# dafyomi

lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Once, she got sick and called him to come to
               acquire it. He sent a message 'I am not interested.'
               She sent to him 'come and acquire it however you
               want (i.e. in a way that will not allow me to
               retract).'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He left part for her, and made a Kinyan on the
               rest. She recovered and retracted, and came in front
               of Rav Nachman. He called Rav Dimi to come.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Dimi saw no need to come. Since she kept
               part, it was like a healthy person's gift, and he
               acquired!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> If you do not come, I will put you
               in Cherem!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  When she had heard that Rav Dimi did not want to
                    come, she said 'woe, I will die without seeing
                    him.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> This shows that the gift was because
               she expected to die. Therefore, she may retract.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN IS A KINYAN REQUIRED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabanan citing Rav Nachman):</font></b> A partial Matnas Shechiv
          Mera (he kept some property) is like a gift of a healthy
          person, and like a gift of a Shechiv Mera:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It is like a gift of a healthy person. If the
               giver recovers, he cannot retract;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It is like a gift of a Shechiv Mera. It does not
               require a Kinyan.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava citing Rav Nachman):</font></b> No, it is (totally) like a
          gift of a healthy person. It needs a Kinyan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rava - Mishnah):</font></b> If a Shechiv Mera gave a
          gift, and kept some property, if he recovers, he cannot
          retract.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> This is when no Kinyan was made.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> No, a Kinyan was made.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rava - Seifa):</font></b> If he did not keep any
          property, if he recovers, he can retract.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a Kinyan was made, why can he retract?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman citing Shmuel):</font></b> If a Shechiv Mera
          gave all his property to others, even if they acquired
          from him, if he recovers, he can retract;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, he gave only because he expected to die.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Mesharshiya - Mishnah):</font></b> A case occurred
          in which the mother of Bnei Rochel was sick. She said
          'give my clasp to my daughter. It is worth 1200 Zuz.' The
          mother died, and Chachamim fulfilled her words.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> There, she gave only because she
          expected to die.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Ravina - Mishnah):</font></b> If Reuven said 'give this
          Get to my wife and this Get of freedom to my slave', and
          he died, we do not give the Get posthumously;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'give 100 Zuz to Ploni', and he died,
               we give it posthumously.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why can't we answer that a Kinyan was
               made?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Presumably, the Seifa is like the Reisha.
               Just like one cannot acquire the Get for her (unless
               she appointed him to be a Shali'ach, for a Get is
               detrimental for her), no one acquired the money for
               Ploni.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> There, Reuven gave only because he
          expected to die.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> Normally, one who gives
          only because he expects to die must make a Kinyan;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> These Beraisos that do not require a Kinyan
               discuss one who gave away all his property. Then, it
               is like a Matnas Shechiv Mera.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	The Halachah is, a partial Matnas Shechiv Mera requires
          a Kinyan, even if he died;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One who gave only because he expected to die does
               not require a Kinyan, on condition that the giver
               died.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he recovered, he can retract, even though a
               Kinyan was made.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN IS A KINYAN REQUIRED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Bei Rav citing Rav):</font></b> If a Matnas Shechiv Mera mentions
          that a Kinyan was made, the giver gave the receiver the
          advantage of the gift of a healthy person and the gift of
          a Shechiv Mera;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Shmuel:</font></b> I do not know how to judge it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says he gets the advantages of both. It is
               like the gift of a healthy person, i.e. even if the
               giver recovers, he cannot retract;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It is like the gift of a Shechiv Mera, i.e. if he
                    gave a loan, the receiver acquires it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel is unsure how to judge it. Perhaps the
               giver wanted it to be acquired only through the
               document, and a document does not work posthumously.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Rav and Shmuel both contradict
          themselves!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ravin citing Rav):</font></b> If a Matnas Shechiv Mera said
               'write and give 100 Zuz to Ploni', and the giver
               died, we do not give it. Perhaps the giver wanted it
               to be acquired only through the document, and a
               document does not work posthumously.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yehudah citing Shmuel):</font></b> The Halachah is, we
               write and give it.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer - part 1:</font></b> Rav says he gets the advantages of
          both only when a Kinyan was done.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer - part 2:</font></b> Shmuel only says that we write and
          give it when the giver gives the receiver more rights
          (this will be explained. A regular Kinyan does not prove
          that this was the giver's intention).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Did Shmuel really say that perhaps the
          giver only wanted it to be acquired through the document,
          and a document does not work posthumously'?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yehudah cited Shmuel to say that if a Shechiv
               Mera wrote all his property to others, even though a
               Kinyan was made, if he recovers, he can retract.
               Surely, he gave only because he expected to die;
               (but if he died, we give the gift)!
<br>
<br>

sjt:
<font><b>1) A 'MATNAS SHECHIV MERA' COMBINED WITH A 'KINYAN'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the case of a Shechiv Mera who gives instructions to give a gift and also makes a Kinyan. The Gemara asks: does the fact that a Kinyan was made indicate that the Shechiv Mera wanted the gift to have the status of a healthy person's gift (a 'Matnas Bari,' which requires a Kinyan), or despite the Kinyan his gift stills has the status of a Matnas Shechiv Mera, as it is apparent that the Shechiv Mera is giving the gift due to his impending death? Rav maintains that the Shechiv Mera incorporates in his gift both aspects; it is like a Matnas Shechiv Mera in some ways and like a Matnas Bari in others. It is like a Matnas Bari in that the gift cannot be retracted if the giver recovers, but it is like a Matnas Shechiv Mera in that the giver can transfer the ownership of a loan owed to him, which only a Shechiv Mera has the ability to do. Shmuel does not accept Rav's position. He remains in doubt about whether the transaction is valid at all, because the Shechiv Mera may have intended for the gift to take effect after his death through the mechanism of a normal Kinyan, but a normal Kinyan cannot take effect after the death of the benefactor.
</p><p>
What exactly is the case of the Gemara? Is the Gemara referring to a case in which a Shechiv Mera gives away <i>all</i> of his property or only part of it?
</p><p>
Also, the Gemara implies that the gift is recorded in a Shtar. Does the dispute between Rav and Shmuel apply only in a case in which the Shechiv Mera gives a gift with a Shtar, or does it apply to any transfer of property executed by a Shechiv Mera through a Kinyan?
</p><p>
(a) The <b>RASHBAM</b> and <b>RABEINU CHANANEL</b> explain that the Gemara's question applies only in a case in which the Shechiv Mera gives away <i>all</i> of his property. They prove this from the previous Gemara which states that a Matnas Shechiv Mera b'Miktzas, a Shechiv Mera's gift of <i>part</i> of his property, is valid only if a Kinyan is performed. Since the degree of efficacy of a Matnas Shechiv Mera b'Miktzas is already known, and the only possible case of such a gift is a case in which the Shechiv Mera makes a Kinyan, there is no basis for the Gemara to question what the Kinyan accomplishes. In contrast, when a Shechiv Mera gives a gift of <i>all</i> of his property, no Kinyan is necessary. Accordingly, in such a
<br>case the Gemara can debate the status of the gift when it is given <i>with</i> a Kinyan. Since a Kinyan is not needed for a gift to take effect as a Matnas Shechiv Mera, the Gemara inquires how the added Kinyan affects the gift.
</p><p>
They explain further (see also <b>RAMBAN</b> and <b>RASHBA</b>) that this question applies not only in a case in which the Kinyan is recorded in a Shtar, but even when a Shechiv Mera gives a gift without a Shtar (that is, he declares verbally that his property should be given to a certain person -- and his word is binding according to the law of Matnas Shechiv Mera -- and then he performs a Kinyan on that same transaction).
</p><p>
The Rashbam cites proof for this explanation from the fact that the Gemara compares this case to a different ruling of Shmuel, which states that a Shechiv Mera who writes a Shtar to give away his possessions may retract the gift if he recovers, even if a Kinyan was made. That ruling of Shmuel clearly refers to a case in which the Shtar was written without a Kinyan, since the Kinyan was made afterwards. Since the Gemara equates the case of that ruling to the case it discusses here, it is clear that the Kinyan in this case does not necessarily need to be written in the Shtar.
</p><p>
(b) The <b>RIVAM</b> and the <b><b><b>RI</b></b></b> (cited by Tosfos) reject the Rashbam's explanation based on a number of questions. They maintain that the Gemara asks its question <i>only</i> about a case in which the Kinyan was recorded in the Shtar. They admit that the other statement of Shmuel -- to which the Gemara compares this case -- deals with a Kinyan that is not recorded in the Shtar. However, they reject the Rashbam's proof for his explanation and argue that the Gemara's case here does not necessarily have to be the same. The Gemara cites Shmuel's ruling -- in the case of a Kinyan that is not written in a Shtar -- in order to challenge the ruling of Shmuel here. The Gemara reasons that if Shmuel maintains, in a case in which a Kinyan is written in a Shtar, that the written Kinyan diminishes the efficacy of the Matnas Shechiv Mera (since the Shechiv Mera may have intended to give the gift after his death through a normal Kinyan), then certainly when the Shechiv Mera makes a Kinyan outside of the Shtar the gift should not be valid (even if the Shechiv Mera dies). It would follow logically from Shmuel's opinion in the case of the Gemara here that the gift of a Shechiv Mera should be invalid in the case of Shmuel's other ruling as well. The Gemara therefore challenges Shmuel's ruling here from the fact that he rules in the other case that the Shechiv Mera's gift remains valid. (The Gemara answers that the gift is valid only when the Shechiv Mera specifies that the purpose of the Kinyan is to be 'Meyapeh Kocho' for the recipient.) Since the Gemara does not state explicitly that the two cases are identical, Tosfos rejects the Rashbam's proof.
</p><p>
According to this approach, since the Gemara's question deals specifically with the issue of whether the Kinyan and the Matnas Shechiv Mera cancel each other out when they are recorded in the same Shtar, the Gemara's question is applicable whether the Shechiv Mera gives away all or part of his property. (Y. Montrose)
</p><p>


<font><b>2) A 'MATNAS SHECHIV MERA' IN WHICH THE DYING MAN IS 'METZAVEH MACHMAS MISAH' <i>AND</i> MAKES A 'KINYAN'</b></font><b>
<br>OPINIONS:</b> Rav and Shmuel argue about the status of a gift given by a Shechiv Mera with a Kinyan (see previous Insight). Does their dispute also apply in a case in which the Shechiv Mera explicitly states that he is giving the gift because of his impending death ('Metzaveh Machmas Misah')? Normally, in such a case, if the Shechiv Mera recovers, he may retract the gift (even a gift of only part, and not all, of his property) because it is clear that the gift is only on condition that he dies. If a person who is 'Metzaveh Machmas Misah' also makes a Kinyan, does the Kinyan affect the gift in the same way that it affects a normal Matnas Shechiv Mera (when he is not 'Metzaveh Machmas Misah')?
</p><p>
(a) <b>RABEINU CHANANEL</b> (cited by the <b>RASHBA</b>) and the <b>RA'AVAD</b> explain that a case of 'Metzaveh Machmas Misah' does not differ from a normal Matnas Shechiv Mera, and in such a case a Kinyan negates the assumed intent of his statement.
</p><p>
(b) The <b><b><b>RI</b></b> MI'GASH</b> (cited by the <b>NIMUKEI YOSEF</b>, 71b of the pages of the Rif) maintains that when a Shechiv Mera states explicitly that he is giving a gift because of his impending death, since the reason for the gift is so clear it overrides the presence of a Kinyan (even according to Rav). Consequently, if the Shechiv Mera recovers, the gift does not take effect and he retains his possessions. Similarly, even if a Shechiv Mera states at the time that he gives a gift that the gift should take effect 'from now' (a phrase which causes a gift to take effect immediately and removes the status of a Matnas Shechiv Mera, in a normal case in which the Shechiv Mera is not 'Metzaveh Machmas Misah'; see Insights to 151b), since he explicitly attributes the gift to his impending death he retains his possessions if he recovers.
</p><p>
The <b>NIMUKEI YOSEF</b> writes that it seems that according to the Ri mi'Gash, while the Shechiv Mera is still alive (but has not recovered from his illness) he may change his mind and retract the gift. This seems to follow the common understanding that since the gift is contingent upon his death, he may retract it as long as he is still alive. However, the <b>RE'AH</b> and the <b>RITVA</b> argue that he cannot retract the gift as long as he has not recovered.
</p><p>
Why can he not retract the gift before his death? After all, a Matnas Shechiv Mera takes effect only after the Shechiv Mera dies.
</p><p>
The <b>KEHILOS YAKOV</b> (Bava Basra #41) explains that there are two basic reasons for a Shechiv Mera's ability to retract his decision to give away his property. One reason is that the type of gift that he gives (Matnas Shechiv Mera) takes effect only after his death, and he therefore retains ownership of the property until he dies and may retract his instructions to give away his property as a gift. The second reason is that he wants the gift to take effect only because he knows (or thinks) that he is about to die. Thus, if he recovers, he may retract the gift.
</p><p>
When a Shechiv Mera gives a gift and specifies that it should take effect 'from now,' the first reason does not apply because the Shechiv Mera makes an explicit statement that the gift should take effect immediately, rather than after he dies. The only way in which such a gift could be retracted is if there is clear evidence (or 'Umdena') that the Shechiv Mera gave the gift only because of his fear of death. However, even when there is such an 'Umdena,' it would allow the Shechiv Mera to retract his gift only <i>if he recovers from this illness</i>. He would <i>not</i> be able to retract the gift while he is sick because there is no 'Umdena' that he intended to do so. This is the reasoning of the Re'ah and Ritva.
</p><p>
According to this logic, the gift is merely conditional ('Al Tenai') and that is why the recovery of the Shechiv Mera might nullify the gift. If the Shechiv Mera does not recover, then there is no reason to invalidate the gift. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN CAN ONE RETRACT FROM 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'> 151b (Rav Nachman):</font></b> Shmuel taught that anyone who
               could retract if he recovered, he can retract even
               if he did not recover. He can take back the property
               for himself, or give it to someone else?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava citing Rav Nachman):</font></b> A partial Matanas Shechiv
               Mera (he kept some property) is totally like a gift
               of a healthy person. If the giver recovers, he
               cannot retract, and it requires a Kinyan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rava - Mishnah):</font></b> If a Shechiv Mera gave a
               gift, and kept some property, if he recovers, he
               cannot retract (even if no Kinyan was made)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> No, a Kinyan was made.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question (Rava - Seifa):</font></b> If he did not keep any
               property, if he recovers, he can retract. (If a
               Kinyan was made, why can he retract?)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Rav Nachman citing Shmuel):</font></b> If a Shechiv
               Mera gave all his property to others, even if they
               acquired from him, if he recovers, he can retract.
               Surely, he gave only because he expected to die.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The Halachah is, a partial Matnas Shechiv Mera needs
               a Kinyan, even if he died. One who commanded (to
               give) due (expectation of) death does not need a
               Kinyan, as long as he died. If he recovered, he can
               retract, even if a Kinyan was made.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 152b (Rav Dimi):</font></b> A Daitiki (document of a Matnas
               Shechiv Mera) nullifies a previous Daitiki (because
               it shows that the giver retracted).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Version #1 - Chachamim of Sura - (Rav):</font></b> If Reuven
               wrote a document and was Mezakeh for Shimon and then
               wrote and was Mezakeh for Levi, Shimon acquires;
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Shmuel):</font></b> Levi acquires.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Rav holds that (because he was Mezakeh,) this is
               like a gift of a healthy person. Shmuel holds that
               it is a Matnas Shechiv Mera.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> They already argued about this, i.e. a
               Matnas Shechiv Mera that says that a Kinyan was
               made!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> Had they argued only there, one might have
               thought that only there Rav considers it like a gift
               of a healthy person, because a Kinyan was done. Had
               they argued only here, one might have thought that
               only here Shmuel argues, because no Kinyan was done.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Version #2 - Chachamim of Pumbadisa - Question (Bei
               Rav):</font></b> If Reuven wrote a document and a Kinyan was
               done, what is the law?
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Answer (Shmuel):</font></b> One cannot retract after a Kinyan.
<br>        <b>  <b><font color='darkgreen'>16. </font></b></b> Rabanan understood that he cannot retract to give to
               someone else, but he can retract to keep the
               property himself.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> (Rav Chisda):</font></b> He cannot retract even to keep the
               property himself.
<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 is, a partial Matnas Shechiv Mera
               needs a Kinyan, even if he died. One who commanded
               due death does not need a Kinyan, as long as he
               died. If he recovered, he can retract, even if a
               Kinyan was made.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Rambam (Hilchos Zechiyah 9:15):</font></b> If a Shechiv Mera
               (Ploni) wrote a document for Shimon, and then wrote
               for Levi, Levi acquires, for Ploni can retract until
               he dies. This is whether he gave all or part of his
               property. He can take back the property for himself,
               or give it to someone else. Even if he wrote and was
               Mezakeh to Shimon, and wrote and was Mezakeh to
               Levi, Levi acquires. Even if a Shechiv Mera was
               Mezakeh, it is a Matnas Shechiv Mera.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (16):</font></b> If a Shechiv Mera wrote and was Mezakeh
               and did a Kinyan, nothing can undo the Kinyan. He
               cannot retract to give to another or for himself,
               whether he gave all or part of his property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Nothing can undo the Kinyan if
                    there was also Zechiyah. If only Kinyan <i>or</i>
                    Zechiyah was done, he can retract. If he
                    commanded due to death, even if he did both, he
                    can retract. The Rashbam explains that Zechiyah
                    was through giving the document. The Ge'onim
                    say that he said 'go make a Chazakah.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (9:31):</font></b> Shmuel taught that if a Shechiv Mera
               gave all his property to others, even if they
               acquired from him, if he recovers, he can retract.
               Surely, he gave only due to death. This implies that
               if he did not recover, he could not retract. This is
               when he gave the recipient Yifuy Ko'ach (greater
               rights). If the recipient received the document
               before the giver died, we do not require that he
               gave Yifuy Ko'ach. This is if the document was
               written like a command ('give to Moshe...') If it
               was written like a gift ('my field is given to...'),
               the giving of the document is a Kinyan. It is like a
               Matnas Shechiv Mera with a Kinyan, which requires
               Yifuy Ko'ach. If there was no Yifuy Ko'ach, he does
               not acquire. The Kinyan done in his lifetime does
               not help after death, when the gift must take
               effect. Shmuel holds that since Matnas Shechiv Mera
               does not require a Kinyan, and he did a Kinyan, he
               showed that he wanted the recipient to acquire at
               the time (after death) only through a Kinyan, and
               then a Kinyan does not work.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> The Rashbam explains that 'wrote and
               was Mezakeh' means that he wrote the document and
               gave it to the recipient. This is difficult. If so,
               how could Rav say that the first acquires? In Bava
               Metzia (19a), we say that a Shechiv Mera can
               retract, even if he commanded to give the document.
               A latter Daitiki nullifies a previous one, even if
               the first was given! The Rivam explains that 'wrote'
               means that he wrote the document and gave it to the
               recipient. 'Wrote and was Mezakeh' means that he
               wrote and gave the document, and was Mezakeh through
               someone else (Yosef). If they were Metaltelim, he
               gave them to Yosef to acquire for Moshe. If it was
               land, Yosef did Chazakah for Moshe. The Zechiyah was
               written in the document. This is the Matnas Shechiv
               Mera with a Kinyan that they argued about earlier!
               We must say that there was Yifuy Ko'ach, for if not,
               Shmuel holds that even the latter 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 250:13):</font></b> If a Shechiv Mera
               (Ploni) wrote to David, and then to Moshe, Moshe
               acquired, for Ploni can retract until he dies. This
               is whether he gave all or part of his property (Rema
               - (if he gave part, it is only) if he specified that
               it is a Matnas Shechiv Mera).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu
                    b'Shem):</font></b> The Rambam says that a Shechiv Mera
                    can retract even from a partial gift. The Tur
                    questioned this, for a partial gift is totally
                    like a healthy person's gift, and it cannot be
                    retracted! We can say that he can retract when
                    he specified at the time that he gives it like
                    a Matnas Shechiv Mera, like the Rambam said in
                    Halachah 8:17.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (40):</font></b> The Rambam could hold like Tosfos
                    (152b Sof DH Matnas), that the same applies to
                    a partial gift.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Drishah (23):</font></b> Tosfos holds that according to
                    Shmuel, even though a Matnas Shechiv Mera
                    requires a Kinyan, it did not need to be
                    written in the document. Since he wrote it,
                    perhaps this shows that he intended that to
                    give only through the document, and it cannot
                    be after death. Also the Rambam can say that
                    this makes it like a healthy person's gift.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (41):</font></b> The Tur (Sof 125, citing the Ramah)
                    says that the giver cannot retract once he gave
                    it to a Shali'ach. We must say that that is
                    when he commanded to give it immediately. Since
                    he did so much to remove it from his Reshus, he
                    can retract. Here, he said not to give it until
                    he dies.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Question (Taz DH Bein):</font></b> Here, he only wrote it!
                    If the <b>SMA</b> refers to the Seifa (the
                    continuation of this Halachah in the Tur (and
                    Shulchan Aruch), in which he was also Mezakeh,
                    the <b>SMA's</b> answer does not apply (for surely, he
                    was Makneh to acquire immediately)! However, it
                    is difficult to resolve the Seifa with Siman
                    125, in which we say that even if a Shechiv
                    Mera said 'bring it to Ploni', it is as if he
                    said 'acquire for me.' Here we say that
                    Zechiyah even with a document does not help!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> He can retract to keep for
               himself, or to give to another. Even if he wrote and
               was was Mezakeh for David and wrote and was was
               Mezakeh for Moshe, Moshe acquires, for if a Shechiv
               Mera was Mezakeh, it is still a Matnas Shechiv Mera.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (43):</font></b> The Tur says that the latter gets it
                    only if he was given Yifuy Ko'ach. The Shulchan
                    Aruch and Rema omitted this, for they require
                    this only if he gave Yifuy Ko'ach to the first.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>PARTIAL RETRACTION OF A MATNAS SHECHIV MERA </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav Nachman gestured to Rava. Rava understood the
          answer.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rav Nachman bar Yitzchak:</font></b> What did his gesture mean?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rava:</font></b> The case is, the giver gave the receiver more
          rights.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of giving the receiver more
          rights?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> It says 'v'Kanina Minei (the
          witnesses acquired from the giver on behalf of the
          receiver) in addition to this gift.'
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	The following is obvious. If a Shechiv Mera (Reuven)
          wrote to Shimon and then to Levi, Rav Dimi's law applies:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Dimi):</font></b> A Daitiki (document of a Matnas
               Shechiv Mera) nullifies a previous Daitiki (because
               it shows that the giver retracted).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A GIFT WITH 'ZECHIYAH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Chachamim of Sura - (Rav):</font></b> If Reuven wrote
          a document and was Mezakeh for Shimon (Rashbam - gave to
          him the document; Tosfos - asked someone to acquire the
          property for Shimon, and wrote this in the document) and
          then wrote and was Mezakeh for Levi, Shimon acquires;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Levi acquires.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says that Shimon acquires. (Because he was
               Mezakeh,) this is like a gift of a healthy person;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel says that Levi acquires. It is a Matnas
               Shechiv Mera.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> They already argued about this, i.e. a Matnas
          Shechiv Mera that says that a Kinyan was made!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> They needed to argue in both cases;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1A (our text, Tosfos):</font></b> Had they argued
               only here, one might have thought that only here Rav
               considers it like a gift of a healthy person,
               because someone acquired the property on behalf of
               Shimon;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Had they argued only there, one might have
               thought that only there Shmuel argues, but here he
               would admit to Rav, for someone acquired the
               property for Shimon. (Really, there was no need to
               prove that we must hear Shmuel's opinion in both
               cases. Above, Shmuel said that we do not give the
               gift, for perhaps he intended to give it only
               through a document!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #1B (Rashbam):</font></b> Had they argued only
               there, one might have thought that only there Rav
               considers it like a gift of a healthy person,
               because a Kinyan was done;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Had they argued only here, one might have thought
               that only here Shmuel argues, because no Kinyan was
               done.
<br><br>
<p>

sjt:
</p><p>
<font><b>3) GIVING THE SAME GIFT TO TWO DIFFERENT PEOPLE</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which a Shechiv Mera writes a Shtar to give his property as a gift to one person, and then writes a different Shtar to give it as a gift to another person ('Kasav la'Zeh v'Chasav la'Zeh'). The Gemara says that it is obvious that the second gift overrides the first and the property is given to the second recipient, because of the rule that a Shechiv Mera may retract his Matnas Shechiv Mera and give his property to someone else.
</p><p>
The Gemara then discusses a case in which a Shechiv Mera writes a Shtar and is Mezakeh his property as a gift to one person, and then writes a different Shtar and is Mezakeh his property to another person ('Kasav v'Zichah la'Zeh, Kasav v'Zichah la'Zeh'). Rav says that the gift is given to the first recipient, because it has the status of a Matnas Bari (the gift of a healthy person, which takes effect right away). Shmuel argues and maintains that it is given to the second recipient, because it has the status of a Matnas Shechiv Mera (which the Shechiv Mera may retract and give to whomever he wants).
</p><p>
What is the meaning of 'v'Zichah' in the second case, and why does it cause the Halachah to be different (according to Rav)?
</p><p>
(a) The <b>RASHBAM</b> explains that 'v'Zichah' means that the Shechiv Mera gives the Shtar to the recipient as proof of ownership. Rav maintains that this is considered as though he has performed an act of Kinyan, and thus the gift is like a Matnas Bari that takes effect right away, and the first person is Koneh the gift. Shmuel, on the other hand, maintains that handing over the Shtar is not like an act of Kinyan, and thus the gift retains the status of a Matnas Shechiv Mera.
</p><p>
The <b>RIVAM</b> and the <b>ROSH</b> argue that this cannot be the meaning of 'v'Zichah.' If the term 'v'Zichah' means that the Shechiv Mera gave the Shtar to the recipient, then it follows that in the first case of the Gemara, in which the Shechiv Mera was <i>not</i> 'Mezakeh' his property to either recipient, the Shtar remained in the Shechiv Mera's possession. The Gemara says in that case that the second recipient acquires the Shechiv Mera's property because the gift given to him overrides the gift given to the first person (and Beis Din assumes that the Shechiv Mera changed his mind). The Gemara earlier (135b), however, says that Beis Din does not follow the instructions of a Shechiv Mera that are written in a Shtar ('Daitiki') that was found on his body after his death, since he may not have intended to give that gift until the Shtar was delivered to the recipient, in which case the Shtar is meaningless. If the Gemara's case of 'Kasav la'Zeh v'Chasav la'Zeh' is a case in which the Shtar was never delivered, then the Shtar should be meaningless in that case as well. (See <b>TOSFOS</b> here.)
</p><p>
(The <b>TOSFOS RID</b> explains according to the Rashbam that Rav's position -- that the Shechiv Mera effects a Kinyan when he gives the Shtar to the recipient -- is true only with regard to a 'Shtar Hakna'ah,' a Shtar that <i>effects</i> the transfer of the property, as opposed to a 'Daitiki,' which merely <i>records</i> ownership. If a Shechiv Mera gives a 'Daitiki' to one person, then he indeed may retract his gift and give it to a second person. The Tosfos Rid's understanding of the Rashbam may yield an answer to the question that the Rivam and the Rosh ask on the Rashbam. The only Shtar that is meaningless when it is found on the body of a Shechiv Mera is a 'Daitiki,' as the Mishnah states there (135b) explicitly. If a Shtar 'Hakna'ah' is found on the body of a Shechiv Mera, however, then perhaps the Shechiv Mera's instructions <i>are</i> followed. According to the Tosfos Rid, the two cases of the Gemara here refer to a Shtar Hakna'ah, and the difference between the two cases lies in whether the Shtar was found on the Shechiv Mera's body or was already given to the recipient. The question asked by the Rivam and the Rosh is from the Gemara earlier, which discusses a normal Shtar that simply <i>records</i> ownership.)
</p><p>
(b) The <b>RIVAM</b> and <b>ROSH</b> themselves explain that 'v'Zichah' means that the Shechiv Mera has the recipient <i>acquire the property through an act of Kinyan</i> performed by a third party ('Zachin l'Adam she'Lo b'Fanav') and he records this fact in the Shtar (i.e. that the recipient of the gift acquired the property through the agency of a third party). The first case, without 'Zichah,' is a case in which the Shechiv Mera merely writes a Shtar and gives it to the recipient.
</p><p>
(From the words of <b>RABEINU GERSHOM</b> and the <b>GE'ONIM</b>, it seems that the Halachah is the same even if the Shechiv Mera hands over the Shtar (in the first case) or makes a Kinyan (in the second case) directly to the recipients and not through a third party; see <b>AYELES HA'SHACHAR</b>. The <b>S'MA</b> (CM 250:42) indeed explains that even according to the Rosh, the presence of a third party is not necessary.) (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A GIFT WITH ZECHIYAH (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #2 - Chachamim of Pumbadisa - Question (Bei
          Rav):</font></b> If Reuven wrote a document and a Kinyan was done
          (Tosfos - and this was written in the document; Rashbam -
          and the document was given), what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> One cannot retract after a Kinyan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Rabanan understood that he cannot retract to give to
          someone else, but he can retract to keep the property
          himself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Chisda):</font></b> He cannot retract even to keep the
          property himself.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Reuven wrote a gift document. A Kinyan was done. (He
          recovered and wanted to retract.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Huna:</font></b> You did not do like those who want to
               be able to retract. I cannot help you.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A GIFT 'IN LIFE AND IN DEATH'</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If a gift document says '<i>b'Chayim</i> (in life)
          and in death', it is a Matnas Shechiv Mera.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> It is a gift of a healthy person.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav says, because it says 'in death', it acquires
               after death, i.e. it is a Matnas Shechiv Mera.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He wrote 'in life' only for a good omen (that he
                    should live).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Shmuel says, because it says 'in life', it
               acquires during life. It is a gift of a healthy
               person;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He wrote 'after death' only to show that the gift
                    is forever.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Chachamim of Neharde'a):</font></b> The Halachah follows Rav.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> If it says '<i>mi'Chayim</i> (from when he is
          alive)', it is a gift of a healthy person.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> The Halachah does not follow Rava.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> This is obvious. Chachamim of
          Neharde'a said that the Halachah follows Rav!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have thought that Rav admits when he
          says 'mi'Chayim.' Ameimar teaches that he does not.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Reuven wrote a gift 'in life and in death.' Rav Nachman
          told him to go to R. Yirmeyah bar Aba in Shum Tamya.
          (Surely, R. Yirmeyah would rule like the Halachah, i.e.
          like Rav.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Here (Neharde'a) is Shmuel's region.
               I cannot rule here like Rav here!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Leah wrote a gift 'mi'Chayim.' Rava ruled like he
          taught (that she cannot retract). She was protesting the
          ruling.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava told Rav Papa bar Rav Chanan (his scribe)
               'write for her that the decision was that she may
               retract (so she will go away). Write at the bottom
               'he may hire others at their expense, or deceive
               them' (a Mishnah discussing workers that retracted.
               Any Chacham who sees this will understand that this
               was written to deceive her. Really, she cannot
               retract).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Leah:</font></b> You want to trick me. Your boat should
               sink!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> They soaked Rava's garments in water (in order
               that this should be the fulfillment of the curse).
               Still, his boat sank.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE GIFT OF A QUESTIONABLE SHECHIV MERA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> If Reuven wrote a gift document,
          and it did not say that he was sick, and he says that he
          was sick, and the recipients say that he was healthy,
          Reuven must bring proof;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Chachamim say, to take money from another, one (in this
          case, the recipients) must bring proof.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara):</font></b> A gift document said 'he said to give...' It
          did not say 'he died from the sickness.' (The giver is
          now dead.)
<br>
<br>

