):</font></b> Moharei (Savlonos that
          will be written in the Kesuvah) are returned. Kidushin
          money is not returned.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The Halachah is, whether he or she died or
          he retracted, Moharei are returned, but Kidushin money is
          not returned;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she retracted, also Kidushin money is
               returned.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> Kidushin money is not returned. This is a
          decree lest people say that the Kidushin was mistaken
          (and never took effect), and that he can be Mekadesh (and
          marry) her sister.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> We are not concerned for this. Since he
          gives a Get, all know that he cannot be Mekadesh her
          sister.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> This is wrong. Perhaps someone heard that
          the Kidushin money was returned, but did not hear about
          the Get.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>COLLECTING SHUSHVINUS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Shushvinus can be collected in Beis Din.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Five laws were said about Shushvinus: it can
          be collected in Beis Din, it is repaid at the proper time
          (when the giver gets married), we are not concerned for
          Ribis, it is not cancelled in Shemitah, and a firstborn
          does not receive a double portion of it.
<br>
<br>

sjt:
<font><b>1) A 'SHUSHVIN' WHO DIES</b></font><b>
<br>OPINIONS:</b> The Gemara concludes that when the recipient of a gift of Shushvinus is unable to reciprocate the gift because the giver dies before he can get married, the recipient is not obligated to give the gift to the heirs. He may claim, 'Give me my friend so that I can rejoice with him.' Since his friend is no longer alive, his obligation to reciprocate the Shushvinus is terminated.
</p><p>
What is the Halachah in the opposite case, when the recipient dies and then the giver of the Shushvinus gets married? Are the original recipient's heirs obligated to give the Shushvinus to their father's friend when he gets married?
</p><p>
(a) The <b>RAMBAN</b> writes that the heirs may <i>not</i> claim, 'Since our father cannot rejoice with you at your wedding, he is no longer obligated to give you the Shushvinus.' Rather, they are obligated to pay their father's 'debt' of Shushvinus to their father's friend when he gets married. The Ramban explains that the inability of the recipient to celebrate at his friend's wedding is not a reason to exempt him (or his heirs) from giving the Shushvinus. This is evident from the Gemara later (145b) which says that even if the Chasan failed to inform his friend about his upcoming wedding and therefore his friend did not come and celebrate at the wedding, he still is obligated to give the Shushvinus.
</p><p>
(b) The <b><b><b>RI</b></b> MI'GASH</b>, <b>RAMBAM</b>, and <b>RAN</b> disagree with the Ramban and maintain that the heirs are not necessarily obligated to give the Shushvinus to their father's friend when he gets married. Rather, such a case is similar to the case of a man who gave money of Kidushin to a woman, and then the woman died before the Nisu'in was performed. In such a case, the custom of their particular place dictates whether the woman's heirs are required to return the money of Kidushin to the man. (This is also the ruling of the <b>TUR</b> EH 60.)
</p><p>
In response to the Ramban's proof from the case of a Chasan who failed to inform his friend about his upcoming wedding (in which case the friend remains obligated to give the Shushvinus), the Ran explains that the friend remains obligated because it is his responsibility to find out when his friend is getting married. (It is not expected of a Chasan to say to his friend, 'I am making a wedding on such and such a date, so make sure to give me the gifts of Shushvinus.') Therefore, when the friend was not informed about the wedding and did not attend it, he still is obligated to give the Shushvinus since he should have found out about the wedding. When the recipient of the first Shushvinus dies, however, it is logical to exempt his heirs from giving the Shushvinus. He is not held responsible to attend his friend's wedding, and his absence was beyond his control. Therefore, the Halachah follows the prevalent custom of the place.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS KIDUSHIN MONEY RETURNED?</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 - R. Noson):</font></b> In a place where the custom is
               to return Kidushin money, we return it. Where it is
               not returned, we do not return it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, a tradition from Sinai teaches that in a
               place where the custom is to return it, we return
               it. Where it is not returned, we do not return it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They argue in a case when she died, about whether
               Kidushin money is given l'Tivu'in (to stay, even if
               she dies before Nisu'in). R. Noson says that
               Kidushin money is not given l'Tivu'in. Rebbi says
               that it is.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> The Halachah is, whether he or she died
               or he retracted, Kidushin money is not returned. If
               she retracted, it is returned.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Ameimar):</font></b> Kidushin money is not returned. This is a
               decree lest people say that the Kidushin was
               mistaken (and never took effect), and that he can be
               Mekadesh (and marry) her sister.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> We are not concerned for this. Since he
               gives a Get, all know that he cannot be Mekadesh her
               sister.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps someone heard that the Kidushin
               money was returned, but did not hear about the Get.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kesuvos 76a (Rav Yehudah):</font></b> Shmuel learned from the
               Mishnah about a Kalah to one who traded a cow for a
               donkey, and found that it was dead.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Nachman bar Yitzchak):</font></b> He discusses an Arusah.
               Even the opinion that Kidushin money is not returned
               says so only about a Vadai Kidushin. Regarding a
               Ta'os, if the father cannot bring a proof he must
               return the money.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> A Beraisa teaches that if a buyer already
               paid for an animal, he must prove that it was
               Tereifah to recover his money. According to Shmuel,
               the seller should need to bring a proof to keep his
               money!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rami bar Yechezkel):</font></b> Rav Yehudah erred. Rather,
               Shmuel said that the burden of proof is on the one
               in whose Reshus the doubt arose. The entire Mishnah
               of a Kalah supports this (like Rava explained).
<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 (9:13):</font></b> The Halachah follows Ameimar.
               Kidushin money is never returned.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 6:18):</font></b> If one was Mekadesh
               a woman, even with 1000 Dinarim, if either retracted
               or died, the money is not returned. It is an
               absolute gift.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (19):</font></b> If it was Kidushei Ta'os, the money is
               returned. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> This is when he thought that it
                    is Kidushin, and it was something one could err
                    about. If one was Mekadesh his sister, he knew
                    that it is not Kidushin (and the money was a
                    gift or deposit).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Mordechai (Kidushin 535):</font></b> If one divorced his
               Arusah, the Gemara concludes that he cannot get back
               the Kidushin money, whether he or she initiated the
               quarrel. This is a decree lest people say that there
               was no Kidushin, and he may marry her sister in her
               lifetime. Tana'im argue about whether Kidushin was
               given l'Tivu'in, i.e. as if it sank in the sea and
               will not return. There was no final ruling. If
               Kidushin was conditional and the Tanai was not
               fulfilled, or it was Safek Kidushin, all agree that
               Kidushin money is not given l'Tivu'in.
<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 50:1):</font></b> If one was Mekadesh a
               woman, whether he or she retracted or died, or he
               divorced her, the money is never returned. Even if
               he was Mekadesh her with 1000 Dinarim, it is an
               absolute gift that is not returned. If it was
               Kidushei Ta'os, the money is returned.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (1):</font></b> The Tur and Rambam omit
                    'or he divorced her', for this is how he
                    retracts! The Shulchan Aruch taught both. We
                    must say that it discusses divorce when she
                    became forbidden to him. One might have thought
                    that we fine her and she must return the money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (2):</font></b> It is a gift, even though
                    presumably, he intended to give the money only
                    on condition that there will be Nisu'in, and it
                    should be returned even if he died, and all the
                    more so if she retracted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies if she (was
               an orphaned minor and) did Mi'un (annulled a
               marriage mid'Rabanan), or the Kidushin was
               conditional and the Tanai was not fulfilled, or if
               it was Safek Kidushin.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav ha'Ramban, citing the
                    Ramban):</font></b> A Ga'on says that if she if she did
                    Mi'un, the money is returned, for then he may
                    marry her relatives and she may marry his
                    relatives. We want people to say that he can be
                    Mekadesh her sister (lest he be Mekadesh her,
                    and people think that it has no effect)! If a
                    minor is divorced, since he is forbidden to her
                    relatives, the decree applies. Also the Nimukei
                    Yosef (DH Aval) says so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (4):</font></b> If there was Safek
                    Kidushin, a Get is needed. We should be
                    concerned lest people say that he can be
                    Mekadesh her sister! The Mordechai proved from
                    Kesuvos that money of Safek Kidushin is
                    returned. However, that is not the conclusion.
                    Rami bar Yechezkeil rejected it. Also, perhaps
                    Rav Nachman bar Yitzchak does not hold like
                    Ameimar, who decrees that Kidushin money is
                    never returned. Safek Kidushin is no less than
                    Kidushin mid'Rabanan of a (orphaned) minor. If
                    a minor is divorced, the money is not returned
                    due to Ameimar's concern! This is why the
                    Rambam mentioned Kidushei Ta'os, but not Safek
                    Kidushin.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Shmuel (5):</font></b> The Shulchan Aruch learned
                    from the Mordechai. I say that the Mordechai
                    means that if surely Kidushin money is
                    l'Tivu'in, it would be returned even when there
                    is no concern, e.g. after Nisu'in. Surely Safek
                    Kidushin is not given l'Tivu'in, so if there is
                    no concern, it is returned. The Shulchan Aruch
                    understood that it is returned in any case of
                    Safek Kidushin. This is difficult. Perhaps he
                    understands that Rav Papa and Ameimar hold that
                    Kidushin money is given l'Tivu'in, and they
                    argue about whether they fine her to return it
                    when she retracts. When it is not l'Tivu'in,
                    e.g. Safek Kidushin, all agree that we do not
                    uproot his rights due to the concern. What I
                    said above is primary.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (4):</font></b> Rashi (Kesuvos 76b DH Aliba) says that
                    Safek Kidushin is like Kidushei Ta'os regarding
                    returning the money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> This refers only to Kidushin. From Nisu'in,
               the money returns.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (1):</font></b> The Maharil (61) says so.
                    Kidushin does not return, for we are concerned
                    lest people say that it was Kidushei Ta'os.
                    There is no such concern from Nisu'in,
                    therefore, the money returns. He ruled like
                    this in an actual case.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (5):</font></b> It seems that the Rema
                    discusses when she retracted and rebelled
                    against him. Then the money returns, for he did
                    not give it with intent that she rebel against
                    him. If he died or retracted, surely it does
                    not return. He must even pay a Kesuvah! Must a
                    father who received Kidushin money return it
                    when the Chasan dies or divorces her?! The
                    Maharil discusses when she died. Letter of the
                    law, her husband inherits her. There was an
                    enactment that if she dies within the year, he
                    returns half the dowry (Rema 53:3). In this
                    case the Maharil ruled that the Chasan gets
                    back the pre-nuptial gifts that he sent to her,
                    and even the Kidushin money. The enactment was
                    only to return half of what she brought into
                    the marriage. One might think that she acquired
                    Kidushin money at the time of Kidushin, and it
                    is as if she brought it into the marriage; the
                    Maharil says otherwise. Surely he did not mean
                    that every widow or divorcee returns the
                    Kidushin money. Maharam Lublin (19) says that
                    the Maharil says that the Kidushin ring is
                    returned and it is appraised in the Kesuvah,
                    and this is the custom in some congregations.
                    This is difficult. Why is the ring different
                    from gifts that others give to her, which are
                    hers?! The Rema holds like I said; he should
                    have explained more clearly. Perhaps he relies
                    on what the Shulchan Aruch wrote above, that
                    Kidushin money is an absolute gift that is not
                    returned.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Shmuel (1):</font></b> Maharam Lublin (19) says that
                    Ameimar holds that Kidushin money is not given
                    l'Tivu'in, but we decree that it is not
                    returned, lest people say that he can be
                    Mekadesh her sister. Maharil holds that
                    Kidushin money is returned even if he died or
                    divorced her after Nisu'in, for it is not
                    l'Tivu'in, and Ameimar's concern does not
                    apply. The Rema holds like this, and unlike
                    Chelkas Mechokek. Maharam Mintz (96) says that
                    the money is like a gift for her to adorn
                    herself with, which is returned (Rema 99:2). R.
                    Yerucham says that if she was forbidden to him
                    by a Lav, just like he pays a Kesuvah when he
                    divorces her, she keeps the Kidushin money.
                    This connotes that if she was forbidden
                    mid'Rabanan, and gets no Kesuvah, she returns
                    the Kidushin money. He must hold that there is
                    no concern after Nisu'in. If an Arusah returned
                    the money, people would assume that it was
                    Kidushei Ta'os; they would not say that this
                    was a fine. All these opinions hold that there
                    is no concern after Nisu'in. Mahari Veil (20)
                    and She'eris Yosef (43) say that we are
                    concerned even after Nisu'in, and the money is
                    not returned. The Mordechai says that it is not
                    returned not due to Ameimar's concern, rather,
                    for we never resolved whether Kidushin is
                    l'Tivu'in, so she need not return it due to
                    Safek. I say that if a minor was divorced even
                    after Nisu'in the money is not returned, lest
                    people say that she left through Mi'un and he
                    is permitted to her relatives.<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why can it be collected in Beis Din?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like a loan.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	We are not concerned for Ribis, because the giver does
          not care if more or less is returned.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	It is not cancelled in Shemitah, because 'Lo Yigos (do
          not demand payment) does not apply (R. Tam - because it
          is not due until the giver gets married; Ri - for perhaps
          he will never need to repay it).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A firstborn does not receive a double portion of it,
          because it is Ra'uy, and a firstborn receives a double
          portion only in what is Muchzak.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Kahana):</font></b> If the one who received (Moshe) was in
          the city when the giver (Reuven) got married, he must
          come (if he did not, Reuven may collect it in Beis Din);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Moshe heard bells signifying the festivities,
               he must come. If he did not hear them, Reuven should
               have informed him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven did not inform him, Moshe has gripes
               against Reuven, but in any case he must pay.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> How much must he pay? (Surely, he need not
          pay the full amount, for Moshe did not eat Reuven's
          food.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The custom is, if Reuven brought up to
          one Zuz to Moshe, presumably he ate this amount, so Moshe
          need not return anything;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven brought up to four Zuzim, presumably
               Moshe served to him half, so Moshe returns half;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven brought more than four Zuzim, Moshe
               deducts based on how important Reuven is. (A
               distinguished person is served more expensive food.)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If Reuven rejoiced with Moshe publicly, and
          Reuven's celebration will be modest, Moshe can say 'I
          want to rejoice with you publicly, like you did with me';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If (Reuven rejoiced with Moshe when) Moshe
               married a virgin, and Reuven married a widow, Moshe
               can say 'I will rejoice with you when you marry a
               virgin, like I did';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If (Reuven rejoiced with Moshe when) Moshe
               married his second wife, and Reuven married his
               first wife, Moshe can say 'I will rejoice with you
               when you marry your second wife, as I did (I need
               not rejoice with you in a bigger celebration than
               you did with me).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #1 (our text):</font></b> If Moshe married one
               woman, and Reuven will marry two and wants Moshe to
               return half each time, Moshe can say 'I will rejoice
               with you once, like you did with me.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #2 (Rivam):</font></b> If Reuven rejoiced with Moshe
               twice, and Reuven is marrying one woman and wants
               Moshe to return both, Moshe can say 'I will return
               half now, and the rest when you marry a second wife,
               like you did with me'.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE MOST IMPORTANT ASSETS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> One who knows Agados is like one with much
          land and known possessions (he becomes famous, for he can
          expound anywhere);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A master of Pilpul (delving deeply into Torah) is
               like a moneychanger with coins and one who owns land
               that yields choice olives (he constantly profits);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who knows teachings is like one with wealth
               stored up. When the time comes, he profits;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One who knows Gemara (to resolve difficulties of
               Mishnayos and Beraisos), he is like the one who
               sells wheat. Everyone needs him.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> 'Kol Yemei Oni Ra'im' refers to one who
          learns Gemara (he always has difficulties);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Tov Lev Mishteh Samid' refers to one who
               learns only Mishnah (he does not encounter
               difficulties).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rava):</font></b> To the contrary! One who only learns Mishnah
          can never give a ruling. One who learns Gemara can give
          rulings.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Mesharshiya):</font></b> 'Masi'a Avanim Ye'atzev Bahem'
               refers to one who learns only Mishnah. 'Boke'a Etzim
               Yisachen Bam' is one who learns Gemara (he is warmed
               (benefits from) his learning).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Chanina):</font></b> 'Kol Yemei Oni Ra'im' refers to one who
          has a bad wife. 'V'Tov Lev Mishteh Samid' refers to one
          who has a good wife.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Yanai):</font></b> 'Kol Yemei Oni Ra'im' refers to an Istenis
          (a very sensitive person);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Tov Lev Mishteh Samid' refers to one who is
               not sensitive.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> 'Kol Yemei Oni Ra'im' refers to a
          merciful person (he is always upset by other people's
          problems);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Tov Lev Mishteh Samid' refers to one who has
               no mercy on others.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Yehoshua ben Levi):</font></b> 'Kol Yemei Oni Ra'im' refers to
          an irritable person;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Tov Lev Mishteh Samid' refers to one who is
               easygoing.
<br>