sjt:
<font><b>1) AGADAH: WHEN IS A CURSE EFFECTIVE?</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a woman approached Rava with a question. The woman had been a Shechiv Mera and had written in a Shtar that she was giving her property away 'from life and in death.' She then recovered from her illness and wanted to retract the gift. Rava ruled, in accordance with his opinion about such terminology, that the gift was considered like a normal gift of a healthy person and it took effect already while the woman was still a Shechiv Mera, and he therefore did not allow the woman to retract the gift. The woman harassed him about his ruling. In order to end her harassment, Rava told his scribe to write in a Shtar that she was entitled to retract her gift, but he instructed the scribe to add words from a Mishnah in Bava Metzia (75b) that would make it clear to any knowledgeable person that the Shtar was written only to get rid of the bothersome woman. The woman understood his intentions and cursed him that his boat should sink. The students of Rava soaked his clothes in water in order to cause the curse to be fulfilled in a harmless way. Nevertheless, the Gemara relates, Rava's boat still sank at sea.
</p><p>
If Rava was justified in ruling the way that he did, then why did the woman's curse take effect?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>NIMUKEI YOSEF</b> and <b>RITVA</b> explain that Rava indeed did something wrong, and that is why the curse was allowed to take effect. Rava should not have ruled in accordance with his own opinion in this matter, because his opinion was a minority opinion that was not accepted as the Halachah (as the Gemara earlier says clearly). Since Rava ruled incorrectly in a matter of Halachah, he was held liable due to the principle that 'an unintentional mistake in one's learning is equivalent to an intentional transgression' -- 'Shigegas Talmud Olah Zadon' (Bava Metzia 33b). Even though it was a mistake on Rava's part, it sufficed to allow the woman's curse to take effect.
</p><p>
There are other places in the Gemara where it is clear that a curse can harm a person even for a reason that seems insignificant. The Gemara in Makos (11a) says that the mother of the Kohen Gadol used to supply food to accidental murderers who had fled to the cities of refuge (Arei Miklat). The Gemara explains that she did this so that they would not curse her son for not praying enough to prevent their accidental killing. It is apparent from that Gemara that their curses would have taken effect even though their complaint against the Kohen Gadol was a minor one. Similarly, the Gemara in Bava Metzia (75b) says that a person who lends money without witnesses causes a curse to come upon himself. <b>RASHI</b> there explains that when the lender goes to court and demands repayment, people will curse him because they will think that he is attempting to steal from the alleged borrower, since he has no witnesses to support his claim. In that case, the lender is certainly not a thief; on the contrary, he is a generous man who lent money as a favor and is now merely trying to get his own money back. Nevertheless, the curse can be effective because there is a reason for it to take effect, even though the reason is minimal.
</p><p>
(b) Another answer may be suggested. The Gemara in Gitin (35a) relates that Rava bar Rav Huna had a similar encounter with an angry woman, and there, too, her curse was effective. <b>RAV CHAIM KANIEVSKY</b> shlit'a was asked (by the author of <b>L'RE'ACHA KAMOCHA</b>) why her curse was effective when Rava bar Rav Huna followed the dictates of Halachah. Rav Chaim answered that Rava bar Rav Huna kept telling her why her claim was invalid, and thus caused her pain, which was grounds for her curse to take effect. Perhaps a similar explanation may be given here. Rava may have instructed his scribe <i>in the woman's presence</i> to write the additional words from the Mishnah in Bava Metzia, not realizing that she would figure out that he was trying to trick her. Rava could have given these instructions to his scribe in private, and he caused pain to the woman by doing so in her presence. Consequently, her curse was able to take effect. (Y. Montrose)
</p><p>
This also seems to be the approach of the <b>ME'IRI</b> here, who writes, 'Leitzanus (mockery) is a most detestable trait. How much more so must the judges and the leaders be careful to avoid Leitzanus, as they are punished even more for it, as we find in the incident [recorded in the Gemara here].' Even though Rava's intention was to protect himself from the woman's harassment, his role as an authority demanded that he be extra careful not to demonstrate any form of mockery or derision. Writing a Shtar to fool the woman was a slightly derisive act, and because of his great stature Rava was held accountable for it and he was vulnerable to the woman's curse.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'> A SAFEK WHETHER THE GIVER WAS HEALTHY</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If Reuven wrote a gift
               document, and it did not say that he was sick, and
               he says that he was sick, and the recipients say
               that he was healthy, Reuven must bring proof;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, to take money from another, one (in
               this case, the recipients) must bring proof.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A gift document said 'he said to give...' It did not
               say 'he died from the sickness.' (The giver is now
               dead.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rabah):</font></b> We assume that he died from that sickness,
               and did not recover in between.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection (Abaye):</font></b> Most people on sinking ships die,
               yet we are stringent, perhaps they are still alive.
               Most sick people recover, all the more so we should
               be stringent, perhaps he recovered (and the gift was
               nullified)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Rav Huna brei d'Rav Yehoshua):</font></b> Rabah holds like R.
               Noson.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yakov):</font></b> If a gift document did
                    not say whether the giver was healthy or sick,
                    the giver can take the property from the
                    recipients (even if they already took it)
                    without a proof (that he was sick at the time).
                    They can take it only if they bring proof;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Noson says, if the giver is healthy now, he
                    must bring proof that he was sick. If he is
                    sick now, they must prove that he was healthy.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 154a (Mishnah - Chachamim):</font></b> To take money from the
               giver, one must bring proof.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Rav Huna, and Rava and R. Yochanan):</font></b> He must bring
               witnesses (that Reuven was healthy when he gave the
               gift).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Meir holds like R. Noson (153b; we assume
                    that Reuven was then like he is now, i.e.
                    healthy). Chachamim hold like R. Yakov,
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rav Chisda and Rabah bar Rav Huna, and Reish
               Lakish):</font></b> The recipient must validate the document.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  They hold that R. Meir holds that a lender need
                    not validate a document if the borrower admits 
                    that he authorized it (but claims that he paid
                    it):</font></b> Chachamim hold that he must validate it.
                    (If not, the borrower is believed to say that
                    he paid, Migo he could claim that it was
                    forged.)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question (Abaye, against Rava):</font></b> Why must the
               recipient bring witnesses?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Gift documents of healthy people
                    usually say 'he was walking in the market...
                    (i.e. healthy)', and this one does not.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> Matanos Shechiv Mera usually say 'he
                    was bedridden...', and this one does not!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer:</font></b> Since we are unsure, we leave the money
               where it is, unless they bring proof.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Gitin 72b (Rav Huna):</font></b> The Get of a Shechiv Mera is
               like his gift. Just like he can retract a gift if he
               recovers, also his Get.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Question (Mishnah):</font></b> If one said 'this is your Get
               from today if I die from this sickness', and got up
               and walked in the market, then fell sick and died,
               we evaluate. The Get is valid only if he died from
               the initial illness.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Why must we evaluate the cause of death? Rav
                    Huna says that if he gets better, he retracts.
                    He got better!
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> Answer:</font></b> (Mar brei d'Rav Yosef): The case is, he
               contracted a new sickness just when he was cured of
               the first sickness.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> 73a (R. Elazar):</font></b> If a Shechiv Mera (gave a gift and)
               went from one illness to another (and died), the
               gift is valid.
<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 does not follow Rava, for (he
               holds like R. Meir, and) we establish R. Meir to
               hold like R. Noson, and Chachamim hold like R.
               Yakov. The Halachah follows Chachamim. Rabah
               requires the recipient to bring witnesses (that
               Reuven was healthy when he gave the gift), for
               ha'Motzi mi'Chavero Alav ha'Re'ayah. This is better
               than the reasoning of Rav Chisda and Rabah bar Rav
               Huna, who hold that it suffices to validate the
               document.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (9:32):</font></b> The Rashbam says that the Halachah
               follows Rabah, for he holds like R. Noson, who was a
               judge, and descended to the depth of judgment (the
               correct Halachah). The Rif rules unlike Rabah. It
               seems that in his text, Rava (not Rabah) said that
               we assume that he did not recover in between. This
               cannot be, for a case came in front of Rabah, and
               Abaye his Talmid questioned Rabah's ruling. Abaye
               was Rosh Yeshiva before Rava. In Abaye's lifetime, a
               case would come in front of Abaye, not Rava, and if
               they disagreed, Rava would question Abaye's ruling!
               Rather, Rabah said that we assume that he did not
               recover, and later retracted (and required the
               recipient to bring a proof). Had he not retracted,
               he would have said that it suffices to validate the
               document, so that R. Meir and Chachamim would hold
               like (himself, like) R. Noson.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Gemara):</font></b> We must say that he
                    wrote a Kinyan. If not, even if he was healthy,
                    the recipient did not acquire! Witnesses can
                    rely on women and slaves who attend to the
                    giver and say that the sickness worsened and he
                    died. Based on this, they may testify that he
                    never recovered. They need not stay at his side
                    until he dies. In matters prone to become
                    known, we rely on Chazakah in monetary matters.
                    If witnesses who signed did not specify that
                    the giver was healthy, this is not considered
                    Sheker, even though the recipient will lose if
                    he cannot find witnesses that he was healthy.
                    This is because when witnesses clarify their
                    testimony, they do not uproot it. They are
                    believed even if others recognize their
                    signatures. When others recognize their
                    signatures they are not believed to say that
                    there was a Tanai in the document, for we see
                    an unconditional document in which one is
                    liable whether or not any Tanayim are
                    fulfilled.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Zechiyah 9:22):</font></b> If a gift document
               did not say if the giver was healthy or sick, and
               the giver claims that he was sick and recovered and
               wants to retract, and take the property, and the
               recipient claims that he was healthy, and he cannot
               retract, the recipient must bring a proof. If he
               cannot bring a proof, the giver swears Heses, and
               keeps the property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (9:32):</font></b> If the giver recovered, the gift is
               automatically Batel, even if we did not hear that he
               retracted. In Gitin we say that if a Shechiv Mera
               went from one illness to another, the gift is valid.
               This implies that if he recovered in between, it is
               Batel. Also, we challenged Rav Huna from a Mishnah
               that discusses a Shechiv Mera who gave a Get and
               recovered, even though it does not say that he
               retracted. This shows that recovery is automatic
               retraction. Rabah was not concerned for Abaye's
               question from the majority of sick people, who
               recover. Here is different, for we know that he
               died, so we are not concerned lest he recovered in
               between.
<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 251:2):</font></b> If a Matnas Shechiv Mera
               does not say that the giver died amidst the
               sickness, and the witnesses are not around to ask
               them...
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rema: Witnesses can rely on the giver or his
               servants who say that he sickness worsened and he
               died, to testify about this),
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Shulchan Aruch (ibid):</font></b> ... even if the giver died,
               the gift is Batel. Death is not a proof. Perhaps he
               recovered from the sickness he had at the time of
               the gift, and later contracted a different illness
               and died. Therefore, the property is in the Chazakah
               of his heirs, until the recipient proves that he
               died from the same sickness.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Matnas):</font></b> We discuss a gift of
                    all his property, from which a Shechiv Mera can
                    retract. The Rambam rules like the Rif.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bedek ha'Bayis:</font></b> The Tur says that the Rosh
                    holds like the Rif. This is not necessarily so.
                    Rather, it seems that he rules like Rava. In
                    any case, since the Rif and Rambam agree, we
                    rule like them.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (6):</font></b> The Shulchan Aruch did not explain
                    their claims, for even if they do not claim, we
                    claim on behalf of them. The Tur explained
                    their claims to teach that according to the
                    Rashbam, even if he explicitly claimed (that he
                    recovered and later fell sick and died), the
                    heirs must bring a proof.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (9):</font></b> The Tur says that the giver must swear
                    in order to retract, but we hold that heirs
                    swear only to collect, but not to exempt
                    themselves.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz:</font></b> There is no reason for the heir to swear!
                    Even if he says 'perhaps he did not die from
                    this sickness', the recipient must bring a
                    proof! It seems that if the recipient says 'you
                    admitted to me that you know that he died from
                    this sickness', he must swear that he did not
                    admit. The recipient has a claim against the
                    heir from when (he claims that) he admitted to
                    him.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rabah):</font></b> We assume that he died from that sickness, and
          did not recover in between.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> Most people on sinking ships die,
          yet we are stringent, perhaps they are still alive;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Most sick people recover, and all the more so we
               should be stringent, perhaps he recovered (and the
               gift was nullified)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> Rabah holds like R.
          Noson.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yakov):</font></b> (If a gift document did not
               say if the giver was healthy or sick,) the giver can
               take the property from the recipients (even if they
               already took it) without a proof (that he was sick
               at the time). They can take it only if they bring
               proof;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Noson says, if the giver is healthy now, he
               must bring proof that he was sick. If he is sick
               now, they must bring proof that he was healthy.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> These Tana'im would argue similarly about
          Tum'ah (whether we follow the original status, i.e. when
          the doubtful Tum'ah occurred, or the current status, i.e.
          when the question was asked).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> In summer, a valley (enclosed by a
               fence) is a Reshus ha'Yachid concerning carrying on
               Shabbos, it is a Reshus ha'Rabim regarding Tum'ah
               (in doubtful cases of Tum'ah, we assume that it is
               Tahor);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In winter (when very few people walk through), it
               is a Reshus ha'Yachid also for Tum'ah.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> This is only if winter did not pass from the
          time of the doubtful Tum'ah (Tosfos; Rashbam - from the
          time the valley was fenced). If it did, we considered
          (and must continue to consider) it a Reshus ha'Yachid.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE SIMILARITY BETWEEN A SINKING BOAT AND A DYING PERSON</b></font><b>
<br>OPINIONS:</b> The Gemara relates an incident in which a Shtar Matanah (deed of gift) given by a Shechiv Mera mentioned that the benefactor wrote the Shtar while he was bedridden with illness, but did not specify that the benefactor had died as a result of that illness. The heirs of the benefactor claimed that he had recovered from that illness and then died later from a different illness, and thus the gift should be annulled, as is the case when any Shechiv Mera recovers. Rabah ruled that since the benefactor was dead at the time the question arose, Beis Din must assume that he died as a result of that illness and thus the gift should be upheld and the recipient should receive the property. Abaye argued that Beis Din must assume, to the contrary, that the benefactor recovered from his illness and died later, and the gift should be invalid. Abaye proved his view from the Halachah that applies when a boat sinks at sea and it is unknown whether the passengers are still alive. The law is that, out of doubt, the stringencies of both possibilities (that they are alive or that they are dead) are applied. (For example, if the daughter of a Kohen was married to a Yisrael who was on the ship, she remains forbidden to eat Terumah, in case her husband is still alive. On the other hand, if the daughter of a Yisrael was married to a Kohen who was on the ship, she is also forbidden to eat Terumah in case her husband is dead, in which case her Halachic status would revert to that of a Bas Yisrael who is not permitted to eat Terumah.) Abaye reasoned that most passengers on a boat do not survive when the boat sinks, whereas most sick people do not die from their illnesses. If the Chachamim must take into account the possibility that the passengers on a boat that sunk are still alive (where that possibility would result in a stringent ruling), then they certainly must take into account the possibility that a Shechiv Mera recovered from his illness.
</p><p>
The Gemara does not respond to Abaye's argument. Why did Rabah not agree with Abaye?
</p><p>
(a) The <b>RAMBAN</b> and <b>ROSH</b> explain that Rabah understood that there is a major difference between the two cases. When a boat sinks, the fate of its passengers will never become known. The Chachamim therefore must rule stringently in all matters related to them. In contrast, in the case of the Gemara here, Beis Din knows that the benefactor is dead. Hence, they can attribute his death to the illness that he had at the time that he gave the gift.
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> argues with the Ramban and Rosh and says that it is problematic to suggest that this was why Rabah did not accept Abaye's reasoning. Rabah clearly stated that 'his grave proves his status,' meaning that the assumption that the benefactor died from his illness was based not on the fact that he had been sick, but rather on the fact that he was known to be dead. There must be a different underlying dispute between Rabah and Abaye.
</p><p>
The Shitah Mekubetzes explains, therefore, that Rabah based his position on the benefactor's present status (i.e. the fact that he was dead). Rabah maintained that Beis Din could assume, based on the fact that the benefactor was dead when the question came to them, that he had died from his illness; that is, his present status could be used to determine what had occurred in the past. Abaye maintained that a present situation may be used to determine what occurred in the past only when there is an additional factor that supports the conclusion that can be drawn. For example, when a person who was Tamei immersed himself in a Mikvah, and afterwards the Mikvah was measured and found to lack the amount of water necessary for a valid Mikvah, the person who immersed there remains Tamei. Since the Mikvah was found to lack the requisite amount of water, the Halachah assumes that this was the Mikvah's status even before it was measured, when the Tamei person immersed himself. This ruling, however, is based on an additional factor: the rule that 'someone who was Tamei remains so (until it is known for certain that his status changed).' If not for this additional Halachah, the Tamei person indeed would not have been required to immerse himself again, even though the Mikvah was found to be lacking after he used it.
</p><p>
Abaye assumed that Rabah validated the Shechiv Mera's gift (and assumed that the Shechiv Mera had died from his illness) because of two factors: the fact that the Shechiv Mera was dead when the question came to Beis Din, and the fact that he was known to have been sick before. Only the combination of these two factors made it possible to assume that the Shechiv Mera had died from his illness; the mere fact that he was already dead was not sufficient. In response, Abaye cited the case of a sunken boat as proof that the Shechiv Mera's illness could <i>not</i> be a reason to assume that he died from his illness. Abaye argued that if Beis Din must assume (l'Hachmir) that the passengers of a sinking boat survived, then certainly they must assume that a sick person survived and recovered from his illness. Although the fact that the Shechiv Mera was dead was still a valid indication that he had died from his illness, his present status alone would not be sufficient to resolve the Safek of what took place in the past. (Y. Montrose)
</p><p>


<font><b>3) HALACHAH: MAY A HEALTHY PERSON CANCEL A GIFT THAT HE GAVE BY SAYING THAT HE WAS A 'SHECHIV MERA' AT THE TIME OF THE GIFT?</b></font><b>
<br>OPINIONS:</b> Rebbi Nasan and Rebbi Yakov disagree about whether a healthy person who gave a gift is believed to claim that he was a Shechiv Mera at the time that he gave the gift. The specific case in question is when the Shtar Matanah, the deed of gift, contains no information about his health at the time of the gift. Rebbi Yakov says that the benefactor may claim that he was a Shechiv Mera and retract the gift, and the burden of proof is on the recipient of the gift. Rebbi Nasan maintains that Beis Din assumes that the benefactor's status at the time that he gave the gift was the same as his present status. If the benefactor is healthy now, then Beis Din assumes that he was healthy at the time that he gave the gift. The recipient therefore prevails, and if the benefactor wishes to retract the gift on the grounds that it was a Matnas Shechiv Mera, the burden of proof is on him. If, on the other hand, the benefactor is presently ill, then the burden of proof is on the recipient. The same Machlokes applies to a case in which the benefactor died and his heirs claim that he did <i>not</i> die from the same illness from which he suffered at the time that he gave the gift (but rather he recovered from that illness, and the gift is invalid). Whose opinion does the Halachah follow?
</p><p>
(a) The <b>RASHBAM</b> quotes the Gemara in Bava Metzia (117b) that states that the Halachah normally follows the opinion of Rebbi Nasan because he was a judge who 'delved into the depths of the law.' Since the Halachah follows Rebbi Nasan's opinion that the benefactor's status at the time of the gift is determined based on his present status, the Halachah is also in accordance with the opinion of Rabah who follows the opinion of Rebbi Nasan, as the Gemara mentions. In a case in which a Shechiv Mera gave a gift but the Shtar did not indicate whether he died from his illness, Rabah ruled that since he was known to be dead, Beis Din may assume that he died from the illness (and not from a different, later illness) and the gift should be awarded to the recipient. (<b>TOSFOS</b>, however, says that Rebbi Nasan would not necessarily agree with the ruling of Rabah in that case. Although Rebbi Nasan maintains that the benefactor's present status may be used to determine his status in the past as well, that may be true only for a person who is presently alive and well, because everyone who is alive has a Chazakah that he is healthy. In contrast, when a person is dead, Rebbi Nasan might not agree that we assume that he died from the illness that he had when he wrote the Shtar.)
</p><p>
(b) The <b>RIF</b> and other Rishonim rule in accordance with Rebbi Yakov's opinion. The Gemara later (154a) cites Amora'im who equate Rebbi Nasan's opinion with that of Rebbi Meir (in the Mishnah here), and Rabbi Yakov's opinion with that of the Chachamim. Since the Halachah follows the view of the Chachamim, it cannot follow the view of Rebbi Nasan. (The Rashbam, on the other hand, rules in accordance with the other Amora'im there, who explain that both Rebbi Meir and the Chachamim in the Mishnah agree with Rebbi Nasan.)
</p><p>
The <b>ROSH</b> comments that Rabah himself there explains that Rebbi Nasan does not agree with the Chachamim of the Mishnah. This statement of Rabah implies that he changed his own position and no longer follows the view of Rebbi Nasan.
</p><p>
The <b>RASHBA</b>, however, has the Girsa of 'Rava' there, and not 'Rabah.' According to that Girsa, Rabah himself did not change his opinion. The Rashba, however, rules like Rava (that the Halachah follows the Chachamim and not Rebbi Nasan), since he was the later Amora.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 251:2) rules like the Rif and Rosh. The <b>REMA</b> quotes the <b>NIMUKEI YOSEF</b> who says that Beis Din may rely on testimony from people who took care of the deceased man to determine whether he died from his illness. The Nimukei Yosef adds (in the name of the <b>RITVA</b>, who says that this is also the view of the <b>RAMBAN</b>) that it is not even necessary for the witnesses to have been with the person at all times for them to attest that he died from that illness. The witnesses' testimony is valid even if they say that they merely asked the family members and servants about his condition. If they testify that they were told that his condition was worsening and then he subsequently died, that testimony is sufficient for Beis Din to ascertain that he died from that illness. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE ARGUMENT IN THE MISHNAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - Chachamim):</font></b> To take money from the giver,
          one must bring proof.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What proof must the recipients bring?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> They must bring witnesses (that
          Reuven was healthy when he gave the gift).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Chisda and Rabah bar Rav Huna):</font></b> They
          must validate the document.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Huna says that they must bring witnesses. R. Meir
          and Chachamim argue like R. Yakov and R. Noson (153b):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir holds like R. Noson (we assume that
               Reuven was then like he is now, i.e. healthy);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold like R. Yakov,
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rav Chisda and Rabah bar Rav Huna say that they must
          validate the document. R. Meir and Chachamim argue about
          whether a lender must validate a document if the borrower
          admits that he authorized it (but claims that he paid
          it):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir says that he need not validate it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say that he must validate it. (If not,
               the borrower is believed to say that he paid, Migo
               he could claim that it was forged.)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> They argued about this elsewhere!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Meir):</font></b> (Shimon claims that he paid
                    a loan but did not take back the document. The
                    witnesses admit that they signed, but they say
                    that they were invalid witnesses at the time),
                    they are not believed to disqualify the
                    document. (Since Shimon admits that the
                    document is valid, there is no need to validate
                    it.)
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Chachamim say, they can disqualify it
                    (until the lender validates it. Since the
                    witnesses say that it was signed improperly,
                    their testimony is not validation).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> They needed to argue in both cases;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had they argued only there, one might have
                    thought that Chachamim say that witnesses can
                    disqualify a document, but the borrower cannot;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Had they argued only here, one might have
                    thought that R. Meir would agree that witnesses
                    can disqualify a document.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rava agrees with Rav Huna, that they must bring
          witnesses.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Gift documents of healthy people
               usually say 'he was walking in the market... (i.e.
               healthy)', and this one does not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Matanos Shechiv Mera usually say 'he
               was bedridden...', and this one does not!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Since we are unsure, we leave the money where
          it is, unless they bring proof.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	R. Yochanan and Reish Lakish argue as Rav Huna and Rav
          Chisda do.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> They must bring witnesses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> They must validate the document.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHO MUST BRING PROOF?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Yochanan - Beraisa):</font></b> A case occurred in
          which Reuven sold his father's property (after he
          inherited it), then Reuven died. Members of the family
          said that the sale was invalid because he was a minor at
          the time (even though he was <i>old</i> enough to sell land,
          no one ever saw that he brought two hairs of adulthood).
          They (the buyers) asked if they may check the body (to
          prove that he was an adult).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Akiva:</font></b> Firstly, you may not check the body,
               for it is a disgrace. Secondly, signs often change
               after death (R. Tam - perhaps he had white hairs
               (which are not a sign of adulthood) and now they
               look black; Ri - perhaps follicles developed after
               death. These are signs of adulthood).
<br>
<br>

sjt:
<font><b>1) HALACHAH: DISGRACING A DEAD PERSON THROUGH A POSTMORTEM EXAMINATION</b></font><b>
<br>OPINIONS:</b> The Gemara relates an incident in which a person sold the property from his deceased father's estate, and then he died. The other heirs claimed that their relative was a minor at the time of the sale, and thus his sale was invalid (and they should inherit the property). Rebbi Akiva was asked whether it was permitted to examine the body of the relative who sold the property in order to see if he had signs of maturity. Rebbi Akiva answered that it was not permitted to examine him, because such an examination would be a disgrace to the dead person. Besides, he added, signs of maturity sometimes change even after a person has died.
</p><p>
When is it considered a disgrace to examine the body of a dead person?
</p><p>
(a) The <b>BEIS YOSEF</b> (YD 363) cites the ruling recorded in Maseches Semachos (4:12) that relatives are forbidden 'to open a grave to examine their dead relative for mere monetary reasons.' This implies that only the actual opening of the grave is forbidden, but examining the body before burial is permitted.
</p><p>
The <b>CHACHAM TZVI</b> (Teshuvos 47, 50) introduces his discussion of the issue by giving another reason, in the name of the <b>AVODAS HA'GERSHUNI</b> and <b>RAV DAVID OPPENHEIM</b> zt'l, for the prohibition against opening a grave. When the grave of a deceased person is opened, the dead person becomes terribly frightened that his day of final judgment has arrived. This is the fear that Shmuel experienced when Shaul ha'Melech had a sorceress bring him up from the grave in order to ask his advice regarding the war with the Plishtim. When he was raised from the grave, Shmuel exclaimed, 'Lamah Hirgaztani l'Ha'alos Osi?' -- 'Why have you terrified me, to raise me up?' (Shmuel I 28:15; see Chagigah 4b).
</p><p>
(b) The <b>CHACHAM TZVI</b> cites another opinion which maintains that if a person merely opens a grave, there is no problem of disgracing the deceased or of frightening him. A deceased person is disgraced only by an examination for signs of adulthood, or if his body is handled in any other way after burial.
</p><p>
The <b>CHACHAM TZVI</b> himself says that a deceased person does not become frightened if his grave is merely opened. However, a person who opens a grave and sees the decomposed corpse transgresses the prohibition against disgracing the dead, as there is no greater disgrace to a dead person than having his decomposed body exposed. The <b>SEDEI CHEMED</b> quotes this opinion in the name of the <b>TIFERES YOSEF</b>. This also seems to be the opinion of <b>RAV SHLOMO EIGER</b> (in Gilyon Maharsha here). The prohibition against frightening a deceased person (without disgracing him) applies when he is disinterred even if no one looks at him. (Of course, if a dead person is exhumed for his own benefit, such as to restore his Kever or to bring his body to a more respectable burial place, it is permitted).
</p><p>
This is also the view of the <b>SHEVET HA'LEVI</b> (5:186). (Y. Montrose)
</p><p>


<font><b>2) SIGNS OF ADULTHOOD</b></font><b>
<br>QUESTION:</b> The Gemara relates an incident in which a person sold the property from his deceased father's estate, and then he died. The other heirs claimed that their relative was a minor at the time of the sale, and thus his sale was invalid (and they should inherit the property). Rebbi Akiva was asked whether it was permitted to examine the body of the relative who sold the property in order to see if he had signs of maturity. Rebbi Akiva answered that it was not permitted to examine him, because such an examination would be a disgrace to the dead person. Besides, he added, signs of maturity sometimes change even after a person has died.
</p><p>
The Gemara records two versions of the incident. In the first version, the property was in the purchasers' possession and the relatives wanted to reclaim it from them by proving that the seller was a minor at the time of the sale. In the second version, the property was still in the family's possession, and the purchasers wanted to claim the property by proving that the seller was an adult at the time of the sale.
</p><p>
<b>TOSFOS</b> asks, according to the second version (that the purchasers wanted to prove that the seller was an adult), why did Rebbi Akiva tell them that it would be of no help to examine the body because the signs of adulthood tend to change after a person's death? According to this version of the incident, the obvious intention of Rebbi Akiva's statement is that even if they were to examine the body and find Simanim (signs of adulthood), those Simanim could not be used as proof of the seller's adulthood because Simanim tend to change after death. If, however, the seller indeed was a minor, then how would it have been possible for him to acquire Simanim after his death? According to the first version of the incident -- that the relatives wanted to prove that the seller was a minor -- it is possible that the seller indeed was an adult and <i>lost</i> the signs of maturity after he died (i.e. the hairs fell out), which would cause him to look like a minor when in fact he was an adult. According to the second version, however, it seems that Rebbi Akiva maintained that a person could <i>acquire</i> signs of maturity after his death. How is this possible?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU TAM</b> answers that the seller may have been a minor and had white hairs, which are not a sign of adulthood. Such hairs tend to change color and to appear black after death, which would give the impression that the person was an adult.
</p><p>
Tosfos, however, rejects this explanation, because there is no source for a distinction between black and white hairs with regard to the signs of physical maturity.
</p><p>
The <b>RAMBAN</b> also questions Rabeinu Tam's explanation but suggests a possible source for it. Rebbi Yehudah in Nidah (52a, and as quoted later on 156a) says that hairs are a sign of maturity only 'when there is more black than white.' Tosfos in Kesuvos (36) quotes Rabeinu Tam who explains that the hair near the flesh must be black, while the end of the hair may be white, meaning that a majority of the hair must be black. Thus, Rabeinu Tam understands Rebbi Yehudah's statement to mean that a hair is not a sign of maturity unless it is black.
</p><p>
The <b>MISHNEH L'MELECH</b> (Hilchos Ishus 2:2) is perplexed by the words of the Ramban. First, he asks that the Gemara later (156a) clearly states that the Halachah does <i>not</i> follow the view of Rebbi Yehudah. How, then, can Rabeinu Tam explain Rebbi Akiva's ruling in accordance with Rebbi Yehudah's position? Moreover, Rebbi Akiva explicitly rejects Rebbi Yehudah's opinion in Nidah there. Second, Rebbi Yehudah distinguishes between black and white hairs only with regard to the laws of Mi'un, but not with regard to the laws of adulthood. Finally, none of the Poskim quote this opinion of Rabeinu Tam; they mention no distinction between black and white hairs with regard to the physical maturity of a person.
</p><p>
The Mishneh l'Melech cites the <b>MAHARSH LEVI</b> who answers that the Poskim do not quote Rabeinu Tam's opinion because Rabeinu Tam made his statement only according to the Gemara's initial assumption, when Rebbi Yochanan thought that the purchasers wanted to examine the seller to prove that he was an adult. The Gemara concludes, however, that it was the relatives who wanted to examine the seller to prove that he was a minor. According to the Gemara's conclusion, Rebbi Akiva's statement -- that Simanim may change after a person's death -- can be interpreted simply to mean that the hairs that indicate physical maturity may fall out after death. There is no indication that the Simanim may change to indicate that a person was an adult when he was really a minor, and thus there is no reason, according to the Gemara's conclusion, to distinguish between black and white hairs.
</p><p>
To answer the other questions, the Maharash Levi says that Rebbi Yochanan initially thought that Rebbi Akiva agreed in part with Rebbi Yehudah and maintained that a hair must be at least a little black near the flesh in order for it to be a sign of physical maturity. Rebbi Yochanan eventually rejected this understanding of the view of Rebbi Akiva (and understood Rebbi Akiva, instead, according to the Ri as cited by Tosfos).
</p><p>
(b) The <b><b><b>RI</b></b></b> quotes the Gemara in Nidah (52a) which states that even if a person had not grown hairs as a sign of maturity, if at least two follicles or cavities ('Gumos') developed where the hair was supposed to grow, this, too, is a sign of adulthood. There is a Chazakah that people do not have follicles without hair, and therefore the person must have had hair which fell out. The Ri says that even if a person had no such follicles or cavities while he was alive, the follicles can develop after his death, making him appear to be an adult.
</p><p>
The <b>HAGAHOS MAHARSHAM</b> quotes <b>RASHI</b> in Erchin (7b, DH Ela) who says that a person's hair does not change after his death. This implies that Rashi understands the Gemara here like the Ri (that the follicles, and not the hair, can change after death).
</p><p>
(c) The <b>HAGAHOS HA'BACH</b> here adds his own explanation to Tosfos. The Bach says that a person's hair continues to grow even after he dies. The Gemara in Nidah (ibid.) states that in order for hairs to be a sign of maturity, they must be long enough for a person to bend them over and touch their tips to their roots. Accordingly, there is a concern that when the minor died, his hairs might not have been long enough to be a sign of maturity, and after he died the hairs grew to the requisite length.
</p><p>
(This explanation does not seem consistent with Rashi in Erchin, as mentioned above, who says that a person's hairs do not change after death.) (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CHAZAKAH D'RAVA</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> To take money from the giver, one must
               bring proof.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> The recipient must bring witnesses
               (that the giver was healthy when he gave the gift).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> He must validate the document.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question (R. Yochanan - Beraisa):</font></b> It occurred that
               Reuven sold property, then died. His heirs said that
               the sale was invalid, for he was a minor at the
               time. They (the buyers) asked to check the body (for
               Simanim of adulthood).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Akiva:</font></b> Firstly, you may not check the body,
                    for it is a disgrace. Secondly, Simanim often
                    change after death.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Reish Lakish):</font></b> No, the buyers were Muchzak
               in the property. His heirs wanted to check the body
               (to prove that he was a minor) to take back the
               property.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Nidah 46a (Rava):</font></b> A girl may do Mi'un anytime until
               12 full years. After 12, she may not do Mi'un or
               Chalitzah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> He forbids Mi'un, for he assumes that she
               is an adult (and the marriage became mid'Oraisa). If
               she is an adult, she may do Chalitzah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rava is not in Safek whether she is an adult,
                    for he taught that we need not check a girl
                    above 12. She is Muchzekes to be an adult.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1:</font></b> Normally, we assume that she is an adult.
               She may not do Chalitzah in a case when we see that
               she does not have hairs now. She may not do Mi'un,
               lest she brought hairs after 12 years, and they fell
               out.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> This is according to the opinion that is
               concerned that they fell out. According to the
               opinion that is not concerned, how can we answer?
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2:</font></b> We did not check her. Regarding Chalitzah
               we are concerned (lest she is still a minor). Rava's
               Chazakah refers to Mi'un (we are stringent not to
               allow Mi'un). She may not do Chalitzah until we see
               hairs.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 46b:</font></b> If a Mufla Samuch l'Ish (a minor shortly before
               adulthood) was Makdish something and an adult ate
               it, he is lashed.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 46b:</font></b> This is like R. Yochanan and Reish Lakish, who
               say that adults are lashed for (benefit from) a
               minor's Hekdesh. Rav Kahana exempts
<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 Ishus 2:15):</font></b> If a boy above 13 did
               not bring a Siman below, and he brought all the
               Simanim above, it is a Safek whether he is a minor
               of adult. If he was not checked below, since he has
               Simanei Bagrus above, he is assumed to be an adult.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Tosfos (154a DH Simanim):</font></b> Why do we assume that he
               was a minor after 13 years? In Nidah we say that she
               need not be checked, for there is a Chazakah that
               she brought Simanim! We can say that the seller did
               not have Simanim after 13 years, therefore, there is
               a Safek.
<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 35:1):</font></b> A minor cannot testify
               until he brings two hairs after 13 years. If he was
               not checked until long after 13 years, and he had
               two hairs, he is Muchzak to be an adult from 13
               years.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shev Shematsa (5:11-13):</font></b> Bava Basra 154
                    connotes that Chazakah d'Rava is merely a
                    stringency. One is lashed for benefit from
                    something forbidden by a vow of a Mufla Samuch
                    l'Ish. The Rambam holds that this is a boy or
                    girl after 13 or 12 years, without hairs. The
                    Torah did not require hairs for vows. Rashi and
                    Tosfos hold that it is a year before adulthood.
                    How can one be lashed for the vow? The warning
                    is Safek, for perhaps he will not bring hairs
                    within a year! They must hold that Chazakah
                    d'Rava is Vadai. However, if he did not bring
                    hairs within a year, retroactively we know that
                    it was not a vow. Tosfos (154a DH Simanim) says
                    that if one did not bring hairs right after 13
                    years, Chazakah d'Rava does not apply. If so,
                    he is not a Mufla Samuch l'Ish, for there is no
                    Chazakah that he will bring hairs within a
                    year! In Nidah we say that she need not be
                    checked, for there is a Chazakah that she
                    brought Simanim! We can say that the seller did
                    not have Simanim after 13 years, therefore,
                    there is a Safek.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Avnei Nezer (EH 215:17):</font></b> Chazakah d'Rava is
                    even to be lenient. Chachamim were stringent to
                    check for Chalitzah. Do not say that CM 35
                    discusses testimony to keep money, and as long
                    as the witnesses were not checked, their
                    testimony is void. Tosfos (Bava Kama 72b) says
                    that even Rav Chisda, who says 'what good are
                    Safek Pasul witnesses?!' agrees that their
                    testimony enables one to avoid paying. The same
                    applies to a Safek minor. Rather, CM 35
                    discusses testimony to obligate one to pay.
                    Therefore, we do not rely on Chazakah d'Rava,
                    which is based on a majority, for we do not
                    rely on the majority for monetary matters.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Noda b'Yehudah (1 EH 61):</font></b> Why did Rava need to say
               that a girl cannot do Mi'un after 12 years due to a
               Chazakah? It would have sufficed to say that
               <i>perhaps</i> she brought two hairs! The Gemara said
               that Rava forbids Chalitzah in a case when we see
               that she does not have hairs now, and he forbids
               Mi'un, lest she brought hairs after 12 years, and
               they fell out. To answer for the opinion that is not
               concerned lest hairs fell out, we needed to say that
               he is stringent about Chalitzah. The Halachah is, we
               are concerned lest they fell out, so we can explain
               simply that we checked her and did not find hairs.
               Tosfos (154a) asked why we don't apply Chazakah
               d'Rava against Chezkas Mamon. We find that we do not
               apply it even for Chalitzah! Rather, we must say
               like I said, that it applies even to Chalitzah.
               Mi'un is forbidden due to concern lest the hairs
               fell out, like we initially answered. Tosfos
               answered that the case is, the seller did not have
               Simanim after 13 years, therefore, it was a Safek.
               Reish Lakish said that validating the document
               suffices to extract money, i.e. due to the Chazakah
               that witnesses sign only if the parties are adults.
               Perhaps the witnesses relied on Chazakah d'Rava, and
               assumed that the giver brought hairs! If Chazakah
               d'Rava suffices to extract money, all the more so
               witnesses may rely on it to sign! Perhaps the
               witnesses did not know that the giver had been
               checked after 13 years and no hairs were found! I
               say that Chazakah d'Rava is strong enough to
               transfer money, but when it is possible to check, we
               check, e.g. for Chalitzah. Since the giver was
               checked after 13 and no hairs were found, it was a
               Safek about the time of the gift, and after death it
               was impossible to check. The witnesses were not
               allowed to rely on the Chazakah, for then it was
               possible to check. Tosfos holds that we can transfer
               money due to Chazakah d'Rava if the giver died and
               we cannot check. No Posek explicitly disagrees, so
               we rely on this. This shows that Chazakah d'Rava is
               stronger than a majority (which does not help to
               transfer money); a regular Chazakah is weaker than a
               majority. Why must we check? We rely on a majority
               and need not check the 18 Tereifos! Regarding
               checking, we distinguish between permitting what was
               established to be Asur (e.g. for a Yevamah to marry
               a stranger, and until now she or the Yavam was a
               minor). However, the Rosh (33:5) argues. He says
               that Simanim show that the youth was an adult
               retroactively from 13. The Rosh did not say so in a
               case when he was checked after 13 and found not to
               have Simanim. If much later he was found to have
               Simanim, we cannot retroactively make him an adult.
               From which time could we say that he brought
               Simanim? The time between the Bedikos is a Safek.
               Since the Rosh holds that he was not checked in
               between, Tosfos' question return: Chazakah d'Rava
               should say that he was an adult! Rather, the Rosh
               must hold that Chazakah d'Rava is only a stringency.
               We do not rely on it for Chalitzah at all, and all
               the more so to extract money. The Shulchan Aruch (CM
               35) rules like the Rosh, but the Ramban disagrees.
               He proves that the youth died right after selling,
               for if not, Bedikah afterwards would not prove that
               he was an adult when he sold. The Beis Yosef (EH Sof
               43 DH v'Chosav) says that the Rashba disagrees with
               the Rosh. This is a printing mistake; it should say
               'Ramban'. However, perhaps the Ramban agrees with
               the Rosh's law, and also holds like Tosfos! I.e. if
               we cannot check, we transfer money due to Chazakah
               d'Rava. However, in Bava Basra the boy was checked a
               while before he sold and did not have hairs,
               therefore, checking afterwards would not establish
               him to be an adult retroactively, like the Shulchan
               Aruch's ruling.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Noda b'Yehudah (ibid.):</font></b> Tosfos concluded that
               Chazakah d'Rava is not just a stringency. Perhaps he
               learns from the word 'Chazakah' (Rava did not just
               say that we are <i>concerned</i>). Or, since we rule that
               we are concerned lest hairs fell out, we need not
               say that Mi'un is a mere stringency. Rather, letter
               of the law we assume that she brought hairs. Rava's
               Chidush was about Mi'un, and not that we must check
               for Chalitzah. This explains why he discusses a
               girl. Chachamim normally discuss men. The Chidush
               about Chalitzah could have been taught regarding a
               Yavam! Rather, his primary Chidush was for Mi'un,
               which is only for a girl. However, perhaps he
               preferred to teach about a girl, for even though she
               brings Simanim earlier (12 years), we assume that
               she brought them right away. A Yevamah came in front
               of Rebbi, and he ordered to check her (Yevamos 105b)
               The Gemara connotes that she had not been checked
               yet. The one who says that Rava requires checking
               for Chalitzah only if she was found not to have
               hairs after 12 years must say that Rava argues with
               Rebbi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yabi'a Omer (7 OC 46):</font></b> The Ramban (Chulin 3b)
                    and Rashba (3a) hold that Chazakah d'Rava is a
                    proper Chazakah, just when possible we must
                    verify it. The Rivash (182) agrees, for we rely
                    on it to believe women about Simanim (Nidah
                    46b). The Maharit (1:41,51) explains that this
                    is due to the Chazakah; the women merely reveal
                    a matter (that the Chazakah was fulfilled).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DO WE RELY ON CHAZAKAH D'RAVA? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> We understand this if the
               buyers must bring witnesses. They could not find
               witnesses, so they wanted to check the body;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, if they must validate the document, why
                    did they want to check the body?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> You think that the family was
          Muchzak in the property, and the buyers wanted to check
          the body to get the property. This is wrong;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rather, the buyers were Muchzak in the property.
               The family wanted to check the body (to prove he was
               a minor) to take back the property.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Support:</font></b> When R. Akiva told them that they may
               not check the body, they were silent.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Granted, the family would agree to this. (He is
                    their relative, and they did not pay anything;
                    Rosh - they agreed to go beyond the letter of
                    the law and forfeit their claim);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  The buyers would not agree. They may try to
                    get what they paid for, even if it disgraces
                    him!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> R. Akiva told them 'you may not check
               the body. Even if you will say that since you paid
               money, you may disgrace him, still, it does not help
               to check, for signs often change after death.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Reish Lakish):</font></b> Bar Kapara taught that if
          Shimon was Muchzak in a field and was using it, and Levi
          claimed 'it is mine' and showed a document that Shimon
          sold or gave it to him:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Shimon denies having written the document,
               Levi must validate it to get the property;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he says that it was a Pasim document (a fake
               sale, to make Shimon look rich) or Amanah (Levi
               trusted him with the document before receiving the
               money) or that Shimon did not pay yet (so Levi can
               retract), if there are witnesses, we follow what
               they say;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If there are no witnesses, we honor the document.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Does Bar Kapara rule like R. Meir (since Levi
               admits that he authorized the document, there is no
               need to validate it), and not like Chachamim?!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> No, all agree that if one admits
          that he authorized a document, the bearer need not
          validate it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Reish Lakish):</font></b> They argue about this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> The witnesses are not
               believed to disqualify the document;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim says, they are believed.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (R. Yochanan):</font></b> Chachamim believe witnesses to
          disqualify it, but not the seller or borrower.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Reish Lakish:</font></b> I heard in your name that the family had
          a proper protest (even though they admitted that the
          deceased authorized the document, just they say that he
          was a minor)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	R. Yochanan:</font></b> R. Elazar said that in my name. I never
          said it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	R. Zeira:</font></b> R. Yochanan can deny what his Talmid said,
          but will he deny what he said to his Rebbi, R. Yanai?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yanai citing Rebbi):</font></b> If one authorized a
               document, the bearer need not (Ramban - needs to)
               validate it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Yochanan:</font></b> We (Ramban - already) learned in our
               Mishnah, that Chachamim say 'to take money from
               another, one must bring proof', i.e. he must
               validate the document!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	R. Zeira:</font></b> We can explain R. Yochanan according to Rav
          Yosef (who switches the opinions).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> Chachamim say this (that the giver
               must prove that he was sick), but R. Meir says 'to
               take money from another, one must bring proof.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Yochanan say 'all agree that...he
          need not validate it'? (Only Chachamim say so!)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Because an individual (R. Meir) argues with
          Chachamim, the law is considered unanimous.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> This is contrary to our Mishnah!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> We must switch the opinions in our Mishnah.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Meir):</font></b> The witnesses are not
          believed to disqualify the document;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim says, they are believed.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> We must switch the opinions in the Beraisa.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan said (154a) 'they must bring
          witnesses'!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> We must switch the opinions (R. Yochanan said
          that they must validate the document, and Reish Lakish
          said that they must bring witnesses).
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Suggestion:</font></b> If so, we must switch also the question
          (2:a, and say that Reish Lakish challenged R. Yochanan)!
<br>

<p>

sjt:
</p><p>
<font><b>3) HALACHAH: MUST A LITIGANT VERIFY A 'SHTAR' IF THE OTHER PARTY ADMITS THAT HE WROTE IT?</b></font><b>
<br>OPINIONS:</b> The Gemara relates a teaching of Bar Kapara. Bar Kapara discusses a case in which a person contests the ownership of a field that someone else has been living on and working, and the present owner of the field shows his deed of ownership to Beis Din in an attempt to prove that he bought the field from the claimant (or received it as a gift from him). Bar Kapara rules that if the claimant says that the Shtar is forged, then the present owner must be Mekayem the Shtar (by verifying the signatures of the witnesses therein), and he then may keep the field. If the claimant admits that he wrote the Shtar but claims that it was a 'Shtar Pasim' or a 'Shtar Amanah' (see Background to the Daf) and that the field was never really sold to the buyer, then Bar Kapara rules that if the claimant can bring witnesses to back up his claim he is believed. If he has no witnesses, Beis Din accepts the Shtar and allows the present owner to keep the field.
</p><p>
This ruling implies that there is no need for the defendant to verify a Shtar when the claimant admits that he wrote it but disputes its validity for another reason -- 'Modeh bi'Shtar she'Kesavo Ein Tzarich l'Kaimo.' The Shtar is presumed to be a valid Shtar because the claimant admits that he wrote it, and his claim that the Shtar is invalid is not accepted without witnesses. The Gemara cites opposing views which maintain that the defendant is still required to verify the Shtar -- 'Modeh bi'Shtar she'Kesavo <i>Tzarich</i> l'Kaimo,' since the claimant is believed to invalidate the Shtar with a 'Migu' that he could have claimed that it was forged.
</p><p>
What is the Halachah?
</p><p>
(a) The <b>RASHBAM</b> and others (see <b>HAGAHOS MAIMONIYOS</b>, Hilchos Zechiyah 9:30) maintain that the Shtar does not need to be verified ('Modeh bi'Shtar she'Kesavo <i>Ein</i> Tzarich l'Kaimo'). Their proof is that Rebbi Yochanan apparently rules this way according to the Gemara's conclusion (that Rebbi Yochanan's opinion is the opposite from what was initially thought).
</p><p>
(b) The <b>RIF</b>, <b>RAMBAM</b>, and others say that the defendant must verify the Shtar -- 'Modeh bi'Shtar she'Kesavo <i>Tzarich</i> l'Kaimo.' It follows from this ruling that they also rule like Rebbi Yakov in the previous Gemara (153b), who says that if a benefactor claims that he was a Shechiv Mera at the time he gave the gift, and the recipient claims that he was healthy and not a Shechiv Mera, the benefactor is believed until the recipient proves otherwise. In that case, too, the benefactor admits that he wrote the Shtar but claims that he was a Shechiv Mera when he wrote it and thus the gift is no longer valid (since he recovered from his illness). Since he is 'Modeh bi'Shtar,' his claim to invalidate the gift is also believed, and the recipient therefore must be Mekayem the Shtar ('Tzarich l'Kaimo') in order to receive the gift.
</p><p>
The <b>SHULCHAN ARUCH</b> (CM 140:3, 251:2) follows this opinion. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO MUST BRING PROOF? (Cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, we need not;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan asked 'according to me, the buyers
               must validate the document. We understand why the
               buyers started using the land (they validated it, or
               relied on the admission of the family that it was
               written);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  According to you, they must bring witnesses. They
                    had no right to start using the land!'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Reish Lakish answered 'I agree that the family
               has no claim (until they bring proof);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They say that he was a minor. We have a Chazakah
                    that witnesses do not sign unless the parties
                    in the document are adults!'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SELLING THE FATHER'S PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> How old must one be to sell his father's
          property (land, that he inherited)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rava citing Rav Nachman):</font></b> He must be 18
          years old.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Huna bar Chinena citing Rav Nachman):</font></b> He
          must be 20 years old.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Zeira - Beraisa):</font></b> A case occurred in which
          Reuven sold his father's property, and Reuven died. They
          (members of the family) said that the sale was invalid,
          for he was a minor at the time. They asked if they may
          check the body.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Akiva:</font></b> Firstly, you may not check the body,
               for it is a disgrace. Secondly, signs often change
               after death.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Granted, according to Rava, Reuven was 18. They
               thought that if they check and find no hairs, this
               proves that he was a minor;
<br>
<br>

sjt:
<font><b>1) AGE RESTRICTIONS ON BUYING AND SELLING LAND</b></font><b>
<br>QUESTIONS:</b> The Gemara records a Machlokes regarding the age at which a person is qualified to sell land that he inherited. Rava says in the name of Rav Nachman that he must be 18 years old, and Rav Huna bar Chinena says in the name of Rav Nachman that he must be 20 years old.
</p><p>
(a) Is a person below this age restricted from selling only land that he inherited, or even land that he purchased or received as a gift?
</p><p>
(b) Is a person below this age restricted only from <i>selling</i> land, or is he also restricted from <i>buying</i> land?
</p><p>
<b>ANSWERS:</b>
<br>(a) There are two approaches in the Rishonim regarding this question.
</p><p>
1. The <b>RIF</b>, <b>RASHBAM</b> (156a, DH v'Hilchesa), and other Rishonim explain that the Gemara here refers only to inherited land, and not to land that a young person personally acquires or receives as a gift. A person is permitted to sell land which he receives as a gift or land which he purchases himself, even before he reaches the age of 20. The Rif reasons that if a person can obtain land for himself, then he should be permitted to sell it as well.
</p><p>
The Rishonim explain that a young person is not permitted to sell land that he inherited either because he will not be careful to receive a fair price for the land (since he acquired it for free), or because the Chachamim are concerned for the honor of his family and do not want them to lose their family land.
</p><p>
2. <b>RABEINU TAM</b> (cited by Tosfos DH Mocher) argues and maintains that the Gemara means that a person under the age of 20 may not sell any land, whether he inherited it or acquired it on his own. He quotes the Gemara later which states that young adults (under the age of 20, and certainly children who have not yet reached the age of 12 for girls or 13 for boys) always want to acquire cash, and he reasons that they are likely to sell their property (in order to obtain cash) for a price that is too low. Therefore, the Chachamim do not allow them to sell land until they are older.
</p><p>
(According to Rabeinu Tam, the Chachamim restricted young people from selling only land and not Metaltelin, because the value of land is difficult to evaluate and the Chachamim feared that a young person might be persuaded to undersell it in exchange for cash. The value of Metaltelin, on the other hand, is easy to evaluate, and it would be difficult to convince a young person to sell it simply in to receive cash. Hence, if he does sell Metaltelin, the sale is valid because it is safe to assume that he had full intent to sell it.)
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (CM 235:9) follows the opinion of the Rashbam and Rif. He adds, however, that a young person is restricted from selling not only land inherited from his father, but also land inherited from any other benefactor. Even though the Gemara mentions only land inherited from a father, the <b>BA'AL HA'ITUR</b> and <b>MAGID MISHNEH</b> explain that this law applies to all inherited land. This is the way the Shulchan Aruch rules. Moreover, he includes in this law land that was received as a gift from a Shechiv Mera, because such a gift works through the mechanism of inheritance as well.
</p><p>
(b) There are two approaches in the Rishonim regarding the second question as well.
</p><p>
1. The <b>ROSH</b> maintains that the Gemara restricts a young person only from <i>selling</i> land, but not from <i>buying</i> it (see also Tosfos to 155b, DH Mekchah). As the Gemara later explains, the Chachamim are concerned that since a young person has a desire for cash, he indiscriminately undersells his land, the value of which is difficult to assess accurately. In contrast, when a young person wants to <i>buy</i> land, he shows that he is not interested in amassing cash because he is willing to give his cash away in exchange for land (a long-term investment). There is, therefore, no reason to prevent a young person from buying land. Since a young person is permitted to purchase land because the Chachamim have no concern that he may be cheated, he is also permitted to sell the land that he purchased.
</p><p>
2. The <b>RASHBA</b> quotes the <b><b><b>RI</b></b> MI'GASH</b> who says that just as a person under the age of 20 may not sell land, he also may not <i>buy</i> land (unless it is determined that he is knowledgeable about business transactions). The <b>SHITAH MEKUBETZES</b> explains the reason for the Ri mi'Gash's opinion: since the Chachamim decreed that a young person's <i>sale</i> of land is not valid (because he desires cash and might undersell the land), they also decreed that he may not buy land lest people see him buying land and mistakenly think that he is able to sell land as well. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DO WE RELY ON CHAZAKAH D'RAVA?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A case occurred in which Reuven sold his
               father's property, and Reuven died. They (members of
               the family) said that the sale was invalid, for he
               was a minor at the time. They asked if they may
               check the body.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Akiva:</font></b> Firstly, you may not check the body,
                    for it is a disgrace. Secondly, signs often
                    change after death.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 156a (Rav Nachman):</font></b> We check boys above 13 (and
               girls above 12) for hairs regarding Kidushin,
               divorce, Chalitzah, and Mi'un (retroactive annulment
               of a marriage mid'Rabanan).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Nidah 46a (Rava):</font></b> A girl may do Mi'un anytime until
               12 full years. After 12, she may not do Mi'un or
               Chalitzah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> He forbids Mi'un because he assumes that
               she is an adult (and the marriage became
               mid'Oraisa). If she is an adult, she should be
               permitted to do Chalitzah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rava is not in Safek whether she is an adult,
                    for he taught that we need not check a girl
                    above 12. She is Muchzekes to be an adult.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> Normally, we assume that she is an adult.
               She may not do Chalitzah in a case when we see that
               she does not have hairs now. She may not do Mi'un,
               lest she brought hairs after 12 years, and they fell
               out.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> We did not check her. Regarding Chalitzah
               we are concerned (lest she is still a minor). Rava's
               Chazakah refers to Mi'un (we are stringent not to
               allow Mi'un). She may not do Chalitzah until we see
               hairs.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Dimi of Neharde'a):</font></b> The Halachah is, we are
               concerned lest they fell out (regarding Mi'un) only
               if she had relations with her husband after 12 years
               of age, for then it is a Safek mid'Oraisa). If not,
               she may do Mi'un (since she is married only
               mid'Rabanan).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> Women do not check her
               during the Perek (her 12th year).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> During the Perek she is not believed (that she found
               hairs), for Rava's Chazakah does not apply.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Beraisa - R. Shimon):</font></b> Women check her during the
               Perek.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> He holds that hairs during the Perek do not make her
               an adult. If these hairs are still there after the
               Perek, we will not use them to establish her to be
               an adult.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Beraisa):</font></b> A woman is believed to be stringent, but
               not to be lenient.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> Some say that R. Yehudah taught this. He refers to
               checking during the Perek. Some say that R. Shimon
               taught it, about checking after the Perek.
<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 Edus 9:8):</font></b> If a 13 year old has 
               Simanim above, we need not check him. If not, we do
               not accept his testimony until he is checked.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 2:15):</font></b> If a boy above 13 did
               not bring a Siman below, and he brought all the
               Simanim above, it is a Safek whether he is a minor
               of adult. If he was not checked below, since he has
               Simanei Bagrus above, he is assumed to be an adult.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (33:5):</font></b> Once a child reached the years of Bar
               Mitzvah, we establish that he was an adult from the
               required number of years. Even though we conclude
               that Chazakah d'Rava is only for Mi'un, i.e. to be
               stringent, when one was checked later and was found
               to be an adult, we establish her to be an adult from
               the age of 13. A proof of this is from Bava Basra
               155. A youth sold and died, and the buyers wanted to
               check if he had hairs. R. Akiva ruled that it would
               not help, for we are concerned lest they changed
               after death. If he were alive, checking now would
               establish that he was an adult from the time of the
               sale. Another proof is from 156b. We check for
               Kidushin, divorce, Chalitzah, and Mi'un. If a girl
               accepted Kidushin, and later we find that she has
               hairs, if she accepted Kidushin afterwards from
               another man, we ignore it. If we do not find hairs,
               we are concerned for both acts of Kidushin (perhaps
               she had hairs, and they fell out). R. Yitzchak says
               that we checked her before the second Kidushin, for
               if we checked her afterwards, even if we find hairs
               she needs a Get from both, for perhaps the hairs
               came after the second Kidushin, like Shmuel says in
               Kidushin 79. However, there we discuss Simanim of
               Bagrus (on the day a girl becomes a Bogeres), and
               there is no Chazakah that they came in the morning.
               When we find hairs of Na'arus, we say that they were
               there from 12 years.  R. Yitzchak says so even
               according to Shmuel, and all the more so according
               to Rav, who assumes that Simanei Bagrus came in the
               morning. The Halachah follows Rav.
<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 155:19):</font></b> A girl may do Mi'un
               after 12 years if we checked her and she did not
               bring two hairs. Stam, after 12 years she may not do
               Mi'un, for there is a Chazakah that she brought two
               hairs. In any case she may not do Chalitzah until we
               check her and find two hairs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (66):</font></b> Even though according to one answer
                    R. Shimon argues with Rava, the Halachah does
                    not follow R. Shimon. The rule is, we follow R.
                    Yehudah against R. Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 35:1):</font></b> If a man has a full beard
               we need not check whether or not he has two hairs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Beis Yosef DH v'Im):</font></b> Tosfos (Yevamos
                    80b d v'Hevu says so). The Tur brings this in
                    EH 169. Here he calls it 'sprouting of the
                    beard', which means a full beard. Why didn't he
                    say a full beard, like he said there? Perhaps
                    only there, for Chalitzah, we require a full
                    beard. However, what is the source to
                    distinguish? The Rambam (Hilchos Edus 9:8) says
                    that if a 13 year old has Simanim above, we
                    need not check him. However, he holds that the
                    beard is a Siman.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra 5):</font></b> Tosfos connotes unlike this!
                    Rather, the Tur learned from the Rambam
                    (Hilchos Ishus 2:15).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 460:1):</font></b> One may not knead Matzas
               Mitzvah through a Nochri, Cheresh, lunatic or minor.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1 DH v'Cheresh):</font></b> Here, minor refers to one
                    who lacks Da'as (understanding). The Rashba
                    (1:26, cited in Beis Yosef d Ein) says that he
                    must understand when they tell him to make it
                    Lishmah. The Maharil requires Bar Mitzvah; this
                    is a big stringency.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Eliyahu Rabah (2):</font></b> 'Minor' means before 13
                    years.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Chak Yakov (3):</font></b> 'Minor' means before 13 years.
                    Also the Maharil says so. The Taz disagrees,
                    but the Poskim equate this to Gitin, Chalitzah
                    and Shechitah, which require adults. I have
                    seen people use minors to make holes in the
                    dough with adult supervision. This is better,
                    for many helpers speeds the process. One should
                    be careful (to use adults) if possible.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishbetzos Zahav (1):</font></b> Chak Yakov connotes that
                    we require 13 years and two hairs. The Bach
                    connotes that guarding l'Shem Mitzvah is
                    mid'Rabanan. The Pri Chodosh connotes that it
                    is mid'Oraisa. It is not clear what the Rambam
                    (Hilchos Chametz u'Matzah 5:3,8) holds.
                    Therefore, one should not assume that they
                    brought two hairs right after 13 years, rather,
                    until they are older. Matzah for Yom Tov Sheni
                    is just like for the first night.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Bi'ur Halachah (DH Ein):</font></b> L'Chatchilah one
                    should not rely on Chazakah d'Rava for Matzas
                    Mitzvah.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Bi'ur Halachah (11:2 DH Tavan):</font></b> Since the Torah
                    requires spinning the threads for Tzitzis
                    Lishmah, it is the same as guarding Matzah for
                    the Mitzvah. We should not let a boy or girl
                    past 13 or 12 do it, unless we know that he or
                    she brought two hairs. B'Di'eved one may rely
                    on Chazakah d'Rava.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Sha'arei Teshuvah (39:1):</font></b> The Noda b'Yehudah
                    (2:1) says that if a boy just over 13 years
                    wrote Tefilin, and they did not check him for
                    hairs and he is not in front of us, the Tefilin
                    are Kesherim. We rely on Chazakah d'Rava
                    b'Di'eved, but not l'Chatchilah.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Bi'ur Halachah (DH Oh):</font></b> In Choshen Mishpat we
                    say that if a man's beard filled out, we know
                    that he brought two hairs. The Magen Avraham
                    says that after 18 we need not be concerned
                    lest he did not bring hairs; all the Acharonim
                    rejected this.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CHAZAKAH D'RAVA </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> However, Rav Huna bar Chinena must say that
               Reuven was at least 20. Even without hairs, he is an
               adult!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If a 20-year old did not bring hairs,
                    he is <i>the</i> Seris (a man who does not develop
                    like a normal male). He does not do Yibum or
                    Chalitzah (even if he brings hairs later, for
                    he is already an adult).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Reuven did not have signs of a Seris, so if he
          had no hairs, he was a minor;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Shmuel bar Rav Yitzchak):</font></b> The Mishnah says
               that he is (an adult and) a Seris at age 20 only if
               he has signs of a Seris.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Support (Rava):</font></b> It says, he is the Seris.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If he lacks signs of a Seris (and does not
          bring hairs), when is he (an adult and) a Seris?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Chiya):</font></b> It is after most (35) of one's
          expected lifetime (70 years).
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	When a man would come to R. Chiya (without hairs at an
          advanced age), if he was thin, he would tell him to
          fatten up. If he was fat, he would tell him to become
          thinner;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (our text, Tosfos):</font></b> Sometimes thinness
               causes hairs to come. Sometimes fatness causes them
               to come.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Rashbam):</font></b> Sometimes fatness causes
               hairs to come. Sometimes it makes them fall out.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If a man without hairs sold during the year
          (at the end of which he may sell his father's property,
          i.e. 18 or 20 according to Rava or Rav Huna bar Chinena),
          what is the law?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (Rava citing Rav Nachman):</font></b> His sale is
          invalid.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Rava bar Rav Shila citing Rav Nachman):</font></b> His
          sale is valid.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Rava did not say so explicitly. Rather, it was inferred
          from the following episode.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Levi sold his father's property during the year.
               Rava nullified the sale.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The one who saw this assumed that this was
               because a sale during the year is invalid.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Rejection:</font></b> We cannot learn from this. Rava saw that
          Levi was acting excessively foolishly; he freed his
          slaves.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Gidal bar Menasiya):</font></b> If a 14-year old girl
          understands business well, may she sell her father's
          property?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> If she understands business well, her
          purchases and sales are valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't Gidal ask about a boy?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He asked about a case that occurred with
               a girl.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't he ask about a 12-year old?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The case was, she was 14.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Reuven was less than 20. He sold his father's property.
          Before he came in front of Rava, his relatives told him
          to eat dates and throw the pits in front of Rava (to
          appear foolish). Rava nullified the sale. When they were
          writing the ruling, the buyers told Reuven to tell Rava
          'one can buy an entire Megilas Esther for one Zuz. Must
          one pay a Zuz just to write your ruling?!'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rava retracted (because he saw that the boy was
               sharp) and said that the sale stands. The relatives
               protested that the buyers taught him to say that.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> Even though he did not think of it himself,
               since he understands something clever when he hears
               it, his sale stands. Throwing the pits was due to
               excessive impudence, and not to immaturity.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TESTIMONY OF ADOLESCENTS</font></b>