sjt:
</p><p>
<font><b>2) AGADAH: THE MASTER OF TEACHINGS</b></font><b>
<br>QUESTION:</b> The Gemara gives a number of metaphors for different types of scholars. The Gemara compares a person who is a master of Agadah (the homiletic, non-Halachic parts of Torah) to a person who is rich with property that can be seen by all (such as fields, vineyards, olive trees, and animals). He is compared to a publicly rich man because he is able to expound his knowledge of Agadah to the masses everywhere, since a listener does not need to possess great intelligence in order to hear Agadah.
</p><p>
The Gemara compares a person who is a master of Pilpul (erudition and deep understanding of the Torah) to a person who is rich with coins or rich with oil, since a master of Pilpul constantly understands new concepts and ideas, just as a person who deals with coins or oil constantly has an income.
</p><p>
The Gemara compares a person who is a master of teachings and rulings to a person who is rich with things that are stored (and not sold), since a master of teachings is able to reveal any part of his learning whenever it is needed.
</p><p>
Is the Gemara's intent to describe the different characteristics and strengths of each of these masters of learning, or is its point to describe them in an order of importance or preference?
</p><p>
<b>ANSWER:</b> The <b>MAHARIK</b> (#169) maintains that the Gemara's description of these masters of learning follows an increasing order of prominence. The 'Ba'al Pilpul' is greater than the 'Ba'al Agadah' because his analytic ability and deep understanding enables him to learn and penetrate all areas of Torah so that he can reach the truth in all areas. The 'Ba'al Shemu'os,' however, has an advantage even over the 'Ba'al Pilpul,' because his knowledge is needed by all people for their Avodas Hash-m (just as wheat is a staple food needed by all people). This explains why -- when the Amora'im in Eretz Yisrael were asked whether 'Sinai' is preferable (referring to Rav Yosef, who knew all of the Torah) or 'Oker Harim' is preferable ('a person who uproots mountains,' referring to Rabah, who was able to penetrate to the root of even the most complex issue), they proclaimed that 'Sinai' is preferable (Berachos 64a, Horayos 14a). (The Maharik concludes, however, that since it is a Machlokes Tana'im (Horayos 14a) whether 'Sinai' is preferable or 'Oker Harim' is preferable, the Gemara here cannot serve as conclusive proof that 'Sinai' is preferable because it may be in accordance with the opinion that maintains that 'Sinai' is preferable.) (See also <b>TOSFOS RID</b>.)
</p><p>
<b>REBBI TZADOK HA'KOHEN</b> (cited by <b>YOSEF DA'AS</b>) writes that this also might be the subject of the dispute between Rebbi Zeira and Rava (which the Gemara quotes next). Rebbi Zeira said that the phrase, 'All of the days of the poor are bad' (Mishlei 15:15), refer to a person who is a master of the Gemara ('Ba'al Gemara'), while the phrase, 'and the good of heart has a constant feast' (ibid.), refers to a person who is a master of the Mishnah ('Ba'al Mishnah'). Rava argued and said the opposite: 'all the days of the poor are bad' refers to the Ba'al Mishnah, while 'the good of heart has a constant feast' refers to the Ba'al Gemara.
</p><p>
The Gemara (Bava Metzia 85a) relates that when Rebbi Zeira moved from Bavel to Eretz Yisrael, he fasted 100 fasts in order to forget all of the learning that he absorbed in Bavel. This was because the style of learning in Eretz Yisrael was that of 'Sinai,' broad knowledge of all parts of the Torah, while the style in Bavel was 'Oker Harim,' deep analysis. Rebbi Zeira chose the style of Eretz Yisrael for himself, and therefore he maintained that the words 'the good of heart has a constant feast' refer to the Ba'al Mishnah (a person who has broad knowledge). Rava argued and said that the phrase 'the good of heart has a constant feast' refers to the Ba'al Gemara, because Rava preferred the style of deep analytical learning over broad knowledge, as the Gemara indicates earlier (Bava Basra 22a; in addition, the Gemara often refers to his deep questions as 'Havayos d'Abaye v'Rava').
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE POOR SUFFER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Yehoshua ben Levi):</font></b> Why does it say 'Kol
          Yemei Oni Ra'im'? He eats well on Shabbos and Yom Tov (we
          distribute Tzedakah to the poor then)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Even Shabbos and Yom Tov are bad for him, like
          Shmuel taught.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> A change from one's normal diet prompts
               (intestinal) sickness.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Sefer ben Sira):</font></b> '<i>Kol</i> Yemei Oni Ra'im' includes the
          nights. His roof is lower than the others, and rainwater
          falls onto his roof and drips inside;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> His vineyard is the highest. Its soil gets washed
               onto others' vineyards.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN ARE 'SAVLONOS' RETURNED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven sent Savlonos to his father-in-
          law's house, even if he sent 10,000 Dinarim and he ate
          there only one meal worth a Dinar, he does not get
          anything back (even if there will be no Nisu'in, e.g. one
          of them died or he decided to divorce her);
<br>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he never ate there, he gets back what he sent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he sent much Savlonos (and stipulated that it
               is) in order that she bring them to him at the time
               of Nisu'in), he gets back what he sent.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he sent a small amount for her to use in her
               father's house, he does not get them back.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Gemara - Rava):</font></b> This is only if he ate a Dinar's
          worth. If he ate less, he gets back what he sent.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious. The Mishnah says 'a Dinar'!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that the same applies
          even if he ate less than a Dinar's worth, and the Mishnah
          gave a typical case. Rava teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Questions:</font></b> The Mishnah says 'if he <i>ate</i>', he does not
          get anything back. If he drank, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah says 'if <i>he</i> ate...'. If his
               messenger ate, what is the law?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Mishnah says 'if he ate <i>there</i>'. If they
               sent food for him and he ate it elsewhere, what is
               the law?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (and question against Rava - Rav Yehudah):</font></b> A
          case occurred in which Shimon sent 100 wagons of wine and
          oil, Kelim of gold and silver, and silk garments. He came
          to the door, and they gave to him a cup of hot water. He
          drank it outside. He died before the Nisu'in. The
          Chachamim in Usha ruled that those gifts that normally
          would not last (until the Nisu'in, e.g. wine) are not
          returned. Gifts that normally would last (e.g. gold and
          silver Kelim) are returned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that even if he drank, and even if
               he consumed less than a Dinar, the gifts are not
               returned.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (for Rava - Rav Ashi):</font></b> Perhaps a gem worth 1000
          Dinarim was ground up into the water (this is sometimes
          done for a cure).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Inference:</font></b> The episode teaches that even if they sent
          food for him and he ate it elsewhere, the gifts are not
          returned.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps eating at the door to his father-in-
          law's house is like eating in the house.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HOW MUCH 'SAVLONOS' ARE RETURNED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> (When Savlonos must be returned,) if they
          increased in value, is the increased value returned?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since if they are intact, they themselves are
               returned, it is as if the Chasan's property
               increased in value;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since if they are lost or stolen she must
               return their value, it is as if her property
               increased in value?
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	This question is unsettled.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If Savlonos that normally do not last,
          happened to last, what is the law?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rav Yehudah taught... Chachamim in Usha
          ruled that gifts that normally do not last are not
          returned. Gifts that normally last are returned.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Gifts that normally do not last are
               not returned, even if they happened to last!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Only if they wore out, then they are not
          returned.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah):</font></b> If he sent a small amount of
          Savlonos for her to use in her father's house, he does
          not get them back.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> This refers to kerchiefs (they are
          inexpensive, and the Chasan pardons them. We cannot learn
          to expensive gifts).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> A case occurred in which a Chasan sent
          to his father-in-law new wine, new oil and new linen
          garments at Shavu'os.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> What do we learn from this?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> This teaches the praise of Eretz Yisrael (he
          was able to harvest new fruits before Shavu'os).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> If a Chasan will make such a claim (that he
          sent new wine... at Shavu'os), we do not say that surely
          he is lying.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> A case occurred in which people told a
          Chasan that his wife cannot smell (this is a blemish, it
          invalidates the Kidushin). He entered a ruin with her,
          and said 'I smell a radish in Galil.'
<br>
<br>

sjt:
<font><b>1) FORFEITURE OF PRESENTS GIVEN BEFORE KIDUSHIN</b></font><b>
<br>OPINIONS:</b> The Mishnah states that when a Chasan sends presents, Savlonos, to the home of his future father-in-law and he eats a Dinar's worth of food in his father-in-law's home in honor of his marriage, he (or his heirs) may not reclaim those presents in the event that the Kalah dies, he dies, or he changes his mind and decides not to marry her. (If the Kalah changes her mind, then the Savlonos are returned; see 146b.) If the Chasan does not eat a Dinar's worth of food in his father-in-law's home, he may reclaim the presents.
</p><p>
The <b>RASHBAM</b>, <b>RABEINU GERSHOM</b>, and others explain that the Chasan forfeits the right to reclaim the presents because he experienced great joy when he ate a Dinar's worth of food at a feast in his honor in his Kalah's home.
</p><p>
Is there a difference between gifts that the Chasan sends before the Kidushin and those that he sends after the Kidushin?
</p><p>
(a) The <b>RASHBAM</b> and <b>RITVA</b> clearly state that this law applies only to gifts given after the Kidushin. The <b>RITVA</b> explains that a Chasan certainly would not forfeit the right to reclaim gifts he gave before the Kidushin merely because he partook of a joyous meal in his Kalah's home.
</p><p>
The <b>MAHARIK</b> (#171) proves this from the Gemara itself. The Gemara discusses an incident in which a Chasan sent 100 wagonloads of wine, oil, silver, gold, and clothing to his future father-in-law's home. Certainly this man would not have sent such a large gift unless he had already performed Kidushin.
</p><p>
(b) The <b>REMA</b> (EH 50:3) understands that the <b>RASHBA</b> argues with the Ritva and does not differentiate between gifts given before the Kidushin and gifts given after the Kidushin. He infers this from the Rashba's statement that 'a Chasan must return things sent to him before Kidushin, just as gifts that he sent must be returned to him.' This implies that the Mishnah's ruling applies to gifts given both before and after the Kidushin.
</p><p>
(c) The <b>TAZ</b> disagrees with the Rema's understanding of the Rashba. The Taz asserts that the Rashba states only that everything returns to its original owner. However, he does not equate the law of eating at the home of one's future father-in-law after Kidushin with that of eating there before the Kidushin. The Taz understands that everyone agrees that this is a special law that applies only after Kidushin.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DOES A HUSBAND FORFEIT INHERITANCE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> A case occurred in which a Chasan
               heard that his wife cannot smell. He entered a ruin
               with her, and said 'I smell a radish in Galil.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  His wife:</font></b> If only someone would give me dates
                    of Yericho, I would eat them!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> The ruin collapsed, and she died. Chachamim
                    ruled that since he was testing her, he does
                    not inherit her.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim ruled that since he entered to test her,
               he does not inherit her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Gitin 17a (R. Yochanan):</font></b> According to Chachamim, we
               enacted to put the date on a Get lest a woman commit
               adultery, and her husband save her from execution by
               giving her a dateless Get. R. Shimon holds that the
               date on a Get is due to Peros. (He holds that the
               husband forfeits Peros from when he writes the Get,
               even if not yet signed.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim hold that he eats the Peros until the Get
               is given.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> According to Reish Lakish, R. Shimon holds that she
               gets the Peros from the writing of the Get.
               Chachamim say that she gets them from when it is
               signed.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Kesuvos 27a and 5:35):</font></b> If a woman does
               not desire her husband and requests a divorce, our
               practice is to force him to divorce her, without a
               Kesuvah. However, if she was sick and requests a
               divorce, there is no enactment (he need not divorce
               her). Some disagree. Presumably, we do not uproot
               inheritance mid'Oraisa. Surely if one must divorce
               his wife, mid'Oraisa or mid'Rabanan, and she died
               before he did so, he inherits her. Only proper
               divorce uproots inheritance mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 22:6):</font></b> The Ge'onim ruled that
               if a woman became sick and asked her husband to
               divorce her and she will leave without a Kesuvah, in
               order that he will not inherit her, we do not heed
               her. Even if she said 'I hate him. I do not want to
               remain with him', we do not heed her, and she is not
               considered Moredes (one who rebels against her
               husband). This is proper.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Basra 9:16):</font></b> The Rashbam explains that
               she was Nesu'ah. Since he entered to test her and
               planned to divorce her if she has the blemish, and
               she died before he accepted her, he does not inherit
               her. We learn from here that if a wife died amidst a
               quarrel and he intended to divorce her, he does not
               inherit her. We say that once he intends to divorce
               her, he does not receive Peros of her property
               (Gitin 18a). Some texts say 'since he entered only
               to test her', and they establish the case to be that
               she was an Arusah (Mekudeshes). This is difficult,
               for even if he had Bi'ah with her, he does not
               inherit her (Kesuvos 53a)! This is not difficult,
               for if she entered his Chatzer, we assume that it
               was for Nisu'in. It was his ruin, and he says that
               he intended for Nisu'in if she can smell, and he
               found that she can smell. Therefore, she was fully
               married, and he inherits her. Chachamim ruled that
               since he entered only to test her, her entering is
               not considered Nisu'in, so he does not inherit her.
               Now, there is no proof to the Rashbam's Halachah.
               There is no proof from the law of Peros. Firstly, R.
               Yochanan disagrees. Also, he loses Peros only if he
               divorces her in the end. Also, how can we learn from
               Peros, which is an enactment mid'Rabanan? Perhaps
               they did not enact when he intends to divorce her!
               Inheritance is mid'Oraisa. It is not uprooted if he
               hates her. If a son hates his father, does he not
               inherit him?! Also, if she was already Nesu'ah, why
               did he need to enter a ruin to test her? He could
               test her in his house!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Garsinan):</font></b> She smelled that
                    he had dates with him, and answered him
                    jokingly. She was only Mekudeshes, but had she
                    entered for the sake of Nisu'in, he would have
                    inherited her. We learn from here that if an
                    Arusah entered the Arus' house, and he entered
                    after her, we say that it was l'Shem Nisu'in,
                    and he inherits her.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mordechai (612):</font></b> Avi ha'Ezri says that even
                    those who explain like the Rashbam say that he
                    forfeits inheritance only because he acted
                    improperly; it is improper to divorce for such
                    a minor blemish. R. Avraham says that 'your
                    <i>wife</i> cannot smell' connotes that she was
                    Nesu'ah. Also, a ruin is not a place of
                    seclusion for Nisu'in. Since he claimed that
                    his Kidushin was mistaken, he admitted that he
                    does not inherit her.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (EH 90:5):</font></b> As long as she was not divorced,
               even if he intended to divorce her, he inherits her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (21):</font></b> This is unlike the Rashbam,
                    who says that she was Nesu'ah. All the Poskim
                    argue with him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (17):</font></b> Also Hagahos Maimoniyos (Ishus
                    Teshuvah 35) holds like the Rashbam and brings
                    the Rashbam's proofs.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Pischei Teshuvah (8):</font></b> The Chasam Sofer says
                    that even the Rashbam says that he forfeits
                    inheritance only before R. Gershom's enactment
                    (that one cannot divorce a wife against her
                    will). Nowadays, a man who wants to divorce is
                    no different than a woman who wants to be
                    divorce. This is not called a quarrel. The Yam
                    Shel Shlomo (Gitin 2:4) says that if a couple
                    agreed to a divorce and she died, he does not
                    mourn over her, for we follow the lenient
                    opinion in Aveilus.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz (9):</font></b> The Tur says that only full divorce
                    uproots inheritance. He does not exclude one
                    who promised to divorce, and made a Kinyan or
                    swore about this. Even though we permit all
                    oaths and Kinyanim at the time of divorced,
                    since he did an act to cut her off, he does not
                    inherit her. 'Only full divorce' excludes one
                    who intended to divorce, but did nothing. This
                    is like one who waives rights to his wife's
                    Peros. It takes effect only if he did a Kinyan.
                    This is like the Rema brings below, that if one
                    forbade her through a vow (some say that he
                    does not inherit her). Even the Rosh would
                    agree with the Rashbam about this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If one claims that his wife had blemishes, and
               his Kinyan was mistaken, if she died, he does not
               inherit her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (15):</font></b> Regarding Kidushin, she
                    needs a Get due to Safek. Regarding money, we
                    leave it in its Chazakah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (22):</font></b> This opinion is like the
                    Rashbam. We do not find that inability to smell
                    is a blemish. Perhaps he stipulated about this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If she rebelled against him and she died, he
               inherits her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (10):</font></b> The Rambam holds that normally, if a
                    woman says that her husband repulses her, we
                    force him to divorce her. This is when she is
                    healthy and wants to remarry. If she is sick
                    and requests a Get so that he will not inherit
                    her, we do not force him. Even though we hold
                    that we never force one to divorce when she
                    claims 'he repulses me', the Tur brought the
                    Rambam, for it teaches about one whom we force
                    to divorce, that we do not force if she is
                    sick. Also the Shulchan Aruch should have
                    brought this!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> If one rebelled against his wife or forbade
               her through a vow and does not treat her like a
               wife, some say that if she died, he does not inherit
               her.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Hevi):</font></b> The Tur
                    supports the Rosh from the Rambam. This is
                    wrong. The Rambam discusses a woman who
                    requests a divorce. We cannot learn to a man
                    who wanted to divorce her!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (17):</font></b> Above, the Rema said
                    that even if he intended to divorce her, he
                    inherits her. Presumably, he was not treating
                    her like a wife! The Darchei Moshe says that
                    this is like the Rashbam, who says that one who
                    intended to divorce her does not inherit her.
                    The Rif and Rosh hold that he inherits her as
                    long as he did not divorce her. However,
                    perhaps this is only when he wants to treat her
                    like a wife. We cannot learn to one who rebels
                    against her or forbade her through a vow. I say
                    that the Rif's words 'whoever we force to
                    divorce...' includes one who rebelled against
                    her.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Shmuel (23):</font></b> Shiltei ha'Giborim (Kesuvos
                    27b:2) says that one who rebels against her
                    does not inherit her. The Darchei Moshe says
                    that the Rif and Rosh discuss one who treats
                    her like a wife, but we force him to divorce
                    her for another reason. I say that the Rif's
                    words include anyone we force. The Mizrachi
                    says that Shiltei ha'Giborim is a lone opinion.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A HUSBAND INHERIT AFTER SAFEK DIVORCE? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> His wife:</font></b> If only someone would give me dates of
               Yericho, I would eat them! (Some say that she
               smelled that he had dates with him, and answered him
               jokingly.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The ruin collapsed, and she died. Chachamim ruled
               that since he was testing her, he does not inherit
               her. (Rashbam - she was fully married to him. He
               intended to divorce her if he finds that she cannot
               smell. R. Tam - she was only Mekudeshes, and he
               owned the ruin. Since he brought her there only to
               test her, this is not Nisu'in, so he does not
               inherit her.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he sent a small amount of Savlonos for
          her to use in her father's house...
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Ravin Sava):</font></b> Whether he or she died or he retracted,
          the gifts are returned. Food and drink are not returned;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If she retracted, even bundles of vegetables are
               returned.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	When returning (money in place of) food, we evaluate
          meat according to the cheaper price.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question:</font></b> How much is this?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer:</font></b> It is a third less than what it sells for on
          the market day.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>'MATNAS SHECHIV MERA'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a Shechiv Mera 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);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he did not keep land for himself, he can retract.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Who is the Tana of the Mishnah, who
          follows estimation (of one's intention, that he gave all
          his property only because he did not expect to live)?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> It is R. Shimon ben Menasiya.
<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'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Sheshes):</font></b> It is R. Shimon Shezuri.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> At first, they used to say that if one
               was being led to his execution and said 'write a Get
               to my wife', we write and give it (surely, he wanted
               us to give it. He forgot to say this because he was
               distracted);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Later, they said that this applies also to one
               who is boarding a ship to go overseas or leaving
               with a caravan;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon Shezuri says, this applies also to a
               Shechiv Mera.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Rav Nachman establish our Mishnah
          like R. Shimon Shezuri?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> There, he said 'write' (which shows that he
          wants to divorce her. Here, he did not say anything
          showing that the gift was conditional).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't Rav Sheshes establish our Mishnah
          like R. Shimon ben Menasiya?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> There, certainly, had he known that his son was
          alive, he would not have given to someone else. Here, it
          is not so certain that the gift was conditional.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE HUSBAND WHO INTENDED TO DIVORCE HIS WIFE</b></font><b>
<br>OPINIONS:</b> The Gemara (146a-146b) relates an incident in which a man was informed that his wife had a medical condition characterized by the lack of a sense of smell. When a man is not informed of this condition before marriage, such a condition is considered an unexposed blemish which is grounds to divorce his wife without giving her a Kesuvah. To ascertain whether she indeed could not smell, the man led his wife into a ruin while he hid a pungent radish in his clothes. He then declared, 'I smell the odor of radish in the Galil,' in order to see how she would respond. She answered jokingly, 'Who will give us from the figs of Yericho, so that we can eat them together!' (Since radishes are sharp and figs are sweet, it was customary to eat them together.) Immediately afterwards, the ruin collapsed on her and killed her. The Chachamim ruled, 'Because he went into the ruin with her only in order to check her [sense of smell], if she died he does not inherit her.'
</p><p>
The Gemara does not state whether she passed or failed the man's test of her olfactory ability. Also, it is not clear from the Gemara whether the woman was his full-fledged wife, or whether she was only betrothed (Arusah) to him.
</p><p>
(a) The <b>RASHBAM</b> prefers to explain that the woman was fully married to him. Even though a husband usually inherits his wife's property, this man was not entitled to inherit her property because he had decided to divorce her if he found her to have this blemish, and they did not reconcile before her death. It is also the opinion of the <b>PISKEI RID</b> that any woman who dies while her husband intends to divorce her is not inherited by her husband.
</p><p>
Accordingly, the Rashbam explains that the woman failed the test, and her husband planned to divorce her and thus was not entitled to inherit her. The <b>MAHARSHA</b> explains that this is evident from the fact that they did not appease each other before her death. According to the <b>MAHARSHAL</b>, the Rashbam understands that the husband himself was unsure if his wife's response indicated that she was able to smell, or if she merely guessed that he had told the truth about having radishes with him, and thus they were not yet reconciled.
</p><p>
The Rashbam rejects a different explanation that says that the man and woman were only betrothed and not fully married, and that the Chachamim ruled that since he did not go into the ruin to consummate the marriage but rather to check her sense of smell, he does not inherit her property. The Rashbam rejects this explanation because even if he did go into the ruin in order to consummate the marriage with marital relations, they would not have been fully married and he would not have been entitled to inherit her property.
</p><p>
(b) The <b><b><b>RI</b></b> MI'GASH</b> and the <b>MORDECHAI</b> agree that a husband may be unable to inherit his wife's property under certain circumstances. They maintain, however, that this is true only in a case of a 'Mekach Ta'us,' a transaction (in this case, the marriage) made in error, such as when the woman is found to have an undisclosed blemish that negates the marriage altogether. In the case of the Gemara here, since the man found his wife to have such a blemish (i.e. she failed the test), he does not inherit her property; he was never married to her since the marriage was invalid from the start.
</p><p>
According to this explanation, the case of the Gemara here has no bearing on the law of a husband and a wife who have plans to divorce. Perhaps a husband who intends to divorce his wife (but has not yet divorced her) would inherit her property if she dies.
</p><p>
(c) <b>TOSFOS</b> and the <b>ROSH</b> (9:16) argue that the Gemara is discussing a <i>betrothed</i> woman (Arusah) whose Chasan was checking in order to see if he should go through with the marriage (Nisu'in). The Chachamim ruled that since he did not enter the ruin with her to consummate the marriage but rather to check her sense of smell, he does not inherit her property.
</p><p>
How do Tosfos and the Rosh answer the Rashbam's question on this explanation? Even if the man <i>did</i> consummate the marriage with her, it would not entitle him to inherit her property!
</p><p>
They explain that the man and woman went into a ruined building <i>that he owned</i>. Had he brought her into his own domain in order to consummate the marriage through <i>Chupah</i>, she would have become his wife. However, since he brought her into his domain only in order to check if she had this blemish, he did <i>not</i> complete the marriage and he was not entitled to inherit her.
</p><p>
Tosfos and the Rosh reject the opinion that the husband's right to inherit his wife is revoked when he intends to divorce her or when there may have been a 'Mekach Ta'us.' (See Rosh for additional questions on the explanation of the Rashbam, and see <b>PILPULA CHARIFTA</b> there.)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INTERPRETING A STATEMENT BY INFERENCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Who is the Tana of the following Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A sick person was lying in bed. They
               asked him 'to whom will your property go?' He said
               'I used to think that I had a son (or that my wife
               is pregnant). Now that I see that this is not so, my
               property is to Ploni.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it became known that he had a son (or that his
               wife was pregnant), the gift is void.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is like R. Shimon ben Menasiya,
               and not like Chachamim.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> No, it is even like Chachamim. Here is
          different, for he said 'I used to think...'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> This is obvious! Why didn't the questioner
          anticipate this answer?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that he merely mentions
          his woe, but not that having a son would affect the gift.
          The Beraisa teaches that this is not so.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE SOURCE FOR 'MATNAS SHECHIV MERA'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> What is the Torah source for
          Matnas Shechiv Mera (that it does not require a Kinyan)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Zeira):</font></b> 'V'Ha'avartem Es Nachalso l'Vito'
          teaches that there is another transfer of inheritance.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman):</font></b> 'U'Nsatem Es Nachalso l'Echav'
          - there is another gift like this, i.e. Matnas Shechiv
          Mera.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't Rav Nachman learn from
               'V'Ha'avartem...'?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> That is used to teach Rebbi's law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Rebbi):</font></b> Regarding other inheritances,
                    it says 'U'Nsatem'. Regarding a daughter, it
                    says 'v'Ha'avartem', because only a daughter
                    transfers inheritance from one tribe to
                    another, her husband and son inherit her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't R. Zeira learn from
               'U'Nsatem...'?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> That is the normal expression, so he does
               not expound it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #3 (Rav Menashiya bar Yirmeyah):</font></b> 'Chalah
          Chizkiyahu Lamus... Tzav l'Veisecha' - a mere command
          suffices.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #4 (Rami bar Yechezkeil):</font></b> 'Va'Achitofel...
          va'Ytzav El Beiso va'Yechanek va'Yamas' - a mere command
          sufficed.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SIGNS OF WEATHER OF THE COMING YEAR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Beraisa):</font></b> Achitofel commanded his children
          three things: do not be in a feud, do not rebel against
          the kinship of Beis David, and if it is Barur (clear,
          i.e. sunny) on Shavu'os, plant wheat that year (it will
          prosper).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #2 (Mar Zutra):</font></b> He said, if it is <i>Balul</i>
          (cloudy) on Shavu'os... (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Chachamim of Neharde'a):</font></b> The Beraisa does not mean
          that is totally clear, and Mar Zutra does not mean it is
          totally <i>Balul</i>, rather, even a cloudy day on which the
          north wind scatters the clouds is considered clear (and
          is a good sign).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Aba):</font></b> No, we learn from the wind on Shemini
          Atzeres!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yitzchak bar Avdimi):</font></b> On Shemini Atzeres,
               everyone looks towards the smoke rising from the
               Altar. If it tilts northwards (due to the south
               wind), the poor rejoice and farmers are sad, because
               there will be much rain, Peros will rot, and people
               will be forced to sell cheaply.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it tilts southwards (due to the north wind),
               farmers rejoice and the poor are sad, because there
               will be little rain, the Peros (will grow well, but
               they) will not rot, and grain will be expensive;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If it tilts eastwards (due to the west wind),
               everyone rejoices. If it tilts westwards (due to the
               east wind), everyone is sad.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> The east wind is always nice.
               The west wind is always harsh. The north wind is
               good for wheat if it already grew a third, but it is
               bad for blossoming olives. The south wind is bad for
               wheat if it already grew a third, but it is good for
               blossoming olives.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yosef):</font></b> A way to remember this is the
                    Shulchan (on which we place the Lechem
                    ha'Panim, which is made of wheat), which is in
                    the north side (of the Heichal). The Menorah
                    (which is lit with oil of olives) is in the
                    south side;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Each wind is good for what is on its side.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Version #1 (Rashbam) Answer:</font></b> The Beraisa
               discusses Bavel (the west wind is bad, for it brings
               too much rain). R. Yitzchak discusses Eretz Yisrael
               (which needs much rain).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Version #2 (Tosfos) Answer:</font></b> The Beraisa discusses
               Eretz Yisrael (the east wind is good, for it brings
               rain). R. Yitzchak discusses Bavel (which does not
               need so much rain). (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Beraisa - Aba Sha'ul):</font></b> If it is clear on Shavu'os, it
          is a good sign for the entire year.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Zvid):</font></b> If it is hot on Rosh Hashanah, the entire
          year will be hot. If it is cold, the entire year will be
          cold.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why must we know this?
<br>
<br>