<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Huna brei d'Rav Yehoshua):</font></b> An adult less than 18
          (or 20) can testify.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Mar Zutra):</font></b> He can testify only about Metaltelim, but
          not about land.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> Presumably, you say that he can
          testify only about Metaltelim, because he can sell them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, even a minor should be able to testify
               about Metaltelim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Pa'utos (children who reached a
               certain level of maturity. Some reach this at six
               years, and others, not until 10) can buy or sell
               Metaltelim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Mar Zutra):</font></b> It says (about witnesses) 'v'Omdu
          Shnei <i>ha'Anashim</i>.' Minors are not men.
<br>

sjt:
</p><p>
<font><b>3) THE TESTIMONY OF A WITNESS UNDER THE AGE OF TWENTY IN A CASE INVOLVING LAND</b></font><b>
<br>QUESTION:</b> Rav Huna brei d'Rav Yehoshua rules that as long as a male has reached the age of Halachic adulthood (13 years old) he is a valid witness, even though he cannot sell land until he reaches the age of 20. Mar Zutra explains that Rav Huna's ruling applies only to testimony about matters involving movable objects; a young man may <i>not</i> testify in cases involving land until he reaches the age at which he is permitted to sell land. Since a man is not permitted to sell land until he reaches the age of 20, he is not permitted to testify in cases involving land.
</p><p>
What is the connection between the restriction on his selling land and his ability to testify in a case involving land? The Gemara explains that the reason a man may not sell land until he reaches the age of 20 is that youngsters tend to have a desire for cash (since they seek immediate gratification for their desires, and they do not have the cognitive wherewithal to delay that gratification) and they therefore might undersell their land in order to obtain cash quickly. This logic does not apply to testimony. When a person testifies, he receives no money, and he gives up no land, so why should a young man not be a valid witness to testify about someone else's transaction?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that when Mar Zutra says that until the age of 20 a person may not testify in matters involving land, he is not referring to <i>all</i> cases that involve land. A young man certainly may testify that he witnessed the sale of a piece of land. Mar Zutra means only that a young man may not testify in cases of land <i>evaluation</i>, wherein he must testify about the <i>value</i> of a piece of land. Tosfos explains that since a person under the age of 20 is infatuated with money, he will estimate the value of a property at <i>more</i> than its actual value. In contrast, a young man will not mistakenly assess the value of movable objects, since he is infatuated with the movable objects themselves as much as he is with money, and thus he will ascribe to any movable object its actual value. Furthermore, a person knows that movable objects deteriorate more easily than land, and he will not evaluate them at a value greater than their actual worth.
</p><p>
This explanation of Tosfos is difficult to understand. Why would a young man's obsession with money cause him to ascribe a higher value to a piece of land? On the contrary, it would seem that a person who loves money would assess a property at <i>less</i> than its actual value. Indeed, a marginal note in our edition of the Gemara suggests an emendation in the text of Tosfos; it changes the phrase, 'He will assess it to be worth <i>more</i> than its value,' to, 'He will assess it to be worth <i>less</i> than its value.' How, though, is the explanation of Tosfos to be understood according to our Girsa?
</p><p>
The <b>BACH</b> (#4) explains the meaning of the words of Tosfos as they appear in our text. The Bach explains that Tosfos' primary intention is that a young man, because of his obsession with money, will assess the value of land inaccurately, either at less than its actual value or at more than its actual value. Tosfos writes that he will assess it at more than its actual value because a person knows that land does not deteriorate as movable objects do, and thus a young man would think that land must be worth a lot of money.
</p><p>
The <b>MAHARSHA</b> also writes that in all of the old editions of Tosfos the Girsa is as it appears in the text ('He will assess it to be worth <i>more</i> than its value'). The Maharsha explains that when Tosfos says that Mar Zutra refers to testimony about the value of land, Tosfos means a case in which two heirs inherit an estate that includes a sum of cash and a field, and the heirs must split the inheritance in such a way that one heir receives the cash and the other heir receives a portion of the land equal to the value of the cash. If the field is worth more than the cash, then the additional land (above the value of the cash) must be divided between the two heirs. In Mar Zutra's case, Beis Din must ask a person who is familiar with the field to testify about its value. If a young person under the age of 20 is asked to testify, then Mar Zutra fears that he will testify that the field is worth the same amount as the cash is worth when, in reality, it is worth more than the cash. Due to his infatuation with money, a young witness might carelessly underestimate the field's value, causing one heir to get more than his rightful share of the land.
</p><p>
(According to the Maharsha, when Tosfos says that the young man 'will assess it to be worth <i>more</i> than its value,' Tosfos means that the young man will assess the land in such a way that one heir will receive <i>more</i> land than he is supposed to receive, because the young man will assess the land at <i>less</i> than its actual value.)
</p><p>
(b) The <b>BEIS YOSEF</b> and <b>BACH</b> (CM 35) infer from the words of the <b>RAMBAM</b> that he does not agree with Tosfos' explanation. Rather, the Rambam understands that the Gemara invalidates a young man's testimony in all land-related cases. Even though he does not receive any money as a result of his testimony, a young man is not permitted to testify because -- due to his infatuation with money -- he will not be careful to assess the real value of property. This is also the opinion of the Beis Yosef as recorded in the <b>SHULCHAN ARUCH</b>.
</p><p>
The <b>SHACH</b>, however, differs with this inference from the words of the Rambam and argues that the Rambam indeed agrees with the explanation of Tosfos. He rules, therefore, that only in cases in which Beis Din must evaluate the value of land is a young man, under the age of 20, ineligible to testify. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>GIFTS OF ADOLESCENTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> An adolescent (an adult less than 18 (or
          20)) can give a gift of land.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> We invalidate his sale, even
          though he received money. All the more so his gift is
          invalid, he does not get anything for it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question (Ameimar):</font></b> If he sold something
               worth five for six, do you validate the sale,
               because he got more than its value?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Ameimar):</font></b> You must say that Chachamim
               know that children love money. If we allow them to
               sell, buyers will entice them to sell all their
               property;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Ameimar):</font></b> One does not give a gift unless the
          recipient did something nice for him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enable adolescents to give gifts, so
               people will do nice things for them.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE REQUISITE AGES FOR VARIOUS MATTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> We check boys above 13 (and girls above
          12) for hairs regarding Kidushin, divorce, Chalitzah, and
          Mi'un;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One cannot sell his father's property until he is
               20.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If we checked him when he was Mekadesh, why
          must we check him when he divorces?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> We must check an adolescent who did Yibum and
          then wants to divorce her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a nine-year old did Yibum, he
               acquired her. He cannot divorce her until he is an
               adult.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rav Nachman taught that we check for Chalitzah. This is
          unlike R. Yosi,
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yosi says, because it says 'Ish' in the
               Parshah of Chalitzah, the Yavam must be an adult.
               Since it does not say 'Ishah', the Yevamah can be a
               minor.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Nachman equates the laws of the Yavam and
               Yevamah. Just like he must be an adult, also she
               must be.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Nachman taught that we check for Mi'un. This is
          unlike R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah says, a girl may do Mi'un until the
               area is black (she has so many hairs that one
               reaches to the next).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Nachman forbids Mi'un once she has two hairs.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rav Nachman taught that he cannot sell his father's
          property until 20, to discredit the opinion that says (in
          his name) 18.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Halachah is, during the (18th or 20th) year the
          sale is void;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	The Halachah follows (the answer to the question of)
          Gidal bar Menasiyah (if an adolescent understands
          business well, he can sell his father's property);
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	The Halachah follows Mar Zutra (an adolescent can
          testify about Metaltelim, but not about land);
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	The Halachah follows Ameimar (any adolescent can give a
          gift of land);
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	The Halachah follows Rav Nachman regarding checking for
          Kidushin, divorce, Chalitzah, and Mi'un, and selling the
          father's property.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES A SHECHIV MERA NEED A 'KINYAN' TO BEQUEATH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Elazar):</font></b> The ways to give property are
          the same for sick and healthy people: property with
          Acharayus is acquired through money, a document or
          Chazakah. Property without Acharayus is only acquired
          through Meshichah;
<br>
<br>

sjt:
<font><b>1) THE EXAMINATION OF A YOUTH'S PHYSICAL MATURITY FOR THE PURPOSE OF MARRIAGE</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that when a person below the age of twenty wants to get married, Beis Din must examine him to ensure that he has signs of maturity (Shtei Se'aros). <b>TOSFOS</b> (DH Bodkin) explains that the Gemara means that a boy <i>over</i> the age of Bar Mitzvah must be examined to ensure that he has Shtei Se'aros; there is no need to examine a boy who under the age of Bar Mitzvah, since his act of Kidushin is meaningless even if he has Shtei Se'aros (because any Se'aros he has are considered a 'Shuma b'Alma'; see Nidah 52b). The same law applies to a woman. Tosfos explains that if a girl over the age of Bas Mitzvah accepts Kidushin from two different men, she is examined to determine if she has reached adulthood. If she has Shtei Se'aros, the Halachah is that she had the right to accept Kidushin from the first man. Since the first Kidushin is valid, the second Kidushin does not take effect. If, however, the girl does not have Shtei Se'aros, her Kidushin is considered a Safek d'Oraisa, since it is possible that she had Se'aros but lost them.
</p><p>
According to Tosfos, when is this examination performed in the case of a girl? Is it performed before or after the second acceptance of Kidushin?
</p><p>
(a) <b>REBBI AKIVA EIGER</b> (Teshuvos #7) infers from Tosfos that the girl is examined after she accepts the second Kidushin to determine whether she was fit to accept the first Kidushin. However, Rebbi Akiva Eiger questions this inference. If the girl is found to be an adult (a Gedolah), it is understandable that the Rabanan assume that she was a Gedolah when she accepted the first Kidushin. If, however, she is not found to be a Gedolah, then it is more logical to assume that the hairs were never there rather than to assume that they were there but fell out. Rebbi Akiva Eiger explains that, in general, when a girl reaches the age of Bas Mitzvah, the Rabanan assume that she is a Gedolah because of Rava's statement in Nidah (46a) that there is a Chazakah that a girl who reaches that age is a Gedolah. Tosfos here states that if a girl is examined and found not to have Shtei Se'aros, the Rabanan entertain the possibility that she has not yet developed signs of adulthood. However, the very fact that the Rabanan acknowledge such a possibility indicates that the usual Chazakah does not apply to this girl. (If it did apply, the Rabanan would have to assume that she definitely had Shtei Se'aros at some point in the past, and the hairs merely fell out prior to the examination.) Without the Chazakah, though, there is no reason whatsoever to assume that the girl had Shtei Se'aros at any point in time. Accordingly, the Halachah should be that if the girl is found <i>not</i> to have Shtei Se'aros, she should be deemed <i>definitely</i> a minor. There seems to be no logical way for the examination to result in a Safek.
</p><p>
Rebbi Akiva Eiger asks another question. Even if it would be logical to suspect that the hairs fell out, there should be a Sfek Sfeika which says that she is not Mekudeshes to the second man: the girl might have been a Gedolah when she accepted the first Kidushin, in which case the second Kidushin is invalid, and even if she was not a Gedolah at the time of the first Kidushin, she still might have been a Ketanah at the time of the second Kidushin. In either case, she would not be Mekudeshes to the second man. Why does Tosfos treat this case as an ordinary Safek?
</p><p>
Rebbi Akiva Eiger does not answer his questions on Tosfos, and he concludes 'Tzarich Iyun Gadol.'
</p><p>
The <b>NODA B'YEHUDAH</b> (end of Mahadura Kama CM 4) answers the second question. There is a concept that 'a Chazakah that was never clarified for one moment is not a Chazakah' ('Chazakah she'Lo Nisbarerah Sha'ah Achas Einah Chazakah'). This means that if there is a suspicion that the girl had hairs that fell out, the Rabanan would not suspect that the hairs fell out earlier and that she was a Gedolah when she accepted the first Kidushin, since there is no way to establish that this girl is a Gedolah even now. Therefore, instead of creating a possibility that the girl was a Gedolah when she accepted the Kidushin, the suspicion that she had hairs that fell out means that it is simply unclear whether or not she was ever a Gedolah, such that it is not an <i>established possibility</i>.
</p><p>
(b) The <b>AYELES HA'SHACHAR</b> explains that Tosfos means that the girl is examined even before she accepts the second Kidushin. He says that this is the implication of the <b>TOSFOS HA'ROSH</b> (whose explanations often reflect those of Tosfos). The Ayeles ha'Shachar adds that this explanation is clearly a more basic and simpler explanation of the intention of Tosfos, as it is consistent with the wording of the Gemara, 'Bodkin l'Kidushin' -- 'a girl is examined for Kidushin,' which implies that a girl is examined after even one Kidushin, and not only in a strange case in which there were two acts of Kidushin. According to this explanation, Tosfos means that if the examination shows that she had Se'aros, the first Kidushin is valid and the second obviously is invalid. However, if she is found to have no Se'aros after the first Kidushin but is found to have Se'aros after the second Kidushin, there is a suspicion that she was actually a Gedolah during the first examination as well, but the Se'aros had fallen out. This doubt renders the second Kidushin a Safek Kidushin. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DOES A YOUTH JOIN FOR A MINYAN?</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> We check boys above 13 (and girls
               above 12) for hairs regarding Kidushin, divorce,
               Chalitzah, and Mi'un (retroactive annulment of a
               marriage mid'Rabanan).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Nidah 46a (Rava):</font></b> A girl may do Mi'un anytime until
               12 full years. After 12, she may not do Mi'un or
               Chalitzah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> He forbids Mi'un because he assumes that
               she is an adult (and the marriage became
               mid'Oraisa). If she is an adult, she should be
               permitted to do Chalitzah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rava is not in Safek whether she is an adult,
                    for he taught that we need not check a girl
                    above 12. She is Muchzekes to be an adult.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1:</font></b> Normally, we assume that she is an adult.
               She may not do Chalitzah in a case when we see that
               she does not have hairs now. She may not do Mi'un,
               lest she brought hairs after 12 years, and they fell
               out.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> This is according to the opinion that is
               concerned that they fell out. According to the
               opinion that is not concerned, how can we answer?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> We did not check her. Regarding Chalitzah
               we are concerned (lest she is still a minor). Rava's
               Chazakah refers to Mi'un (we are stringent not to
               allow Mi'un). She may not do Chalitzah until we see
               hairs.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rav Dimi of Neharde'a):</font></b> The Halachah is, we are
               concerned that they fell out (regarding Mi'un) only
               if she had relations with her husband after 12 years
               of age, for then it is a Safek mid'Oraisa). If not,
               she may do Mi'un (since she is married only
               mid'Rabanan).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 47b (Beraisa - R. Chiya):</font></b> If one does not have
               Simanim, he is a minor until the majority of a
               normal lifetime (i.e. the start of his 36th year).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Berachos 47b (R. Yochanan):</font></b> A minor Pore'ach joins
               for a Zimun.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Support (Beraisa):</font></b> A boy joins for a Zimun only if
               he has two hairs. We are not particular about
               minors.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The latter clause includes a minor Pore'ach.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> The Halachah is unlike all these teachings, rather,
               like the following:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Nachman):</font></b> If a minor knows to Whom we
                    bless, he joins for a Zimun.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Tosfos (Berachos 47b DH Katan):</font></b> A minor Pore'ach is
               one who brought two hairs before 13 years. The hairs
               are less than the required Shi'ur. Rashi says that
               they are full hairs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Berachos 35a):</font></b> A minor who knows to Whom we
               bless joins for a Zimun. Rabanan say that this is if
               he is in his 13th year, even if he was not Pore'ach.
               Before this, even if he was Pore'ach he does not
               join. I hold that 'minor' includes a boy of nine or
               10.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Berachos 7:20):</font></b> The first Perush is R.
               Chananel. The Yerushalmi requires two hairs. It
               seems that we do not join a minor for a Minyan of 10
               for Birkas ha'Mazon, Tefilah or to three (for Birkas
               ha'Mazon) until he brings two hairs.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Tefilah 8:4):</font></b> Tefilah b'Tzibur
               requires 10 adults.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam holds that the Gemara
                    allows a minor (who knows to Whom we bless) to
                    join only for a Zimun.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 2:15):</font></b> If a boy above 13 did
               not bring a Siman below, and he brought all the
               Simanim above, it is a Safek whether he is a minor
               of adult. If he was not checked below, since he has
               Simanei Bagrus above, he is assumed to be an adult.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 55:5):</font></b> If one did not bring two
               hairs, even if he is old he is a child (and cannot
               join for a Minyan) until the majority of his years.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (25):</font></b> Two hairs in other parts
                    of the body, e.g. the beard, also help.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (43):</font></b> If he has a full beard, one
                    need not look for other hairs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> We are not particular about hairs. Whoever
               reached the required years, we establish him to be
               an adult for this, and we say that presumably he
               brought two hairs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav ha'Rosh):</font></b> The Rashba
                    (1:453) says that a minor does not join for
                    Tefilah, Kaddish or Borchu until 13 years and
                    two full hairs, or at least incomplete hairs
                    and he knows Whom we bless. In another Teshuvah
                    (239) he requires a true adult. Also the Rambam
                    says so. The Ra'avad derives this from
                    Bereishis Rabah (91:3).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mashma):</font></b> The Tur connotes that
                    even if he is big, he does not complete a
                    Minyan until the majority of his years, like it
                    says in Nidah (47b).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magen Avraham (7):</font></b> The Rema is lenient for this
                    matter, i.e. because Tefilah is mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Eshel Avraham:</font></b> He means that Tefilah with a
                    Minyan is mid'Rabanan, and 'v'Nikdashti b'Soch
                    Bnei Yisrael' is only an Asmachta. We do not
                    rely on the Chazakah for Kidushin due to the
                    severity of Eshes Ish. Also for Chalitzah
                    Chachamim were stringent, for if a Yevamah
                    marries a stranger, the child is a Mamzer. In
                    monetary matters we do not follow the majority.
                    However, the Poskim say that we must check for
                    every Torah law; we do not rely on Rava's
                    Chazakah, which is based on a majority (most
                    bring hairs right away). What is the reason? We
                    rely on the majority and Chazakah, even a
                    Chazakah mid'Rabanan, for Torah laws! There are
                    two reasons. One is that we are concerned for a
                    common minority; this is why we must check the
                    lungs in a slaughtered animal. The other reason
                    is that when it is easy to verify, we do not
                    rely on the majority or Chazakah. We need not
                    check for all 18 Tereifos, for it is an
                    exertion to check for a tiny hole in all of
                    them. We would not rely on a Chazakah about
                    Bedikas Chametz if we could ask the owner
                    (Pesachim 4a). Toras ha'Shelamim says that for
                    a Sefek Sefekah with a Chazakah, one need not
                    verify, even if one could do so easily.
                    Pesachim 4a proves otherwise, for a Safek
                    mid'Rabanan is like a Sefek Sefekah about a
                    Torah law. Why are we lenient about Tefilah? It
                    is easy to check! If we will say that Chachamim
                    were stringent about it (Bedikas Chametz) for
                    it is a common minority, and it is hard to
                    check for hairs, this explains why we are
                    lenient about Tefilah mid'Rabanan.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (8,14):</font></b> The Yerushalmi and Bereishis Rabah
                    say that we are not exacting about a minor.
                    Matanos Kehunah says in the name of Rashi that
                    if he is 13 years old, we are not exacting if
                    he has hairs. Even though the Bavli disagrees
                    (and says that we are not exacting about the
                    size of the hairs), the custom is like the
                    Yerushalmi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (199:10):</font></b> Some say that we do not join a minor
               to a Zimun at all until he is 13 years old, and then
               the Chazakah is that he brought two hairs. This is
               our custom. One should not deviate.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav v'Adoni):</font></b> The Tur,
               Hagahos Maimoniyos (5:6) and Semag say that a minor
               joins for a Zimun only after he brings two hairs.
               This connotes proper hairs after 13 years. This is
               unlike the conclusion, which is like Rav Nachman!
               Even though an action was done differently in the
               Yerushalmi, this does not override the Bavli! They
               must hold that even though Rav Nachman says that a
               minor who knows to Whom we bless joins for a Zimun,
               he must have brought two hairs. This is because
               before this we supported R. Yochanan from a Beraisa.
               Even though we said 'the Halachah is unlike all
               these teachings', they hold that even if this
               includes R. Yochanan's teaching, Rav Nachman does
               not argue with the Beraisa. Rather, we must say that
               Rav Nachman explains that the Beraisa allows a minor
               to join for a Zimun only if he knows to Whom we
               bless. Normally, two hairs before 13 years are not a
               Siman. For a Zimun, they suffice. R. Yochanan held
               that the hairs need not be the proper Shi'ur. He was
               rejected; proper hairs are required. It seems that
               R. Yonah agrees. He says that a minor joins for a
               Zimun only after he brings two hairs, or after 13
               years. They and the Rosh hold that the Yerushalmi is
               like the Bavli's conclusion. However, the Maharik
               (49) requires 13 years, and says that this is like
               the Rosh, Tur, Ri and Semag. He understands that
               they require proper hairs after 13 years. If so, why
               did they reject the Bavli? Therefore, the first
               explanation is better. Since the Rif and Rambam
               agree, we follow them. Even though we do not join a 
               minor to 10, that is because it is a Davar
               shebi'Kedushah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (7):</font></b> If we know that he did not
                    bring two hairs, we may not join him. We may
                    not rely on the Chazakah to be Yotzei Birkas
                    ha'Mazon through him, for this is mid'Oraisa.
                    The Yam Shel Shlomo is lenient, for he says
                    that mid'Oraisa one can be Yotzei through a
                    minor. Many Gemaros and oppose this. The Ramban
                    explicitly disagrees. Also, one can be Yotzei
                    another due to Arvus (guarantorship), which
                    applies only to adults.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>CHAZAKAH D'RAVA </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Chachamim:</font></b> A case occurred in which the mother of Bnei
          Rochel was sick. She said 'give my clasp to my daughter.
          It is worth 1200 Zuz.' The mother died, and Chachamim
          fulfilled her words!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	R. Elazar:</font></b> She should bury her sons! (They were
          sinners. Chachamim fulfilled her words only in order to
          fine her sons, so they would not inherit it.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara - Beraisa - R. Elazar):</font></b> A case occurred in
          which a man wanted to give a gift of much Metaltelim.
          People told him that the only way is to give it Agav land
          (even though he was dying);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He bought a Beis Sela (this will be explained) of
               land, and said 'the north part is to Ploni, and with
               it 100 flock animals and 100 barrels. The south part
               is to Almoni, and with it 100 flock animals and 100
               barrels.' Chachamim approved the sale.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Chachamim:</font></b> No, he was healthy.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah - R. Elazar):</font></b> She should bury her sons!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why did he curse them?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> They allowed thorns to grow in a
          vineyard. R. Elazar forbids this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Elazar):</font></b> One who lets thorns grow
               in a vineyard, this is Kilayim. The thorns and
               nearby vines are forbidden;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, only something that people
               normally grow is Kilayim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Chanina):</font></b> R. Elazar forbids keeping thorns
          (everywhere) because in Araviya people grow thorns for
          their camels.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(R. Levi):</font></b> We may make a Kinyan from a Shechiv Mera,
          even on Shabbos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not due to concern for R. Elazar's
               opinion that a Kinyan is needed;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, it is lest he think that it is needed,
               and (if we do not do it) panic, which will worsen
               his condition.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Mishnah - R. Eliezer):</font></b> If a Shechiv Mera commands on
          Shabbos, his words take effect (without a Kinyan) because
          we may not write a document, but not if he commands on a
          weekday;
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	R. Yehoshua says, his words take effect on Shabbos
          (even though we could not write them), and all the more
          so on a weekday!
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Similarly, R. Eliezer says, we may be Mezakeh for
          (acquire on behalf of) a minor, but not for an adult (he
          could acquire for himself);
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	R. Yehoshua says, we may be Mezakeh for a minor, and
          all the more so for an adult (who could acquire for
          himself)!
<br>

<p>

sjt:
</p><p>
<font><b>2) MAY A 'SHECHIV MERA' MAKE A 'KINYAN' ON SHABBOS?</b></font><b>
<br>OPINIONS:</b> Rebbi Levi states that a person may make a Kinyan from a Shechiv Mera on Shabbos, even though Kinyanin usually are prohibited on Shabbos. Rebbi Levi explains that such a Kinyan is permitted on Shabbos <i>not</i> because of Rebbi Elazar's opinion that a Shechiv Mera may transfer ownership only through a Kinyan. Rather, the Kinyan is done to assure the Shechiv Mera that his instructions will be carried out, when in reality his instructions alone effect the transfer of possession.
</p><p>
How does this Kinyan apply practically? May a person who is deathly ill bequeath a gift on Shabbos, such that the gift takes effect via his verbal instructions alone?
</p><p>
(a) The <b>SHULCHAN ARUCH</b> (CM 254:1) first quotes the opinion of the <b>RAMBAM</b> who rules that a Shechiv Mera may perform a Kinyan on Shabbos, since the Kinyan does not create the transfer.
</p><p>
(b) The Shulchan Aruch then quotes the <b>TUR</b> in the name of the <b>ROSH</b> who rules that if the Shechiv Mera wishes to make a final transfer of his possessions, and he wants that transfer of ownership to remain permanent even if he recovers, the Kinyan may be performed on Shabbos. This Kinyan is permitted despite the fact that such a transaction is not a Matnas Shechiv Mera and <i>does</i> need a Kinyan, since the Shechiv Mera intends that it take effect even if he recovers.
</p><p>
How does the Shulchan Aruch himself rule? A general principle states that whenever the Shulchan Aruch records one opinion and then records a variant opinion, the Shulchan Aruch rules like the first opinion. Accordingly, it seems that the Shulchan Aruch rules that a Shechiv Mera may <i>not</i> make a Kinyan, on Shabbos, to make a gift final even if he recovers. There is no concern that his condition will deteriorate if he is unable to make such a Kinyan, and therefore such a Kinyan may not be performed on Shabbos. (This seems to be how the <b>NESIVOS HA'MISHPAT</b> understands the Shulchan Aruch.)
</p><p>
(c) The <b>REMA</b> there quotes the <b>RASHBAM</b> (DH Konin) who is even more lenient than the second opinion quoted by the Shulchan Aruch. The Rashbam maintains that the Shechiv Mera may perform a Kinyan on Shabbos to give <i>any</i> kind of gift, whether it is small or large. The Rabanan are concerned that a Shechiv Mera's condition may deteriorate if he is denied his request or if he thinks that his request will not be carried out. When the Rema quotes the Rashbam, he adds that this ruling applies even if it does not seem as though the ill person is worried about his impending death.
</p><p>
(d) The Rema writes that there are others who disagree. He points out that the second opinion quoted by the Shulchan Aruch as a leniency is still more stringent than the Rashbam, who rules that a Kinyan may be made by a Shechiv Mera for any kind of gift that he wants to give. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO CANNOT HELP HIMSELF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Gemara):</font></b> Our Mishnah is like R. Yehudah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> R. Eliezer says that his
               words take effect on a weekday, because he could
               write, but not on Shabbos;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehoshua says, his words take effect on a
               weekday, and all the more so on Shabbos (when he may
               not write)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Similarly:</font></b> R. Eliezer says, we can be Mezakeh for
                    an adult, but not for a minor (who could not
                    acquire for himself);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Yehoshua says, we can be Mezakeh for an
                    adult, and all the more so for a minor!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah says, R. Eliezer says that his words
               take effect on Shabbos, but not on a weekday, and R.
               Yehoshua says that his words take effect on Shabbos,
               and all the more so on a weekday!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Similarly:</font></b> R. Eliezer says that we can be Mezakeh
                    for a minor, but not for an adult, and R.
                    Yehoshua says that we can be Mezakeh for a
                    minor, and all the more so for an adult!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A LIEN ON PROPERTY BOUGHT LATER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - Beis Shamai):</font></b> A house fell on Reuven and
          Levi (his father, or someone else whom Reuven inherits).
          Reuven's property was not enough to pay his creditors (or
          his wife's Kesuvah). Levi's remaining heirs (i.e. after
          Reuven) say that Reuven died first, so the creditors have
          no claim on Levi's property. The creditors say that Levi
          died first, so Reuven inherited Levi's property, and they
          can collect it. The creditors and heirs divide the
          disputed amount (that the creditors want to collect from
          Levi's property);
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Beis Hillel say, we leave the property in its Chazakah
          (with the heirs).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara - Mishnah):</font></b> If Shimon lent Yehudah and wrote a
          document, he can collect from Meshubadim (property that
          Yehudah sold after the loan). If there is no document, he
          only collects from Bnei Chorin (property that Yehudah
          still owns).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Shmuel):</font></b> If Yehudah gave Shimon a lien 'on
          property that I will acquire', what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to R. Meir, one can be Makdish Davar
               she'Lo Ba l'Olam (transfer ownership of something
               that is not yet in the world), so surely this takes
               effect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He asks according to Chachamim, who say that one
               cannot be Makdish Davar she'Lo Ba l'Olam.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Yosef - Mishnah - Chachamim):</font></b> (David
          brought a document saying that Moshe owes him money.
          Moshe showed a document that he bought land from David
          after the loan, and says 'surely he would not sell me
          property if I still owed him!') Moshe's claim is not
          accepted. David was clever; he sold him land so he can
          collect it!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection (Rava):</font></b> Do you prove that the lender can
          collect land from the borrower that he bought later and
          is still in his possession?! This is obvious! He can
          collect anything that the buyer has, even the shirt off
          his back!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The question was whether or not Shimon can
               collect property that Yehudah later acquired, and
               then sold or bequeathed it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Chana - Mishnah):</font></b> ...Levi's heirs say that
          Reuven died first, and the creditors say that Levi died
          first (so they can collect it).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a lender cannot collect property that the
               borrower later bought and sold or bequeathed, even
               if Levi died first and Reuven inherited, they cannot
               collect from the heirs (who inherited from Reuven)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection #1 (Rav Nachman citing Ze'iri):</font></b> The creditors
          do not collect due to the lien, rather because it is a
          Mitzvah for orphans (or other heirs) to pay the debt of
          their father (the one they inherited from).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection (Rav Ashi):</font></b> The Mitzvah to pay the father's
          debt is from inherited land on which there was a lien. If
          we would say that there is no lien on this land (since
          Reuven acquired it after the loan), there would be no
          Mitzvah to pay!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav and Shmuel):</font></b> A loan without a document
               cannot be collected from one who inherited or bought
               from the borrower.
<br>
<br>

sjt:
<font><b>1) A LIEN ON PROPERTY THAT THE BORROWER HAS NOT YET ACQUIRED</b></font><b>
<br>QUESTION:</b> The Gemara discusses the Halachah that a person who loaned money with a Shtar may collect the borrower's field as repayment for the debt, since he has a lien on the borrower's properties until the loan is paid back. Shmuel questions whether a borrower may stipulate in the Shtar that the lender will obtain a lien not only on the fields he presently owns but even on fields that he will acquire in the future. The Gemara states that according to Rebbi Meir, who maintains that a person can acquire a 'Davar she'Lo Ba l'Olam,' a borrower certainly may create a lien on fields he will own in the future. Shmuel's question is only according to the Chachamim who disagree with Rebbi Meir.
</p><p>
What is the basis for Shmuel's question? The Chachamim maintain that a person cannot acquire a 'Davar she'Lo Ba l'Olam.' Why should Shmuel entertain the possibility that, according to the Chachamim, a person can create a lien on property that he does not yet own?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> (DH Ela) explains that Shmuel's question is whether there is a difference between the creation of a lien and the acquisition of a field. The Rashbam adds the words, 'and the reason is as I have explained.' It is not clear to which previous explanation the Rashbam refers. The <b>RASHASH</b> suggests that the Rashbam refers to the fact that land that the borrower will buy in the future is not absolutely a 'Davar she'Lo Ba l'Olam,' since the land itself already exists; it just has not yet come into the possession of the borrower. Shmuel's question, therefore, is whether land that the borrower has not acquired yet (and does not presently plan on acquiring), but which <i>does</i> exist, has the status of a 'Davar she'Lo Ba l'Olam.'
</p><p>
The Rashash rejects this explanation based on the Gemara earlier (141b). The Gemara there says that according to Rebbi Meir, a person may perform a transaction on something that exists but is not yet in his possession. The Gemara implies, however, that this is logical according to the opinion of Rebbi Meir, but <i>not</i> according to the Chachamim. The Rashbam himself (141b, DH Eimur) illustrates this with an example. According to Rebbi Meir, a person may give money of Kidushin to a Nochris and stipulate that she will be Mekudeshes to him after she converts. Since she already exists (but is merely not yet Jewish), she is not considered a 'Davar she'Lo Ba l'Olam.' Why, then, does the Rashbam here suggest that the Rabanan agree to such a Halachah? The Rashash suggests that the two cases may be different, but he does not explain how they differ from each other.
</p><p>
(b) The Rashbam gives a second explanation for Shmuel's question. He explains that although the Rabanan maintain that a person cannot buy or sell a 'Davar she'Lo Ba l'Olam,' perhaps they rule leniently with regard to loans and allow a borrower to create a lien on a 'Davar she'Lo Ba l'Olam,' in order to make it easier for borrowers to obtain the money they need from lenders. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHAT CAN MINORS SELL?</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'> 155b (Mishnah):</font></b> If Pa'utos (mature children) buy or
               sell Metaltelim, it is valid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 157a (Beraisa - R. Meir):</font></b> R. Eliezer says, we can be
               Mezakeh for an adult, but not for a minor (who could
               not acquire for himself);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehoshua says, we can be Mezakeh for an adult,
               and all the more so for a minor!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yehudah says, R. Eliezer says that we can be
               Mezakeh for a minor, but not for an adult, and R.
               Yehoshua says that we can be Mezakeh for a minor,
               and all the more so for an adult!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Gitin 59a (R. Yochanan):</font></b> This was so they can buy
               Kedei Chayav (life essentials).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> What is the largest error that does not
               invalidate transactions of Pa'utos?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (R. Yonah):</font></b> They may err up to a sixth of the
               value, like for an adult.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question (Abaye):</font></b> Can Pa'utos give gifts?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #1 (Rav Yemar):</font></b> They cannot.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Mar bar Rav Ashi):</font></b> They can. This is
               whether the child is healthy or Shechiv Mera (sick
               and fears lest he die), whether the gift is large or
               small.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kesuvos 70a (Rafram):</font></b> If Pa'utos have an overseer,
               their sale is invalid.
<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 (Gitin 27b and 6:23):</font></b> The purchase and
               sale of Pa'utos are valid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Chananel (citing Rav Hai Gaon, brought in Rosh,
               ibid.):</font></b> We asked whether or not Pa'utos can give
               gifts (regarding the Mishnah Gitin 59a, which
               discusses) when there is no overseer (in which case
               they can sell). This implies that that when they
               cannot sell, obviously they cannot give.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rosh):</font></b> This is not a proof. When there is
               an overseer, he buys and sells for them, therefore
               they cannot. An overseer may not give gifts! People
               give gifts only because someone pleased them.
               Therefore, Pa'utos can give even when there is an
               overseer (in order that others will do favors for
               them).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> Children cannot sell or give
                    land that they inherited until they are 20
                    years old.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (Gitin 5:19):</font></b> Rav Hai Gaon says that Chachamim
               enacted that Pa'utos can buy and sell Kedei Chayav.
               Rav Hai adds that if there is much money, it seems
               that we give them a little merchandise so they can
               learn business, even though this is not essential.
               The Ramban says that once Chachamim enacted that
               Pa'utos can buy and sell, they can buy and sell
               anything. They can give gifts, even though this is
               not Kedei Chayav, in order that people will do
               favors for them. The Sugya of money entrusted to a
               third party also connotes that Chachamim did not
               limit the enactment.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Mordechai (Gitin 397, brought in <b>SMA</b> CM 235):
                    We find that Chachamim permitted other things
                    for the sake of livelihood, e.g. bread of
                    Nochrim and lending to Nochrim on interest,
                    even more than is needed for livelihood.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rivash (109, brought in Beis Yosef CM 235 DH
                    u'Mah she'Chosav b'Shem):</font></b> The Rambam and others
                    equate gifts to sales. Just like he cannot sell
                    even Metaltelim when he has an overseer, he
                    cannot give. The Rambam holds that he can give
                    with the overseer's consent, even though the
                    overseer himself cannot give.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Mechirah 29:6):</font></b> Until six years, a
               child cannot be Makneh anything to others. From six
               until adulthood we check him. If he understands
               buying and selling, his purchase, sale and gift of
               Metaltelim are valid, for big and small matters.
<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 235:1):</font></b> A minor cannot sell or
               give land until he matures (13 or 12 for a boy or
               girl, with two hairs), even if he received the land
               for a gift, or the overseer bought it for him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (12, and Drishah 10):</font></b> If a minor himself
                    bought land, since he can demand his money back
                    it is like Metaltelim, and he can sell or give
                    it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even if the child gave it through a Matanas Shechiv
               me'Ra, even if he was given the land, it is void,
               even if he is proficient about buying and selling.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (13):</font></b> Chachamim enacted special powers of
                    Matanas Shechiv me'Ra, lest anguish (over
                    inability to give a gift) precipitate death.
                    One might have thought that for this reason,
                    even a minor can give land. There is no Mitzvah
                    to fulfill the words of a deceased minor.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> However, as long as the child is happy with
               his sale, and his relatives or Beis Din did not
               annul his act, and the buyer ate the produce of the
               land he bought, he need not pay for what he took.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (14):</font></b> The (Rashba, attributed to the)
                    Ramban (Teshuvah 2) says that a minor's sale is
                    totally Batel. Even if he did not protest, his
                    relatives or Beis Din can remove the buyer from
                    the land. If the minor went away, the buyer may
                    not eat the Peros. However, if the minor wants
                    the sale to stand, and the buyer ate the Peros,
                    we do not make them return them. Even if the
                    minor retracts later and says that he thought
                    that the gift was valid and he mistakenly
                    pardoned the Peros, mistaken pardon in a sale
                    takes effect. This is especially if the minor
                    authorized him to eat. Pardoning Peros is like
                    a gift (of Metaltelim), which is valid. The
                    Rambam (Mechirah 29:17) and Shulchan Aruch
                    (Sa'if 14) require the buyer to return the
                    Peros. We can say that this is like the Ramban
                    if the buyer did not eat in front of the minor,
                    or if he ate in defiance of his protest.
                    However, it seems that whenever the minor and
                    his relatives are here and do not protest, this
                    shows approval, and the buyer may eat.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If he inherited a loan
               document from his father, it is like Metaltelim, and
               he can sell or give it to someone else.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> Rosh (85:10), cited in Beis Yosef (DH
                    u'Mah she'Chosav b'Shem).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (15):</font></b> One might have thought that he cannot
                    sell it, for documents are like land in most
                    respects. The Ritva says that he cannot sell it
                    because it is Mili (intangible), and it can be
                    sold only through writing (another document)
                    and handing it over, and Chachamim did not
                    enact these for minors.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHICH MINORS CAN BUY AND SELL? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection #2 (of Answer #1):</font></b> The Mishnah is like R.
          Meir, who says that one can be Makneh Davar she'Lo Ba
          l'Olam;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The question was according to Chachamim.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (R. Yakov of Nehar Pekod - Mishnah):</font></b> Predated
          loan documents are invalid. Postdated loan documents are
          valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a lender cannot collect property that the
               borrower (Daniel) later bought and sold or
               bequeathed, why are postdated loan documents valid?
               Perhaps Daniel acquired property after the loan and
               before the date, and sold or bequeathed it. Since
               the date on the document is after Daniel acquired
               the property, Daniel's creditor will collect the
               property (but he is not entitled to)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Mishnah is like R. Meir, who says that
          one can be Makneh Davar she'Lo Ba l'Olam.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #3 (Rav Mesharshiya - Beraisa):</font></b> Compensation for
          improvements: if Aharon sold a field to Kalev, and Kalev
          improved it, and Aharon's creditor took it, Kalev can
          collect what he paid from property that Aharon sold. He
          collects the value of the improvements only from Aharon's
          Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a lender cannot collect property that the
               borrower later bought and sold or bequeathed, why
               can the creditor take the improvements from Kalev?
               (Since there is a lien on the land, it is as if the
               borrower acquired the improvements (and this was
               after the loan), and the creditor collects this from
               the buyer!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection:</font></b> The Beraisa is like R. Meir, who says that
          one can be Makneh Davar she'Lo Ba l'Olam.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE LIENS OF TWO CREDITORS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	The following question applies only if you will say a
          lender <i>can</i> collect property that the borrower later
          bought and sold or bequeathed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> If Yehudah borrowed from Shimon and then from
          Levi, and acquired property, does Shimon have a lien on
          it (to collect from one who buys or inherits from
          Yehudah), or Levi?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman citing Chachamim of Eretz
          Yisrael):</font></b> Shimon has a lien.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Huna and Rabah bar Avuha):</font></b> They both
          have liens (each collects proportionally to his loan).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Ravina:</font></b> At first, Rav Ashi said that Shimon has a lien.
          Later, he said that they both have liens.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah is, they both have liens.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Compensation for improvements:
          Aharon sold a field to Kalev; Kalev improved it, and
          Aharon's creditor (Yakov) took it. Kalev can collect what
          he paid from sold property, he collects the improvements
          from Bnei Chorin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since Kalev is entitled to collect his
               improvements, he is like a second creditor (for this
               amount). Yakov should collect only half of the
               improvements (and Kalev 'collects' (i.e. keeps) the
               other half)!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, the Beraisa means that Yakov collects
          half the improvements.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'MAHADURA KAMA' AND 'MAHADURA BASRA'</b></font><b>
<br>OPINIONS:</b> The Gemara says that Rav Ashi ruled one way in his 'Mahadura Kama,' and he ruled another way in his 'Mahadura Basra.' What is the definition of these terms?
</p><p>
(a) <b>RABEINU GERSHOM</b> explains that the 'Mahadura Kama' is the way Rav Ashi learned the subject when he was younger. The 'Mahadura Basra' is the way he learned the subject when he was older.
</p><p>
(b) The <b>RASHBAM</b> (DH Mahadura Basra) quotes <b>RAV HAI GA'ON</b> who explains simply that the 'Mahadura Kama' refers to the first time Rav Ashi learned the subject, and the 'Mahadura Basra' refers to the second time he learned the subject.
</p><p>
(c) The Rashbam quotes <b>RABEINU CHANANEL</b> who explains that Rav Ashi taught for sixty years in the Yeshiva. (Although the Rashbam says that he 'lived' for sixty years, the <b>YA'AVETZ</b> and <b>RASHASH</b> point out that this is clearly not what the Rashbam means.) Rav Ashi always reviewed his learning during the months of the 'Kalah,' Nisan and Tishrei. After thirty years, he finished all of his learning. He then reviewed again and finished his learning after another thirty years (after which he apparently passed away). The 'Mahadura Kama' was the way he learned and taught the subject during the first thirty years, and the 'Mahadura Basra' was the way he learned and taught it during the last thirty years.
</p><p>
A similar explanation is given by <b>RAV SHERIRA GA'ON</b> (#104). He says explicitly that this was not Rav Ashi's personal learning. There was a decree of the Rabanan at the time to learn approximately two Masechtos a year and to finish Shas every thirty years. The 'Mahadura Kama' refers to the first thirty years in which Rav Ashi undertook this program, and the 'Mahadura Basra' refers to the last thirty years. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A DOUBT ABOUT WHO DIED FIRST</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - Beis Shamai):</font></b> If a house fell on Reuven and
          his wife, and Reuven's heirs say that she died first (so
          Reuven inherited all her property), and her heirs say
          that he died first (so they inherit her property and her
          Kesuvah), they divide the disputed amount;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Beis Hillel say, we leave the property in its Chazakah
          (this will be explained);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> His heirs are Muchzak in the Kesuvah. Her
               father's heirs are Muchzak in the (Melug) property
               that she brought into the marriage and gets back
               (without compensation if she is widowed or
               divorced).
<br>
<br>

sjt:
<font><b>1) THE HEIRS OF A MOTHER AND HER SON WHO DIED</b></font><b>
<br>QUESTION:</b> The Mishnah discusses a case in which a house fell on a man and his mother and killed them both, but it is not known which of them died first. The son's heirs (such as his brothers from a different mother) claim that the mother died first and her son (their half-brother) inherited her property, and thus they are entitled to her property since they inherit their brother. The mother's heirs (such as her brothers) claim that the son died first, and the mother's property therefore was not inherited by her son, so they are entitled to it. The Mishnah teaches that Beis Shamai and Beis Hillel agree in such a case that the mother's property is divided between her heirs and her son's heirs.
</p><p>
The <b>RASHBAM</b> writes that the case of the Mishnah cannot be a case in which the mother had another son from a different father (and he is the mother's heir who claims the property). In such a case, Beis Shamai and Beis Hillel would not rule that the property of the mother is divided between the two sons; rather, they would rule that her living son inherits all of the property, and the heirs of the son who died with her (i.e. his brothers from the same father but from a different mother) receive nothing. The Rashbam explains that the living son is <i>definitely</i> (Vadai) entitled to inherit at least a share of his mother's property regardless of who died first. If the mother died first, then her living son would inherit half of the property, while her deceased son's heirs would inherit the other half; if the son died first, then her living son would inherit all of the property. Since the living son is definitely entitled to receive some of her property, he has a claim of 'Vadai,' while the other son's heirs have only a claim of 'Safek' (for they would inherit the property only if the mother died first, whereas if her son died first they would not be entitled to any of the property), and there is a rule that 'Ein Safek Motzi mi'Yedei Vadai' -- a claim of uncertainty cannot prevail over a claim of certainty.
</p><p>
<b>TOSFOS</b> rejects the Rashbam's explanation based on many sources that teach that a person who has a definite claim to only part of an object or property does <i>not</i> have a claim of certainty to the rest of the property. Furthermore, Tosfos argues that there seems to be no logical reason for a claim of certainty on one part of a property to strengthen a claim of <i>uncertainty</i> on another part. In the case of the Mishnah here, the living son's claim of certainty is only on half of the mother's property (for he would inherit that half regardless of whether she died first). His claim to the second half of the property is a claim of uncertainty, since he would inherit that half only if the mother died first. Thus, the living son's claim to that half of the property is no stronger or weaker than the claim of the dead son's heirs, and they therefore <i>should</i> divide that property, as the Mishnah states. Indeed, this is the way the <b><b><b>RI</b></b></b> cited by Tosfos explains the case of the Mishnah.
</p><p>
How can the view of the Rashbam be understood? On what basis does the Rashbam state that the living son's claim of certainty on half of his mother's property makes his claim on the other half also a claim of certainty?
</p><p>
<b>ANSWER:</b> The Acharonim (see <b>CHIDUSHEI HA'GA'ON RAV NAFTALI TROP</b> #192) explain that the dispute between the Rashbam and Tosfos revolves around the status of the estate before it is divided. The Rashbam and Tosfos are consistent with their views elsewhere (see Insights to Bava Basra 126:1).
</p><p>
An estate before it is divided is called, 'Tefusas ha'Bayis.' Tosfos maintains that the Tefusas ha'Bayis is considered like property jointly owned by partners; each of the brothers owns a part of the estate, but it has not yet been clarified which heir owns which part of the property. Tosfos understands that since each of the brothers owns only a portion of the estate, the living son has definite ownership of only part of the estate, and his claim to that part does not strengthen his claim to the other part.
</p><p>
The Rashbam disagrees and maintains that the heirs to an undivided estate are <i>not</i> comparable to partners. In a normal partnership, each partner owns only a portion of the property. In the case of the Tefusas ha'Bayis, each heir owns the <i>entire</i> estate jointly with all of the other heirs. Accordingly, in the case of the Mishnah here, the living son has a claim of certainty to <i>the entire estate</i> due to his definite ownership of part of it. Therefore, the principle of 'Ein Safek Motzi mi'Yedei Vadai' applies. The Rashbam would agree, however, that in all of the cases that Tosfos cites (none of which are cases of Yerushah, inheritance), when a person has a claim of certainty to part of an object it does not strengthen his claim of Safek to the other part.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES ONE INHERIT IN THE GRAVE?</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'> 114b:</font></b> The Mishnah teaches that a mother bequeaths to
               her son, and also that a son inherits his mother!
               The repetition equates a son to a husband. Just like
               a dead man does not inherit his wife (to pass her
               property to his heirs), also a dead son does not
               inherit his mother to bequeath to his paternal
               brothers.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (R. Yochanan citing R. Yehudah b'Rebbi Shimon):
               'Matos' equates the mother's and father's tribes.
               Just like a father inherits his son, also a mother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 158b (Chachamim of Eretz Yisrael):</font></b> If Reuven
               borrowed from his father (Yakov) in Yakov's
               lifetime, and he died; Reuven takes from the buyers.
               This is among the most difficult monetary laws.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objections:</font></b> Why does borrowing entitle him to take
               from buyers? Also, the teaching did not mention that
               anyone bought anything!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, Reuven sold Yakov's property in
               Yakov's lifetime, and Reuven died. After Yakov dies,
               Reuven's son takes from the buyers. This is
               difficult. Why can't the buyers say 'you do not
               inherit what your father sold!'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Objection:</font></b> This is not difficult! His son can say 'I
               do not take due to Reuven. Rather, I inherit Yakov -
               'Tachas Avosecha Yihyu Vanecha.''
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> 'Tachas Avosecha... ' does not teach that
               one directly inherits his grandfather. It is just a
               blessing (you will have children to inherit you).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> It is not just a blessing. The law is
               true!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> A house fell on Reuven and his
                    father Yakov or Morishav (someone else whom
                    Reuven inherits). Reuven left creditors. The
                    creditors say that Yakov died first (and Reuven
                    inherited him, so they collect from the Yakov's
                    property). Yakov's heirs say that Reuven died
                    first.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Yakov's heirs are Reuven's sons.
                    'Morishav' is Reuven's brother. If a grandchild
                    does not directly inherit his grandfather, the
                    verse is merely a blessing. Even if Reuven died
                    first, the creditors should collect, for the
                    property passes to Reuven before it goes to
                    Reuven's sons!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> No, Yakov's heirs are Reuven's brothers.
               'Morishav' is Reuven's uncle. (However, if Yakov's
               heirs were Reuven's sons, the creditors would
               collect no matter who died first.)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Question:</font></b> If a woman died after her son, does he
               'inherit' her in the grave, i.e. to pass her
               property to his paternal brothers?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer (Rav Acha bar Minyomi - Mishnah):</font></b> If a house
               fell on Reuven and his mother, his heirs divide her
               property with her heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If a son inherits in the grave, even if the son
                    died first, he inherits his mother to pass her
                    property to his paternal brothers!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Abaye):</font></b> A son does not inherit in the grave,
               because the Torah mentions transfer of inheritance
               (to another tribe) regarding a son and a husband who
               inherit). Just like a husband in the grave does not
               inherit his wife, also a son.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Bava Kama 108b (Mishnah):</font></b> If Reuven stole from his
               father, swore falsely to him, and his father died,
               he pays to his children or brothers.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (8:6):</font></b> A son does not inherit his
               mother in the grave
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 1:13):</font></b> A son does not
               inherit his mother in the grave, i.e. to pass her
               property to his paternal brothers. If Reuven died,
               and afterwards his mother died, we do not say that
               since if he were alive, he would inherit her before
               anyone else, also now his heirs inherit her before
               anyone else. If so, his paternal brothers would
               inherit her. Rather, if her son has descendants,
               they inherit her. If not, her inheritance goes to
               her father's family.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Likewise, he does not inherit to
                    bequeath to his father, e.g. if his mother was
                    divorced. The Rashba says so; this is clear.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Ashri (9:38):</font></b> The Gemara concludes that
                    'Tachas Avosecha' is a Berachah, so the
                    Halachah is difficult, but it is the Halachah.
                    The Rashbam explained regarding a sale, but the
                    same applies to a lien. If property fell to
                    Reuven after his death from his mother's
                    father, his paternal brother can inherit only
                    due to Reuven, therefore Reuven's creditor
                    collects from the property.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Tosfos (Bava Kama 108b DH l'Vanav):</font></b> If Reuven stole
               from his father Yakov and swore falsely, and Yakov
               died, Reuven pays (the share that he would have
               inherited) to his <i>own</i> children or brothers (if he
               has no children). We view it as if Reuven died, and
               his children inherit Yakov with Reuven's brothers.
               They inherit due to Yakov, not due to Reuven, like
               it says in Bava Basra 'Tachas Avosecha Yihyu
               Vanecha.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chazon Ish (ibid.):</font></b> This shows that we conclude
                    that 'Tachas Avosecha...' is not merely a
                    Berachah, and a grandchild has his own Zechus
                    to inherit. He does not merely inherit from his
                    father (for here, Reuven may not take the
                    property). However, one could say that Reuven
                    bequeathed to his children the Zechus to
                    inherit.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Tosfos (114b DH Af):</font></b> R. Yehudah b'Rebbi Shimon
               teaches that a convert inherits her son (when there
               are no other heirs).
<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 104:16):</font></b> If David borrowed and
               had no money to pay, and a house fell on him and
               Morishav, and his children say 'our father died
               first, and inherited in the grave. The creditor does
               not collect' (Rema - for a creditor does not collect
               from Ra'uy), and the creditor says 'Morishav died
               first, and I may collect from the property', the
               Halachah follows the heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Pischei Teshuvah 14):</font></b> Hagahos Ashri
                    says that If property fell to Reuven after his
                    death from his mother's father, his paternal
                    brother can inherit only due to Reuven, so
                    Reuven's creditor collects. A dead son does not
                    inherit his mother to bequeath to his paternal
                    brothers!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (Dagul me'Revavah):</font></b> The case is, his
                    mother is a convert without heirs. Therefore,
                    her son inherits her in the grave to bequeath
                    to his paternal brothers. If not, the property
                    would be Hefker. We find such a distinction:
                    normally, a mother does not inherit her son,
                    but a convert inherits her son (Tosfos). The
                    Shach (21, and 280:3) rules like Hagahos Ashri.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #2 (Tumim 14):</font></b> The Maharil (2) says that
                    Maharam says that if Yakov died and there was a
                    lien on his property to pay his wife's Kesuvah,
                    and afterwards his son Levi died and the lien
                    was lifted, Levi's wife does not collect from
                    Yakov's property. This is because in Levi's
                    life it was only Ra'uy, due to the lien.
                    However, in Shevuos, Maharam ruled that if
                    Reuven died and left a daughter, and she died
                    and the lien to pay a Kesuvah to Reuven's wife
                    was lifted, his daughter's husband inherits,
                    even though a husband does not inherit Ra'uy!
                    Also the Rosh says that a Bechor inherits
                    double from property on which there was a lien
                    to pay a Kesuvah. The Maharil (74) says that
                    some things are considered Muchzak regarding
                    inheritance, which is automatic, but for a
                    creditor, who seeks to take property, they are
                    considered Ra'uy. This answers the questions.
                    Hagahos Ashri discusses when there was a
                    Kesuvah against the grandfather's property. It
                    is a Zechus for an heir to consider the
                    property Muchzak, and he can opt to consider it
                    Ra'uy. E.g. one can say 'my grandfather's
                    property was Ra'uy, so my father's creditor has
                    no claim on it. I inherit my grandfather.' This
                    is why he discussed a paternal brother, who can
                    inherit only from his dead brother.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Nesivos ha'Mishpat (1):</font></b> All agree that a son
                    inherits Ra'uy! Rather, the Ketzos ha'Choshen
                    (15) explains that the claim 'I inherit my
                    grandfather' is not enough, for the creditor
                    can say 'your father inherited first, so I have
                    a lien due to him.' Therefore, we must also say
                    that it is Ra'uy, and a creditor does not
                    collect from Ra'uy. 'I inherit my grandfather'
                    dispels the Mitzvah to pay one's father's debts
                    (from what he inherited from his father).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #3 (Chazon Ish Bava Kama 15:8):</font></b> Paying a
                    creditor is as if the son himself consumes the
                    money. Therefore, a son can inherit his mother
                    in the grave to pay his creditor! Indeed, if
                    the Halachah were that a Mes never inherits in
                    the grave to pay his creditor, rather, the
                    living inherits the last one to die, one would
                    not inherit in the grave to pay his creditor.
                    However, the Gemara says that the Mes <i>should</i>
                    inherit in the grave to pay his creditor, just
                    the heir can claim 'I inherit my grandfather;
                    the Mes never inherited.' Here, Reuven's
                    brothers can inherit only through him,
                    therefore, the creditor collects. Even though
                    there is no lien on the property, and it is a
                    mere Mitzvah mid'Rabanan for the heirs to pay,
                    Chachamim consider the property to belong to
                    the Mes when the heirs can inherit only through
                    the Mes. If a convert's son died, and then his
                    father died, the son inherits him for the son's
                    creditor to collect from, even if the son has
                    no heirs. Chachamim obligated orphans to pay
                    their father's debt, lest he fulfill 'a Rasha
                    borrows and does not pay.'
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Question (R. Akiva Eiger 138):</font></b> Sefer ha'Terumos
                    says that if a Shechiv Mera gave property to
                    one of his nephews, we do not say that the
                    nephew comes from his grandfather's rights. Why
                    did the Poskim omit this?
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Answer (Pischei Teshuvah 14):</font></b> The Shulchan
                    Aruch holds that a creditor does not collect
                    from Ra'uy, so in either case he does not
                    collect. However, according to Sefer ha'Terumos
                    the nephew is obligated to pay the debt of his
                    father. He cannot say 'I directly inherit my
                    uncle.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 276:5):</font></b> A son does not inherit
               his mother in the grave, to pass her property to his
               paternal brothers. If Reuven died, and later his
               mother died, we do not say that since if he were
               alive, he would inherit her, also now if he has no
               descendants, his paternal brothers inherit her.
               Rather, her inheritance goes to her father's family,
               since her son has no descendants.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW DOES INDIRECT INHERITANCE WORK? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Who is Muchzak in the property?
          (Beis Hillel specified who is Muchzak in the Kesuvah and
          Nichsei Melug, so 'the property' must refer to Tzon
          Barzel, i.e. property she brought into the marriage and
          he accepted to return its initial value if she is widowed
          or divorced.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> His heirs are Muchzak.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (R. Elazar):</font></b> Her heirs are Muchzak.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Reish Lakish):</font></b> The heirs of both divide it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support.   (Bar Kapara - Beraisa):</font></b> Since both have a
          claim to inherit, they divide it.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a house fell on Reuven and his mother (we
          do not know who died first. If she died first, he
          inherited her). Beis Shamai and Beis Hillel agree that
          his heirs divide her property with her heirs;
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	R. Akiva says, here also, Beis Hillel say that we leave
          the property in its Chazakah (this will be explained).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Ben Azai:</font></b> It is bad enough that they argue in the
          previous Mishnah. Must you make an argument also here?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Who is Muchzak in her property?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (R. Ila):</font></b> Her heirs are Muchzak.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (R. Zeira):</font></b> His heirs are Muchzak.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	When R. Zeira went to Eretz Yisrael, he retracted, and
          held like R. Ila.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Zeira:</font></b> This shows that the air of Eretz
               Yisrael makes one wise.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is R. Ila's reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> The property is Muchzak in her
               tribe.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #3 (Reish Lakish):</font></b> The heirs of both divide it.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(Mishnah - Ben Azai):</font></b> It is bad enough that they argue
          in the previous Mishnah, must you make an argument here
          also?!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	(R. Simla'i):</font></b> Since he said 'you' (and not 'Rabbeinu'),
          we learn from this that Ben Azai was a Talmid (who later
          became a) Chaver of R. Akiva.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A DIFFICULT MONETARY LAW</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Chachamim of Eretz Yisrael):</font></b> If Reuven borrowed from
          his father (Yakov) in Yakov's lifetime, and he died;
          Reuven takes from the buyers (this will be corrected and
          explained). This is among the most difficult monetary
          laws.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A DIFFICULT MONETARY LAW (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection #1:</font></b> Why does borrowing entitle him to take
          from buyers?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection #2:</font></b> The teaching did not mention that anyone
          bought anything!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Correction - Version #1:</font></b> Rather, Reuven sold his
          father's property in Yakov's lifetime, and Reuven died.
          After Yakov dies, Reuven's son (Chanoch) takes from the
          buyers;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	This is among the most difficult monetary laws. Why
          can't the buyers say 'you do not inherit what your father
          sold!'?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not difficult! Chanoch can say 'I do
          not take because I inherit Reuven, rather, because I
          inherit Yakov.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> 'Tachas Avosecha Yihyu Vanecha' (your
               sons will be in your father's stead, i.e. one
               directly inherits his grandfather if his father died
               first).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Correction - Version #2:</font></b> Rather, the following was
          considered difficult.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	If a firstborn (Reuven) sold his extra portion in
          Yakov's lifetime, and Reuven died, Reuven's son Chanoch
          takes from the buyers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is among the most difficult monetary laws.
               Why can't the buyers say 'you do not inherit what
               your father sold!'?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Chanoch can say 'I do not take
                    because I inherit Reuven, rather, because I
                    inherit Yakov.'
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> The law is true even if he
                    (Rashbam - Chanoch; R. Gershom - Yakov) is not
                    a firstborn, surely the extra portion is due to
                    Reuven!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not difficult! Chanoch can say 'I
          inherit Yakov. I am in place of my father, therefore I
          get the extra portion!'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Correction - Version #3:</font></b> Rather, the following was
          considered difficult.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	Shimon signed on a document for Moshe before Shimon
          stole. Later, he stole. Shimon cannot verify his
          signature, but others can testify about it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is among the most difficult monetary laws.
               Since we do not trust Shimon, why does it help if
               others recognize his signature? (Perhaps he did not
               sign on the date of the document, rather, later,
               after he stole!)
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not difficult! Perhaps the case is,
          we saw the signatures on the document before Shimon
          stole!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Correction - Version #4:</font></b> Rather, the following was
          considered difficult.
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Shimon signed on a document for Moshe before he
          inherited (Rashash - was standing to inherit) Moshe, then
          he inherited Moshe (Rashash - became his heir, e.g.
          Moshe's heir died). Shimon cannot verify his signature,
          but others can testify about it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is among the most difficult monetary laws.
               Since we do not trust Shimon, why does it help if
               others recognize his signature? (Perhaps he signed
               after he inherited (or became an heir)!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Objection (#1):</font></b> This is not difficult! Here also, the
          case is, we saw the signatures on the document from
          before this!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Correction - Version #5:</font></b> Rather, the following was
          considered difficult.
<br> <b>    <b><font color='darkgreen'>(p)</font></b></b>  	Shimon signed on a document for Moshe before he became
          Moshe's son-in-law, then he became his son-in-law. Shimon
          cannot verify his signature, but others can testify about
          it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why does it help if others recognize his
               signature (perhaps he signed after he became his
               son-in-law!)?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Perhaps here also, we saw the
                    signatures on the document from before this!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> Rav Yosef bar Minyomi taught
                    that the law applies even if we did not see the
                    signatures on the document before this!
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Objection:</font></b> This is not difficult! Perhaps the Torah
          decreed that a relative is not believed, even though we
          do not suspect that he would lie! (This is also Objection
          #2 to Version #4.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> Moshe Rabbeinu and Aharon ha'Kohen could
               not testify together, even though we do not suspect
               that they would lie. Rather, the Torah decreed that
               relatives are not believed.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW DO GRANDCHILDREN INHERIT?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Conclusion:</font></b> Really, Version #1 was correct. (Reuven
          sold Yakov's property. Reuven died, and then Yakov died.
          Chanoch takes from the buyers. It is difficult, for they
          should be able to say 'you do not inherit what your
          father sold!')
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Tachas Avosecha Yihyu Vanecha' does not teach
               that a grandchild directly inherits his grandfather.
               Rather, it is merely a blessing (that a Tzadik will
               have children to inherit him).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> It is not merely a blessing. The law is true!
<br>
<br>