sjt:
<font><b>1) THE SOURCE FOR THE PRINCIPLE OF 'MATNAS SHECHIV MERA'</b></font><b>
<br>QUESTION:</b> Rebbi Zeira says in the name of Rav, 'What is the source in the Torah that a Shechiv Mera's [verbal command, without an act of Kinyan, to make a] transaction is binding? It is derived from [the extra word in the verse], 'v'Ha'avartem' (Bamidbar 27:8).' Rav Nachman in the name of Rabah bar Avuha derives it from the extra word, 'u'Nesatem.' The Gemara explains why each one rejects the other's derivation.
</p><p>
The Gemara implies that both Rebbi Zeira and Rav Nachman maintain that the principle of Matnas Shechiv Mera (i.e. that the verbal instruction of a Shechiv Mera to give a gift is binding) is mid'Oraisa. In the Gemara later (147b), however, Rava quotes the opinion of Rav Nachman that a Matnas Shechiv Mera is an enactment of the Rabanan which was made in order to calm the Shechiv Mera and give him the assurance that his instructions will be carried out. The Rabanan gave a Matnas Shechiv Mera the efficacy of a Kinyan d'Oraisa.
</p><p>
How can these two contradictory statements of Rav Nachman be reconciled?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> (to Tosfos DH Minayin) answers that Rava there argues with the Gemara here. Rava maintains that Rav Nachman is of the opinion that a Matnas Shechiv Mera is mid'Rabanan. The Gemara here maintains that Rav Nachman understands it to be mid'Oraisa.
</p><p>
The Maharsha explains that this is why the Gemara there says, 'v'Rava Amar Rav Nachman,' meaning, 'and Rava says that Rav Nachman maintains...,' as opposed to, 'Amar Rava Amar Rav Nachman.' If the Gemara had used the phrase 'Amar Rava Amar Rav Nachman,' it would have implied merely that Rava quoted a statement of Rav Nachman. The phraseology of 'v'Rava Amar,' however, indicates that Rava argues with something that was said before.
</p><p>
(b) <b>TOSFOS</b> answers that Rav Nachman indeed maintain that a Matnas Shechiv Mera is only mid'Rabanan. When Rav Nachman says that it is derived from the verse of 'u'Nesatem,' he means merely that the verse is an Asmachta, a scriptural support for the enactment of the Rabanan, but it is not actually a Halachah d'Oraisa. (The Maharsha suggests that Tosfos had the Girsa of 'Amar Rava Amar Rav Nachman' in the Gemara on 147b; see (a) above. Indeed, that is the way Tosfos earlier (76b, DH Keni) and in Kesuvos (85b, DH ha'Mocher) cites the Gemara here, as the <b>PNEI SHLOMO</b> points out.)
</p><p>
Tosfos explains further that although Rav Nachman (and, presumably, Rebbi Zeira as well) quotes a verse merely as an Asmachta, but not as the actual source of the Halachah, it is not problematic that the Gemara asks why each Amora rejects the other's derivation. Tosfos quotes a similar Gemara in Moed Katan (5a) to prove that it is the style for the Gemara to question even why an Amora would reject another Amora's Asmachta. However, he does not explain why the Gemara seeks to be so precise in finding a verse as an Asmachta for the Takanah d'Rabanan.
</p><p>
It seems that Tosfos follows only one of the opinions found in the Rishonim with regard to the nature of an Asmachta.
</p><p>
The <b>RAMBAM</b>, <b>RAMBAN</b>, and <b>TASHBATZ</b> maintain that an Asmachta is merely a way to remember a Takanah d'Rabanan by finding an allusion to it in a verse. The law that the Rabanan established, however, is not actually the intent of the verse. It is called an 'Asmachta' because the Chachamim 'leaned' or 'supported' their enactment on the verse as a mnemonic device.
</p><p>
In contrast, the <b>RITVA</b> in Rosh Hashanah (16b) explains that every Asmachta reveals the hidden intent of a verse. An Asmachta is a Halachah which Hash-m intended to teach as the law, but which He did not make obligatory. Rather, Hash-m gave the power to the Chachamim to decide whether or not to make it obligatory as a rabbinic law. The Ritva strongly rejects the view that an Asmachta is merely a mnemonic device.
</p><p>
Tosfos seems to agree with the Ritva's approach. If an Asmachta is a law that Hash-m included in the intent of the verse, it is important to determine which verse is the Asmachta. If, however, an Asmachta is merely a mnemonic device, then it does not matter which verse one uses for that purpose.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOW CAN ONE ACQUIRE FOR HIS 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'> 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'>2.  </font></b><font color='darkgreen'> 141b (Rav Huna):</font></b> If one told his pregnant wife 'my
               property is to the child inside you', this is a
               Kinyan on behalf of a fetus, which is invalid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rav Nachman - Mishnah):</font></b> If a man 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'>4.  </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'>5.  </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'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Inheritance is different than Kinyan, for it
               is automatic.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't he say that the Mishnah is when
               he said '<i>when</i> she will give birth, the baby will
               receive...'
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> He holds that even in this case, the baby
               does not acquire.
<br>       <b>   <b><font color='darkgreen'>9.  </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'>10. </font></b><font color='darkgreen'> (Rav Huna):</font></b> In both cases, the baby does not
               acquire.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Sheshes):</font></b> In both cases, the baby acquires.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 142b (R. Yochanan):</font></b> If one acquires for a fetus, it
               does not acquire.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question:</font></b> The Mishnah says that the fetus acquires!
<br>        <b>  <b><font color='darkgreen'>14. </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'>15. </font></b></b> The Halachah is, Zechiyah for a fetus does not
               acquire.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> 147b (Rav Nachman):</font></b> If a Shechiv Mera said 'Ploni
               will live in this house or eat the fruits of this
               tree', it does not take effect. He must say 'give
               this house to Ploni and he will live in it, or this
               tree to Ploni and he will eat the fruits'.
<br>        <b>  <b><font color='darkgreen'>17. </font></b></b> He holds that Matnas Shechiv Mera takes effect only
               in those cases when a gift of a healthy person takes
               effect.
<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'> (Rosh citing Ramban):</font></b> We say that Zechiyah for one's
               son acquires, because one feels great affinity for
               his son. If Zechiyah works, it should always work!
               Rather, we discuss a Shechiv Mera. He acquires when
               he is born. Chachamim enacted this because one feels
               great affinity for his son. If a Shechiv Mera cannot
               do so, perhaps he will be upset (and die).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection (Rosh):</font></b> Chachamim enacted that a Shechiv
               Mera's words are as if a healthy person wrote and
               gave a document, but no more than this. The Halachah
               is, a fetus disqualifies (from Terumah), but not if
               there are brothers, like R. Shimon taught.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Defense (Shach CM 210:1):</font></b> Initially, the Gemara
                    held that Zechiyah for a fetus works, and all
                    the more so inheritance. We conclude that
                    Zechiyah for one's fetus works only because he
                    loves him, and surely he acquired for him in a
                    way that helps, e.g. 'acquire from now on
                    condition to be Makneh (later, to my son).'
                    Even if no way helps, Chachamim enacted that he
                    acquires, for one loves his son.
<br>       <b>   <b><font color='darkgreen'>5.  </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><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> If one was Mezakeh for
               his fetus, he acquires, even if he did not say 'when
               it will be born.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> Tosfos (Gitin 13b DH l'Davar) and
                    Hagahos Ashri (9:5, b'Sof) hold that Rav
                    Nachman does not say that he must say 'when it
                    will be born.' Rather, he teaches that the
                    Kinyan is only from when it will be born, i.e.
                    until then he can retract.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (7):</font></b> The Gemara said 'why didn't he say
                    that in the Mishnah, he said 'when she will
                    give birth'?' This shows that Stam, we
                    understand that he did not say this, yet he
                    acquires.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mabit (1:339, cited by R. Akiva Eiger):</font></b> The
                    enactment was only for a father to his son. A
                    mother also loves her son, but it is not common
                    for her to give such a gift. Alternatively, the
                    Torah knows that a man gives his money to his
                    son more freely, for he himself can work and
                    earn more. It says 'k'Rachem Av Al Banim', and
                    'merciful women cooked their children.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Devar Moshe 69):</font></b> No Posek says so.
                    The Mabit (3:137) also says that just like a
                    father can acquire to his son who is not yet in
                    the world, he can acquire to him Davar she'Lo
                    Ba l'Olam. No Posek agrees.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> This is if his wife was
               pregnant at the time of the gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> The Ba'al ha'Itur says
                    that Zechiyah for one's own fetus helps even
                    within 40 days, as long as the fetus is
                    evident. This seems correct. The Nimukei Yosef
                    says that it does not help within 40 days, for
                    the fetus is considered mere water then.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (2):</font></b> The Nimukei Yosef's opinion is
                    primary. A fetus within 40 days does not
                    disqualify slaves from Terumah. The Rambam
                    (Hilchos Terumos 8:3) says so. There is no
                    proof from the Tur, for within 40 days it is
                    not called a fetus.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>She'eris Yosef (12, cited by R. Akiva Eiger):
                    When he says 'when she will give birth', the
                    baby acquires, for the Kinyan is only later,
                    when he is in the world. Therefore, it is even
                    if his wife was not pregnant at the time! The
                    Tur distinguishes between whether or not she is
                    pregnant only regarding a gift to one's son,
                    but not regarding a gift 'when she will give
                    birth.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> A grandson is like a stranger.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (3):</font></b> One does not feel so close to a
                    grandson. Similarly, the Kinyan works only if
                    the baby is viable.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Shach 257:3):</font></b> Regarding one who wrote
                    his property to his son 'after my death', the
                    Rema (257:2) says that a grandson is like a son
                    (and receives attached Peros)! One can resolve
                    this with difficulty.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that only a Shechiv
               Mera can acquire for his son, but a healthy man
               cannot.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Mihu):</font></b> The Ramban proves from
                    the Yerushalmi that a Shechiv Mera can acquire
                    for his son, for he loves him and we are
                    concerned lest his mind falter (if he could not
                    acquire for him). The Rif and Ran say the same.
                    The Rashba (1:933) says that he must be a
                    Shechiv Mera so it will not be Asmachta. The
                    Tur holds that it is because coins cannot be
                    acquired through Chalipin. The Rambam holds
                    that he need not be a Shechiv Mera.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (1):</font></b> The Rif means that the Kinyan works
                    <i>through words alone</i> only for a Shechiv Mera.
                    A healthy person must do a Kinyan.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (10):</font></b> The Ramban holds that the Halachah
                    does not follow R. Yosi, and a fetus does not
                    inherit, so all the more so Zechiyah for a
                    fetus does not work, except for Shechiv Mera,
                    which is an enactment. Tosfos learns otherwise
                    from 141b (if one told his pregnant wife...)
                    The Yerushalmi says the opinion that it works
                    only for his son says so only for a Shechiv
                    Mera.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (1):</font></b> The Rif, Rambam and most Poskim,
                    hold that even a healthy man can acquire for
                    his son. The Yerushalmi says that only a
                    Shechiv Mera can acquire for his son, and only
                    Metaltelim. The Bavli does not say so. It holds
                    that anyone can acquire for his son. No Poskim
                    limit this to Metaltelim.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CAN ONE ACQUIRE FOR A FETUS? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> This is so the Kohen Gadol will know what to
          pray for on Yom Kipur. (E.g. if it was hot on Rosh
          Hashanah, he should pray that it not be too hot.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HOW 'MATNAS SHECHIV MERA' WORKS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer #5 (to Question 2:a - Rav Nachman):</font></b> Matnas
          Shechiv Mera is a Rabbinical enactment, lest a Shechiv
          Mera's anxiety (that he cannot give his property like he
          wishes) hasten his death.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> This contradicts something else that Rav
          Nachman said!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> Shmuel taught that if Reuven sold
               a loan document to Shimon, and then pardoned the
               debt, the debt is cancelled. Even Reuven's heir can
               pardon the debt;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Nevertheless, if Reuven gave money owed to him
               through Matnas Shechiv Mera, Reuven's heir cannot
               pardon the debt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Granted, if Matnas Shechiv Mera is mid'Oraisa,
               this is why the heir cannot pardon it. (Sale of a
               debt is only mid'Rabanan, therefore the heir can
               pardon it.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> But if Matnas Shechiv Mera is only mid'Rabanan,
               why can't the heir pardon it (like a sold debt)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Matnas Shechiv Mera is mid'Rabanan, but
          Chachamim enacted it as if it were mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If a Shechiv Mera said 'Ploni will live
          in this house', or 'he will eat the fruits of this date
          tree', this does not take effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He must say 'give this house to Ploni and he will
               live in it', or 'give this date tree to Ploni and he
               will eat the fruits'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference:</font></b> Rav Nachman holds that Matnas Shechiv Mera
          only takes effect in those cases when a gift of a healthy
          person takes effect.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE STRENGTH OF A DYING MAN'S WORD</b></font><b>
<br>OPINIONS:</b> Rav Nachman quotes Shmuel, who states that a lender who sells a loan document (Shtar Chov) to a third party retains the power to forgo payment on the loan and nullify the borrower's debt to the third party. He further states that even if the lender dies, his heir is able to cancel the debt as well. Rav Nachman himself states that there is an exception to this rule when a dying man gives away a Shtar Chov as a Matnas Shechiv Mera. In such a case, when the benefactor dies, his heirs cannot cancel the loan.
</p><p>
This law requires explanation. Why should any person have the right to negate a loan he sold to someone else, and why is a Shechiv Mera different?
</p><p>
(a) The <b>RID</b> and <b>RI'AZ</b> explain that in general a lender who sells a loan retains the right to forgo it because his sale of the document gives the buyer only the power to collect the loan but not the ownership of the money itself. A loan is given to be used (Milveh l'Hotza'ah Nitnah) and the money, therefore, is too intangible to be transferred to a third party. Since the original lender retains the ownership of the actual money, it is within his ability to forgo the loan after its sale. A dying man's present is different, as he gives over all his rights in this world. Just as his verbal instructions effect a transaction even though they are intangible, he can also give over intangible rights.
</p><p>
(b) <b>TOSFOS</b>, the <b>ROSH</b>, <b>RASHBA</b>, and <b>RAN</b> explain that the sale of a loan document is effective only mid'Rabanan, while a borrower's obligation to pay the lender is mid'Oraisa. (This is in contrast to the opinion of <b>RABEINU TAM</b>, who says that the sale of a loan document is also mid'Oraisa.) Therefore, even when a person sells a loan, he still owns the loan according to the Torah and he may forgo it. A deathly ill person is different because the validity of his transaction is derived from the Parshah of inheritances, and his transactions therefore have the efficacy of Torah transactions. As a result, the real heirs of a Shechiv Mera have no more power than the person to whom he sold the loan (who is also like an heir), and that is why the Shechiv Mera's heir cannot forgo the loan.
</p><p>
(c) <b>RABEINU CHANANEL</b> explains that when a lender sells a loan, in general he may claim later that he had received payment before the sale and thereby negate the loan. (See Ri'az to Kesuvos 86b who explains that the lender would have to reimburse the third party.) As a result, he also has the ability to forgo the loan. A dying person is different because he distributes his belongings with precision, and it is assumed that he did not make a mistake and was never paid for the loan.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW 'MATNAS SHECHIV MERA' WORKS (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Nachman taught that if a Shechiv Mera
          said 'the debt owed to me should be to Ploni', this takes
          effect, even though a healthy person cannot do this!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa):</font></b> Matnas Shechiv Mera makes Ploni
          the heir (and heirs acquire debts), therefore he acquires
          the debt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Acha brei d'Rav Ika):</font></b> A healthy person
          can transfer a debt, like Rav Huna taught.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If Reuven tells Shimon in front of
               Levi 'you have money of mine. Give it to Levi', Levi
               acquires it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES THE GIVER RETAIN PART OF THE GIFT FOR HIMSELF?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Question:</font></b> If a Shechiv Mera gave a date
          tree to Yehudah and its fruits to Moshe, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1A (Rashbam):</font></b> Do we say that he left the
               place from which the fruits grow (the branches) for
               Moshe, therefore he did not give all his land to
               Yehudah, so it is not considered a Matnas Shechiv
               Mera?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we say that he gave all his land to
               Yehudah, so it is a Matnas Shechiv Mera?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #1B (Tosfos):</font></b> Do we say that he left for
               Moshe the place the fruits grow from, therefore
               Moshe acquires something already here (and what
               grows from it), so the gift is valid?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Or, did he leave for Moshe only the fruits that
               will grow, and one cannot transfer ownership of
               something that is not yet in the world, so the gift
               is invalid? (end of Version #1B)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If you will say that he did not leave (place
          on the tree) for Moshe, if he left the fruits for
          himself, what is the law?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava citing Rav Nachman):</font></b> He left place on the
          tree for himself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One leaves for himself generously.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Version #2 - R. Aba:</font></b> These questions were asked
          according to Reish Lakish!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> If one sells a house and
               stipulates 'on condition that the top is mine', the
               roof is his.
<br>
<br>

sjt:
<font><b>1) WHEN DOES A 'MATNAS SHECHIV MERA' TAKE EFFECT?</b></font><b>
<br>QUESTION:</b> Rav Nachman (147b) teaches that if a dying man gives instructions that a certain person should live in his house, his directive is not binding. Even though, normally, a Shechiv Mera's verbal command to give a gift is binding, in this case his command is meaningless because his instructions are binding only when he gives a <i>tangible object</i>, such as the house itself. He cannot give away the right to reside in the house, because that right is not a tangible entity.
</p><p>
The Gemara infers that Rav Nachman maintains that a Matnas Shechiv Mera is only as effective as a full-fledged Kinyan that a healthy man makes (and since a healthy man cannot transfer the ownership of rights -- such as the right to reside in a house -- through a Kinyan Sudar, a Shechiv Mera cannot transfer it through his verbal instructions). The Gemara questions this, however, from another statement of Rav Nachman. Rav Nachman says that a Shechiv Mera can give away, through his verbal command alone, the rights to a loan that is owed to him. A healthy person, in contrast, cannot transfer a debt (which is not written in a Shtar) to another person even with a Kinyan, because a debt is an intangible asset. The Gemara infers from this statement of Rav Nachman that a Matnas Shechiv Mera is effective even in situations in which the <i>Kinyan</i> of a healthy person is not effective.
</p><p>
Rav Papa answers that a Matnas Shechiv Mera indeed is effective only in cases in which the Kinyan of a healthy person would be effective, and the transfer of ownership of a debt is an exception to the rule, because although a debt cannot be transferred with a Kinyan to someone else, it can be inherited by an heir. A Matnas Shechiv Mera functions like the transfer of ownership through inheritance. Since the ownership of a debt can be transferred through inheritance (i.e. when the creditor dies, his heirs inherit the debts owed to him), a Matnas Shechiv Mera also can transfer the ownership of a debt.
</p><p>
Rav Acha brei d'Rav Ika answers that a healthy person <i>is</i> able to transfer the ownership of a debt. A debt can be transferred with the mechanism of Ma'amad Sheloshtan (where the creditor, the debtor, and the recipient of the gift are all present and the creditor declares that he is transferring to the recipient the right to collect the loan).
</p><p>
It seems that both of these answers are true, as a debt can be transferred both through inheritance and through Ma'amad Sheloshtan. Is there any practical difference between these two answers? Does Rav Acha perhaps argue that the transfer of ownership of a Matnas Shechiv Mera is not comparable to inheritance, or does Rav Papa perhaps argue that the fact that a debt can be transferred through Ma'amad Sheloshtan should not affect the Shechiv Mera's ability to transfer it?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KETZOS HA'CHOSHEN</b> (125:8) writes that there is a significant difference between these two answers, with significant Halachic ramifications. He cites <b>TOSFOS</b> in Gitin (14b) who states that when a Shechiv Mera commands that a gift be given to someone, even if the intended recipient dies before the Shechiv Mera dies, the recipient's heirs still acquire the gift. This is because the Shechiv Mera's gift to the recipient takes effect at the moment that he issues his command (and thus the gift was already in the possession of the recipient before he died).
</p><p>
The <b>RAN</b> questions the assertion of Tosfos from the Gemara earlier in Bava Basra (137a) which clearly states that a Shechiv Mera's gift is acquired only posthumously, and not before the death of the Shechiv Mera. How, then, can Tosfos say that the Shechiv Mera's instructions take effect immediately? As a result of this question, the Ran disagrees with Tosfos and maintains that if the intended recipient of a Matnas Shechiv Mera dies before the benefactor dies, the recipient's heirs do not receive the gift.
</p><p>
The Ketzos ha'Choshen justifies the view of Tosfos and explains that Tosfos follows the opinion of Rav Papa in the Gemara here. Since a Matnas Shechiv Mera works like the mechanism of inheritance, the recipient of the gift does not need to be alive at the time of the benefactor's death in order to acquire the gift. The Shechiv Mera's instructions create a situation of inheritance, so that the intended recipient of the gift becomes entitled to 'inherit' the gift from the Shechiv Mera as if he were his closest relative. When the Shechiv Mera dies after the recipient dies, the inheritance is granted to the surviving heirs of the recipient, in accordance with the normal laws of inheritance. This is what Tosfos means when he states that the Shechiv Mera's instructions take effect immediately, even though the ownership of the gift is transferred only after his death, as the Gemara earlier says. Even though the gift does not enter the recipient's ownership immediately, the recipient <i>does</i> assume the status of an 'heir' immediately.
</p><p>
The Ran, on the other hand, seems to follow the view of Rav Acha, who says that a Matnas Shechiv Mera does not work through the mechanism of inheritance; rather, it functions like a normal transaction. A normal transaction such as a gift cannot be made to a dead person, and therefore if the intended recipient of the gift dies before the benefactor dies, the recipient's heirs do not receive the gift. (See <b>BEIS YOSEF</b> CM 245 for a different answer for Tosfos, and further discussion in the <b>KETZOS HA'CHOSHEN</b> and <b>NESIVOS HA'MISHPAT</b> there, and <b><b><b>OR</b></b> SAME'ACH</b>, Hilchos Zechiyah u'Matanah 9:13.)
</p><p>
(b) The <b>MORDECHAI</b> here cites the <b>AVI'ASAF</b> who says that a Shechiv Mera cannot give away the right to collect debts owed to him by Nochrim. The <b>BACH</b> (CM 253) explains his reasoning as follows. The Avi'asaf maintains that an ordinary person cannot use the process of Ma'amad Sheloshtan to transfer the ownership of debts owed to him by Nochrim. Since a Shechiv Mera's power (in this respect) is equivalent to that of an ordinary, healthy person, it follows that a Shechiv Mera also lacks the ability to give away a debt owed to him by a Nochri. The Avi'asaf's view clearly is based on the reasoning of Rav Acha (see, however, <b>HAGAHOS MAIMONIYOS</b>, Hilchos Zechiyah u'Matanah 10:1). According to Rav Papa, however, a Shechiv Mera's transaction is similar to the mechanism of inheritance and not to an ordinary Kinyan. Rav Papa, then, would maintain that a Shechiv Mera can give a Nochri's debt to another Jew (to whom the laws of inheritance apply). (Y. Montrose)
</p><p>


<font><b>2) GIVING AWAY DIFFERENT PARTS OF A TREE TO DIFFERENT PEOPLE</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which the owner of a tree gives the tree to one person and its fruit to another person. The Gemara asks whether the owner has retained for himself the places on the tree from which the fruit grows. The Gemara then asks: if the Halachah in this case is that the owner did not keep for himself the places from which the fruit grows, what is the Halachah if he specifically states that he is giving away the tree 'except for its fruit'? Perhaps in such a case the Halachah assumes that the owner kept for himself not only the fruit, but also the parts of the tree from which the fruit grows.
</p><p>
It is not clear from the Gemara whether the benefactor in the case is a Shechiv Mera or a healthy person. Also, the reasoning behind the questions is not clear.
</p><p>
(a) The <b>RASHBAM</b> states that the Gemara is continuing its discussion about a Shechiv Mera. It would not make sense for the Gemara to interject laws about Kinyanim of a healthy person, as that would be irrelevant here and would belong in a different Perek.
</p><p>
According to the Rashbam, the meaning of the Gemara is as follows. The Mishnah (146b) states that when a Shechiv Mera gives away some of his property but keeps some for himself, his instructions are carried out even if he recovers. The Gemara here discusses a Shechiv Mera who owns only one tree and gives the tree to another person without giving him its fruit or the places from which the fruit grows (that is, it is a Matnas Shechiv Mera <i>b'Miktzas</i>, a partial gift, since he does not give away all of his property). The Gemara asks, if the Shechiv Mera then decides to give the fruit to a second person, does the Halachah assume that he intends to retain the places on the tree from which the fruit grows (such as the branches)? If that is his intention, then his instructions are carried out and the gifts are given even if he recovers, since he kept something for himself.
</p><p>
The Gemara then asks: if the Halachah assumes that the Shechiv Mera does <i>not</i> retain for himself the places from which the fruit grows, what is the Halachah when he specifically states that he is giving away the tree 'except for its fruit'? Since the fruit would not have been included in the gift even if the Shechiv Mera had not mentioned it, his addition of the words 'except for its fruit' may indicate that he intends also to keep the places from which the fruit grows. The Gemara answers (according to the Girsa of the Rashbam) that this is the law of Rav Zevid -- that when a person adds unnecessary words to a transaction, he intends to add something to what he excludes from the sale.
</p><p>
(b) <b>TOSFOS</b> explains that the Gemara is discussing a normal transaction of a healthy person, and not a Matnas Shechiv Mera. If it were discussing a Matnas Shechiv Mera, then the Gemara should have included it in a later Sugya (149b-150a) which discusses how much the Shechiv Mera must keep for himself in order for his gift to take effect even if he recovers. Tosfos also questions the Rashbam's explanation from the Gemara later which concludes that if a Shechiv Mera retains for himself even movable objects, his gift still takes effect even if he recovers. According to the Rashbam's explanation, the Gemara here seems to require that land (or something attached to it, such as the branches of a tree) be retained by the Shechiv Mera.
</p><p>
The <b><b><b>RI</b></b></b> therefore gives a different explanation of the Gemara. The Gemara's question deals with a normal, healthy person who gives away a tree to one person and its fruit to another person. The Gemara asks whether the giver's intention, when he gives the tree to the first recipient, is to retain the places on the tree from which the fruit grows. If that is his intention, then he may give those places on the tree (along with the potential fruit) to another person or he may keep them for himself. If, however, he does not retain the places from which the fruit grows, then the fruit automatically becomes the possession of the recipient of the tree, and he cannot give the fruit to the second recipient. The Gemara then asks: if it is assumed that the original owner of the tree does not retain those parts of the tree when he gives the tree to one person and the fruit to a second person, what is the Halachah in a case in which he keeps the fruit for himself? Does he retain also the places on the tree from which the fruit grows? If his gift of the tree includes the parts of the tree where the fruit grows, then he cannot retain the fruit even for himself. The Gemara concludes that in such a case he <i>does</i> intend to retain those parts of the tree, as a person always leaves for himself as much as possible. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PARTIAL RETRACTION OF A MATNAS SHECHIV MERA</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:</font></b> (When a Shechiv Mera may retract,) if he
               retracted part of the gift, is this a retraction of
               the entire gift?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> If Reuven said 'I give all my
               property to Ploni. I give some of it to Almoni',
               Almoni acquires, but Ploni does not.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Almoni acquires after Reuven dies,
                    but Ploni does not. Retracting part of the gift
                    to Ploni (i.e. what he gave to Almoni) is a
                    retraction of the entire gift.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> No. The case is, Reuven recovered. (The
               gift to Almoni was partial, therefore Reuven cannot
               retract from it.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Support (Seifa):</font></b> If he said 'I give some of my
               property to Ploni. I give all of it to Almoni',
               Ploni acquires, but Almoni does not.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Granted, if Reuven recovered, he can retract.
                    However, if Reuven died, both should acquire!
                    (Reuven gave all his property. 'I give all of
                    it to Almoni', means the rest!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection (Rav Yemar):</font></b> Even if the entire Beraisa
               discusses when he recovered, it shows that a partial
               retraction is a full retraction!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is a full retraction, this explains why
                    Almoni acquires.If it were not a full
                    retraction, Reuven gave all his property, and
                    he would be able to retract also the gift to
                    Almoni!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> The Halachah is, a partial retraction is a full
               retraction.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> We can explain the Reisha whether Reuven died or
               recovered. In the Seifa, we must say that he
               recovered.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rif and Rosh (9:22):The Halachah is, a partial
               retraction is a full retraction. A Beraisa teaches
               that if Reuven gave all his property to Ploni, and
               then some to Almoni, only Almoni acquires. If he
               gave some to Ploni, and then all to Almoni, only
               Ploni acquires. The Reisha is whether or not Reuven
               recovered. In the Seifa, we must say that he
               recovered. If not, Ploni would acquire his gift, and
               Almoni would acquire the rest! We must say that they
               did a Kinyan to acquire from him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Ibo'i):</font></b> The Gemara says that 
                    a partial retraction is a full retraction. This
                    is not when he explicitly said that he retracts
                    only from part. Then, surely the first keeps
                    the rest of the gift. Even though now it is a
                    partial gift, which (normally) requires a
                    Kinyan, it depends on the time he gave. At the
                    time, he gave through words, and if he died,
                    Ploni would acquire everything. If he gave to
                    two people and later retracted from one of
                    them, this is a retraction from the other,
                    since both were in one document. If one wrote
                    some of his property to others and some to his
                    heirs, and retracted regarding his heirs, the
                    gift to others stands, for a gift to heirs is
                    like a mere inheritance. The Ritva says so in
                    the name of the Rif and Ramban. I say that this
                    is when what he took back from his heirs, he
                    gave to others, for he must give away all his
                    property. If he kept part for himself, he
                    showed that it is not Matnas Shechiv Mera,
                    rather, a healthy person's gift, so it cannot
                    work without a Kinyan.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 9:17):</font></b> If a Shechiv Mera
               (Reuven) partially retracted, this is like a full
               retraction. If Reuven gave all his property to
               Ploni, and did a Kinyan for Yifuy Ko'ach (to give
               greater rights), and then gave part to Almoni, and
               did a Kinyan for Yifuy Ko'ach, Almoni acquires, but
               Ploni does not. This is whether or not Reuven
               recovered.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (18):</font></b> If he gave some to Ploni and did a
               Kinyan for Yifuy Ko'ach, and afterwards gave all to
               Almoni and did a Kinyan for Yifuy Ko'ach, if Reuven
               died, Ploni acquires his gift, and Almoni acquires
               the rest. If Reuven recovered, Ploni acquires, but
               Almoni does not acquire.
<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 250:12):</font></b> If a Shechiv Mera
               (Reuven) partially retracted, presumably he fully
               retracted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Even if he gave to two people in one document,
               and later retracted from one of them, also the
               second is Batel.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (34):</font></b> We do not say that a document is
                    powerful, and his retraction does not show that
                    he retracted also from the first. The Rema
                    discusses in one document, for if there were
                    two, it would not be a retraction regarding the
                    other, for it is in a separate document. This
                    follows from the Nimukei Yosef.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> However, if he specified that he retracts only
               partially, the first acquires the rest, even though
               it was a partial gift and no Kinyan was done, for
               when he gave it it was a total gift and it did not
               need a Kinyan. Some say that this is only if he went
               back and gave that part (he retracted from) to
               others, but if he kept it for himself, also what the
               first has is Batel, until he does a Kinyan. If one
               wrote some of his property to others and some to his
               heirs, and retracted regarding his heirs, the gift
               to others stands, for the gift to his heirs is like
               a mere inheritance.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (36):</font></b> The gift to the others is a partial
                    Matnas Shechiv Mera, and it requires a Kinyan.
                    However, perhaps it is considered a total gift,
                    for initially he gave away everything. If he
                    specified that he does not totally retract, it
                    helps. Here also, even though he did not
                    specify, we say that a retraction from his sons
                    and heirs is not considered retraction. If he
                    kept what he retracted from giving to his
                    heirs, surely the first recipients need a
                    Kinyan. This requires investigation.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (DH k'Yerushah):</font></b> If what he gave to his
                    heirs is a mere inheritance, what he gave to
                    the others is a partial Matnas Shechiv Mera,
                    and it should require a Kinyan! We must say
                    that since he mentioned heirs, this shows that
                    (he expects to die, and) the part he gave is
                    like a Matnas Shechiv Mera, which does not need
                    a Kinyan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Therefore, if Reuven gave all
               his property to Ploni, and then gave part to Almoni,
               Ploni does not acquire even if Reuven dies, for he
               retracted. Almoni's gift is a partial Matnas Shechiv
               Mera. If it has a Kinyan, he acquires even if Reuven
               recovered. If it has no Kinyan, he does not acquire
               even if Reuven died. If Reuven gave part of his
               property to Ploni with a Kinyan, and then gave the
               rest to Almoni, Ploni acquires even if Reuven did
               not die. Almoni's gift is a total Matnas Shechiv
               Mera. If Reuven died, Almoni acquires even without a
               Kinyan. If he recovered, Almoni does not acquire
               even if there was a Kinyan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (38):</font></b> Even if he interrupted between the
                    gifts to Ploni and Almoni, Ploni acquires even
                    if Reuven recovered, because there was a
                    Kinyan. It is not considered a total Matnas
                    Shechiv Mera from which one can retract. Since
                    he said that he gives the <i>rest</i> to Almoni, the
                    gift to Ploni is considered a partial Matnas
                    Shechiv Mera. This is why the Tur and Shulchan
                    Aruch repeated this law. Also if he made a
                    Kinyan for Ploni but not for Almoni, this shows
                    that Ploni's gift was a partial Matnas Shechiv
                    Mera and Almoni's was a total Matnas Shechiv
                    Mera.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (20):</font></b> Also above (Sa'if 17) the Tur
                    discussed this. There he taught <i>not</i> to say
                    the following. If one gave with a Kinyan, we
                    are not concerned for an interruption, for from
                    the beginning he intended to give away
                    everything and retract if he wants. He
                    interrupted in the middle to think about what
                    to give to everyone. Therefore, if he recovers,
                    even the first does not acquire, even if there
                    was a Kinyan. If he dies, all acquire, even if
                    there was no Kinyan. We do not say all this.
                    Stam, a Shechiv Mera first plans what he will
                    give, and then gives. An interruption shows
                    that he reconsidered, so the first, for whom a
                    Kinyan was done, acquires even if Reuven
                    recovers, like the law of a partial Matnas
                    Shechiv Mera. Above, the primary Chidush was
                    that the first acquires even if Reuven
                    recovered. Here, the primary Chidush is that
                    the latter does not acquire if Reuven
                    recovered, even if there was a Kinyan with
                    Yifuy Ko'ach. The Rashbam said 'and went back
                    and gave...', and the Rambam said 'and
                    afterwards gave' to show that he interrupted in
                    the middle. What the <b>SMA</b> wrote is wrong.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (13):</font></b> The Bach is correct. I think that
                    the correct text of the <b>SMA</b> should say 'even if
                    he <i>did not</i> interrupt between the gifts. (The
                    <b>SMA</b> explicitly says so in the Prishah (20) -
                    <b><b><b>PF</b></b></b>.)
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (14):</font></b> The Shulchan Aruch says that if
                    Reuven died, Almoni acquires even without a
                    Kinyan, i.e. and all the more so if there was a
                    Kinyan with Yifuy Ko'ach. A Kinyan without
                    Yifuy Ko'ach weakens the recipient (Magid
                    Mishneh Hilchos Zechiyah 8:21, Beis Yosef Sa'if
                    17).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN CAN ONE RETRACT FROM A MATNAS SHECHIV MERA? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If he gave a house to Yehudah and the
               roof to Moshe, what is the law? (Do we say that he
               left rights for Moshe to extend ledges from the
               roof, or not?)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> If you will say that he did not leave
               rights for Moshe, if he left the roof for himself,
               what is the law?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rava citing Rav Nachman):</font></b> If you will say
               that if one gave a house to Yehudah and the roof to
               Moshe, he did not leave rights for Moshe to extend
               ledges from the roof, if he left the roof for
               himself, he left for himself rights to extend
               ledges.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is according to Rav Zvid, who says that
                    (since a roof surrounded by a 10-Tefachim wall
                    is not included when a house is sold, even
                    without a stipulation, therefore,) if he
                    stipulated to keep the top, he reserves the
                    rights to extend ledges.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yosef bar Minyomi):</font></b> If a Shechiv Mera wrote all
          his property to others, if he intended from the beginning
          to give away all his property, they all acquire after he
          dies (even though no Kinyan was made). If he recovers, he
          can retract the entire gift;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he originally intended to keep some of his
               property, and (after giving some) later decided to
               give the rest, (if they made Kinyanim) they all
               acquire after he dies (our text, Rambam; Me'iri -
               they acquire immediately). If he recovers, he can
               retract only the last gift.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> (Why can't he retract from the first gifts?
          Even if he paused in the middle, perhaps) he intended
          from the beginning to give away everything, and he paused
          to think about what was left to give!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, a Shechiv Mera first thinks about
          everything he has to give before he starts giving it.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Rav Acha bar Minyomi):</font></b> If a Shechiv Mera wrote all his
          property to others, and he recovered, he cannot retract.
          We are concerned lest he has property abroad (that he did
          not give, therefore it is like the gift of a healthy
          person).
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says that if he did not keep
          property for himself, he can retract. Why are we not
          concerned?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chama):</font></b> The case is, he said 'I give all
          my property.'
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Mar bar Rav Ashi):</font></b> The case is, we are
          Muchzak that he has no other property.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>RETRACTING PART OF A 'MATNAS SHECHIV MERA'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> (When he may retract,) if he retracted part
          of the gift, is this a retraction of the entire gift?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> If Reuven said 'I give all my
          property to Ploni. I give some of it to Almoni', Almoni
          acquires, but Ploni does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Almoni acquires after Reuven dies,
               but Ploni does not. Retracting part of the gift to
               Ploni (i.e. what he gave to Almoni) is a retraction
               of the entire gift.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. The case is, Reuven recovered. (The gift
          to Almoni was partial, therefore Reuven cannot retract
          from it).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Seifa):</font></b> If he said 'I give some of my property
          to Ploni. I give all of it to Almoni', Ploni acquires,
          but Almoni does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We understand why if Reuven recovered, he can
               retract;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> But if Reuven died, both should acquire! (Reuven
               gave all his property. 'I give all of it to Almoni',
               means the rest!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Rav Yemar):</font></b> Even if the entire Beraisa
          discusses when he recovered, it shows that a partial
          retraction is a full retraction!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is a full retraction, this explains why
               Almoni acquires;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it were not a full retraction, Reuven gave all
               his property, and he would be able to retract also
               the gift to Almoni!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah is, a partial retraction is a full
          retraction.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We can explain the Reisha whether Reuven died or
               recovered. In the Seifa, we must say that he
               recovered.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>MAY ONE RETRACT FROM HEKDESH AND HEFKER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If Shimon made all his property Hekdesh, and
          recovered, what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that regarding Hekdesh, one decides
               absolutely to give it (even if he will recover)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we say that one never abandons himself (to
               be left without anything if he recovers)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If Shimon made all his property Hefker (and
          recovered), what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that since also poor people can take
               Hefker, he decided absolutely to give it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we say that one never abandons himself?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If Shimon gave all his property to the poor,
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Do we say that regarding the Mitzvah of Tzedakah,
               surely he decided absolutely to give it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, do we say that one never abandons himself?
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	These questions are unsettled.
<br>