sjt:
<font><b>1) DIFFERENT TYPES OF 'RESHA'IM'</b></font><b>
<br>OPINIONS:</b> The Gemara quotes two Halachos that are very similar. One Halachah states that if a person signed a document as a witness and then became a 'Gazlan' -- a thief who is unfit to testify -- he cannot testify that the signature on the document is his in order to verify that he witnessed the transaction. Although the Gemara first implies otherwise, the Gemara concludes that even <i>other</i> people cannot testify merely that they know his signature and thereby validate the document. The <b>RASHBAM</b> (DH Aval Acherim) explains that even if they <i>do</i> verify his signature, the Rabanan suspect that he may have signed the document on the day it came to court and not when the transaction took place.
</p><p>
The second case is almost identical, except that the witness in that case becomes the father-in-law of the person on the document, and he thus becomes unfit to testify because he is a relative, but not because he is a Rasha. However, in this case the Gemara says that other people can verify the father-in-law's signature. What is the difference between testifying about a Rasha's signature and testifying about a father-in-law's signature?
</p><p>
The Rashbam (DH Af Al Pi) apparently addresses this question. He explains that a thief is unfit to testify because he may lie for monetary benefit, and thus he is suspected of willfully signing a forged document. In contrast, there is no reason to suspect that a father-in-law would forge a signature. It is merely a Gezeiras ha'Kasuv that a man may not testify on behalf of his relative, as the Gemara concludes that even Moshe Rabeinu and Aharon ha'Kohen would not be allowed to testify for their fathers-in-law, even though they certainly would not be suspecting of lying. This explanation is supported by <b>TOSFOS</b> (DH v'Af Al Pi) who infers from the Gemara that when two witnesses on a Shtar subsequently become relatives, others may testify about their signatures and there is no need to suspect that they forged the document.
</p><p>
What is the law, in the cases of the Gemara here, if the witness signed on the Shtar becomes unfit to testify as a result of becoming a Rasha, but not because of a money-related sin? Is such a person comparable to a relative, since there is no reason to assume that he is dishonest about money, or is he comparable to a thief? The <b>BEIS YOSEF</b> (CM 46) addresses this question but reaches no conclusion.
</p><p>
(a) The <b>KETZOS HA'CHOSHEN</b> (CM 46) writes that it is logical that a Rasha who is not suspected of sinning for monetary gain is <i>not</i> considered like a thief. The reason why such a Rasha is unfit to testify is a Gezeiras ha'Kasuv, as the Torah says, 'Do not place your hand with the wicked to be a thieving witness' (Shemos 23:1). This is similar to a father-in-law, who is unfit to testify only because the Torah says so, but not because of any suspicion that he will lie. Without the Gezeiras ha'Kasuv, the Rasha should be believed. Therefore, if a witness who signed a Shtar later becomes an evildoer but is not suspected of dishonesty in monetary matters, people may verify that the signature on the document is his signature, and there is no concern that he signed a forged document. This is also the opinion of the <b>GEVUROS ARI</b> in Makos (5b).
</p><p>
(b) However, the <b>MILU'EI HA'CHOSHEN</b> quotes many Rishonim (including the <b>YAD RAMAH</b>) who argue that the reason why <i>any</i> Rasha is unfit to testify is that he is suspected of lying. If he is suspected of lying, he also should be suspected of helping to forge a document, and therefore others may not testify about his signature. One apparent proof for this position is the Halachah that one who is unfit to testify may not take an oath. If the reason why a Rasha is unfit to testify is simply a Gezeiras ha'Kasuv but he essentially is trustworthy, then why may he not take an oath (<b>CHIDUSHEI HA'RIM</b> CM 34:9)? According to this opinion, the Gemara's ruling in the case of a thief should apply as well to anyone who becomes a Rasha. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A CREDITOR COLLECT FROM RA'UY?</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'> 157a (Mishnah):</font></b> A house fell on Reuven and his
               father or Morishav (someone else whom Reuven
               inherits). Reuven left creditors. The creditors say
               that the father died first (and Reuven inherited
               him, so they may collect from the father's
               property). His father's heirs say that Reuven died
               first.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 159a:</font></b> If Reuven sold his father's property in
               Yakov's lifetime, and Reuven died, and Yakov died,
               Reuven's son (Chanoch) takes from the buyers. A
               Beraisa calls this law difficult, for the buyers
               should be able to say 'you do not inherit what your
               father sold!'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Objection:</font></b> This is not difficult! Chanoch can say 'I
               do not take because I inherit Reuven. Rather, I
               inherit Yakov - 'Tachas Avosecha Yihyu Vanecha.''
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> 'Tachas Avosecha Yihyu Vanecha' is merely a
               blessing (that a Tzadik will have children to
               inherit him).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> It is not merely a blessing. The law is
               true!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> A house fell on Reuven and his
                    father or Morishav. Reuven's creditors say that
                    the father died first...
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> The father's heirs are Reuven's
                    sons. 'Morishav' is Reuven's brother. If a
                    grandchild does not directly inherit his
                    grandfather, the verse is merely a blessing.
                    Even if Reuven died first, the creditors should
                    collect, for the property passes to Reuven
                    before it goes to Reuven's sons!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> No, the father's heirs are Reuven's
               brothers. 'Morishav' is Reuven's uncle.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Bechoros 51b (Mishnah):</font></b> A woman collects her Kesuvah
               from Muchzak, but not from Shevach (improvements
               made to the property) or Ra'uy (property that came
               to her husband after he died).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> A Bechor does not receive a double portion of
               Shevach, nor from Ra'uy for it says 'b'Chol Asher
               Yimatzei Lo' (at the time of death.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> Why does our Mishnah say that a woman does
               not collect Shevach? (She is like a creditor.)
               Shmuel taught that a creditor collects Shevach!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (R. Aba):</font></b> This is a weakness of rights to
               collect a Kesuvah.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kesuvos 55a (R. Yanai):</font></b> Stipulations of the Kesuvah
               are like the Kesuvah also regarding Shevach (they
               are not collected from it).
<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 Nachalos 5:8):</font></b> A house fell on
               Reuven and his father or another of Morishav. Reuven
               owed creditors. The father's heirs say that Reuven
               died first without property, so the creditors lost
               their debt. The creditors say that the father died
               first and Reuven inherited him, so they may collect
               from the father's property. The property is in the
               Chazakah of the heirs. The creditors must bring a
               proof, or they collect nothing.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Bechoros 8:11):</font></b> The Mishnah teaches that a
               woman does not collect her Kesuvah from Ra'uy. A
               Tosefta teaches that also damages are not collected
               from Ra'uy. This shows that the Mishnah does not
               teach a woman to exclude creditors; also creditors
               do not collect from Ra'uy. The Mishnah teaches only
               a woman, for she does not collect Shevach. This is
               unlike R. Efrayim, who says that this is like a
               leniency of Kesuvah, but creditors collect from
               Ra'uy. R. Chananel was unsure about this. A Mishnah
               (Bava Basra 157a) explicitly teaches this! The
               Gemara says that the father's heirs are Reuven's
               sons, who come to inherit their grandfather. This
               shows that a a creditor does not collect from Ra'uy,
               even if he wrote '(you will have a lien on) what I
               will acquire.' The Yerushalmi expounds from 'Meitav
               Karmo', but not from Ra'uy. E.g. Shimon dug a pit
               and it damaged in his lifetime. After he died,
               property fell to him (and Shimon's son inherited
               it). The verse teaches that the victim has no lien
               on the property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Gra CM 104:36):</font></b> Tosfos (159 DH v'Limru) says
                    that there is no proof that a creditor does not
                    collect from Ra'uy. The creditor does not
                    collect because grandchildren inherit directly
                    from their grandfather! However, the Yerushalmi
                    requires the verse to teach that one does not
                    collect from Ra'uy. The Ramban learns from
                    Kesuvos 55a, which says that Tanai Kesuvah are
                    like the Kesuvah regarding Shevach. It does not
                    say regarding Ra'uy (for no creditor collects
                    from Ra'uy).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Ramban (125b DH Od):</font></b> A creditor does not collect
               from Ra'uy. The borrower was unable to sell it, so
               he cannot put a lien on it!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (9:38):</font></b> If property fell to
                    Reuven after his death from his mother's
                    father, his paternal brother can inherit only
                    due to Reuven, therefore Reuven's creditor
                    collects from the property.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mordechai (574):</font></b> Even though a Ba'al (some
                    teextra share add the word 'Chov') and Bechor
                    are weak regarding debts (owed to him or his
                    father), and it is considered Ra'uy, a Kesuvah
                    is collected from a debt. If a worker did not
                    collect wages in his lifetime, all agree that
                    it is Ra'uy, and a Kesuvah or food is not
                    collected from it.
<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 104:16):</font></b> If David borrowed and
               had no money to pay, and a house fell on him and
               Morishav, and his children say 'our father died
               first, and inherited in the grave, the creditor may
               not take from the property' (Rema - because a
               creditor does not collect from Ra'uy), and the
               creditor says that Morishav died first and he may
               collect from the property, the Halachah follows the
               heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (36):</font></b> The Mordechai (Bava Basra 574) says
                    that a creditor does not collect from wages
                    that a worker did not receive in his lifetime
                    for this reason (a creditor does not collect
                    from Ra'uy). The Darchei Moshe says so in the
                    name of the Ramban. This is unlike the Beis
                    Yosef (107:3) brings from Sefer ha'Terumos
                    citing the Rosh (from Lun'il), that if he said
                    'you may collect from propery that I will
                    acquire', the creditor collects from property
                    that the borrower's children inherited from
                    their father. The Maharshal (Teshuvah 49) says
                    that a Shtar Chetzi Zachar (a document that
                    says that a son-in-law will receive half as
                    much as a son inherits) 'from Muchzak and
                    Ra'uy' takes effect on what the father-in-law
                    inherits after his death. The Rema said
                    otherwise; the Maharshal disagreed. The Tur
                    (107:16) writes that a creditor collects from a
                    loan that came to the borrower after he died,
                    even though it is considered Ra'uy regarding a
                    Bechor.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 21):</font></b> The Mordechai says that a
                    Kesuvah is not collected from Ra'uy. The text
                    says that a loan is Ra'uy to a Ba'al (not to a
                    Ba'al Chov). The Maharshal was unsure whether a
                    creditor collects from Ra'uy. The Shtar Chetzi
                    Zachar does not work because a creditor
                    collects from Ra'uy. Rather, one can stipulate
                    about Ra'uy. If the heirs want, they can pay
                    the entire debt (from what their father left
                    when he died), and the son-in-law will not
                    receive like stipulated.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (21):</font></b> Also the Tur says that a creditor
                    does not collect from Ra'uy. This is not
                    necessarily true. Rather, the creditor does not
                    collect because the heirs say 'we inherit our
                    grandfather', like Bava Basra 159 and Hagahos
                    Ashri. If so, the creditor collects when the
                    heir cannot say this. Hagahos Ashri says so.
                    The Maharshal and Rema were unsure about this;
                    in any case, the Halachah in this Sa'if is true
                    because he can say that he inherits his
                    grandfather. The Rosh (from Lun'il) says that
                    his law is unlike the Rif, who says that David
                    can take (his grandfather's property) from one
                    who bought it (from David's father). I say that
                    the Rif could agree that a creditor collects
                    from Ra'uy, but in the above case David can say
                    that he inherits his grandfather. The Rema says
                    that even though the Rosh holds that a creditor
                    collects from Ra'uy, he could agree to the
                    Mishnah, for the grandson inherits his
                    grandfather. This is wrong. The Rosh explicitly
                    rules like a creditor does not collect from
                    Ra'uy! The Ramban (Sefer ha'Zechus Kesuvos 40a,
                    Milchamos Hash-m Bava Metzia 7b) says that R.
                    Chananel holds like this. It seems to me that
                    he collects! The Sugya 123-124 proves that
                    Shevach is Ra'uy. In Bechoros, we learn about
                    Shevach from the same verse that teaches about
                    Ra'uy. We hold that a creditor collects
                    Shevach. One could find flimsy reasons to
                    distinguish between Ra'uy and Shevach, but why
                    should we?! Sefer ha'Terumos says that the
                    Ramban proved from the Tosefta and Yerushalmi
                    that he does not collect Ra'uy. I say that they
                    prove that he collects! A verse ('Karmo') was
                    needed to teach that <i>damages</i> are not
                    collected from Ra'uy. A Yavam does not get an
                    extra share from Ra'uy, for he is equated to a
                    Bechor. There is no verse for a creditor, so he
                    collects from Ra'uy! Here, the Rema explains
                    the Mechaber, who says that the borrower's
                    children say that their father died first and
                    inherited in the grave, and they inherit him,
                    i.e. they do not directly inherit their
                    grandfather. If so, the Mechaber must hold that
                    a creditor does not collect from Ra'uy. The
                    Rema himself was unsure. Sefer ha'Terumos cited
                    the Rosh of Lun'il. Sefer ha'Terumos preceded
                    the Rosh of Tultila (who wrote the Pesakim),
                    who explicitly says that a creditor does not
                    collect from Ra'uy.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HOW DOES INDIRECT INHERITANCE WORK? </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A house fell on Reuven and his father
               or Morishav (someone else whom Reuven inherits).
               Reuven left creditors (or a wife entitled to a
               Kesuvah). The creditors say that the father died
               first (and Reuven inherited him, so they may collect
               from the father's property). His father's heirs say
               that Reuven died first.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The father's heirs are Reuven's sons.
                    'Morishav' is Reuven's brother.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If a grandchild does not directly inherit
                    his grandfather, the verse is merely a
                    blessing. Even if Reuven died first, the
                    creditors should collect, for the property
                    passes to Reuven before it goes to Reuven's
                    sons!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> No, the father's heirs are Reuven's brothers.
          'Morishav' is Reuven's uncle. (However, if the father's
          heirs were Reuven's sons, the creditors would collect no
          matter who died first.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If a woman died after her son, does he
          'inherit' her in the grave, i.e. to pass her property to
          his paternal brothers?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes - Beraisa):</font></b> If a man was captured
          and his son died here (or vice-versa, and we do not know
          who died first), the father's heirs and the son's heirs
          divide the property.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it is like we said, the father's heirs are
               also the son's heirs!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, a man was captured, and his daughter's
          son died here. The father's heirs and the grandson's
          heirs divide the property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If we would say that a son inherits in the grave,
               even if the grandson died first, he inherits his
               grandfather in the grave to pass the property to his
               paternal brothers!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We conclude that a son does not inherit in the
               grave.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav Acha bar Minyomi):</font></b> We can also learn this from our
          Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a house fell on Reuven and his
               mother, Beis Shamai and Beis Hillel agree that his
               heirs divide her property with her heirs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If a son inherits in the grave, even if the son
               died first, he inherits his mother to pass her
               property to his paternal brothers!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why doesn't a son inherit in the grave?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> The Torah mentions Sivah (transferal of
          inheritance from tribe to tribe) regarding a son and a
          husband (who inherit their mother and wife,
          respectively);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a husband in the grave does not inherit
               (his wife), also a son.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	Reuven told Shimon 'I sell to you the property of Bar
          Sisin's house'. There was a certain land called by that
          name. Reuven said that it was not Bar Sisin's, it was
          just called on his name.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman gave the land to Shimon.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rava):</font></b> Reuven was established to be the
               owner. To take the house from him, the burden of
               proof is on Shimon (that it was Bar Sisin's
               property)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Contradiction:</font></b> Rav Nachman and Rava said just the
          contrary in a different case!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Reuven (to Shimon):</font></b> What are you doing in this
               house?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shimon:</font></b> I bought it from you, and I have lived
               here the years needed to make a Chazakah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Reuven:</font></b> (I did not sell it to you.) I have been
               living in the inner rooms of the house (so you have
               no Chazakah).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> (To get the house,) Shimon must
               prove that he was alone in the house.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> Shimon has a Chazakah. To take
               the house from him, the burden of proof is on Reuven
               (to prove that he lived in the inner rooms)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Summation of contradiction: In the first case,
               Rav Nachman considers the buyer to be Muchzak, and
               Rava says that the seller is Muchzak. In the latter
               case, each holds the opposite!)
<br><b><font color='darkgreen'> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Answer - part 1:</font></b> Rava does not contradict himself. In
          the first case, the seller is on the property, so he is
          Muchzak;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the second case, the buyer is on the property,
               so he is Muchzak.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer - part 2:</font></b> Rav Nachman does not contradict
          himself. In the first case, since the property is called
          by Bar Sisin's name, the seller must prove that it was
          not really Bar Sisin's;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the second case, living in the house for the
               years of Chazakah only supports his claim that he
               had a document and lost it. Even if he had the
               document, he would have to validate it! (Here also,
               he must prove that his Chazakah was valid.)
<br>

<p>

sjt:
</p><p>
<font><b>2) DIRECTLY INHERITING A GRANDFATHER</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the grandson's right to inherit his grandfather's property directly from his grandfather and not through his father. What is the difference whether he inherits from his grandfather directly or only through his father?
</p><p>
The Gemara demonstrates the difference with a case of three generations of sons, Yakov, Reuven, and Chanoch. Before Reuven's father, Yakov, died, Reuven sold his right to receive the inheritance. However, Reuven died before Yakov. When Yakov dies, does his grandson, Chanoch, inherit Yakov's property directly? If he does, then his right of inheritance circumvents the sale transacted by Reuven, since Reuven never inherited the property and thus did not have the right to sell it. If, on the other hand, Chanoch inherits his grandfather's property only through his father, the property should belong to the purchaser who bought from Reuven the rights to the inheritance. By teaching that a grandson inherits from his grandfather directly, the Gemara is teaching that Chanoch may keep the property.
</p><p>
The Gemara derives this from the verse, 'Tachas Avosecha Yiheyu Vanecha' -- 'In place of your fathers shall be your sons' (Tehilim 45:17). The verse clearly is addressing the middle generation, saying that in place of '<i>your</i> fathers will be your sons.' This teaches that a grandson directly inherit their grandfather. Although the Gemara concludes without conclusive proof from any Beraisa for this novel idea, the commentators (see, for example, <b>RASHBAM</b> DH u'Meshani) state that this idea is accepted by the Gemara.
</p><p>
Does this concept apply in any other cases?
</p><p>
(a) The <b>RASHBA</b> quotes the <b>RA'AVAD</b> who has a doubt about the law in a similar case. Reuven borrowed money from his father (Yakov) with a Shtar, and then proceeded to sell his fields which were collateralized to the loan. Afterwards, Reuven died, and soon after Yakov died. May Chanoch collect the fields that his father, Reuven, sold which were a lien for his loan? After all, if Chanoch inherits from his grandfather (Yakov) directly, then he inherits his grandfather's Shtar which says that Reuven owes Yakov money. If, on the other hand, he inherits his grandfather's property only via his father, then the debt is null and void since the borrower -- Chanoch's father, Reuven -- essentially inherited his own debt from Yakov, effectively canceling the loan. The Ra'avad is in doubt about whether Chanoch may claim the fields which Reuven sold, which were collateralized to the loan.
</p><p>
(b) The Rashba himself questions the Ra'avad's doubt. In this case, it seems obvious that applying the rule that one inherits from a grandfather directly entitles Chanoch to collect the fields. What is the Ra'avad's doubt?
</p><p>
The <b>AYELES HA'SHACHAR</b> answers that the Ra'avad is unsure about the mechanism of two possible paths of inheritance. As mentioned above, the concept that a grandson may inherit a grandfather directly is a <i>right</i> that the grandson possesses. It does not mean that he has no option to inherit through his father if he so chooses. In the case of the Gemara, the land in question is in Yakov's possession when he dies. Does the inheritance go directly to Chanoch and sidestep the creditors of Reuven, or does it first go to Reuven and thus is taken by the creditors? In that case, the Gemara says that Chanoch may choose the path which the inheritance takes; he may choose that the land should go from his grandfather's possession directly to his possession. However, the Ra'avad is unsure about whether this right to choose also applies in a case in which a choice to inherit directly from a grandfather would result in taking away land from someone who bought the land from Reuven. Perhaps the purchaser may claim that since he is the current owner of the property and there are two possible paths for the inheritance to go, the inheritance should not go the way Chanoch chooses. Is Chanoch entitled to make such a decision to take away land from its current owner? This is why the Ra'avad was unsure about the law in this case. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE SOURCE FOR TIED GITIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> In a standard Get, the witnesses are on the
          inside (i.e. the same side as the text). In a tied Get,
          the witnesses are on the outside (i.e. the opposite side
          from the text).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If witnesses signed on the outside of a standard Get,
          or on the inside of a tied Get, it is invalid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Chanina ben Gamliel says, if witnesses signed on the
          inside of a tied Get, it is valid, because it can be
          converted to a standard Get.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Shimon ben Gamliel says, everything follows the
          local custom.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	A standard Get requires (at least) two witnesses. A
          tied Get requires (at least) three;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A standard Get with only one witness or a tied
               Get with only two witnesses is invalid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What is the source of this?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (R. Chanina):</font></b> 'Sados ba'Kesef Yiknu v'Chasuv
          ba'Sefer' refers to a standard Get;
<br>
<br>

sjt:
<font><b>1) THE DEGREE OF DISQUALIFICATION OF A SHTAR WITH THE WRONG PLACEMENT OF THE WITNESSES</b></font><b>
<br>OPINIONS:</b> The Mishnah states that there are two types of Shtar: 'Pashut' ('straight') and 'Mekushar' ('tied'). A Shtar Pashut is supposed to have the signature of the witnesses on the face of the document, while a Shtar Mekushar is supposed to have their signatures on the back of the document. The Mishnah states that if the signatures appear in the wrong place, the Shtar is Pasul. Does this mean that the Shtar may not be used for anything at all, or that the Shtar is valid but it is not as powerful as an ordinary Shtar?
</p><p>
(a) The <b>RASHBAM</b> (DH Shneihem) writes that if a Shtar Chov (a loan document) was written in this manner, it may not be used to collect from fields of the borrower which were collateralized to the loan. The Rashbam's wording implies that he maintains that the Shtar still may be used as proof for the loan. Similarly, the Gemara later (162b) says that if the signatures of the witnesses are distanced two lines from the body of the document, the Shtar is Pasul. <b>RABEINU YONAH</b> there explains that the Shtar still has the power to prevent the defendant from saying that the transaction never happened.
</p><p>
This is difficult to understand. The Mishnah says that the Shtar is Pasul. This implies that it is entirely invalid. The <b>KOVETZ SHI'URIM</b> (#587) explains that a Shtar serves two distinct purposes. The Shtar has the legal powers of a Shtar, and it has the status of Edus, testimony. The Rashbam apparently maintains that although the legal powers of the Shtar are nullified, the testimony still is recorded correctly. The 'Edus' aspect of the Shtar therefore remains valid.
</p><p>
(b) The Kovetz Shi'urim quotes the <b>YAD RAMAH</b> (see <b>CHIDUSEHI HA'RAMBAN</b> to the Mishnah here) who apparently argues with this concept. The Yad Ramah says that a Shtar Mekushar should not be considered even Edus, since the witnesses did not clearly sign on what is written in the document (since they signed on the back of the document). The only reason why a Shtar Mekushar is accepted by Beis Din is that the Chachamim enacted that it is a valid Shtar. Since the Chachamim said that <i>this</i> Shtar is invalid, it has no Halachic validity at all and is Pasul. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHARIR V'KAYAM IN DOCUMENTS NOWADAYS</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> (In a Get Mekushar, witnesses sign on the
               other side, opposite the text.) Perhaps the bearer
               will add under the text!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The text says 'Sharir v'Kayam' (at the end).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps he will add, and write another
               'Sharir v'Kayam'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> A document may say 'Sharir v'Kayam' only
               once.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps he will erase the first 'Sharir
               v'Kayam', add to the text, and write 'Sharir
               v'Kayam'!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> R. Yochanan taught that if words were
               Teluyos (written between the lines), and they are
               Mekuyam (the document mentions them) at the end, it
               is valid. An erasure invalidates a Get, even if the
               document mentions it at the end, i.e. if it is in a
               place fitting and large enough for it to say 'Sharir
               v'Kayam.'
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 161b (R. Yitzchak bar Yosef):</font></b> An erasure (even if it
               does not invalidate a Get, due to its place or its
               small size) must be Mekuyam in the Get.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings our Gemara.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Omar ha'Mechaber):</font></b> The Ramban
                    says that the enactment to write Sharir v'Kayam
                    and to write it only once, was in a Get
                    Mekushar. It was enacted due to concern for
                    forgery, lest one add or detract from it. There
                    was no enactment for a regular document. If it
                    does not say Sharir v'Kayam, or says it twice,
                    it is Kosher. Our custom is is to write it two
                    or three times. Also, if an erasure is in a 
                    place fitting and large enough for it to say
                    'Sharir v'Kayam', if it is Mekuyam, if it is a
                    regular document, it is Kosher. The Ritva says
                    so; our custom is is to disqualify it. The
                    Gemara says that we do not learn from the last
                    line, but our custom is to learn from it! The
                    Ramban toiled to explain this. The Gemara says
                    that one must recap the document in the last
                    line. The <b><b><b>RI</b></b></b> ha'Zaken and the Ritva say that
                    this is a good counsel, but if one did not do
                    so, the document is Kosher.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 27:8):</font></b> One must be Mekayem
               every erasure at the end of the document, and say
               'this letter or word or line is written over an
               erasure or between the lines, and it is all valid.'
               If an erasure is in a place for and large enough for
               it to say 'Sharir v'Kayam', even if it is Mekuyam,
               it is Pasul. Perhaps he erased it, added text, and
               was Mekayem it with space between the text and the
               witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rambam connotes that a
                    document does not need Sharir v'Kayam. It is
                    only if there are erasures and Teluyos, to
                    enable learning from them. Also, he holds that
                    one should not write the Kiyum of erasures and
                    Teluyos in the last line, for we do not learn
                    from it. This is clear for the Gemara. Our
                    custom is to write Kiyumim in the last line.
                    Meforshim toiled to justify this. They say that
                    every document must say Sharir v'Kayam, and
                    that we do not learn from the last line only if
                    it is written after Sharir v'Kayam. They made
                    the practice to finish the document in the
                    middle of a line, and the witnesses sign in the
                    rest of the line. Surely, they would not sign
                    there unless the document ended earlier in the
                    line!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (10:2):</font></b> R. Tam says that one should make a
               Kiyum of erasures and Teluyos before 'we acquired
               from him' before the last line. Nowadays, the custom
               is to be Mekuyam erasures and Teluyos after 'we
               acquired', in the last line, for the custom is to
               write Sharir v'Kayam in all documents. Therefore,
               one cannot forge, and we learn from the last line.
               One need not recap the document in the last line.
               However, this is difficult. Since a document is
               Kosher without Sharir v'Kayam, like it is clear from
               our Gemara, we should be concerned lest a document
               was written without it, and the bearer erased
               unfavorable clauses, and wrote what he wants on top,
               and was Mekuyam it in the last line! We can say that
               since the custom is to write Sharir v'Kayam in all
               documents, a document without it is Pasul, and
               witnesses will not sign it until they see it
               written. Our custom is to write Sharir v'Kayam, and
               to learn from the last line. Perhaps this is due to
               were concern lest witnesses distance their
               signatures two lines from the end of the text (and
               if there were no Sharir v'Kayam, the bearer could
               add things afterwards). I disagree. If we were
               concerned for this, (there is no solution;) perhaps
               the bearer will cut off the top, write a document in
               one line, and recap it in the second line (and
               witnesses are signed underneath)! Rather, the custom
               is to write Sharir v'Kayam lest there are erasures
               and Teluyos that must be Mekuyam after the document
               was finished, and they already wrote 'we acquired
               from him.' We are Mekuyam the erasures and Teluyos,
               and then write Sharir v'Kayam. According to this,
               one may write 'and this should be to you, from me, a
               Sefer of cutting...' in the last line, even though
               this might be essential (the Gemara never resolved
               this). Since we write at the end of a Get 'k'Da'as
               (like the law of) Moshe v'Yisrael', this is in place
               of Sharir v'Kayam, so we learn from the last line.
               However, also in the days of the Tana'im, they used
               to write 'k'Da'as Moshe v'Yisrael', yet the Gemara
               says that we do not learn from the last line, both
               for Gitin of money and of divorce! It seems that
               they used to write 'k'Da'as Moshe v'Yisrael' in the
               middle of the Get. Now we write it at the end, so
               wll. Why do friends of the Chasan sign the Kesuvah
               and leave two lines between the text and their
               signatures? Perhaps we do not disqualify the Kesuvah
               because they sign only for honor, and not for
               testimony. If witnesses signed in the middle of a
               line, and what is in front of their signatures was
               cut off, it is Pasul, for perhaps a Tanai or a
               clause that harms the bearer was written there.
               However, if the line above ends with Sharir v'Kayam,
               it is Kosher if the witnesses signed one under the
               other. If they signed in one line, it is Pasul, for
               perhaps it was a document in one line, and the
               bearer cut the side and wrote this document above.
<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 44:9):</font></b> Nowadays, the custom is to
               be Mekuyam erasures and Teluyos after 'we acquired',
               for the custom is to write Sharir v'Kayam in all
               documents. Therefore, one cannot forge, and we learn
               from the last line. One need not recap the document
               in the last line. Therefore, a document without
               Sharir v'Kayam is Pasul.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (20):</font></b> Kiyumim must be before Sharir
                    v'Kayam. Those who do Kiyum afterwards err;
                    this does not help.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (21):</font></b> Surely, if we see that witnesses
                    signed under the text without any space and it
                    does not say Sharir v'Kayam, the document is
                    Kosher, just we do not learn from the last
                    line. Tosfos and the Rosh could hold that it is
                    Pasul, for in all other documents we learn from
                    the last line. However, the Mechaber (Sa'if 1)
                    says like I said.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Witnesses may not sign unless
               it says Sharir v'Kayam.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (24):</font></b> There is a Chazakah that witnesses
                    sign only if everything is proper (Sanhedrin
                    29b).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (14):</font></b> If there is no Sharir v'Kayam and the
                    witnesses left room, one could add things and
                    conclude Sharir v'Kayam. In such a case, we
                    learn from the last line!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If it says Sharir v'Kayam
               twice, it is Kosher.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> It seems that a document should be Pasul
                    if it says Sharir v'Kayam twice, for perhaps
                    after the first Kiyum, the bearer forged and
                    was Mekayem a second time. However, Ri
                    Bartzeloni says that a regular document is
                    Kosher even if it says Sharir v'Kayam many
                    times.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH ul'Fi):</font></b> Ri Bartzeloni and the
                    Ramban say that only a Get Mekushar must say
                    Sharir v'Kayam only once. The Rashbatz says
                    that the Rashba agrees. However, if (the
                    latter) Sharir v'Kayam is in the last line it
                    is Pasul, lest (the witnesses left space, and)
                    the bearer added text and another Sharir
                    v'Kayam. If the last line recaps the document,
                    we are not concerned. The Rosh (68:18) connotes
                    that in all documents, the custom is to write
                    it only once.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (15):</font></b> This is when there is a space between
                    the text and the witnesses. If not, it is
                    Pasul. Perhaps the witnesses left room, and the
                    bearer added and wrote another Sharir v'Kayam!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (23):</font></b> Ir Shushan says that we are not
                    concerned lest the witnesses left so much room
                    that the bearer added and wrote another Sharir
                    v'Kayam. This is astounding. Throughout the
                    Gemara, Poskim and this Siman we are concerned
                    lest they left a blank line! The <b>SMA</b> says that
                    it is Kosher when there is a space between the
                    text and the witnesses. If so, the Mechaber
                    should have specified!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz:</font></b> The Tur disqualifies it. Presumably, since
                    we see one problem, we are concerned lest the
                    witnesses left two blank lines. Ri Bartzeloni
                    is Machshir, for he permits writing an extra
                    Sharir v'Kayam
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ERASURES AND TELUYOS IN DOCUMENTS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'V'Chasom' refers to a tied Get;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'V'Ha'ed' refers to two witnesses (unless the
               Torah specifies otherwise). 'Edim' teaches a third
               witness.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This teaches that a standard Get requires two
               witnesses, and a tied Get requires three.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps we should say vice-versa!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> Because a tied Get has extra knots
               (the Torah makes it harder to write, presumably) it
               requires more witnesses.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Rafram):</font></b> 'Va'Ekach Es Sefer ha'Miknah'
          refers to a standard Get;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Es ha'Chasum' refers to a tied Get;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'V'Es ha'Galuy' is the text of a tied Get;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'Ha'Mitzvah veha'Chukim' are the differences
               between standard and tied Gitin.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What are the differences?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> A standard Get requires two witnesses,
               and they sign on the inside. A tied Get requires
               three witnesses, and they sign on the outside.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps we should say vice-versa
               (about the number of witnesses)!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> Because a tied Get has extra knots, it
               requires more witnesses.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rami bar Yechezkeil) Question:</font></b> 'A matter
          will be established based on two or three witnesses' - if
          two witnesses suffice, why does the Torah mention three?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> This teaches that a standard Get requires
               two witnesses, a tied Get requires three.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps we should say vice-versa!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> Because a tied Get has extra knots, it
               requires more witnesses.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> Each of these three verses teaches something
          else!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Sados ba'Kesef Yiknu v'Chasuv
               ba'Sefer va'Chasom' teaches good counsel (to keep
               signed documents for proof);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Va'Ekach Es Sefer ha'Miknah' (does not teach
               anything. It) merely records what he did;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 'A matter will be established based on two or
               three witnesses' equates two witnesses to three
               witnesses regarding Hazamah (if we find that
               witnesses were not present where they claimed to see
               the testimony, they are disqualified and they suffer
               whatever they sought to obligate the defendant). R.
               Akiva and Chachamim argue about precisely what we
               learn from it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #4:</font></b> Chachamim enacted tied Gitin. The verses are
          mere Asmachtos.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Chachamim enact them?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> There was a region of impetuous Kohanim. They
          were hasty to divorce (and could not remarry their
          wives);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted tied Gitin. They take longer to
               write, and perhaps the husband will calm down in the
               meantime and not divorce his wife.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> That explains tied Gitin of divorce. Why are
          there tied monetary Gitin?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer:</font></b> This is so there will not be differences
          between Gitin of divorce and money.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHERE WE SIGN TIED GITIN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Where do the witnesses sign a tied Get?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Huna):</font></b> They sign in between the places
          where it is tied. (We are thinking that they sign on the
          inside, i.e. the same side as the text.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (R. Yirmeyah bar Aba):</font></b> They sign opposite the
          text, corresponding to where the text is.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> How does Rav Huna explain
          the following episode?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A tied Get was brought in front of Rebbi. He
               remarked 'it has no date'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Shimon b'Rebbi:</font></b> Perhaps it is between the
               places where it is tied.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rebbi untied it, and found that this was so.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Summation of question:</font></b> According to Rav Huna,
               Rebbi should also have remarked that the Get has no
               witnesses!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> Rav Huna says that they sign in
          between the places where it is tied, on the outside.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> (Since they do not sign under the text), we
          should be concerned lest the bearer of the document add
          (clauses to his advantage) to the text after they signed!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The text says 'Sharir v'Kayam' (this indicates
          the end of the document).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he will add to the text, and write
          another 'Sharir v'Kayam'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> A document may say 'Sharir v'Kayam' only once.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he will erase the first 'Sharir
          v'Kayam', add to the text, and write 'Sharir v'Kayam'!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan taught that if words were written
          between the lines, and the document mentions them at the
          end, it is valid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> An erasure invalidates a Get, even if the
               document mentions it at the end.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> An erasure invalidates a Get only if it is in a
               place fitting and large enough for it to say 'Sharir
               v'Kayam' (due to this concern)!
<br>