<p>

sjt:
</p><p>
<font><b>3) ARE 'HEKDESH' AND 'TZEDAKAH' MONETARY MATTERS OR MATTERS OF 'ISUR'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which a Shechiv Mera gives away all of his property to Hekdesh, or he gives it all as charity to poor people, and then he recovers. The Gemara asks: is such a gift included in the law of the Mishnah (146b) which states that when a Shechiv Mera gives away all of his property and then recovers, his gift is annulled? The Gemara suggests that because he does such a great Mitzvah when he gives away all of his property to Hekdesh or Tzedakah, he intends for the gift to take effect even if he recovers. The Gemara leaves this question unanswered.
</p><p>
What is the Halachah in practice in such a case?
</p><p>
(a) The <b>RIF</b>, <b>RAMBAM</b> (Hilchos Zechiyah u'Matanah 9:19), <b>RAN</b>, and other Rishonim maintain that this Halachah is considered a monetary matter, and therefore the practical Halachah follows the rule that in a case of doubt in a monetary matter, the property remains in the possession of its original owner (in this case, the Shechiv Mera who recovered).
</p><p>
The Ran in Nedarim (7a) cites the Gemara in Chulin (134a) which implies that a doubt concerning a matter of Tzedakah is considered a doubt in a monetary matter. He also cites the Gemara in Yoma (8b) that applies the aforementioned principle to Ma'aser Ani as well. The <b>SHULCHAN ARUCH</b> (CM 250:3) follows this opinion.
</p><p>
(b) The <b>RAMBAN</b>, <b>RASHBA</b> (see also Ran), and <b>SHITAH <b><b>LO</b></b> NODA L'MI</b> maintain that Hekdesh and Tzedakah are not considered monetary matters, but rather are matters of <i>Isur</i>. In a case of a doubt concerning an Isur (when the Isur involved is an Isur d'Oraisa), the Halachah follows the more stringent possibility. Consequently, the Shechiv Mera who recovered is obligated to give the property to Hekdesh and Tzedakah.
</p><p>
(c) The <b>ROSH</b> maintains that the gift of the Shechiv Mera to Hekdesh or to Tzedakah is binding even if he recovers, for the following reason. In a normal case of a Matnas Shechiv Mera, there is an 'Umdena' -- an assumption based on circumstantial evidence -- that the Shechiv Mera intends to give away all of his property only if he dies but not if he recovers. When a Shechiv Mera gives his property to Hekdesh or to Tzedakah, that Umdena is in doubt (it is a 'Safek Umdena'). Perhaps when he gives all of his property to Hekdesh or to Tzedakah he indeed intends that the gift should be binding only if he dies. On the other hand, since a gift to Hekdesh or Tzedakah is a great Mitzvah, perhaps he intends to give an unconditional gift.
</p><p>
The Rosh explains that an Umdena can cancel a Kinyan (such as in a normal case of a Matnas Shechiv Mera, when the Shechiv Mera recovers) only when that Umdena is clear and certain. When the Umdena is in doubt, the person's action, and not the Umdena, dictates whether the Kinyan takes effect. Since the Shechiv Mera gave away all of his property to Hekdesh or to Tzedakah, the doubtful Umdena does not override the gift, and the gift takes effect even if he recovers. (See <b>KOVETZ SHI'URIM</b> here who discusses why a doubtful Umdena cannot override an action. One possibility is that it becomes like 'Devarim she'b'Lev,' an unspoken intent which does not override one's expressed words or actions. Another possibility is that it becomes like a Safek Tenai (because it is unclear whether he made the stipulation), and since he performed a definite (Vadai) action of giving away his property, the Halachah is in accordance with the principle of 'Ein Safek Motzi mi'Yedei Vadai.')
</p><p>
The <b>BEIS YOSEF</b> (CM 250) is perplexed by the Rosh's explanation. In the Gemara's case, the Shechiv Mera's intent <i>is</i> clear -- it is clear that his gift is given only due to his impending death, like any other case of a Shechiv Mera who gives away all of his property. The only question is whether this Shechiv Mera had even greater resolve to complete the Kinyan since he performs a great Mitzvah by giving away his property to Hekdesh or to Tzedakah. (Y. Montrose)
</p><p>
The Rosh himself, however, has support for his view from the case discussed by the Gemara earlier. The Gemara says that when a Shechiv Mera writes 'all of his property' to others and specifies which property he is giving to whom (i.e. he does not write the actual words 'all of my property,' but rather he distributes all of the property that Beis Din knows he owns (<b>MAGID MISHNEH</b>)), the gifts take effect even if he recovers, because he may own additional property abroad (in which case his gift would be a Matnas Shechiv Mera <i>b'Miktzas</i>). In that case, too, there is a doubtful Umdena: it is not clear if the Shechiv Mera intends to give away his property only on condition that he dies (because he has no other property), or if he intends to give an unconditional gift (because he has additional property abroad). The Gemara's ruling in that case (that the gifts take effect even if he recovers) indicates that, indeed, a doubtful Umdena cannot override an action (the giving away of his property).
</p><p>
That Gemara seems to be a clear proof for the approach of the Rosh. How do the other Rishonim understand that Gemara?
</p><p>
The <b>NIMUKEI YOSEF</b> (69b of the pages of the Rif, DH she'Kasav Kol Nechasav) writes that in the earlier case of the Gemara, the fact that the Shechiv Mera himself gave away his property and did not specify that he was giving away 'all of my property' is a strong indication that he indeed owns property elsewhere which he is <i>not</i> giving away. Therefore, there is no Umdena at all that he gave away all his property only on condition that he would not live; on the contrary, the circumstances indicate that he wanted to give away only part of his property (and that he wanted it to be an unconditional gift).
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PHRASES THAT EXPRESS TRANSFER OF OWNERSHIP</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> 'He will take, he will merit, he will
          make Chazakah, he will acquire' are all expressions of a
          gift (but an expression of inheritance does not take
          effect, according to Chachamim).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Even if he said 'he will inherit', if the
          recipient could inherit the giver, it takes effect.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like R. Yochanan ben Brokah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If he said 'he will benefit from them', what
          is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does he mean that they are a total gift?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does he mean that he may benefit from them?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Questions:</font></b> If he said 'he will be seen in them', 'he
          will stand in them', or 'he will be supported by them',
          what is the law?
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	These questions are unsettled.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If one sold all his property, what is the
          law?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> If he recovered, he cannot
          retract.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rav Yehudah):</font></b> If he recovered, he can
          retract.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	These answers do not argue. If he still has the money
          he received for it, he can retract. If he used the money
          to pay debts, he cannot retract.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If a Shechiv Mera admitted (that property
          that was Muchzak to be his really belongs to someone
          else), what is the law?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> We learn from the following episode.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Isar (a convert) had deposited 12,000 Zuz with
               Rava. Isar was about to die, and he wanted to give
               to them to his son Rav Mari. Isar had converted
               between the conception and birth of Mari. (According
               to Halachah, Isar had no sons or heirs.) Mari was
               away learning.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> Isar has no way to give the money to Mari!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Mari does not inherit Isar;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  He cannot give a Matnas Shechiv Mera. It is
                    like inheritance, so only one who has heirs can
                    give a Matnas Shechiv Mera;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  He cannot give through Chalipin, for coins
                    cannot be acquired through Chalipin;
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  He cannot give Agav (along with) land, for
                    he does not own land;
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> If he wants to give through Ma'amad Sheloshtan
                    (144a; Reuven tells Shimon in front of Levi
                    'you have money of mine. Give it to Levi', Levi
                    acquires it), I will not go;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rav Ika brei d'Rav Ami):</font></b> He can admit
               that the money belongs to Rav Mari. Rav Mari will
               acquire through Odisa (Kinyan through (even a false)
               admission)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Word spread that Isar admitted that the money
                    belongs to Rav Mari; Rava was upset that
                    someone told him, causing a loss to Rava! (If
                    not for the Odisa, the money would have become
                    Hefker when Isar died, and Rava could have kept
                    it.)
<br>
<br>

sjt:
<font><b>1) THE ADMISSION OF A 'SHECHIV MERA'</b></font><b>
<br>QUESTION:</b> The Gemara inquires about a Shechiv Mera who makes a statement of admission that he is in possession of money or property that belongs to someone else. Is his statement given the same credibility that is given to the admission of a healthy person, who is always believed in such a case ('Hoda'as Ba'al Din k'Me'ah Edim Dami')?
</p><p>
Logically, it seems that a Shechiv Mera's admission should be believed, since a Shechiv Mera has more power than a healthy person has to make transactions. (For example, his verbal instructions alone are sufficient and a Kinyan is not necessary.) What, then, is the basis of the Gemara's question?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> explains that the Gemara's question applies in a case in which the money or property was known to belong to the Shechiv Mera and there was never a reason, before his admission, to assume otherwise. The Gemara reasons that there may be another reason for the Shechiv Mera to make this 'admission.' The Gemara in Sanhedrin (29b) discusses a similar case in which a dying man says that he owes money to someone else. The Gemara says that the admission is <i>not</i> believed, and that the dying man is assumed to have made that statement merely to prevent people from saying that he is rich (which will cause an 'Ayin ha'Ra'; see <b>RASHI</b> there). The Gemara extends this logic to his heirs, as he does not want an 'Ayin ha'Ra' cast upon them either.
</p><p>
If, however, the Gemara in Sanhedrin clearly rules that the admission of a dying man is not accepted, then what is the question of the Gemara here? The Rashbam explains that the Gemara in Sanhedrin is discussing a case in which the dying man admits that he <i>borrowed</i> money. When people think that someone borrowed a lot of money, it thwarts any 'Ayin ha'Ra' because it is not desirable to be a borrower, as the verse states, 'A borrower is a servant to the lender' (Mishlei 22:7). In contrast, the Gemara here discusses a person who admits that he was entrusted to hold money or property for someone as a deposit. A custodian of someone else's money or property is certainly not considered the owner's 'servant.' On the contrary, it is the custodian who does a favor for the owner by watching his property for him. The Gemara therefore asks whether the same reasoning applies to disregard his admission. The Gemara learns from the incident of the money of Isur Giyora that a Shechiv Mera's admission indeed is valid.
</p><p>
(b) The <b><b><b>RI</b></b></b> (cited by Tosfos) and <b>RABEINU CHANANEL</b> explain that the Gemara's question is whether the Shechiv Mera's admission has the status of a Matnas Shechiv Mera, or the status of a gift given by a normal, healthy person. If it has the status of a Matnas Shechiv Mera, then if he gives away all of his property and then recovers, the gift is annulled. If his admission is treated like the admission of a normal, healthy person, then his gift remains valid and binding even if he recovers. The Gemara derives from the case of Isur Giyora that a Shechiv Mera's admission is similar to a gift given by a healthy person. Isur Giyora did not have the power to give a Matnas Shechiv Mera (as the Gemara says, since he was a convert and thus was not able to inherit, and a Matnas Shechiv Mera works only for someone who is able to inherit). It must be that the admission of a Shechiv Mera is not like a Matnas Shechiv Mera, but rather it is like the gift of a normal, healthy person, and thus it is binding even if the Shechiv Mera recovers.
</p><p>
(c) <b>TOSFOS</b> cites a third approach (although he prefers the explanation of the <b><b><b>RI</b></b></b>) that explains that the Gemara questions whether a person has the ability to transfer the ownership of money or an object that belongs to him and that he deposited with a friend for safekeeping. The case that the Gemara is discussing is that of a Shechiv Mera who entrusted his own money or object to a friend, and now wants to give that money or object as a gift to a third party. The Gemara asks if the fact that the money or object is not physically in his possession lessens his power to effect a transfer of ownership. The Gemara derives from the case of Isur Giyora that one indeed may transfer the ownership of his own money while it is not in his physical possession at the moment. (The Gemara derives, however, only that a Shechiv Mera may effect such a transaction, but not that a healthy person may do so, since a healthy person is subject to more stringent laws of transactions).
</p><p>
According to this explanation, the Gemara could have asked this question with regard to a healthy person as well. In addition, had the Gemara answered that a Shechiv Mera may <i>not</i> transfer the ownership of such objects, it would have been understood, too, that a healthy person certainly may not do so.
</p><p>
The <b>NESIVOS HA'MISHPAT</b> (CM 60:32) notes that there is an underlying question in the case of the Gemara. (It appears that this question applies according to both explanations cited by Tosfos.) The question is whether Hoda'ah, admission, is a valid vehicle of transaction (like a form of Kinyan) only when it is <i>possible</i> that the admission is true (that is, there is no evidence that the person making the admission indeed owned the property, and it may indeed belong to someone else), or even when it is clear that it is not true (that is, it is certain that this person was always the owner of the property, or he himself says that he owned it until now, and now he 'admits' that it belongs to someone else). The Gemara answers that Hoda'ah is accepted as a valid means of transaction. (Some suggest that this applies to a Shechiv Mera; see <b>SHACH</b> there.) (Of course, in a case in which the admission is plausible, it is obvious that it is effective.) (Y. Montrose)
</p><p>


<font><b>2) AGADAH: RAVA AND THE MONEY OF ISUR GIYORA</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which Isur Giyora deposited money with Rava for safekeeping. Rava asserted that there was no way for Isur Giyora to transfer the ownership of that money to his son Rav Mari, and Rava therefore was planning to keep the money. In the end, Isur Giyora followed Rav Ika's advice to 'admit' that the money belonged to Rav Mari. When Isur Giyora made his admission, Rava became upset. He exclaimed, 'You are teaching people claims and thereby causing me to lose money!'
</p><p>
Why did Rava become upset over such a thing? Rava certainly knew the dictum of the Gemara earlier (10a) which states that a person's income, including all profits and losses, is fixed for the entire year on Rosh Hashanah. Why did he become upset over this loss of money, if he knew that it was decreed on Rosh Hashanah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>CHAZON ISH</b> (<b>LIKUTIM</b> 21) explains that Rava wanted to procure the money for Tzarchei Tzibur, for the needs of the poor, as indicated by the Gemara in Ta'anis (20b) which quotes Rava's declaration that he could do all of the charitable acts that Rav Huna did, except having all of the poor people eat in his home whenever they wanted, due to the great number of poor people in his community. The Chazon Ish infers that Rava actually did all of the things that Rav Huna did (as he would not have boasted untruthfully). Therefore, Rava needed to make an extra effort to obtain money for the poor, because that money was not part of his own income, and thus it was also possible that he could lose that money.
</p><p>
(b) The <b>YOSEF DA'AS</b> quotes <b>RAV</b> M. <b>MAZOZ</b> who explains that Rava was not seriously upset about the loss of money. Rather, he wanted his students to discuss the difficult case and sharpen their minds by trying to find a solution whereby the money of Isur Giyora could be transferred to Rav Mari. When Rav Ika found an acceptable solution, Rava proclaimed in jest, 'You are causing me to lose money!' (As related in Yosef Da'as, Rav Mazoz says that after he said this explanation, Rava came to him in a dream and blessed him with Birkas Kohanim.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES MA'AMAD SHELOSHTAN REQUIRE THE MIDDLEMAN'S CONSENT?</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'> 85a (Beraisa):</font></b> If goods were deposited with Dan, the
               buyer does not acquire until Dan allows him to use
               the premises to acquire, or rents the premises to
               him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 144a (Mar Zutra):</font></b> Chachamim made three enactments
               without reason (how they work). One of them is
               Ma'amad Sheloshtan:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav):</font></b> If Reuven says to Shimon 'you have money
                    of mine. Give it to Levi', and all three are 
                    present, Levi acquires the money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 149a:</font></b> Isur had deposited money with Rava. Isur was
               about to die, and wanted to give the money to his
               son Rav Mari, who was away. Isur had converted after
               the conception of Mari. (Mari would not inherit
               Isur. Isur had no heirs.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rava:</font></b> Isur has no way to give the money to Mari! ...
               If he wants to give through Ma'amad Sheloshtan, I
               will not go.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Ika brei d'Rav Ami):</font></b> Isur can admit that the
               money belongs to Rav Mari. Rav Mari will acquire
               through Odisa (Kinyan through (even a false)
               admission)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Gitin 13b (Rava):</font></b> Presumably, Rav's law applies only
               to a deposit (Shimon could give it over), but not to
               a loan. However, Rav actually said it even about a
               loan!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> If Reuven says to Shimon 'you
                    borrowed money from me. Give it to Levi', and
                    all three are present, Shimon owes the money to
                    Levi.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Why does this work?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1 (Ameimar):</font></b> It is as if Shimon said when he
               borrowed the money 'I am indebted to you, or anyone
               who will come in your stead.'
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection (Rav Ashi):</font></b> If so, one could not give the
               loan to one born after the loan was given! All
               require the recipient of an acquisition to be in the
               world!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> Rather, through the benefit of
               converting an old loan into a new loan, Shimon is
               able to obligate himself to Levi.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Objection (Huna, son of Rav Nechemyah):</font></b> If so, Rav's
               law would not apply if Levi is the type who forces
               people to pay immediately! (Shimon does not prefer
               to owe such a person. Surely, the law does not
               depend on the recipient!)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer #3 (Mar Zutra):</font></b> Rav's law is an enactment
               without reason (how it works).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Gitin 1:17):</font></b> The Riva says that Ma'amad
               Sheloshtan works b'Al Korcho (against the will) of
               Shimon (the borrower). If it required his consent,
               why did Chachamim need to enact Ma'amad Sheloshtan
               for a deposit? Ten k'Zechi (saying 'give' is like
               saying 'acquire for')! If goods were deposited with
               Dan, once Dan agrees, the buyer acquires them (Bava
               Basra 85a). Rather, Ma'amad Sheloshtan is needed
               when Shimon does not consent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> R. Tam holds that Ten k'Zechi only when
               the object is given over, and it does not apply to
               gifts. Perhaps Ma'amad Sheloshtan does not work b'Al
               Korcho. It is needed for gifts, or when the object
               is not given over!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Tosfos 13b DH Gufa):</font></b> Still, the giver can
               explicitly say 'Zechi'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rebuttal (Ran DH Maneh):</font></b> Perhaps Ma'amad Sheloshtan
               does not work b'Al Korcho. It is needed for when the
               object is not in Shimon's Reshus!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Defense #1 (Tosfos):</font></b> In any case, Reuven can give it
               to Levi through Odisa, like it says in Bava Basra
               149a.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Defense #2 (Rosh, ibid.):</font></b> Surely, Chachamim would
               not make an enactment without reason (how it works)
               for an unusual case when Shimon does not have the
               deposit now. (Rather, it is needed to work b'Al
               Korcho of Shimon.) Another proof is from Rava, who
               said 'if Isur wants to give through Ma'amad
               Sheloshtan, I will not go.' This connotes that if he
               would be there, it would work b'Al Korcho. Rava did
               not mean that he would be ashamed to refuse, for
               even without Ma'amad Sheloshtan Isur could ask him
               to acquire for Rav Mari. It is difficult to say the
               money was not in Rava's Reshus at the time.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ran DH Maneh):</font></b> It is reasonable that
                    Rava would remove the money from his Reshus, in
                    case Rav Mari will tell him 'Zechi'!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Presumably, the Rosh holds that a Shomer
                    may not remove the deposit from his Reshus. I
                    do not know the Ran's source to disagree.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rosh and Ran (ibid.):</font></b> According to the reason that
               Ma'amad Sheloshtan works with Shimon's Hana'ah that
               an old loan becomes a new loan, it seems that it
               requires his consent. Even though that reason
               applies only to loans, it is unreasonable that
               Ma'amad Sheloshtan was enacted in two different
               ways.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rebuttal (Rosh):</font></b> Chachamim enacted based on most
               people, who prefer that an old loan become a new
               loan. If a particular borrower is unhappy, we ignore
               his opinion. Rav Ashi said that it is as if Shimon
               initially indebted himself '...to anyone who will
               come in your stead.' This does not prove that it is
               b'Al Korcho. Perhaps it means '... to anyone in your
               stead to whom I will agree to be indebted.' The
               Halachah is, it works b'Al Korcho.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (13b DH Omar):</font></b> Alternatively, when
                    Shimon agrees, it is considered as if he said
                    from the beginning 'I am indebted...'
<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 (126:7):</font></b> If Shimon had Reuven's
               money, a loan or deposit, and b'Ma'amad Sheloshtan
               Reuven told Shimon 'the money you have of mine, give
               it to Levi', Shimon must do so b'Al Korcho, even if
               he did not agree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosav Rabeinu):</font></b> The Riva and R.
                    Tam say that it works b'Al Korcho. The Ran
                    refutes his proofs. Sefer ha'Terumos agrees
                    with those who argue with R. Tam. The Rosh says
                    so in a Teshuvah (69), but in his Pesakim he
                    agrees with R. Tam, and also the Rashba (2:378)
                    does.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (28):</font></b> In Gitin (13b DH Omar), the Rashba
                    argues with R. Tam. However, Teshuvas ha'Rosh
                    (69:9) is like R. Tam, like he wrote in his
                    Pesakim! (Note: Teshuvah 69:1 rejects R. Tam's
                    proof.) 'Ma'amad Sheloshtan' connotes that
                    Shimon consents, like the Nimukei Yosef (Bava
                    Basra 70a DH Sholach) says. Also the Ro'oh,
                    Ritva a Ba'al ha'Itur and Yam Shel Shlomo
                    require Shimon's consent. If it were not
                    needed, why would we require his presence? It
                    would suffice to inform him! The Shulchan Aruch
                    brought this opinion in Sa'if 5. I do not know
                    why he did not bring it here.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> In Sa'if 5, the Shulchan Aruch says that
                    Shimon cannot say that he will give to Levi
                    only when he wants, and says that some
                    disagree.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (16):</font></b> The dissenting opinion (here) holds
                    that Shimon can say that he does not want to be
                    the borrower of Levi, for Levi is harsher than
                    Reuven.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Note:</font></b> This does not explain why he can refuse
                    regarding a deposit. Perhaps he fears lest it
                    be lost due to negligence, and then he will owe
                    its value.
<br>

<p>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW MUCH MUST A 'SHECHIV MERA' LEAVE OVER?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he left over any amount of land, he
          cannot retract.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What it considered 'any amount'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> He must leave enough land to
          support himself from it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (R. Yirmeyah bar Aba):</font></b> He must leave enough
          Metaltelim to support himself.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Zeira):</font></b> These are great teachings!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he left over any amount of land, he cannot
               retract. This shows that he made provisions to
               support himself (in case he will live);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The same reasoning applies when he leaves over
               Metaltelim!
<br> <b>    <b><font color='darkgreen'>(f)</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>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (part 1 - Abaye):</font></b> Sometimes a Mishnah says
          'land', but it also applies to Metaltelim!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven wrote all his property to
               his slave, the slave goes free (and gets
               everything);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven kept any amount of land, the slave is
               not free. (This suggests that Reuven kept also part
               of the slave. Partial freedom does not take effect);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon says, in either case he is free, unless
               Reuven wrote 'all my property is to my slave, except
               for one part in 10,000 (or any fixed fraction, for
               then he keeps part of the slave)'.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Dimi bar Yosef):</font></b> Keeping Metaltelim is like
               keeping land regarding a slave (he does not go
               free), but not regarding a Kesuvah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  (If one wrote his property to his sons and gave
                    to his wife any amount of land, she forfeits
                    her lien on the property to collect her
                    Kesuvah. This does not apply if he gave to her
                    Metaltelim.)
<br>

<p>

sjt:
</p><p>
<font><b>3) HALACHAH: HOW MUCH PROPERTY RETAINED CONSTITUES A 'MATNAS SHECHIV MERA B'MIKTZAS'?</b></font><b>
<br>OPINIONS:</b> The Mishnah (146b) states that if a Shechiv Mera gives away his property but retains 'any amount of land' for himself, his gifts are considered absolute and unconditional (like the gifts of a healthy person), and he may not retrieve them if he recovers. The Gemara asks how much land is considered 'any amount' of land. Rav Yehudah in the name of Rav says that this is the amount of land the Shechiv Mera needs to support himself. Rav Yirmeyah bar Aba states that it is not necessary for the Shechiv Mera to retain land for the gifts to be binding; rather, his gifts are binding as long as he retains any type of property, even Metaltelin (movable objects), in the amount necessary to support himself.
</p><p>
The Gemara attempts to refute both the assertion that there is a minimum amount of property that the Shechiv Mera must retain (enough to support himself) in order for the gift to be considered a Matnas Shechiv Mera b'Miktzas, and the assertion that it is sufficient for him to retain Metaltelin, even if he gives away all his land. The Gemara, however, does not come to any definite conclusion. What is the Halachah? Is it necessary for the Shechiv Mera to keep land for himself, or does Metaltelin suffice as well? Is it necessary for him to retain enough property to support himself or does any amount suffice?
</p><p>
(a) The <b>RIF</b> rules that the Halachah follows neither Rav Yehudah nor Rav Yirmeyah bar Aba. The Rif proves this from the Gemara later (150b) in which Rava (150b) states that there are five cases in which a person must give away all of his property in order for the law to change (that is, in each case there is a difference between giving away some of one's property and giving away all of one's property). One of the cases is that of a Shechiv Mera. By including all of the five cases in one statement, Rava implies that the case of Shechiv Mera is similar to the other cases. Since, in the other cases, it is sufficient to leave over any amount of property, the same applies to the case of a Matnas Shechiv Mera. Thus, the gift will be considered a Matnas Shechiv Mera b'Miktzas as long as any amount of property was excluded.
</p><p>
(b) The <b>ROSH</b> writes that the <b>RIF's</b> ruling is difficult to understand, because the Gemara here does not record the opinion of any Amora who argues with Rav Yehudah and interprets the Mishnah literally, that any amount of land that a Shechiv Mera retains suffices to make the gift a Matnas Shechiv Mera b'Miktzas. Therefore, the Rosh explains that when Rava (150b) groups the five cases together, he does not mean that they are all completely equivalent to each other. For example, in the case of a Kesuvah, there must be some land left over, whereas in the other cases, even Metaltelin may be left over. Similarly, the exact details of the case of Shechiv Mera may differ from those of the other four cases. The Rosh explains that logic dictates that a Shechiv Mera who gives away his property unconditionally (by giving only some of his property away) does so only if he keeps for himself enough to support himself in the event that he recovers, as Rav Yehudah says. Therefore, the Shechiv Mera's gift is considered unconditional only if he retains a sufficient amount of whatever commodity he uses to support himself (whether it is land or Metaltelin) so that he can continue to support himself in the event that he lives, as Rav Yirmeyah bar Aba says. (It seems from the Rosh that the amount that must be left over is the amount the Shechiv Mera will need to support himself for the rest of his life.)
</p><p>
The <b>S'MA</b> and <b>NESIVOS HA'MISHPAT</b> (see CM 250:4) understand that the Rosh maintains that if the Shechiv Mera retains land, then he must have enough land to support both himself <i>and his family</i>, because he needs people (his family members) to help him farm his land and therefore he must support them. If, however, he earns an income through other means and does not need workers to assist him, then his gift is considered a Matnas Shechiv Mera b'Miktzas as long as he retains only the amount that he needs for his own support; he does not have to retain the amount that he needs for his family's support.
</p><p>
The <b>ARUCH HA'SHULCHAN</b> disagrees with this approach in the Rosh and asserts that regardless of the Shechiv Mera's occupation, he must retain enough property to support himself and his family; if he does not, then the gift is nullified if he recovers.
</p><p>
(c) The <b>BA'AL HA'ITUR</b> gives an explanation similar to that of the Rosh. However, the Ba'al ha'Itur adds that the Shechiv Mera must retain for himself enough to support himself for <i>twelve months</i> in order for his gift to be considered a Matnas Shechiv Mera b'Miktzas.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 250:4) follows the opinion of the <b>RIF</b> (a), while the <b>REMA</b> cites the opinion of the Rosh (b). (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IS THE WORDING OF OUR MISHNAH PRECISE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection (Rav Yosef):</font></b> That Mishnah says 'land' only
          for parallel structure to the Reisha;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reisha - R. Akiva):</font></b> The following apply to any
               amount of land: one must leave Pe'ah (a corner for
               the poor, and he does not harvest it), one must
               bring from it (to a Kohen in the Mikdash) Bikurim
               (first fruits of the seven species), one may write
               on it a Pruzbul (a document saying that he hands
               over his debts to Beis Din, so Shemitah will not
               cancel them), and one may acquire Metaltelim Agav
               (with) it by acquiring the land through money, a
               document or Chazakah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Answer (part 2, to Objection 2:f, 149b - Abaye):
          Sometimes a Mishnah says 'any amount', but a certain
          amount is required!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Dosa ben Hurkanus):</font></b> One must give
               (to a Kohen) Reishis ha'Gez (first shearings of his
               sheep) only if he shears from each of five sheep a
               Maneh (the weight of 9600 barley seeds) and a half
               of wool.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he is liable for any amount at
               all.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Chachamim say 'any amount.' How much is
                    this?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer (Rav):</font></b> It is a Maneh and a half.
                    Each sheep must yield a fifth of this.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rav Yosef):</font></b> There, it says 'any amount' to
          contrast with R. Dosa, who requires a large amount.
<br>
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ARE SLAVES CONSIDERED LIKE LAND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	The following is obvious. If Reuven said 'my Metaltelim
          are to Ploni', he acquires all Reuven's Kelim, except for
          wheat and barley (Rashbam - and animals);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said '<i>all</i> my Metaltelim', Ploni acquires
               even wheat and barley and the upper millstone, but
               not the lower millstone;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'everything that can be moved', he
               even acquires the lower millstone.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Is a slave considered like land or
          Metaltelim?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Acha brei d'Rav Avya - Mishnah):</font></b> If one
          sells a city, this includes the houses, pits, bathhouses,
          dovecotes, olivepresses and Beis ha'Shelachin (even if it
          is outside the city);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Metaltelim are not included;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he said 'it and everything inside', even
               animals and slaves are included.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of answer:</font></b> If slaves are Metaltelim, we
               understand why they are excluded (in the Reisha).
               However, if slaves are like land, why are they
               excluded?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> If they are Metaltelim, why does it say (in
          the Seifa) '<i>even</i> animals and slaves'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> You must say that Metaltelim that move (by
               themselves) are different than Metaltelim that do
               not move;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Likewise, we can say that slaves are like land
               that moves. They are different than land that does
               not move (therefore, they are not sold with the
               city)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Ravina - Mishnah):</font></b> If Reuven wrote all his
          property to his slave, the slave goes free;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven kept any amount of land, the slave is
               not free.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, in either case he is free, unless
               Reuven wrote 'all my property is to my slave, except
               for one part in 10,000.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Dimi bar Yosef):</font></b> Keeping Metaltelim is like
               keeping land regarding a slave, but not regarding a
               Kesuvah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> The reason is, slaves are like
               Metaltelim, so keeping Metaltelim affects (freeing)
               slaves (it suggests that he also kept part of the
               slave);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A Kesuvah is like land, so receiving Metaltelim
                    is not like receiving part of her Kesuvah (to
                    show that she pardons her lien).
<br>
<br>

sjt:
<font><b>1) HOW MUCH IS PLURAL?</b></font><b>
<br>QUESTION:</b> The Gemara says that when a person gives away his property (either a Shechiv Mera, through his verbal instructions, or a healthy person, with a Kinyan (<b>RASHBAM</b>)) by saying, 'My Metaltelin shall be given to so-and-so,' all of his movable possessions are included in his statement and are given away as a gift.
</p><p>
Throughout the Gemara there is a rule called 'Mi'ut Rabim Shenayim.' This rule means that whenever a word is expressed in the plural form, the minimum (and maximum) number of items to which that word refers is two, unless otherwise specified. This is similar to the rule of 'Tafasta Merubah Lo Tafasta' (see Sukah 5a). Why, then, does the Gemara assume that the person intends to give away all of his movable property, and not just two items? Why does it not invoke the rule of 'Mi'ut Rabim Shenayim'?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RITVA</b> answers that when a person speaks about his own belongings, such as in this case, in which he says, 'Metaltela'i' ('my movable possessions'), it is not assumed that he means only two, but rather that he means all of his property. The rule of 'Mi'ut Rabim Shenayim' applies only to general, unmodified plural nouns, such as 'Metaltelin l'Ploni' ('give movable possessions to so-and-so').
</p><p>
The reasoning behind this seems to be that the addition of the word 'my' (in the phrase '<i>my</i> Metaltelin') is a description of <i>which</i> possessions he wants to give. All of the possessions that he owns (and not just two of them) fit that description. (Had he wanted to give away only two possessions, he would have said merely 'Metaltelin,' without adding 'my.')
</p><p>
(b) The <b>BA'AL HA'ME'OR</b> explains that the rule of 'Mi'ut Rabim Shenayim' applies only when a person refers to a specific type of object (for example, houses, orchards, or fields). In contrast, when a person generalizes, such as in this case, and refers to many different types of objects with one word, 'Metaltelin,' it is assumed that he means everything, because the word itself is not a 'Mi'ut,' but rather it includes many items. (Y. Montrose)
</p><p>