sjt:
</p><p>
<font><b>2) THE 'KAPDANUS' OF KOHANIM</b></font><b>
<br>OPINIONS:</b> The Gemara explains that the reason behind the enactment to use a Get Mekushar was to prevent Kohanim from divorcing their wives hastily. The Gemara attributes their haste to the fact that Kohanim are 'Kapdanim' and therefore are easily angered and prone to write Gitin to their wives hastily. Since a Kohen may not remarry his wife once he has divorced her, the Chachamim decreed that a Kohen must write a Get Mekushar if he wants to divorce his wife. A Get Mekushar takes more time to write, and thus the Kohen will have more time to settle down before he divorces his wife.
</p><p>
Why do the Kohanim, the representatives of the Jewish people in the Avodah of the Beis ha'Mikdash, have this particular attribute of 'Kapdanus' (see also Kidushin 70b)? This attribute seems to be at odds with their designated role?
</p><p>
(a) The <b>YOSEF DA'AS</b> quotes the <b>YA'AROS DEVASH</b> (Derush 1, p. 24) who explains that inherently the Kohanim are imbued with the attribute of absolute kindness. However, when the Jewish people sinned and caused the Shechinah to distance itself from the nation, the Kohanim's attribute of giving became one of Kapdanus. The Ya'aros Devash writes that this is why the Gemara describes Kohanim as Kapdanim.
</p><p>
This answer is difficult to understand. The Gemara in Yoma (22a, 23a) cites two incidents wherein certain Kohanim acted violently towards other Kohanim during a competition to decide who would do the Avodah in the Beis ha'Mikdash. In one incident, the act of violence actually resulted in a death. These incidents occurred when the Beis ha'Mikdash was standing, and the Gemara implies that the Kohanim were careful about Tum'ah and Taharah in the Beis ha'Mikdash. Why did they act with such violence when the Beis ha'Mikdash stood?
</p><p>
(b) There seems to be a more basic answer. The Gemara often cites a positive trait of the Kohanim: 'Kohanim Zerizim Hem' -- 'Kohanim are expeditious' (see, for example, Beitzah 18a). The fact that they are both Kapdanim and Zerizim is no coincidence. The Kohanim have an inherent trait, or 'Techunah,' which can be utilized in a positive way, as demonstrated by the action of Pinchas who saved the Jewish people by killing Kazbi and Zimri (see Bamidbar 25), but which also can be utilized in a negative way, as is apparent from the Gemara in Yoma and the Gemara here. A 'Techunah' is in contrast to a 'Midah' -- a trait which is not inherent and should be broken if it leads the person to improper conduct.
</p><p>
A similar idea is expressed by the Gemara in Shabbos (156a) which says that a person born under the Mazal of Ma'adim will have a tendency towards violence, but his tendency can manifest itself positively, as a doctor (bloodletter), Mohel, or Shochet, or negatively, as a bandit.
</p><p>
Similarly, <b>RAV AVIGDOR MILLER</b> zt'l said that one reason why Yakov Avinu cursed the anger of Shimon and Levi was to teach them that their trait of Kapdanus and Zerizus was an inherent trait that should be used positively. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHERE WE SIGN TIED GITIN (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> R. Yirmeyah bar Aba says
          that they sign opposite the text, corresponding to where
          the text is (and the document need not say 'Sharir
          v'Kayam');
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We should be concerned lest he add to the text,
               and add invalid witnesses (opposite the added text.
               He can validate the document through any three
               witnesses, e.g. the first ones);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He can say 'I wanted to have extra witnesses!'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> The witnesses do not sign
          widthwise (i.e. the way the text was written), rather,
          lengthwise (each starts his name opposite the bottom line
          of text, and finishes opposite the top line).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> If the end of the document is unfavorable for
          the bearer, he might be able to cut it off!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a witness signed 'Reuven ben Yakov, Ed
               (witnesses)', perhaps one can cut off the bottom,
               and 'Ben Yakov, Ed' will remain for a signature!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> 'Ben Ploni Ed' is a valid signature.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Each witness writes his name and the word 'Ben'
          on the bottom line (i.e. opposite the bottom line of the
          text. If one will cut off the bottom line, he will also
          cut off 'Ben'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> He can cut off 'Reuven ben', and 'Yakov Ed'
          will remain!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> 'Ish Ploni Ed' is a valid signature.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, the witnesses do not write 'Ed'
          after their names.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2:</font></b> They do write 'Ed' after their names. The
          case is, we know that no Yakov in this kingdom signs like
          this.
<br>
<br>

sjt:
<font><b>1) 'ISH PLONI ED'</b></font><b>
<br>OPINIONS:</b> The Gemara quotes the Mishnah in Gitin (87b) which says that if a witness signs 'Ish Ploni Ed,' his signature is valid. What exactly is the case? What type of document is the witness signing?
</p><p>
(a) The <b>ARUCH HA'SHULCHAN</b> (EH 130:7) explains that the enactments of the Chachamim regarding how witnesses should sign their names developed through three stages. Originally, witnesses were not required to write their actual names at all when they signed a document; they would write merely, 'Ani Ploni Ed' (see Rashi to Gitin 36a). Beis Din could verify the signature of the witness only by investigating who the witness was and comparing his handwriting on this document to his handwriting on other documents. Later, Raban Gamliel decreed that a witness must sign his actual name, and not just 'Ploni,' in order to have more clarity (Gitin ibid.). This meant that the witness had the option to sign his name and his father's name, only his name, or only his father's name. The Mishnah in Gitin of 'Ish Ploni Ed' was the third enactment, after Raban Gamliel's enactment. The Chachamim required that a witness write his name, his father's name, and the word 'Ed.' (See <b>REMA</b> EH 130:11 with regard to the Halachah in a case where the witness did not adhere to this requirement.)
</p><p>
(b) The Aruch ha'Shulchan (EH 130:9) adds that some understand that the opinion of the <b>TUR</b> (EH 130) is that prior to the enactment of Raban Gamliel, a witness used to sign his real name, but only his first name. Accordingly, the decree of Raban Gamliel must have been that a witness must sign his father's name as well. This understanding of the word 'Ploni' is more consistent with the usual meaning of the word 'Ploni' as it is used throughout Shas; the word 'Ploni' represents any given name and not a specific name 'Ploni.'
</p><p>
However, the Aruch ha'Shulchan writes that this explanation is not plausible. The Mishnah in Gitin quoted by the Gemara here states that 'Ish Ploni Ed' is a valid signature, but according to this explanation, after the enactment of Raban Gamliel a witness was required to sign the name of his father as well. The Aruch ha'Shulchan says that the only way to understand this explanation is to say that the Mishnah was stated <i>before</i> the enactment of Raban Gamliel. The Aruch ha'Shulchan says that he indeed found this answer in the <b>LECHEM MISHNEH</b> (Hilchos Edus 4:20).
</p><p>
The Aruch ha'Shulchan concludes that this explanation is problematic in light of many Gemaras (including the Gemara here) which imply that even the signature of a witness' name without his father's name is valid. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ERASURES AND TELUYOS IN DOCUMENTS</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'> 160b (R. Yochanan):</font></b>  If words were Teluyos (written
               between the lines), and they are Mekuyam (the
               document mentions them) at the end, it is valid;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> An erasure invalidates a Get, even if it is Mekuyam
               at the end. This is only if it is in a place fitting
               and large enough for it to say 'Sharir v'Kayam.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 161b (R. Yitzchak bar Yosef):</font></b> An erasure (even if it
               does not invalidate a Get, due to its place or small
               size) must be Mekuyam in the Get.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 167a:</font></b> A document said 'a third <i>b</i>'Pardisa (of an
               orchard); the bearer erased the top and bottom of
               the 'Beis', leaving a 'Vov', so it would say
               <i>v</i>'Pardisa (<i>and</i> an orchard).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Abaye:</font></b> Why is there space between the 'Vov' and
                    'Pardisa'?!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> Abaye forced him, and he admitted to his
                    forgery.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings our Gemara.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Omar ha'Mechaber):</font></b> The
                    Yerushalmi says that we attribute everything
                    possible to an erasure. This is why it mentions
                    here only erasures, for this includes what was
                    scraped. There was not such a need to mention
                    Teluyos, for if one was was not Mekayem them,
                    the document is Kosher, just we do not learn
                    from the Teluyah. If an erasure or scraping was
                    not Mekuyam, the entire document is Pasul, lest
                    there was a Tanai there. Tosfos, the Ritva and
                    Ro'oh say so.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 27:8):</font></b> One must be Mekayem
               every erasure at the end of the document, and say
               'this letter or word or line is written over an
               erasure or between the lines, and it is all valid.'
               If an erasure is in a place for and large enough for
               it to say 'Sharir v'Kayam', even if it is Mekuyam,
               it is Pasul. Perhaps he erased it, added text, and
               was Mekayem it with space between the text and the
               witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh (citing the Rashba):</font></b> Some of my 
                    Rebbeyim say that we did not say 'any erasure
                    <i>or Teluyah</i> invalidates a Get', for a Teluyah
                    that was not Mekuyam does not disqualify the
                    document, just we do not learn from it. An
                    erasure that is not Mekuyam invalidates a Get,
                    for perhaps a Tanai was written there and it
                    was erased. I disagree. Also an erasure that is
                    not Mekuyam does not disqualify the document,
                    just we do not learn from it. A Tosefta (11:5)
                    says that 'an erasure or Teluyah invalidates a
                    Get only if it is mi'Gufo.' Our Gemara
                    mentioned erasures, but the same applies to
                    Teluyos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (CM 44 DH v'Im):</font></b> The Rashba (1035)
                    says that 'mi'Gufo' is the name of the lender,
                    the borrower, and the sum.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magid Mishneh:</font></b> It seems that also the Rambam
                    equates erasures and Teluyos. A place for
                    'Sharir v'Kayam' is the next to last line. The
                    Rambam connotes that a document does not need
                    Sharir v'Kayam. It is only if there are
                    erasures and Teluyos, to enable learning from
                    them. Also, he holds that one should not write
                    the Kiyum of erasures and Teluyos in the last
                    line, for we do not learn from it. This is
                    clear from the Gemara.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (10:2):</font></b> It seems that there is a blank line
               under the end of the text (above the signatures), it
               is Kosher even if the last line does not recap the
               document. When there is no space in between it must
               recap, for we could not learn from the last line. If
               there is a blank line in between, we are not
               concerned lest the witnesses signed two lines below
               and the bearer added a line. Gitin 19b asked 'why is
               a Persian document Kosher? The last line must recap
               the document!' We answered that it does. We could
               have answered that there is a space between the text
               and the witnesses. However, it seems that if there
               is no recap it is Pasul even without concern for
               forgery. We asked similarly (Gitin 11a) about a
               Persian document given in front of Yisrael
               witnesses, according to R. Elazar, who says that
               Edei Mesirah Karsei (witnesses who see a document
               given empower it). There is no concern for forgery,
               for if the bearer adds something, the witnesses will
               (remember what was written and) realize this, even
               after many days! Likewise, even if there is a blank
               space under the text and the witnesses, the last
               line must recap, for we decree due to a document
               without a line in between. Chachamim enacted to
               recap, without distinction. The Rashbam says that we
               disqualify a document with two lines between the
               text and the witnesses, even if witnesses say that
               nothing was added, for the document is unlike
               Chachamim enacted. The Sugya proves that any
               document that could be used to swindle is Pasul,
               even if no fraud was done, for it is unlike
               Chachamim's enactment. Therefore, if witnesses sign
               on one line, they may not leave a space to the side
               (before their signatures), lest the bearer cut off
               the document, and write what he wants to the side. A
               document with the text and witnesses all in one line
               is Kosher! Rather, there must be no space next to
               the witnesses, or they should dirty it with ink. We
               are concerned lest witnesses signed on an ink spot
               (and not on the document) only when it is between
               the text and the signatures, like the concern lest
               witnesses signed on a greeting under the document
               (176a). Or, witnesses may sign one under the other
               (even if there is space to the side). Even though
               the bearer could write 'I owe 100 to you' to the
               side, and (it will look as if) one witness signed on
               it, we are concerned only when the bearer can forge
               a document that can be used to force others to pay.
               We are not concerned if he can force the witness to
               pay, for the witness caused his own loss. However,
               if one may join two documents, each of which was
               signed by one witness, we must disqualify a document
               with space next to the witnesses.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rashba (2:254 DH Od d'Amrinan):</font></b> An erasure between
               the lines or letters does not disqualify a document
               due to concern lest a receipt was written there. We
               learn from the man who changed a Beis to a Veis.
               Abaye did not disqualify the document due to the
               erasure, until he forced him to admit. One could
               reject the proof by saying that the erasure was not
               evident; this is weak.
5.
<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 44:5):</font></b> If there are erasures or
               Teluyos or words that the scribe wrote over, one
               must be Mekayem them before Sharir v'Kayam.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (13):</font></b> The Kiyum must be before Sharir
                    v'Kayam only if it is in the last line.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> One need not write 'this is their Kiyum'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If one was not Mekayem them,
               the document is Kosher, but we do not learn from
               them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav bi'Teshuvah):</font></b> The
                    Rashba (Toldos Adam 56) says that if one
                    erased, scraped and wrote the same letters, he
                    did not disqualify the document, but he acted
                    like a schemer. In Teshuvah 100 (attributed to
                    the Ramban) he says that a scraping between
                    lines or on the back does not discredit a
                    document. However, one should threaten the
                    bearer (into admitting what was there), for
                    receipts are often written between the lines,
                    and there is supporting evidence (that this is
                    why he scraped).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (11):</font></b> Another proof is from 167a. A man
                    changed a Beis to a Veis, to make it say
                    v'Pardisa; Abaye did not disqualify the
                    document (until he admitted, like the Rashba
                    above - Birkas Eliyahu).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that if an erasure was not Mekuyam,
               the entire document is Pasul, lest the bearer erased
               something that weakens him. If it is clear from the
               document what was erased, the document is Kosher.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (14):</font></b> The Nimukei Yosef says so in the
                    name of the Yerushalmi and many Gedolim. This
                    is primary. If not, we must be concerned lest
                    one erase an unfavorable clause or Tanai. The
                    Rashba learns from the Tosefta that it is
                    Kosher. I say that this is only when it is
                    clear from the document what was erased. Even
                    so, if it was mi'Gufo, it is Pasul. If it is
                    not clear from the document what was erased,
                    and it is possible that there was a Chiyuv or
                    unfavorable clause or Tanai, this is like
                    mi'Gufo, and it is Pasul. Anything that the
                    entire document depends on is mi'Gufo. Based on
                    this, we can resolve a contradiction in the Tur
                    and Rema. Here they disqualify the entire
                    document if an erasure was not Mekuyam. In EH
                    (125:19) they bring only the Rambam's opinion,
                    that if it is in the Tofes, the Get is Kosher.
                    We must say that this is when we can infer was
                    what erased. The Magid Mishneh says that the
                    Rambam equates erasures and Teluyos. I say that
                    he equates them only to obligate Kiyum (but
                    only erasures disqualify the document).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If they are in Gufo of the
               document, i.e. the name of the lender, borrower and
               the sum, the document is Pasul if they were not
               Mekuyam. If they are in the date and they were not
               Mekuyam, it is like a document without a date.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur (45:30):</font></b> The Rosh (68:17) says that since
                    we often write a receipt between lines, one
                    must ensure that there is no scraping between
                    the lines. We must be concerned lest payment
                    was written there, and he erased it. All the
                    more so, if payment is between the lines on
                    erased parchment, we must be concerned that
                    more was written and he erased it, and wrote
                    what he wanted. If witnesses say that the
                    borrower himself wrote the payment, there is no
                    concern.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Darchei Moshe (44:2**):</font></b> The Rivash (382,
                    brought in Beis Yosef Reish Siman 44) says that
                    if the quill was passed again over a word, it
                    is as if it is Teluyah, and we do not learn
                    from it, and the rest of the document is
                    Kosher. 'It is like a <i>Teluyah</i>' implies that
                    an erasure disqualifies.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SHARIR V'KAYAM IN DOCUMENTS NOWADAYS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps they will think that Reuven normally
          uses his father's name for his signature! (Letter of the
          law, one need not sign his own name - Gitin 36a.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> One would not sign his father's name in place
          of his own name.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps they will think that he signs 'Yakov'
          in place of his own name!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Many Amora'im used symbols in place of signing
               their names. Rav would draw a fish, R. Chanina drew
               a branch, Rav Chisda made a 'Samech', R. Hoshaya
               made an 'Ayin', and Rabah bar Rav Huna made a mast.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> One is not so brazen to make his father's name
          a symbol in place of his own name.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3 (Mar Zutra):</font></b> R. Yirmeyah holds that all the
          signatures must finish in the same line. (Rashbam - they
          all extend from the top to the bottom line, or vice-
          versa; Tosfos - every word of the signature starts in the
          bottom line).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE LAST LINE OF A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yitzchak bar Yosef):</font></b> (We said that an erasure does
          not invalidate a Get unless it is in a place fitting and
          large enough for it to say 'Sharir v'Kayam.' In any
          case,) an erasure must be mentioned in the Get (before
          'Sharir v'Kayam', to ensure that nothing was erased after
          the Get was signed)'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The last line of the Get must recap the Get (i.e.
               it cannot teach any new obligations or conditions).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Amram):</font></b> We do not learn from the last
               line of a document.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE SIGNATURES OF THE AMORA'IM</b></font><b>
<br>OPINIONS:</b> The Gemara relates that a number of Amora'im did not sign their names at all when they were witnesses. They merely sketched an image or wrote a letter which they used as a symbol for their name. Rav sketched a fish, Rebbi Chanina a date palm, Rav Chisda wrote the letter 'Samech,' and Rebbi Hoshiya wrote the letter 'Ayin.' Is there any significance in these particular pictures or letters which the Amora'im used as their signatures?
</p><p>
(a) The <b>RASHBAM</b> (DH Rav Tziyer) writes that anyone who attempts to give any deep reason for why Rav and Rebbi Chanina drew pictures of a fish and a date palm is mistaken. The Rashbam apparently understands that Rav drew a picture of a fish because he was accustomed to eating fish, and Rebbi Chanina drew a picture of a date palm because he used to eat dates.
</p><p>
This explanation is difficult to understand. It does not seem logical that great Tzadikim such as these Amora'im would identify themselves in terms of the mundane world of the food they enjoyed.
</p><p>
The <b>MAHARSHAL</b> explains that the Rashbam does not mean that the Amora'im used as their signatures merely what they liked to eat. Rather, Rav identified himself with his special stringency to obtain large fish in honor of Shabbos, and Rebbi Chanina identified himself with his special stringency to have fine dates for Shabbos. The Maharshal apparently means that these Amora'im used as a symbol for their signatures the unique Mitzvah which they were especially careful to observe.
</p><p>
(b) Despite the caveat of the Rashbam, <b>RAV YAKOV EMDEN</b> in Gitin (36a) proposes a deeper reason for the pictures and letters used by the Amora'im as their signatures. He explains that Rav sketched a fish, because a fish represents a good omen. The Gemara earlier (118b) teaches that an Ayin ha'Ra has no power over a fish. Rebbi Chanina sketched a date palm, based on the verse, 'Tzadik ka'Tamar Yifrach' -- 'The Tzadik will blossom like a date palm' (Tehilim 92:13). Moreover, because Rebbi Chanina was in a position of rulership, he used the symbol of a date palm, the branches of which are fit to be used to hit (see Sukah 45a). This alludes to his awareness of his responsibility to lead the people in the proper path of Avodas Hash-m. Rav Chisda used the letter 'Samech' to indicate that one may <i>rely</i> ('Somech') on his signature. Rebbi Hoshiya used the letter 'Ayin' to symbolize the word 'Ayin' -- 'investigate'; Rebbi Hoshiya affixed his signature to a document only after he carefully investigated that the details in the document were accurate. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE LAST LINE OF A DOCUMENT (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Nachman):</font></b> Why don't we learn from the
          last line of a document?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Amram - Beraisa #1):</font></b> If the witnesses left
          two blank lines between the text and their signatures, it
          is invalid; if they left one blank line, it is valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When they left two blank lines, it is
               invalid. Presumably, we are concerned lest the
               bearer add clauses to his benefit;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The same concern applies when one blank line was
                    left!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that we do not learn from the
               last line.
<br>
<br>

sjt:
<font><b>1) WHY OUR 'SHTAROS' ARE WRITTEN DIFFERENTLY FROM THE 'SHTAROS' IN THE TIME OF THE GEMARA</b></font><b>
<br>QUESTION:</b> The Gemara states that the 'Shitah Acharonah,' the last line of a Shtar before the signature of the witnesses, is filled with a summary of the Shtar and contains no information that is not written already in the Shtar. The purpose of this line is to ensure that the space between the body of the Shtar and the witnesses' signatures cannot be filled with any forged information which might change the nature or content of the transaction. The Gemara says that nothing may be derived from this line of the Shtar, even if it happens to contain new information. The <b>RASHBAM</b> (DH Amar Rav Amram) explains that the Gemara refers only to Shtaros which do not have the words 'Sharir v'Kayam' at the end. If the Shtar has those words, then information may be derived from any line of the Shtar, even the last line. The words 'Sharir v'Kayam' confirm the authenticity of everything written in the document.
</p><p>
<b>TOSFOS</b> (DH Lefi) agrees with the Rashbam. He notes that in the times of the Gemara they apparently did not write 'Sharir v'Kayam' in ordinary Shtaros. Today we write 'Sharir v'Kayam' in all of our Shtaros, and therefore we may derive information from every line of the Shtar, even the last line. Tosfos notes that we even accept verification of erasure (when different parts of the Shtar had to be erased) at the end of the Shtar (after 'v'Kanina Minei'). Tosfos questions this change, however; the way Shtaros were written in the times of the Gemara seems much better. Since there is no requirement that one must write 'Sharir v'Kayam' at the end of a Shtar in order that it be valid, one might have a Shtar in which 'Sharir v'Kayam' was not written. An unscrupulous person might erase some words, add more information, verify that there was some erasing and write 'Sharir v'Kayam.' Since the practice of writing 'Sharir v'Kayam' may lead to forgeries, why do we write Shtaros in this way?
</p><p>
<b>ANSWER: TOSFOS</b> answers that since the custom has evolved that today we always write 'Sharir v'Kayam' in a Shtar, a Shtar without those words is invalid. Consequently, it is highly improbable that anyone would write a Shtar without the words 'Sharir v'Kayam.'
</p><p>
However, this change leaves the obvious question unanswered. Why has the way in which Shtaros are written today changed from the way they were written in the times of the Gemara?
</p><p>
1. Tosfos explains that the customary way of writing Shtaros changed because of a suspicion that witnesses might not realize how they are supposed to sign the document, and they might distance their signatures <i>two</i> lines from the body of the Shtar. Consequently, the last line would be the customary Shitah Acharonah, while the person holding the Shtar could write whatever he wants in the line above the Shitah Acharonah. On the other hand, if the words 'Sharir v'Kayam' are always written at the end of the Shtar, everyone will know that they must verify that the information contained within the Shtar is accurate.
</p><p>
2. However, Tosfos quotes the <b><b><b>RI</b></b></b> who noted (after the death of Rabeinu Tam) that <b>RABEINU TAM</b> indeed maintained that no information may be derived from the last line of a Shtar, even though the words 'Sharir v'Kayam' are written at the end of the Shtar. Whenever there was an erasure in the body of the document, Rabeinu Tam would verify the erasure before the Kinyan ('v'Kanina Minei'). He would use the last line only to verify things that were written more than once in the Shtar.
</p><p>
3. The Ri himself understands that the reason why the summary of the Shtar was eliminated was to avoid an erasure in the summary of the Shtar (for example, they would erase some words in the summary when they found that it was difficult to fit the entire summary in the last line). Although the rule is that no information may be derived from the last line of the Shtar, that rule refers only to information that is in favor of the bearer of the Shtar, and it is intended to ensure that he does not forge any benefits for himself. However, we <i>may</i> derive information from the last line of the Shtar which benefits the other party. Accordingly, if a mistake was made in the summary of the Shtar it would have to be verified, since the other party may claim that he had an extra right included at the end of the Shtar that was erased. This would be difficult, however, since the information was at the end of the Shtar. It was therefore decided to avoid this possible dilemma by merely writing at the end of the Shtar the words 'Sharir v'Kayam.' (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>BLANK PARCHMENT BETWEEN THE TEXT AND THE WITNESSES</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 Amram - Beraisa #1):</font></b> If the witnesses left two
               blank lines between the text and their signatures,
               it is invalid. If they left one blank line, it is
               valid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>(Rav):</font></b> We are concerned for space only between the
               text and the witnesses, but even a large space
               between the witnesses and the Kiyum (validation of
               Beis Din) does not disqualify it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We are concerned for space between the
               text and the witnesses, lest the bearer add clauses
               (and the signatures will be underneath). We should
               also be concerned for space between the witnesses
               and the Kiyum, lest he write a document there, and
               the Kiyum of Beis Din will be underneath!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rav allowed a space there only if it is
               smudged with ink (so nothing can be written there).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Also between the text and the witnesses, a
               space smudged with ink should not disqualify a
               document!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> We are concerned lest the witnesses signed
               under the smudge and did not intend to testify about
               the text.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Likewise, we should be concerned lest Beis
               Din signed on the smudge!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> Beis Din does not sign on a smudge.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings the Gemara verbatim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Omar ha'Mechaber):</font></b> The
                    concern lest witnesses signed on the smudge is
                    that they testify that it was blotted out with
                    ink in front of them. They do not want people
                    to suspect that the bearer erased an 
                    unfavorable clause. If so, they do not testify
                    about the document itself. Even if the area is
                    filled with dots and nothing was erased and the
                    whilte (parchment) can be seen between the
                    dots, we are concerned lest they testify (only)
                    about this. We discuss a document that does not
                    say Sharir v'Kayam. However, Acharonim say that
                    whenever a document can be forged through
                    cutting, it is Pasul even if witnesses testify
                    that nothing was added.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 27:4):</font></b> If witnesses signed
               two lines below the text, the document is Pasul. If
               they were closer, it is Kosher. If they were further
               away and the space in between was filled with Pasul
               witnesses or relatives, it is Kosher, for it cannot
               be forged. If the space was filled with marks, it is
               Pasul, lest the witnesses signed on them, and not on
               the document itself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Even if witnesses come and
                    testify about what was written above and that
                    nothing was added. Anything done unlike
                    Chachamim's enactment is not a document.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (CM 45 DH v'Im):</font></b> The Magid Mishneh
                    holds that according to the Rambam, if the last
                    line does not recap the document, it is Kosher,
                    just we do not learn from the last line. There
                    we do not need other witnesses. The document
                    itself is Kosher, for there is no concern for
                    forgery, just we do not learn from the last
                    line. Here, the document itself is Pasul, until
                    witnesses will testify to be Machshir it. If
                    so, even if they testified, the document is
                    unlike Chachamim enacted, and it is not a
                    document.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (10:2):</font></b> The Rashbam says that we disqualify a
               document with two lines between the text and the
               witnesses, even if witnesses say that nothing was
               added, for the document is unlike Chachamim enacted.
               The Sugya disqualifies any document that could be
               used to swindle, even if no fraud was done, for it
               is unlike Chachamim's enactment. We are concerned
               lest witnesses signed (only) on an ink smudge only
               when it is between the text and the signatures, like
               the concern lest witnesses signed on a greeting
               under the document (176a).
<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 45:6):</font></b> Witnesses must be
               meticulous not to distance their signatures two
               lines below the text. If they did so, the document
               is Pasul, even if it says Sharir v'Kayam, even if we
               know that nothing was added or forged.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Im):</font></b> The Rosh disqualifies a
                    document in which the last line does not recap
                    the document (for it is unlike Chachamim's
                    enactment). Even those who Machshir there, here
                    they disqualify. Even if he wrote Sharir
                    v'Kayam, perhaps he will cut off the old
                    document and write a new document in the two
                    lines.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (12):</font></b> The Beis Yosef did not need to
                    mention his concern. In any case it is Pasul,
                    for he can write what he wants in the line
                    before the last. Even if the original document
                    said Sharir v'Kayam, he can erase this and be
                    Mekayem the erasure in the next to last line.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tumim (6):</font></b> The Beis Yosef is like Tosfos, who
                    hold that an erasure in a place and of a size
                    where it could have said Sharir v'Kayam, even
                    three lines from the end, disqualifies. It
                    would have been better to enact that a document
                    with two blank lines is Kosher, so that
                    witnesses need not be so precise, if not for
                    the concern lest the bearer cut and write a new
                    document.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (13):</font></b> This is like Tosfos and the Rosh. The
                    Rashbam (162a DH Hirchik) is Machshir if it
                    says Sharir v'Kayam.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Even if it was dirtied with
               ink (filled with dots of ink) it is Pasul, lest
               people say that they signed on the dots, and not on 
               the document itself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (14):</font></b> The concern is lest witnesses signed
                    to testify that it was blotted out with ink in
                    front of them, lest people suspect that the
                    bearer erased an unfavorable clause. Even if
                    the area is filled with dots and the white can
                    be seen between the dots, we are concerned for
                    this.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Shach 13 and 46:86):</font></b> The Shulchan
                    Aruch discusses even when lines were written in
                    the blank area (and it is clear that nothing
                    was erased)! The Gemara says that we are
                    concerned lest witnesses signed on the smudge.
                    I.e. when they signed, an essential part of the
                    document (e.g. a Tanai) was written there, and
                    afterwards it was erased and smudged.
                    Therefore, if there are only lines and it is
                    clear that nothing was erased, it is Kosher. We
                    disqualify a document with two blank lines,
                    even though it would have been Kosher had they
                    drewn lines there, because we see it in a way
                    that allows forgery. In any case, it would have
                    been Kosher had Pasul witnesses signed there!
                    There is no concern lest Beis Din signed on the
                    smudge, for they merely validate the
                    signatures.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (7):</font></b> If witnesses distanced two lines
               it is Pasul to collect from Meshubadim, or from Bnei
               Chorin if the borrower says that he paid, but he
               cannot claim that he never borrowed.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (15):</font></b> Even if the document is Pasul because
                    it could be forged, the witnesses testified
                    that the matter was true. It is like a loan or
                    sale with witnesses, without a document. One
                    cannot deny that it happened.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (14):</font></b> A predated document is totally
                    Pasul, and the borrower can deny that he ever
                    borrowed. R. Yonah explains that here is
                    different, for this could have been made Kosher
                    had they filled the space with relatives or a
                    recap of the document.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Tumim (8):</font></b> This explains why the Rambam holds
                    that a Get of divorce with two blank lines is
                    Kosher if given in front of witnesses. We
                    disqualify such a Get if it is Mezuyaf mi'Tocho
                    (we would not recognize the Pesul), but not if
                    it merely could be forged (and we know not to
                    rely on the signatures).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (15):</font></b> Even if the document were lost and
                    witnesses testified, the borrower could not
                    deny that he ever borrowed. If he did, he would
                    be established to be a denier. Here, there is
                    testimony of witnesses (just it is not a Kosher
                    document). Do not say that the testimony is
                    (Pasul, for it is not oral, rather,) written.
                    Their signatures were not disqualified, for if
                    the space were filled with relatives, the
                    document is Kosher.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ONE-LINE DOCUMENTS AND CONCERNS THEY AROUSE </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>BLANK LINES AFTER THE TEXT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If one and a half blank lines were left after
          the text, what is the law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa #1):</font></b> If they left two blank lines,
          it is invalid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> If they left one and a half blank
               lines, it is valid!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> The Seifa teaches that if they left one
          blank line, it is valid. This implies that if they left
          one and a half blank lines, it is invalid!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Conclusion:</font></b> The inferences contradict one another. We
          cannot determine which is correct (to answer the question
          from the Beraisa).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa #2):</font></b> If they left two blank lines,
          it is invalid. If they left less than this, it is valid.
          (This answers our question. The Gemara brings the entire
          Beraisa.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If four or five witnesses signed on a document, and one
          (our text, Rambam; Rashbam's text - the first two) of
          them were found to be relatives or invalid witnesses, the
          document is valid due to the Kosher witnesses.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	This supports Chizkiyah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Chizkiyah):</font></b> If blank lines between the text and
               the signatures were filled with signatures of
               relatives, it is valid;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We likewise find in the laws of Sechach (that a
               gap is worse than something invalid). Three Tefachim
               (width) of air (from one end of the Sukah to the
               other) disqualify a Sukah, but invalid Sechach
               disqualifies a Sukah only if it is four Tefachim.
<br>