<font><b>2) HALACHAH: IS AN 'EVED' CONSIDERED LIKE LAND OR LIKE MOBILE PROPERTY?</b></font><b>
<br>OPINIONS:</b> The Gemara asks whether Avadim, slaves, have the status of land (Karka) or movable objects (Metaltelin). The <b>RASHBAM</b> and <b>TOSFOS</b> point out that it is clear from the Gemara elsewhere that Avadim have the status of land with regard to Torah law (based on a Hekesh, as described in Kidushin 22b and Shevuos 42b). Tosfos says that the Gemara's question here is whether Avadim have the status of land with regard to laws that are mid'Rabanan. The Rashbam says that the Gemara's question is whether <i>people</i>, in their normal speech, refer to Avadim as 'Metaltelin' (in which case Avadim would be included in a gift or sale of 'Metaltelin'). The Gemara attempts to determine the status of Avadim but it comes to no definite conclusion. What is the Halachah?
</p><p>
(a) The <b>RIF</b> says that Avadim are considered movable objects, as Rav Nachman rules earlier (128a) when he states that a lender may not collect an Eved from the borrower's heirs as repayment for his loan. The reason is obviously that an Eved is considered a movable object, and a lender is not permitted to collect movable objects from the borrowers' heirs. The Gemara there says that the Halachah follows the view of Rav Nachman, and thus the Halachah is that Avadim have the status of Metaltelin.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> cites an opinion that argues that the Rif's proof cannot be correct, for if it is correct, then the Gemara itself should cite it here. He explains that the case of Rav Nachman cannot be used as an answer to the Gemara's question here. In the Gemara there, Rav Nachman states that an Eved is considered Metaltelin with regard to collecting a debt from the borrower's heirs. The Gemara here asks a different question: does a person, in his normal speech, refer to Avadim as Karka or as Metaltelin, as the Rashbam explains.
</p><p>
Since the Gemara does not answer its question here, when a person gives away or sells his 'Metaltelin' or his 'Karka' it is unclear whether his Avadim are included. Since this is a doubt regarding a monetary matter, the rule of 'ha'Motzi me'Chaveiro' applies and the Avadim remain in the possession of their present owner.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 248:10) seems to rule that Avadim are included in a person's statement when he sells 'all of his Metaltelin' because that is the way people speak. The <b>BE'ER HA'GOLAH</b> and <b>BI'UR HA'GRA</b> state that the Shulchan Aruch's ruling is in accordance with the <b>RIF</b>. The <b>S'MA</b> says that the reason for the Shulchan Aruch's ruling is that people refer to Avadim as 'Metaltelin' in their normal speech. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE ENACTMENT TO COLLECT A KESUVAH FROM METALTELIM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If a man wrote a document giving all
               his property to his wife, he only made her an
               overseer.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> Only regarding a Kesuvah, giving all one's
               land is like giving everything. Chachamim enacted
               that it is collected only from land, not from
               Metaltelim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Ameimar):</font></b> If a man gives all his property to his
               sons except for Metaltelim (that were designated to
               pay the Kesuvah), she does not forfeit her (lien on
               his property to collect her) Kesuvah (because she
               expects to collect it from the Metaltelim, she sees
               no need to protest about the land).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Kidushin 65b (Beraisa):</font></b> Two men and a woman came
               from abroad with a bundle. Each man claims 'the
               other man is my slave. The woman is my wife. The
               bundle is mine.' She claims 'they are both my
               slaves. The bundle is mine.' She needs a Get from
               each man; she collects a Kesuvah from the bundle.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This is like R. Meir, who says that there is a lien
               on Metaltelim to collect a Kesuvah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Kesuvos 67a (R. Shmuel bar Nachmani):</font></b> A woman
               collects Parna (her Kesuvah) from camels of Arabia.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Papi):</font></b> A woman collects Parna from garments of
               Bei Michsi, sacks of Rodiya and ropes of Kimchoniya.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'>(Rava):</font></b> I used to say that women collect Parna from a
               wallet full of coins in Mechuza, because they rely
               on them, Once I saw that they use the money to buy
               land, I realized that they rely on land, so they may
               collect only from land.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Kesuvos 30b):</font></b> Nowadays that Rabanan of the
               Yeshivos enacted that a woman collects her Kesuvah
               even from Metaltelim, food is included. We hold that
               Tanai Kesuvah are like the Kesuvah. However,
               Parnasah (a girl gets a 10th of her father's estate
               when she gets married) is not a Tanai Kesuvah, so
               its law did not change (it is only from land).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Kesuvos 6:5):</font></b> Women collect Parna, i.e. the
               Kesuvah, from camels of Arabia, because women rely
               on them, like wallets full of coins in Mechuza.
               Poskim learn from here that there is a lien on our
               Metaltelim to pay a Kesuvah, for our business is
               mostly with coins and Metaltelim. They are like
               camels of Arabia. R. Tam disagrees. If they are like
               land, if a man sold them, a widow should be able to
               collect from her Kesuvah from the buyer. Takanas
               ha'Shuk (Chachamim removed Shibud from Metaltelim,
               lest people be afraid to buy things) would be Batel!
               Rather, the Kesuvah is collected from Metaltelim
               because men write in the Kesuvah a lien on
               Metaltelim Agav (along with) land. We do not write
               'Keni', so that they cannot be collected from
               buyers.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Korban Nesan'el (Kesuvos 6:70):</font></b> Tosfos cites R.
                    Tam to say that Kesuvah is collected from
                    Metaltelim due to the enactment that creditors
                    have a lien on Metaltelim. Nevertheless, we
                    write in the Kesuvah, lest a man not know and
                    she collect improperly. Takanas ha'Shuk applies
                    to Kesuvah because buyers cannot beware. Every
                    (married) man has Shibud Kesuvah!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Teshuvah 36:3):</font></b> Nowadays women collect from
               loans, since our main business is lending to Nochrim
               (on interest). Women rely mostly on this. Without
               this, most Kesuvos would be uprooted.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (EH 100 DH v'Nir'eh):</font></b> This reason is
                    needed only for those who do not write in the
                    Kesuvah a lien on Metaltelim Agav land.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Kidushin 3:14):</font></b> Only R. Meir says that a woman
               collects her Kesuvah from her husband's Metaltelim;
               Chachamim disagree. R. Meir agrees that she cannot
               collect from orphans' Metaltelim. If not, he would
               give greater collection rights for a Kesuvah than
               for a debt, which is not collected from orphans'
               Metaltelim. This would be totally contrary to
               Chachamim, who give greater collection rights for a
               debt than for a Kesuvah (a debt is collected from
               the borrower's Metaltelim).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ran Nedarim Sof 65b):</font></b> She does not
                    collect her Kesuvah until she is widowed or
                    divorced. Chachamim hold that therefore she
                    does not rely on collecting from her husband's
                    Metaltelim, hence she has no lien on them.
                    Indeed, R. Meir says that she has greater
                    collection rights than a creditor!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> R. Meir holds that a Kesuvah is
               collected from a gift of Metaltelim (Yevamos 99b).
               This shows that orphans have greater rights (to keep
               their property) than one who received a gift.
               However, in Bava Basra (133a) we say that food (for
               a widow) is collected from inheritance mid'Oraisa,
               all the more so from a gift mid'Rabanan. This
               implies that it is not collected from a gift
               mid'Oraisa! Food is collected from a gift to one's
               children. This implies that it is not collected from
               a gift to others! Perhaps Yevamos 99b discusses a
               Matanas Shechiv me'Ra mid'Rabanan. Alternatively,
               Bava Basra brought a Kal va'Chomer to collect from a
               gift mid'Rabanan. We also collect from a gift
               mid'Oraisa, but it is not a Kal va'Chomer. However,
               in Bava Metzi'a (12b) we permit returning a found
               document only if it has no Achrayus. If one may
               collect a debt (without Achrayus) from a gift, we
               should forbid in every case, lest one collect from a
               gift! We hold that a Milveh Al Peh is collected from
               heirs. Ge'onim enacted to collect Kesuvah and food
               from Metaltelim nowadays. If a gift is stronger than
               inheritance, these cannot be collected from gifts
               that the father gave, or even if the heirs gave. It
               seems that this is the Halachah. A creditor does not
               collect improvements to land from one who received a
               gift, but he collects from heirs.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 16:7):</font></b> Ge'onim in all the
               Yeshivos enacted that a widow collects from
               Metaltelim, just like they enacted for creditors.
               This enactment spread throughout most of Yisrael. It
               applies to all Tanai Kesuvah, except for Kesuvas
               Benin Dichrin (male sons inherit their mother's
               Kesuvah). We leave this according to Gemara law,
               that it is collected only from land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> This was enacted because
                    nowadays many men deal only with Metaltelim,
                    and a woman relies on them, like we find in
                    Kesuvos 67a.
<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 100:1):</font></b> According to the Gemara,
               Ikar Kesuvah and Tosefes are collected only from
               land. Ge'onim enacted that the Kesuvah and all its
               Tanayim are collected from Metaltelim, except for
               Kesuvas Benin Dichrin. Therefore, if the heirs
               collected money owed to the father, she collects
               from it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> The heirs can dispel her by paying her with
               land.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Shmuel (4):</font></b> If the Kesuvah explicitly put
                    a lien on Metaltelim, they cannot make her take
                    land. If not, also her ex-husband can make her
                    take land. The enactment was only when he has
                    no land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> It is collected only from
               Metaltelim Bnei Chorin. She cannot collect if he
               sold or gave them amidst health (not a Shechiv
               Mera).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah v'Chen Chosav):</font></b> Tosfos
                    (Kesuvos 49b DH Hu) says that if she collects
                    from inheritance mid'Oraisa, all the more so
                    she collects from Matanas Shechiv me'Ra
                    mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that this is only if he gave to
               others, but if he gave to his heirs amidst health
               she collects, for anything given to heirs is like
               inheritance.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (7):</font></b> The Mordechai and others
                    say that this was said l'Halachah, but in
                    practice we do not collect.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (6):</font></b> The heirs can say that they
                    hold like the opinion that does not distinguish
                    between gifts to heirs or to others.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If the heirs sold the
               Metaltelim after the father died, she collects.
               Nowadays our custom is to write in all Kesuvos a
               lien on all his property, 'land and Metaltelim Agav
               land, that I acquired and that I will acquire.' Even
               so, we do not collect from Metaltelim he sold or
               gave amidst health, nor from Metaltelim the heirs
               sold, due to Takanas ha'Shuk.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu) and
                    Bedek ha'Bayis:</font></b> It seems clear that once the
                    husband died, the property is in front of the
                    widow, so the heirs cannot give it. We do not
                    collect for food from what the brothers sold,
                    but we collect the Kesuvah. However, Tosfos and
                    R. Yerucham disagree.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH ul'Didan):</font></b> Since we write
                    Metaltelim Agav land, she collects even from
                    Metaltelim that he sold, just like from land.
                    (However, this is not the practice, due to
                    Takanas ha'Shuk.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chelkas Mechokek (10):</font></b> The Rosh (Kidushin 3:14)
                    said that even if they gave a gift, she does
                    not collect! The Bach says that this is only
                    regarding food, but she collects her Kesuvah
                    even from a sale. Kitzur Piskei ha'Rosh says
                    so.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Chelkas Mechokek (11):</font></b> Why does Takanas ha'Shuk
                    apply to the husband's gift (like his sale),
                    but not regarding heirs? Perhaps if it did, all
                    heirs would do so, and the Ge'onim's enactment
                    would be futile.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Shmuel (9):</font></b> If he wrote Metaltelim Agav
                    land and she is holding the Metaltelim, she
                    keeps them. Takanas ha'Shuk does not apply
                    here.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>COLLECTING METALTELIM OF ORPHANS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> No (keeping Metaltelim does not
          suggest that he kept also part of the slave);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, the slave does not go free, because this
               is not Kerisus (the Get of freedom must totally
               sever (the slave) from the master. Here, the Get of
               freedom also mentions something (Metaltelim) that
               the master keeps.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>LAWS THAT DEPEND ON GIVING AWAY ALL THAT ONE OWNS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> There are five laws that apply only if one gave
          away all his property. They pertain to a Shechiv Mera, a
          slave, a wife, sons, and a gift to evade.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Matnas Shechiv Mera - (Mishnah):</font></b> If a Shechiv
               Mera gave away all his property and retained a small
               amount of land for himself, he cannot retract;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he did not keep land for himself, he can
                    retract.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Freeing a slave - (Mishnah):</font></b> If Reuven wrote all
               his property to his slave, the slave goes free;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Reuven kept any amount of land, the slave is
                    not free.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> A wife - (Rav Yehudah):</font></b> If a man wrote a document
               giving all his property to his wife, he only made
               her an overseer.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Sons - (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 this land given to the
               sons to collect her) Kesuvah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Mavrachas [an evasion document. If a woman with
               property is about to marry and does not want her
               husband to get her property, she writes her property
               to someone else.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Shmuel):</font></b> Surely, she does not give away all her
                    property. The gift is totally void.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question (Beriasa - Chachamim):</font></b> If she did
                    not stipulate 'I will take it back when I
                    want', the receiver can keep it.)
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer (R. Zeira):</font></b> The Beraisa discusses
                    one who kept some of her property. Shmuel
                    taught that] Mavrachas is invalid only if she
                    gave all her property.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> In all cases, if one kept Metaltelim, it is not
          as if he gave everything, except for a Kesuvah, for
          Chachamim enacted that it is collected from land, and not
          from Metaltelim.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> If a man gave all his property to his sons
          except for Metaltelim (that were designated to pay the
          Kesuvah), she does not forfeit her (lien on his property
          to collect her) Kesuvah. (Since she expects to collect it
          from the Metaltelim, she sees no need to protest about
          the land.)
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHAT IS CALLED PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	If Shimon said '<i>Nichsai</i> (my property) is to Ploni',
          this includes slaves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven wrote all his property to
               his slave, the slave goes free.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Land is called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Property with Acharayus (there is
               compensation if it is legally taken from the buyer,
               i.e. land) is acquired through money, a document or
               Chazakah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A garment is called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Property that has no Acharayus (i.e.
               Metaltelim) is only acquired through Meshichah.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Money is called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Property that has no Acharayus is
               acquired with (Agav) land, through money, a document
               or Chazakah (on the land).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Papa had 12,000 Dinarim in Bei Chuza'i; he
               gave them to Rav Shmuel bar Acha, Agav the corner of
               his house, in order that the watchman would give to
               them to Rav Shmuel (to return to Rav Papa).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A document is called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah bar Yitzchak):</font></b> There are two laws of
               documents:
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the seller said 'acquire the field for Ploni
               (e.g. Chalipin) and write the document', he can
               retract his authorization of a document, but not the
               gift (the people present acquired immediately for
               Ploni);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he said 'acquire the field for him on
               condition that you write the document', he can
               retract the document and the gift (until Ploni
               receives the document).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (R. Chiya bar Avin):</font></b> There is a third law, if the
               seller wrote the document in the buyer's absence;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> A seller may write the document in the
                    buyer's absence.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> When the buyer makes Chazakah on the field, he
               acquires the document, wherever it is, as we learned
               in a Mishnah:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> Property without Acharayus (liability
                    to compensate the buyer if the property is
                    legally taken from him; here, it refers to the
                    document) can be acquired Agav land, through
                    money, a document or Chazakah.
<br>

sjt:
</p><p>
<font><b>2) WHY ARE 'METALTELIN' NOT PART OF A KESUVAH</b></font><b>
<br>QUESTION:</b> The Gemara states that there are five types of gifts which have a different status when the owner gives away <i>all</i> of his possessions (in contrast to when he gives away only some of his possessions). The Gemara explains that in all of these cases, even Metaltelin, movable objects, must be given away to attain that status (of a gift of <i>all</i> of his possessions), except for the case of Kesuvah. The reason the Gemara gives is that movable objects were never considered by the Chachamim to be a valid monetary security for the collection of a woman's Kesuvah; only land is considered to have that status.
</p><p>
It follows logically that even if a husband has movable possessions, they cannot be collected against his will for the woman's Kesuvah since they were never included as part of this transaction. Why, though, may she not collect Metaltelin for her Kesuvah? In general, a borrower's movable objects can be collected by a lender. Why is a Kesuvah different?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBA</b> (Teshuvos 4:152) first explains why, in general, a lender cannot collect his loan from movable objects which the borrower bequeathed to his children. He explains that a lender never expects to be paid back from an inheritance of <i>movable objects</i>. The children never received any favor from the lender, and they therefore would not hesitate to hide those objects so that the lender will not know about them, or so that he will think that they were sold and the money already spent. However, the lender does not expect such behavior from the borrower himself while he is alive, because the borrower certainly appreciates the favor that the lender did for him and he would not try to deceive the lender. The lender therefore expects the borrower to pay him back in any way possible. Furthermore, the borrower would not want to be called an evildoer, as in the verse, 'The evil person borrows and does not repay' (Tehilim 37:21). His children, in contrast, would not feel indebted to the lender, and they would not consider themselves evil if they do not pay back, since they did not personally take the loan (<b>AYELES HA'SHACHAR</b>, in his explanation of the Rashba).
</p><p>
Based on this explanation, the Rashba writes that a Kesuvah similarly cannot be collected from movable objects even during the husband's lifetime. A divorce usually is filled with animosity between the couple. As such, a woman would never expect that her husband would eagerly want to pay her the Kesuvah, just as a lender would never expect the heirs of his debtor to want to pay back the loan. Just as a borrower's children would hide any movable objects, so would a woman's husband. A woman therefore never has in mind to collect her husband's movable possessions for her Kesuvah.
</p><p>
(b) The <b>KOVETZ SHI'URIM</b> questions the Rashba's explanation, because it explains only why a woman cannot forcibly collect from her husband's children, as they have an obligation only to pay back the specific objects owed to the woman. Since the movable objects were not involved in the Kesuvah transaction, the heirs are not obligated to give them to her. A living ex-husband, however, is subject to a personal obligation ('Shibud ha'Guf') to pay back his debt in any way possible, just as a lender may collect any property of the borrower ('even the cloak upon his back'). This Shibud should obligate the husband to pay his debt of the Kesuvah in any way possible, even if he must pay with movable objects.
</p><p>
The <b>AYELES HA'SHACHAR</b> asks a similar question. If a borrower specifies that the lender may collect only from a certain item and the lender agrees, then the borrower does not have to pay back from anything else (this is called an 'Apotiki'). The same question applies in that case. Why is there no 'Shibud ha'Guf'? A borrower has an obligation to pay his debt in any way that he can! The Ayeles ha'Shachar answers that the Rashba's reasoning must be that a woman can also negate her husband's actual debt to her with regard to those items. However, he continues, the Rashba cannot mean that if a husband does not own property, then he has no obligation to pay his wife's Kesuvah. Since he must attempt to buy land in order to pay her the Kesuvah, he must sell his movable possessions for that purpose (in order to buy land) and, thus, essentially he must use his movable possessions to pay her the Kesuvah. Rather, the Rashba must mean that she does not have these movable objects in mind to the extent that Beis Din can force him to pay her with them because of his 'Shibud ha'Guf.' Nevertheless, the husband's movable possessions are still connected to his 'Shibud ha'Guf' according to Torah law, and this obligates him to pay his wife with them in order to pay his debt according to the Torah. The same is applicable to the case of 'Apotiki,' where a lender is able to collect only from a certain item. This limited ability to collect applies only with regard to Beis Din's ability to force him to pay. His Torah obligation to pay, however, remains unchanged. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT IS CALLED 'PROPERTY?'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Animals are called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven was Makdish his property and
               it included animals fitting for Korbanos, males are
               Olah offerings, and females are sold to people who
               want to bring Shelamim,
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Birds are called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven was Makdish his property and
               it included things fitting for the Altar: wine, oil
               and birds...
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Tefilin are called 'property';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven was Makdish his property, he
               redeems them for their value.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Is a Sefer Torah called 'property'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since one may not sell it, it is not called
               'property';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, since one may sell it to learn Torah or marry
               a wife, it is called 'property.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This question is unsettled.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RETRACTING FROM A GIFT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Rav Zutra bar Tuvya's mother wrote her property to him
          before marrying Rav Zevid (so Rav Zevid would not get her
          property). He divorced her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Bivi bar Abaye:</font></b> She gave to him the property
               because she wanted to get married, and she did!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Huna brei d'Rav Yehoshua:</font></b> Even like the
               opinion that a Mavrachas document acquires, that is
               only when she did not reveal why she gives the
               property;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Here, she said that it was because she wanted to
                    marry. Now that she is divorced, all agree that
                    she gets back the property.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rami bar Chama's mother wrote her property to him at
          night, and to Rav Ukva bar Chama the next morning.
          (Later, she died.) Rav Sheshes established the property
          with Rami.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Ukva bar Chama went to Rav Nachman. He
               established the property with Rav Ukva.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Sheshes (to Rav Nachman):</font></b> Why did you do
               that?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  You cannot say it is because she retracted. She
                    died!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Shmuel taught that anyone who could
               retract if he recovered, he can retract even if he
               did not recover. (Since she wrote to Rav Ukva, this
               shows that she retracted from giving to Rami.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Sheshes:</font></b> Shmuel said so regarding retracting
               to take back the property for himself. Did he say so
               in order to give it to someone else?!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Yes, he explicitly said 'he may
               retract to take back the property for himself, or to
               give to someone else'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rav Amram Chasida's mother had loan documents. When she
          died, she said 'they are to my son Amram.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Amram's brothers:</font></b> He did not do Meshichah!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Words of a Shechiv Mera are like a
               document that was given. (Meshichah is not needed.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Tuvi bar Rav Masnah's sister wrote her property to
          Rav Tuvi in the morning. His brother Rav Achdevoy came to
          her that afternoon, crying.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Achdevoy:</font></b> People will say that he is a
               Chacham, and I am not!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> She wrote the property to him. He came in front
               of Rav Nachman.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Shmuel taught that anyone who could
               retract if he recovered, he can retract even if he
               did not recover (Rav Achdevoy gets the property).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Dimi bar Yosef's sister had a small orchard.
          Whenever she got sick, she would give it to him. When she
          recovered, she would retract.
<br>
<br>

sjt:
<font><b>1) HALACHAH: IS A SEFER TORAH INCLUDED IN 'PROPERTY'?</b></font><b>
<br>QUESTION:</b> The Gemara asks whether a person includes his Sefer Torah when he sells or gives away his 'property' ('Nechasim'). On one hand, it is generally forbidden to sell a Sefer Torah, and therefore perhaps a Sefer Torah is not included in the term 'property.' On the other hand, it is sometimes permissible to sell a Sefer Torah, such as in order to have funds to learn Torah or to get married (Megilah 27a), and thus perhaps it is included in a sale of one's 'property.' The Gemara leaves this question unanswered and concludes with 'Teiku.'
</p><p>
The <b>BACH</b> emends the Girsa and omits the two sides of the question (while leaving the question itself). Indeed, this is the text in all of the manuscripts of the Gemara as the <b>DIKDUKEI SOFRIM</b> points out, and it seems that most of the Rishonim, too, do not have the two sides of the question in their texts of the Gemara.
</p><p>
According to that Girsa, what is the Gemara's question? Why should a Sefer Torah not be included in the rest of a person's 'Nechasim'?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that although a Sefer Torah is acquired in the same manner as all other objects, it cannot be called a 'possession' like all other items which one may sell as he pleases, since one is prohibited from selling a Sefer Torah (except for the reasons mentioned in Megilah 27a). The <b>CHASAM SOFER</b> (Teshuvos CM 143) explains that although there are also limitations on the sale of Tefilin, Tefilin nevertheless are included in 'Nechasim' because they are called a 'Malbush' (an article of clothing), and articles of clothing are called 'Nechasim.' A Sefer Torah, in contrast, cannot be sold and has no uses similar to other items that a person owns. Therefore, it is possible that a Sefer Torah is not called 'Nechasim.'
</p><p>
(b) The <b>NIMUKEI YOSEF</b> explains that it is possible that a Sefer Torah is not called 'Nechasim' due to its importance. The term 'Nechasim' refers to ordinary, mundane possessions, and it is not appropriate for such a term to be used to refer to a Sefer Torah. The <b>CHASAM SOFER</b> (ibid.) suggests that this is also the opinion of the <b>RASHBA</b> who adds that the same question applies to one who gives away his 'Metaltelin' (movable objects).
</p><p>
The Chasam Sofer points out a practical difference between the explanation of Tosfos and that of the Nimukei Yosef. According to Tosfos, a Sefer Torah certainly is included in the term 'Metaltelin,' since it is movable. The Gemara has a doubt only with regard to the term 'Nechasim,' which refers to possessions that have monetary value. According to the Nimukei Yosef, the Gemara's doubt applies even to the term 'Metaltelin,' because a Sefer Torah, due to its importance, may not be included in any ordinary terms that are used to refer to a person's belongings. The <b>NODA B'YEHUDAH</b> (Teshuvos CM 43) comments that this is also the opinion of the <b>RASHBAM</b>. (However, according to the Chasam Sofer's explanation of Tosfos, the Rashbam might understand the Gemara like Tosfos.)
</p><p>

<b>HALACHAH:</b> The <b>SHULCAN ARUCH</b> (CM 248:11) writes that since the Gemara leaves this question unresolved, when a person gives away his 'Nechasim' Beis Din must rule, out of doubt, that a Sefer Torah is not included. If, however, the recipient of the gift seizes the Sefer Torah, the original owner cannot recover it from him (see <b>BI'UR HA'GRA</b>). The <b>ARUCH HA'SHULCHAN</b> rules that a Sefer Torah <i>is</i> included in 'Metaltelin.' This is unlike the opinion of the Rashba cited by the Chasam Sofer who says that the term 'Metaltelin' is included in the Gemara's Safek. (Y. Montrose)
</p><p>


<font><b>2) THE GIFT OF THE MOTHER OF RAV AMRAM CHASIDA</b></font><b>
<br>QUESTION:</b> The Gemara relates that Rav Amram Chasida's mother had many documents attesting to various loans that were owed to her. On her deathbed, she gave instructions that they should all be given to Rav Amram as a gift. After her death, Rav Amram's brothers came before Rav Nachman and disputed his ownership of the debts on the grounds that he never made a proper act of Kinyan on the documents. Rav Nachman upheld Rav Amram's ownership based on the principle of 'Divrei Shechiv Mera k'Chesuvin uche'Mesurin Dami' -- 'the words of a Shechiv Mera are as if they are written and given over.'
</p><p>
Why did Rav Nachman need to give this reason for his ruling? The Halachah follows the view of Rebbi Yochanan ben Berokah (130a) who states that even without the special law of 'Divrei Shechiv Mera,' a person may transfer an inheritance to a specific individual who is otherwise fit to inherit him. Why did Rav Nachman not simply base his ruling on Rebbi Yochanan ben Berokah's principle?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KOVETZ SHI'URIM</b> explains that Rebbi Yochanan ben Berokah's ruling applies only to an inheritance from a father and not to an inheritance from a mother. This is based on the verse which Rebbi Yochanan ben Berokah cites as his source which states, 'And it shall be on the day that <i>he</i> bequeaths to <i>his</i> sons that which <i>he</i> has...' (Devarim 21:16). Since the verse is conjugated in the masculine form, the Halachah that it conveys seems to apply specifically to a male.
</p><p>
However, the Kovetz Shi'urim says that this approach is difficult, because Rebbi Yochanan ben Berokah's principle (which he learns from this verse) applies to all potential heirs, even though the context of the verse deals specifically with a firstborn son.
</p><p>
(b) The <b>AYELES HA'SHACHAR</b> explains that there is a complex question in general as to whether Rebbi Yochanan ben Berokah's principle applies to property which is considered a 'Davar she'Lo Ba l'Olam,' according to the opinion (which is the Halachah) that a normal Kinyan cannot be made on a 'Davar she'Lo Ba l'Olam.' It is possible that Rebbi Yochanan ben Berokah's principle cannot be used to bequeath an object that has not yet come into the world (or into the benefactor's possession), since his principle is merely a mechanism which enables a normal Kinyan to take effect on an object when otherwise one would not have been permitted to transfer ownership of that item. His principle, however, cannot enhance the status of an object that is inherently not subject to a Kinyan. Consequently, according to the opinion that a loan document is considered a 'Davar she'Lo Ba l'Olam' (and therefore cannot be sold according to the Torah), the transfer of ownership of a loan document to one's heir is <i>not</i> a valid transaction according to Torah law. Even with regard to whether it works mid'Rabanan, there might be a doubt as to whether the Rabanan permitted such a form of transfer of ownership (a 'gift inheritance') of a 'Davar she'Lo Ba l'Olam.' Therefore, when Rav Nachman permitted Rav Amram to keep the loan documents from his mother, he based his ruling on the obvious and indisputable principle of 'Divrei Shechiv Mera' and not on the questionable application of Rebbi Yochanan ben Berokah's principle. (Y. Montrose)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SELLING A SEFER TORAH OR SEFORIM</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:</font></b> Is a Sefer Torah called 'property'?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since one may not sell it, it is not called
                    'property'. Or, since one may sell it to learn
                    Torah or marry a wife, it is called 'property.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Megilah 26a (Rava):</font></b> If the seven Tuvei ha'Ir
               (overseers of the city) sold a Beis ha'Keneses in
               the presence of the residents, the money may be used
               for anything, even to buy beer to drink!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 27a - Question:</font></b> May one sell an old Sefer Torah to
               buy a new one?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> R. Yochanan permits to sell a Sefer Torah
               only to learn Torah or to marry a woman. (Here also,
               one may sell Torah for Torah!)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> Perhaps one may sell for Talmud Torah or
               to get married because learning brings to fulfilling
               Mitzvos, and '(the world) was created to be settled
               (with people)', but one may not sell to buy a Sefer
               Torah.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rabah bar bar Chanah forbids to sell an
               old Sefer Torah to buy a new one.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> There, the concern is lest he neglect to
               buy a new one. Our question is when the new one is
               ready (he needs only to give the money).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'>(Beraisa):</font></b> One may not sell a Sefer Torah even if he
               doesn't need it;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> R. Shimon ben Gamliel says, even if one lacks what
               to eat and sells a Sefer Torah, he will see no
               Berachah from the money!
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Sefer Torah 10:2):</font></b> One may not sell
               a Sefer Torah, even if he does not have what to eat
               and he has many Seforim. One may not even sell an
               old Sefer to buy a new one. The only Heterim to sell
               it are to learn Torah or marry a wife, if he has
               nothing else to sell.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Megilah 4:1):</font></b> If an individual sold his Sefer
               Torah, he may use the money, for he sells it
               according to his will. It is as if the seven Tuvei
               ha'Ir sold it in the presence of the residents.
               Rashi explains that in such a case, the money may be
               used for anything, and what they sold may be used
               for anything.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Hilchos Sefer Torah 1):</font></b> The Mitzvah to write a
               Sefer Torah is in order to learn from it.
               Previously, they learned from a Sefer Torah.
               Nowadays we leave it in the Beis ha'Keneses for the
               Tzibur to read. Nowadays it is a Mitzvah for every
               Yisrael to write Chumashim, Mishnah, Gemara and
               their explanations. Therefore, one may sell them
               only to learn Torah or get married.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 270:1):</font></b> One may not sell a Sefer
               Torah, even if he has many Sifrei Torah (Rema - and
               he barely has what to eat). He may not even sell an
               old Sefer to buy a new one. He may sell it to learn
               Torah or marry a wife, if he has nothing else to
               sell.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Afilu):</font></b> Since
                    R. Shimon ben Gamliel says that he will see no
                    Berachah from the money, this implies that it
                    is forbidden. Hagahos Maimoniyos (10:3) asked,
                    if one may sell it to learn Torah or marry a
                    wife, all the more so he may sell it if needed
                    for food! Also the Yerushalmi permits.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (2):</font></b> In Pesachim (60), we say that 'he will
                    see no Berachah from it' even about something
                    permitted! Here it is forbidden, for the first
                    Tana forbids, and R. Shimon ben Gamliel came to
                    add.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav Afilu):</font></b> The Ran
                    (Megilah 7b) says 'the Gemara never settled
                    whether one may sell a Sefer Torah to buy
                    another. My Rebbeyim, the Rif are the Rambam
                    are stringent.' R. Mano'ach says that the
                    concern is negligence, so if the new one is
                    ready in the Sofer's house and he merely needs
                    to pay for it, he may sell.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Bach (DH u'Mah she'Chosav Afilu and Taz 3):</font></b> The
                    Gemara never settled this question! R. Mano'ach
                    learned from the Rif, who did not bring this
                    question. Surely he is lenient, for it is a
                    Safek mid'Rabanan. This is unlike the Ran, who
                    says that the Rif is stringent. The Rif,
                    Rambam, Rosh, Ran and Tur are stringent. We
                    follow them. The primary reason is because we
                    do not increase the Kedushah (not due to
                    concern for negligence).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav v'Ein):</font></b> R.
                    Mano'ach permits a Tzibur to sell a Torah if
                    they must support an orphan. This is only if
                    they are poor and have nothing else they could
                    sell. He says that the Isur applies only to a
                    Sefer Torah from which the Tzibur reads. An
                    individual may sell his Sefer for any purpose,
                    for he wrote or bought it with this intent.
                    Also, selling it does not lower its Kedushah.
                    He discusses scribes or merchants, but if one
                    wrote a Sefer Torah for himself, he may sell it
                    only to learn or marry. The Gemara uses the
                    singular (one may not sell a Sefer Torah even
                    if he doesn't need it). However, the Tur (OC
                    153) permits one to sell his Sefer and use the
                    money for for anything. Some say that this is
                    like the Rosh, who says that nowadays there is
                    no Mitzvah to write a Sefer Torah, but
                    according to the Gemara it is forbidden. I
                    disagree. The Rosh agrees that nowadays there
                    is a Mitzvah to write a Sefer Torah. Also the
                    Mordechai (Megilah 824, citing Avi ha'Ezri)
                    permits one to sell his Sefer Torah, just he
                    will not see Berachah from this. The Rosh
                    (Megilah 4:1) agrees. He says that one who
                    sells his Sefer Torah is like the seven Tuvei
                    ha'Ir selling in the presence of the residents.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Likewise, one may sell it to redeem captives.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (2):</font></b> Tosfos (Bava Basra 8b DH Pidyon) says
                    that there was no need to teach this, for it is
                    obvious.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> Nowadays it is a Mitzvah to
               write Chumashim, Mishnah, Gemara and their
               explanation, and he may sell them only to learn
               Torah or get married.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav):</font></b> The Rosh only <i>adds</i>
                    a Mitzvah for us to write these other Seforim,
                    and an Isur to sell them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Prishah 2 and Drishah 4):</font></b> The Rosh
                    says that since nowadays there is (only) a
                    Mitzvah to write them. He did not say that it
                    is <i>also</i> a Mitzvah to write them! In CM 93,
                    the Tur cites Ri Bartzeloni, who forces a
                    borrower to sell his Seforim, <i>even</i> a Sefer
                    Torah. The Tur did not comment (that nowadays,
                    the Rosh gives precedence to other Seforim),
                    for that is not the primary place for this law.
                    Alternatively, regarding paying a debt it is a
                    bigger Chidush that one must sell his Sefer
                    Torah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (4 and Gra 4):</font></b> The Beis Yosef's Perush is
                    primary. The Magid Mishneh agrees.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (CM 248):</font></b> Even though the Tur cited
                    the Rosh, who says that nowadays one may sell
                    Mishnah, Gemara... only to learn or marry,
                    surely they are not as stringent as a Sefer
                    Torah. People often sell them. The Tur himself
                    (in this Siman) cites the Ramah, that if one
                    gave 'my property', it is unresolved whether a
                    Sefer Torah is included, but surely other
                    Seforim are included.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 153:10):</font></b> Some say that an
               individual may sell his own Sefer Torah and do with
               the money as he desires, if he did not Makdish it 
               for the Rabim to read from.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH uva'Meh):</font></b> The Rosh permits one
                    who sold his Sefer Torah to use the money. If
                    he sold it to learn Torah or marry, this is
                    obvious! If he sold it for another purpose, why
                    did we learn that one may sell only to learn or
                    marry? If he transgressed and sold, we cannot
                    compare this to our Mishnah, in which one may
                    sell it! The Mordechai (Megilah 824, citing Avi
                    ha'Ezri) permits an individual to sell his
                    Sefer Torah, just he will not see Berachah from
                    this. One may sell a Sefer Torah designated for
                    the Rabim only to learn Torah or marry. The
                    Nimukei Yosef says so in the name of R.
                    Meshulam, and Orchos Chayim says in the name of
                    Ba'al ha'Hashlamah.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH Kosav Rivash, citing Rivash
                    285):</font></b> The Rosh does not permit the seven Tuvei
                    ha'Ir to sell even a Sefer Torah of villagers
                    in their presence. He holds that the seven
                    Tuvei ha'Ir may sell only a Beis ha'Keneses. It
                    seems that the Rambam agrees. We never settled
                    whether one may sell a Kedushah to buy
                    something else of the same Kedushah; we are
                    stringent, even through the seven Tuvei ha'Ir.
                    They are no stronger than an individual over
                    his own. An individual cannot sell it for a
                    lower Kedushah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (10):</font></b> If one bought it in order to sell it,
                    and all the more so if he received it for a
                    debt, he may sell it. If not, a Sofer could not
                    sell a Sefer Torah! In both cases, he never
                    intended to keep it.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (90):</font></b> The Pri Megadim says that
                    all permit one who inherited a Sefer Torah to
                    sell it, like one who collected it for a debt.
                    I say that if when he inherited it he intended
                    to keep it, he is like his father, and the
                    latter opinion forbids selling it. However, if
                    the father gave it to the Beis ha'Keneses, he
                    lost his rights to it and also his son cannot
                    sell it.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (60):</font></b> This opinion agrees that
                    he will not see Berachah from the money.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishnah Berurah (61):</font></b> The Magen Avraham holds
                    that if one gave a Sefer Torah (even if he was
                    not Makdish it) for the Rabim to read from, he
                    may not sell it. Why are people lenient today?
                    Perhaps it is as if they stipulated that it
                    will not get Kedushah of the Rabim.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Kaf ha'Chayim (89):</font></b> Nowadays, no one who gives
                    a Sefer Torah to a Beis ha'Keneses sells it
                    later, so one must be stringent. Ginas Veradim
                    says that we are lenient, for we assume that it
                    is Pasul. Acharonim disagree, for we consider
                    Seforim to be Kesherim and we bless on them.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some permit only to learn
               Torah or marry.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (62):</font></b> This opinion holds that
                    also the seven Tuvei ha'Ir may sell only for
                    Talmud Torah. They buy another Sefer Torah with
                    the money. The Levush permits them to use the
                    money for anything.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (88):</font></b> The first opinion permits,
                    just like the seven Tuvei ha'Ir may sell in a
                    village. The latter forbids, for even the seven
                    Tuvei ha'Ir may sell only a Beis ha'Keneses,
                    but not a Sefer Torah. The Shulchan Aruch
                    favors the stringent opinion. We hold like
                    this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishnah Berurah (63):</font></b> The Pri Megadim permits
                    so that one can support himself liberally. He
                    was unsure if one may sell a Sefer Torah for
                    Gemara, Poskim and Meforshim, for one cannot
                    learn without them.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (95):</font></b> All permit one to sell
                    other Seforim.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (98):</font></b> One may sell even to enable
                    others to learn.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE MITZVAH TO WRITE A SEFER TORAH </b></b>(</font><font color='blue'>