<p>

sjt:
</p><p>
<font><b>2) WHEN DOES ONE 'KAROV' OR 'PASUL' INFLUENCE THE STATUS OF THE ENTIRE GROUP?</b></font><b>
<br>QUESTION:</b> The Beraisa states that if four or five witnesses signed a Shtar and one was found to be a Karov (relative) or Pasul (disqualified) from testimony, the testimony of the other witnesses nevertheless remains valid as long as they are valid witnesses. This statement seems to contradict the Mishnah in Makos (5b). The Mishnah there quotes Rebbi Akiva who says that if one of a group of witnesses who testify before Beis Din is found to be a Karov or Pasul, the entire group is disqualified. What is the difference between the Beraisa here and the Mishnah in Makos?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> (DH Nimtza) answers that the Beraisa refers to testimony in a Shtar, while the Mishnah in Makos refers to oral testimony presented to Beis Din. When all of the witnesses saw the event with intent to give testimony, they are considered a single group and the disqualification of one disqualifies the entire group. The Beraisa, in contrast, refers to a Karov or Pasul whose signature appears in the middle or at the end of the signatures. This shows that his signature was not really meant as testimony, and was probably included only to fill up the space towards the bottom of the Shtar. Therefore, the signature of the invalid witness is of no consequence.
</p><p>
(b) The <b>YOSEF DA'AS</b> quotes <b>RABEINU CHAIM HA'LEVI</b> who explains that there is another fundamental difference between witnesses who give oral testimony and those who give written testimony. When witnesses come together as a group, they all give their testimony together in front of Beis Din. In contrast, witnesses on a Shtar may sign the same Shtar separately, when they are not even in each other's presence. (See Tosfos to Kesuvos 20a-b, DH v'Rebbi Yochanan, who writes that according to the <b><b><b>RI</b></b></b> one may bring to Beis Din two separate documents which state the same thing, with the signature of one witness on one document, and the signature of another witness on the second document, and Beis Din will consider it a valid Shtar with two witnesses.) Witnesses signed on a Shtar have less of a status as a group, and therefore they have less of an effect on each other's status.
</p><p>
(c) The Yosef Da'as quotes another explanation in the name of Rabeinu Chaim ha'Levi. He explains that technically one should not be able to give any kind of testimony via a Shtar. One reason for this is the Derashah which the Gemara often quotes (see Yevamos 31b): 'mi'Pihem, v'Lo mi'Pi Kesavam' -- 'from their mouths, and not from their writing.' (The word 'mi'Pihem' is not actually a verse, but rather a paraphrase of the verse, 'Al Pi Shenayim Edim' (Devarim 17:6); see <b>RASHI</b> to Gitin 71a, DH mi'Pihem). Moreover, for witnesses to be valid, Beis Din must formally accept their testimony, but witnesses on a Shtar are usually not interviewed by Beis Din. The only reason why such witnesses are valid is that there is a Chazakah that witnesses who signed a Shtar are considered to have been examined and found worthy by Beis Din. However, Rabeinu Chaim asserts that this is true only when the witnesses are eligible to testify. If they are not eligible to testify, then clearly the Chazakah -- that their testimony is considered as though it was examined and found worthy by Beis Din - does not apply. Such signatures therefore are not considered to have been submitted for approval via this Chazakah, and they are not considered testimony, in contrast to witnesses who testify in from of Beis Din and are found to be a Karov or Pasul. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>BLANK LINES AFTER THE TEXT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> We say that two blank lines invalidate a
          document. Does this mean the amount for two lines of text
          and the space between them, or without the space?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Presumably, it means the amount for two lines
          and the space between them;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (our text, Tosfos):</font></b> If it were without
               the space, obviously, there is no concern for one
               line! (Beraisa #1 would not need to teach that one
               blank line does not disqualify.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Version #2 (Rashbam):</font></b> If it were without the
               space, there is no concern (for two blank lines. If
               he will add one line of text, we do not learn from
               it. If he will add two lines, he must write them
               smaller than the rest of the document, or not leave
               space between them. In either case, the forgery
               would be evident!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Shabsi):</font></b> The two blank lines that invalidate a
          document are gauged according to the way witnesses write,
          and not the way a scribe writes (which is smaller).
<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> Presumably, a swindler must forge by himself,
          for a scribe would not agree. Regular people cannot write
          as small as scribes can.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What size space invalidates a document?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yitzchak ben Elazar):</font></b> (Room for two
          lines with spaces above and below, so the letters will
          never touch letters of other lines, i.e.) enough so even
          if 'Lecha' is written in each line ('Lamed' extends above
          the line, final 'Chaf' extends below the line, and the
          final 'Chaf' in the top line and the 'Lamed' in the
          bottom line are aligned, they will not touch each other;
          also, the final 'Chaf' in the bottom line and the 'Lamed'
          in the top line will not touch the line above or below
          the blank lines).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He requires room for two lines and four spaces (a
               separate space above and below each line).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (R. Chiya bar Ami):</font></b> They are enough so even
          if a 'Lamed' is in the top line, and a final 'Chaf' is in
          the bottom line (they will not touch the line above or
          below the blank lines).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He requires room for two lines and three spaces
               (a space above and below each line, but one space
               suffices for between the two lines, a forger can
               arrange that no 'Lamed' is under a letter that
               extends below the line).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (R. Avahu):</font></b> They are enough to write one line
          with a 'Lamed' and a final 'Chaf'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He requires room for one line and two spaces. (R.
               Yonah - this is enough to forge two lines - surely,
               he argues with Rav Shabsi, who says that we consider
               two lines the way witnesses write.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN SPACE DISQUALIFIES A DOCUMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> We are concerned only for space between the text
          and the witnesses, but even a large space between the
          witnesses and the validation (of Beis Din) does not
          disqualify it.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> We are concerned for space between the text
          and the witnesses, lest the bearer add clauses (and the
          signatures will be underneath);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We should also be concerned for space between the
               witnesses and the validation, lest he write a
               document there, and the signatures of Beis Din will
               be underneath!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav allowed a space there only if it is smudged
          with ink (so nothing can be written there).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Also between the text and the witnesses, a
          space smudged with ink should not disqualify a document!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> No, we are concerned lest the witnesses signed
          under the smudge and did not intend to testify about the
          text.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Likewise, we should be concerned lest Beis
          Din signed under the smudge and did not intend to
          validate the document!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> A Beis Din would never do this.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> We should be concerned for a smudge between
          the witnesses and the validation, lest he cut off the top
          (the document and witnesses), erase the smudged area,
          write a document, forge signatures, and it will have a
          validation of Beis Din below it!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav):</font></b> If a document and the signatures are both
               on erased parchment, it is valid.
<br>
<br>

sjt:
<font><b>1) WHAT IS CONSIDERED TWO LINES?</b></font><b>
<br>OPINIONS:</b> The Gemara earlier quotes a Beraisa which states that if there is a space of two lines between the body of the Shtar and the signatures of the witnesses, the Shtar is invalid. The Chachamim decreed that such a Shtar is invalid because it provides an opportunity for forgeries. Although no information may be derived from the last line of the Shtar, the second-to-last line may be used to forge details which were not part of the original deal. The Chachamim therefore decreed that such a Shtar (even if a blank space is left and no forgery is present) is invalid.
</p><p>
How much space constitutes two lines? Rav Nachman states that it must be the height of two lines plus the amount of space that is normally left because of each line. Rebbi Shabsi states that the two lines is judged according to the larger handwriting of the owner of the Shtar, and not according to the handwriting of the Sofer, since a Sofer usually does not agree to forge a document. How much is that space? Rav Yitzchak says that there must be a space for two lines of writing plus four additional spaces, one space above and one space below each of the two lines. Since the witnesses are not accustomed to writing a Shtar in such a way that the letters which extend downward (such as the Chaf Sofis) and the letters that extend upward (such as the Lamed) should not collide, they will make large spaces for each letter to have its own area. This results in two lines and four spaces.
</p><p>
Rav Chiya says that although the forger will need a space above the top line (for a Lamed) and below the bottom line (for a Chaf Sofis), he does not need two spaces between the two lines. One space is enough, since he is able to arrange any Lamed in the lower line in a way that it will not collide with the Chaf Sofis of the preceding line.
</p><p>
Rebbi Avahu expresses a third opinion. He understands that when the Beraisa says 'two lines,' it refers to the spaces above and below one actual line of writing.
</p><p>
Which of these opinions does the Halachah follow?
</p><p>
(a) The <b>RAMBAM</b> (Hilchos Malveh v'Loveh 27:4) writes that the amount of two lines is two lines plus their spaces, such as when a Lamed is on top of a Chaf Sofis. This implies three spaces, because if the Rambam meant four spaces he would have used the example of the word 'Lecha' over the word 'Lecha,' which would take up four spaces (like the opinion of Rav Yitzchak in the Gemara). Which opinion does the Rambam follow? The <b>MAGID MISHNEH</b> explains that the Rambam rules like Rebbi Shabsi. Apparently, the Rambam prefers to rule like Rav Nachman who says that the two lines are 'Hen v'Aviran' -- 'they and their spaces.' Since the natural spaces would be only one space above and one space below each line, with one space between every two lines, Rav Nachman must mean that only three spaces are necessary. The Rambam therefore rules like Rav Nachman and Rav Shabsi. This is also the understanding of the <b>ROSH</b>, who says that this opinion seems to make the most sense. The Magid Mishneh also quotes the <b>RA'AVAD</b> and <b>RABEINU YONAH</b> who side with this opinion.
</p><p>
The <b>BEIS YOSEF</b> (CM 45:9) takes issue with the Magid Mishneh's understanding of the ruling of the Rambam. Everyone agrees with Rav Nachman that the two lines include the space needed to write letters that descend or extend upwards. The only question is how <i>much</i> space is necessary for those letters. The Rambam therefore does not rule like Rav Nachman, since Rav Nachman does not have a specific opinion in this argument.
</p><p>
The <b>LECHEM MISHNEH</b> defends the Magid Mishneh's explanation. He writes that Rav Nachman definitely does not agree with Rebbi Avahu, who says that the 'lines' in the Beraisa refer to spaces. This is clear from Rav Nachman's statement, 'they and their lines.' The Magid Mishneh's reasoning is that this is why the Rambam does not rule like Rebbi Avahu here, even though normally he would rule like Rebbi Avahu since he is the later Amora. Since Rav Nachman can follow only one of two opinions in the Gemara, the Rambam clearly can rule only like the opinion of three spaces and not four, because Rav Chiya is a later Amora, and also because his opinion takes the middle ground. (Interestingly, the Lechem Mishneh does not give the Rosh's reason that this opinion is simply more logical.)
</p><p>
(b) <b>RAV HAI GA'ON</b>, the <b>RAMBAN</b>, and the <b>BA'AL HA'ITUR</b> indeed rule like Rebbi Avahu. The only reason the Ramban gives for why he rules like Rebbi Avahu is that we are stringent with the owner of the Shtar. However, according to the answer of the Lechem Mishneh mentioned above, another reason why the Ramban rules like Rebbi Avahu may be that Rebbi Avahu was the later Amora. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ONE-LINE DOCUMENTS AND CONCERNS THEY AROUSE</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If between the text and the witnesses there is a
               smudge of ink, the document is Pasul. Perhaps the
               witnesses signed under the smudge and did not intend
               to testify about the text.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 163b (R. Yochanan):</font></b> Two blank lines between the text
               and the witnesses invalid a document, but even one
               blank line between the witnesses and the validation
               disqualifies it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Presumably, we are concerned lest he cut
               off the top (the document and witnesses) and write a
               document and forge signatures in the blank line (and
               it will have a validation of Beis Din below it)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yochanan must say that a one-line document
                    that includes the signatures is valid.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Summation of question:</font></b> Also when there is one
                    blank line between the text and the witnesses,
                    perhaps he will cut off the top, and write a
                    document in the blank line (and it will have
                    signatures underneath)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> R. Yochanan must say that a one-line
               document in which the signatures are <i>underneath</i> is
               invalid (we do not learn from the bottom line).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps when he writes the document in the
               blank line (above the witnesses), he will also forge
               signatures in that line. He will say that he wanted
               to have extra witnesses, therefore there are also
               signatures underneath!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> In such a case, it must be validated from
               the witnesses in the same line as the document.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif brings the Gemara verbatim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Chavos Ya'ir (1):</font></b> We did not enact to
                    Machshir a one line document in which the
                    witnesses signed underneath, and disqualify
                    when witnesses left a blank line, for witnesses
                    are not so proficient to sign without leaving
                    any space. Beis Din is proficient.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 27:4):</font></b> A one-line document
               that includes the signatures is Kosher.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba says in the name of
                    Tosfos that we learn from here that witnesses
                    must sign at the beginning of the line, so
                    there is no room to write a document in the
                    margin. If such a document were written, it
                    would (seem to) be a Kosher document. Since
                    there is concern for this forgery, this
                    disqualifies the document. If the first witness
                    left room in the margin, the second witness
                    should sign under him. Now the bearer cannot
                    write a new document with witnesses all in one
                    line.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If a document is in one line, and the
               signatures are in the second line, it is Pasul.
               Perhaps witnesses signed one line below a Kosher
               document, and the bearer cut off the document and
               wrote this document in the bkl, and the witnesses
               are signed underneath it. Similarly, if a document
               and two signatures are in one line, and two more
               witnesses are in the second line, and he says that
               he wanted to have extra witnesses, we validate it
               only from the witnesses in the top line. Perhaps in
               the bkl between the original Kosher document and the
               witnesses he wrote a document and forged signatures.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Maimoniyos (Hilchos Gerushin 1:3,
                    citing Sefer ha'Terumos):</font></b> Witnesses must sign
                    at the beginning of the line, so the there is
                    no room to write a document in the margin.
                    Witnesses should sign one under the other, lest
                    there be room in the margin to write 'Ploni
                    borrowed a Maneh (100 Zuz) from Almoni.' Even
                    if they sign one under the other, if there is
                    room the bearer could write 'I signed below owe
                    a Maneh to Ploni', and the witness will be
                    signed afterwards! The only solution is to
                    leave a small margin. One should finish the
                    last line of the document to the end. Some do
                    so by elongating the letters.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (10:2):</font></b> The Sugya disqualifies any document
               that could be used to swindle, even if no fraud was
               done, for it is unlike Chachamim's enactment.
               Witnesses must sign at the beginning of the line, so
               there is no room to write a document in the margin.
               If there were room, and they signed in one line, the
               bearer could cut off the document, and write what he
               wants to the side. His new document has the text and
               witnesses all in one line. We accept such documents!
               If there is a margin, one may dirty it with ink. We
               are concerned lest witnesses signed (only) on an ink
               smudge only when it is between the text and the
               signatures, like the concern lest witnesses signed
               on a greeting under the document (176a).
               Alternatively, witnesses may sign one under the
               other (even if there is space to the side). Even
               though the bearer could write 'I owe 100 to you' to
               the side, and (it will look as if) one witness
               signed on it, we are concerned only when the bearer
               can forge a document that can be used to force
               others to pay. We are not concerned if he can force
               the witness to pay, for the witness caused his own
               loss. However, if one may join two documents, each
               of which was signed by one witness, we must
               disqualify a document with space next to the
               witnesses.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (10:10):</font></b> R. Yochanan holds that one blank line
               between the witnesses and the validation
               disqualifies the validation. Since there is no
               problem between the document and the witnesses, we
               disqualify only from the problem and below.
<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 45:11):</font></b> Witnesses must be
               meticulous when they sign, that if there is blank
               parchment in front of their signatures, that they
               not sign one after the other in one line. Perhaps
               the bearer will write what he wants, cut off the
               top, and he will have a document with signatures in
               one line.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Kosvu ha'Tosfos):</font></b> Tosfos (163b
                    DH Shitah) says that even if witnesses signed
                    and left much blank parchment at the beginning
                    (of the line - Bach), perhaps the document is
                    Kosher. We disqualify only when a part
                    essential to the document can be used to forge.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (19):</font></b> It seems that the reason to be
                    Machshir is because one could cut off the
                    margin if it is not essential to the document.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Darchei Moshe (3):</font></b> The Rosh, Tur and Mordechai
                    (643) disqualify.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Tashbatz (1:6, cited in Hagahos Tur ha'Shalem
                    87):</font></b> The custom is to have a big margin in
                    Kesuvos. It should be filled with pictures or
                    stanzas or verses. However, it is better not to
                    write verses.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> SMA (24):</font></b> We are concerned even when they
                    signed under the beginning of the text lines,
                    if there is a big margin.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Rather, they should smudge
               the blank parchment with ink. We say that witnesses
               signed (only) on the smudge only when it is between
               the text and the witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (25):</font></b> There is no reason for witnesses to
                    testify that the area was smudged (and the
                    lender did not erase`anything there), for the
                    lender could cut off the margin without any
                    suspicion, if he desired.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If witnesses began to sign in
               the middle of a line, and the blank parchment before
               their signatures was cut off, it is Pasul. Perhaps
               an unfavorable clause for the bearer or a Tanai was
               written there, and he cut it off.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (26):</font></b> We do not learn from the last line to
                    help the bearer, but we learn from it to weaken
                    him (44:1, Nimukei Yosef 76b DH Masnisin).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> However, if Sharir v'Kayam
               was written at the end of the line above it is
               Kosher, if the witnesses signed one under the other.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (20):</font></b> The Rosh, Tur and Shulchan Aruch
                    say that if Sharir v'Kayam was written at the
                    end of the line above it is Kosher. Perhaps an
                    unfavorable clause for the bearer was written
                    after Sharir v'Kayam! The Bach (12) says that
                    since it is rare to write more than one Sharir
                    v'Kayam, we are not concerned for this, even if
                    there is a Re'usa (problem). This is wrong.
                    Also, perhaps there was an unfavorable clause
                    after Sharir v'Kayam without a second Sharir
                    v'Kayam! Rather, the Rosh, Tur and Shulchan
                    Aruch discuss nowadays that we learn from the
                    last line since we (always) write Sharir
                    v'Kayam. They hold that based on Gemara law, we
                    do not learn even to weaken the bearer from the
                    last line, like the Rashbam (Sof 161b) says.
                    Likewise, nowadays we do not learn at all from
                    what is after Sharir v'Kayam. The Rema (42:5
                    and 44:1) holds that we learn from the last to
                    weaken the bearer. If so, he should have
                    commented here also (to disagree with the
                    Mechaber (below) who is Machshir if Sharir
                    v'Kayam was written at the end of the line)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (22):</font></b> The Shulchan Aruch is difficult. If
                    there is no Sharir v'Kayam, in any case
                    (nowadays) it is Pasul!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If they signed one after the
               other, it is Pasul. Perhaps a Kosher document was
               written in one line with the witnesses, and he cut
               off the text, and wrote the current document in the
               blank parchment above.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (27):</font></b> This teaches that one should not make
                    a document with the witnesses in one line if
                    there is blank parchment above. He must smudge
                    the blank parchment or cut it off. (If the
                    margin is cut off before the witnesses,) since
                    we see a problem (they did not sign at the
                    beginning of the line), we are concerned (lest
                    they also left blank parchment above, and the
                    lender added text).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SHARIR V'KAYAM IN DOCUMENTS NOWADAYS </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1:</font></b> According to Rav Kahana, who cited the above
          law in Shmuel's name, we can say that Rav disqualifies
          such a document.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Rav Tavyomi cited it in Rav's name - how can
          we answer?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He holds that we do not rely on validations of
          documents on erased parchment (a Beis Din will not act
          according to the document until it itself validates it).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Two blank lines between the text and the
          witnesses invalid a document, but even one blank line
          between the witnesses and the validation disqualifies it.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> Presumably, we are concerned lest he cut off
          the top (the document and witnesses) and write a document
          and forge signatures in the blank line (and it will have
          a validation of Beis Din below it)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan must say that a one-line document
               that includes the signatures is valid.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> Also when there is one
               blank line between the text and the witnesses,
               perhaps he will cut off the top, and write a
               document in the blank line (and it will have
               signatures underneath)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan must say that a one-line document
          in which the signatures are <i>underneath</i> is invalid (we
          do not act according to the bottom line).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps when he writes the document in the
          blank line (above the witnesses), he will also forge
          signatures in that line. He will say that he wanted to
          have extra witnesses, therefore there are also signatures
          underneath!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> In such a case, it must be validated from the
          witnesses in the same line as the document.
<br>

<p>

sjt:
</p><p>
<font><b>2) HALACHAH: THE SOURCE FOR THE CUSTOM TO DESIGN A KESUVAH</b></font><b>
<br></b>The Gemara teaches that a Shtar in which the body of the Shtar is written on the same line as the signatures of the witnesses is valid. <b>TOSFOS</b> (DH Shitah) states that for this reason, a witness should always sign at the beginning of a line and not leave any empty space for someone to insert additional information at the beginning of that line. Since such information would be considered valid, signing in the middle of a line or at the end of a line would create the opportunity for a forgery.
</p><p>
This Halachah has a practical application in a common custom observed today. The <b>TASHBATZ</b> (1:6) writes that a Kesuvah was originally written in an aesthetically pleasing way by leaving wide margins. However, this created the opportunity for an unscrupulous person to fill in more information in the margins. It therefore became the custom to fill in the margins with pictures and designs, to ensure that no additional information would be added. However, the Tashbatz writes, one should make designs or write poetic lines in the margins of the Kesuvah rather than actual verses, due to the Halachic problems involved with writing verses, which he discusses at length in an earlier Teshuvah (1:2).
</p><p>
The Tashbatz endorses the custom of decorated the Kesuvah, and he writes that he personally arranged for the Kesuvos of his sons and daughters to have designs and poetic phrases in the margins. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOCUMENTS ON ERASED PARCHMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> If a document and the signatures are both on
          erased parchment, it is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he will take such a (signed)
          document, erase the text, and write a new text!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> If he does, the place of the text will have
          been erased twice. It looks different that parchment 
          erased once, and the forgery will be evident.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he will write a document on erased
          parchment, put ink underneath, erase it, and have the
          witnesses sign;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When he later erases (and rewrites) the text, the
               text and the signatures will both be on parchment
               that was erased twice!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Rav holds that witnesses will not sign
          on erased parchment unless it was erased in front of them
          (and looks like the rest of the document).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a document is on clear parchment
          and the signatures are on erased parchment, it is valid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps he will erase the text, and write a new
               text (Rav allows a document if the text and
               signatures are both on parchment erased once)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> If witnesses sign on erased parchment and the
          text is on clear parchment, the witnesses write this.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If they write it below their signatures, the
          bearer could cut it off. If they write it above their
          signatures, the bearer could erase it!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> They write this between the signatures.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (end of the Beraisa):</font></b> If the text is on erased
          parchment and the signatures are on clear parchment, it
          is invalid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The witnesses should write this, and the document
               should be valid!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> We are concerned lest the bearer
               erase the text and write a new text.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> We said that parchment erased twice is
               recognizably different than parchment erased once!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> When part of a parchment was erased twice and
          another part was erased once, this is recognizable. Here,
          part was erased twice, and part is clear (so it is not
          evident that the text was erased twice).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> We should take a clear parchment, erase it,
          and compare it to the text!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Different parchments look different when they
          are erased.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question:</font></b> After validating the signatures, we should
          erase them, and see if it resembles the text!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (R. Hoshaya):</font></b> Parchment erased today looks
          different than parchment erased yesterday.
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	[Objection:</font></b> We can leave it around (until it looks like
          parchment erased some days ago, and compare it)! Tosfos -
          some texts delete this, for there will still be a
          difference between the parchments.]
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #2 (R. Yirmeyah):</font></b> We are concerned lest Beis Din
          err (and not wait).]
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW GITIN ARE DATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Chanina ben Gamliel):</font></b> If witnesses signed
          on the inside of a tied Get (it is valid, because it can
          be converted to a standard Get).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection (Rebbi):</font></b> The dates of standard Gitin and tied
          Gitin are written differently!
<br>
<br>

sjt:
<font><b>1) NO ONE IS SAVED FROM THREE SINS</b></font><b>
<br>QUESTION:</b> Rav Amram said in the name of Rav that there are three Aveiros 'from which no person is saved every day: Hirhur Aveirah, Iyun Tefilah, and Lashon ha'Ra.' The Gemara explains that 'Lashon ha'Ra' refers to <i>Avak</i> Lashon ha'Ra (see Background to the Daf).
</p><p>
What does the Gemara mean when it says that 'no man is saved' from these Aveiros? Certainly there are great Tzadikim and Talmidei Chachamim who -- even if not entirely free of sin (see Koheles 7:20) -- do not transgress all of these Aveiros every day! Why does the Gemara say that <i>no person</i> is saved from these three Aveiros every day?
</p><p>
Moreover, if no one is saved from these three Aveiros, why are they Aveiros? Hash-m certainly would not give commandments that are impossible to observe.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>IYUN YAKOV</b> explains that the Gemara means that because the temptation for these three Aveiros is so great, no person is saved from these three Aveiros <i>without putting forth tremendous effort</i>. One who puts forth the effort to protect himself from these Aveiros will succeed and will not succumb.
</p><p>
The <b>TORAS CHAIM</b>, however, seems to disagree with this explanation. He asks why the Gemara says that 'no person is saved' from these three Aveiros when it should say simply that 'there are three Aveiros which a person transgresses every day.' He answers that the Gemara is teaching that even one who attempts to avoid these Aveiros will not be saved from transgressing them inadvertently, since the frequency of the challenge of these Aveiros is so great. How, then, does the Toras Chaim explain that there are Tzadikim who are able to avoid these Aveiros?
</p><p>
(b) The <b>MAHARSHA</b> explains that when the Gemara says that 'no person is saved' -- 'Ein Adam Nitzol' -- from these three Aveiros, it refers to an ordinary person, but not to Tzadikim who indeed are saved from these Aveiros. He explains that while only a Yisrael, and not a Nochri, is called 'Adam' (Yevamos 61a), there is still a much higher level that a person can reach. The verse in Zecharyah (3:7) says that when a person follows the ways of Hash-m, then 'I will give you strides among these [Mal'achim] standing here.' Similarly, the Gemara in Chagigah (15b) explains that the verse, 'The lips of the Kohen shall safeguard knowledge, and they shall seek Torah from his mouth, because he is an agent (Mal'ach) of Hash-m...' (Malachi 2:7), teaches that when a Torah teacher is similar to a Mal'ach, then one should seek to learn Torah from him. This teaches that a person should strive to reach a level of absolute submission to Hash-m, like the level of the Mal'achim.
</p><p>
When the Gemara here says that 'no person (Adam) is saved' from these three Aveiros, it refers to a person who has not yet reached this level of perfection in his Avodas Hash-m. The Maharsha explains that the word 'Adam' is an acronym for the words, 'Efer' (ashes or dust), 'Dam' (blood), and 'Marah' (bile), as the Gemara in Sotah (5a) says. An ordinary person, whose physical composition dominates his actions, is not able to prevent himself from transgressing these three Aveiros. The fact that he is comprised of 'Efer' negates his ability to activate his spiritual strengths in order to pray properly, and thus he sins with the Aveirah of Iyun Tefilah. The heat of the 'Dam' within him causes him to lust for immoral pleasure, and thus he is not saved from Hirhur Aveirah. His element of 'Marah,' bile, creates in him the bitterness that causes him to have bad Midos and leads him to speak Lashon ha'Ra.
</p><p>
A person who conquers the lusts created by his physical composition overcomes the pull of those elements and rises above the status of 'Adam' ('Efer, Dam, Marah') and becomes comparable to a Mal'ach. Such a person certainly is able to avoid transgressing these Aveiros.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>AVAK LASHON HA'RA</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A tied Get was brought in front of Rebbi. He was
               displeased. His son Shimon said 'I did not write it.
               Yehudah the scribe wrote it.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebbi:</font></b> Do not speak Lashon ha'Ra!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi once praised a Sefer Tehilim. His son Shimon
               said 'I did not write it. Yehudah the scribe wrote
               it.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebbi:</font></b> Do not speak Lashon ha'Ra!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Granted, it was Lashon ha'Ra to say that
               Yehudah wrote the tied Get. Why was it Lashon ha'Ra
               to say that he wrote the Sefer Tehilim?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Dimi, brother of Rav Safra):</font></b> One should
               not speak favorably of another, lest this lead to
               mention of his flaws.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rav Amram):</font></b> Everyone transgressed Lashon ha'Ra
               every day.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Objection:</font></b> People do not speak Lashon ha'Ra every
               day!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Correction:</font></b> Rather, they transgress Avak Lashon
               ha'Ra.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Erchin 16a (Rav Dimi):</font></b> 'Mevarech Re'ehu b'Kol Gadol
               ba'Boker Haskem Kelalah Techashev Lo' refers to one
               who publicly blesses his host who toiled so much for
               him. People hear this, and take his money.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> Rav Dimi fell ill. He told Rav Safra 'I fulfilled
               every mid'Rabanan law.'
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Rav Safra:</font></b> Did you fulfill not speaking highly of
               Ploni, lest this lead to mention of his flaws?
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Megilah 25b (Rav Ashi):</font></b> One may praise a person
               about whom good reports go out. He will be blessed
               for doing so.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Yerushalmi Pe'ah (4b):</font></b> How severe is Avak Lashon
               ha'Ra! Verses falsified matters to make Shalom
               between Avraham and Sarah, to cover up her amazement
               that Avraham, who is old, will have a son. Verses
               falsified matters to make Shalom between Yosef and
               his brothers. They told him 'your father commanded
               to forgive us', and we do not find that Yakov did
               so.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Shabbos 14a):</font></b> 'Mevarech Re'ehu b'Kol Gadol...'
               refers to one who publicly blesses his host...
               People hear this, and lodge with him. One should
               never praise someone too much, lest he come to
               mention his flaws.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (DH v'Sham'ei):</font></b> The host will be inundated
                    with guests until his money is consumed. If one
                    is praised, listeners will point out flaws.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rashi (Erchin 16a DH v'Sham'in):</font></b> Powerful
                    people hear of the host's wealth, and take it
                    by force. If one is praised, the speaker or a
                    listener will point out a flaw in him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos De'os 7:4):</font></b> Some things are
               forbidden due to Avak Lashon ha'Ra. 'Who would have
               said about Ploni that he would be like he is now',
               or 'be quiet about Ploni. I don't want to say what
               happened (with him).' Similarly, if one speaks
               highly about Ploni in front of Son'av (people who
               hate Ploni), this is Avak Lashon ha'Ra, for it
               causes them to speak to his detriment. About such
               matters it says 'Mevarech Re'ehu b'Kol Gadol...'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh:</font></b> The Rambam explains that
                    speaking highly about Ploni is forbidden in
                    front of people who hate him, for it causes
                    them to say 'this is not true. Rather, he has
                    this (bad) trait.' The Rambam implies that one
                    may speak well about someone in front of people
                    who love him.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos Maimoniyos (5):</font></b> Avos 2:8 proves that
                    one may speak well about someone in front of
                    people who love him. R. Yochanan ben Zakai used
                    to tell the praises of his Talmidim. However,
                    the Rashbam (164b DH Ba) explains that one
                    should not praise someone too much, for surely
                    he will come to mention his flaws.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Also Semag brought a proof from R.
                    Yochanan ben Zakai. This is no proof according
                    to the Chafetz Chayim (9:2 below, who permits
                    praising one established to be a Tzadik without
                    any flaws).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Iyun Yakov (Erchin 16 Amos DH Tani):</font></b> The Rambam
                    explains that one should not praise a host lest
                    others mention his flaws.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Emes l'Yakov (Bava Basra 164b), Minchas Chinuch
                    (236:1) and Pri Chodosh (Mayim Chayim, in
                    Likutim in Frankel Rambam):</font></b> Bava Basra 164b
                    connotes that the Isur is not only in front of
                    Son'av. It is difficult to say that Rebbi hated
                    Yehudah due to the previous incident (of the
                    tied Get).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Perush ha'Mishnayos (Avos 1:17):</font></b> A Chacham once
               praised a scribe in front of many people. The Rav
               rebuked him for Lashon ha'Ra, for amidst the many
               people some hate the scribe, and hearing his praise
               will prompt them to mention his faults. This is the
               ultimate distancing from Lashon ha'Ra.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Note:</font></b> The Chida (Bris Olam, on Sefer Chasidim
                    64) says that this answers for the Rambam.
                    Perhaps those who challenged the Rambam (above)
                    rejected this, for Rebbi thought that Shimon
                    wrote it, and he praised it in front of many)!
                    Perhaps Shimon was established to be a flawless
                    Tzadik (see below). However, the Rambam does
                    not bring this Heter!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Yad Eisan (in Likutim in Frankel Rambam):</font></b> The
                    Rambam explains that the Isur is only in front
                    of Son'av, for Eruvin 18b permits to tell
                    someone's full praise in his absence.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Sha'arei Teshuvah (of R. Yonah, 3:226):</font></b> Avak Lashon
               ha'Ra is causing others to speak Lashon ha'Ra.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Be'er Mayim Chayim (Chafetz Chayim Kelal
                    9)):4):</font></b> Why do the Rambam and R. Yonah ignore
                    the Lav of Lifnei Iver? It is difficult to say
                    that they mean 'in addition to the Isur of
                    Lifnei Iver.' Perhaps they teach about when the
                    listeners would have spoken Lashon ha'Ra by
                    themselves
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Sha'arei Teshuvah (ibid.):</font></b> It is praiseworthy to
               praise people. An Evil (scoffer) is one who never
               praises people. However, one should praise Ploni
               only when speaking to an individual, but not to a
               Rabim, unless he knows that no one there hates or
               envies Ploni. One may praise a person established to
               be a Tzadik without any flaws, even in front of
               Son'av and those who envy him, for they cannot speak
               bad about him. They know that if they speak bad
               about him, everyone will say 'you lie!'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Sha'arei Teshuvah (227,228):</font></b> One may speak bad about
               sinners to prevent others from doing so, but he must
               beware lest he be suspected of Lashon ha'Ra. If he
               brings himself to suspicion, this is Avak Lashon
               ha'Ra. People might suspect that he did not first
               tell the sinner, or that he lies. Therefore, if he
               first openly rebuked him, or he is established to
               speak only the truth and not to fear people, it is
               permitted.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Sefer Chasidim (64):</font></b> One should not praise an
                    Ashir (wealthy person) in front of an Ashir,
                    nor a scribe in front of a scribe, etc. One may
                    praise one with Yir'as Shamayim in front of
                    Yir'ei Shamayim, for this will not cause envy.
                    Rather, he will want to act similarly.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Pnei Moshe (Pe'ah 4b DH Kamah):</font></b> What Sarah said
                    about Avraham was only Avak Lashon ha'Ra. It is
                    no detriment to say that he is old! Yosef's
                    brothers lied to him, for they feared lest he
                    accepted Avak Lashon ha'Ra about them, which
                    would cause him to remember what they did to
                    him.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Magen Avraham (156:2):</font></b> Examples of Avak Lashon ha'Ra
               are 'who would have said about Ploni that he would
               be like he is now', or 'be quiet. I don't want to
               say what happened.' Also, speaking highly about
               Ploni in front of people who hate Ploni, is Avak
               Lashon ha'Ra, for it causes them to speak to his
               detriment. Rashi explains that it is speaking too
               highly about him, for surely he will come to mention
               his detriment. This is difficult, for Rebbi praised
               a Sefer Tehilim, his son Shimon said 'I did not
               write it. Yehudah the scribe wrote it', and Rebbi
               rebuked him for speaking Lashon ha'Ra!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chafetz Chayim (9:1):</font></b> It is Avak Lashon ha'Ra to
               speak highly about Ploni in front of people who hate
               Ploni, for it causes them to speak to his detriment.
               The same applies to speaking too highly about him,
               for then he is apt to speak to his detriment in the
               end, e.g. 'except for this bad trait that he has.'
               Or, the listeners will say 'why do you praise him so
               much? He has this bad trait!'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Be'er Mayim Chayim (4):</font></b> Therefore, if one knows
                    that Ploni dislikes the Rav or Beis Din of the
                    city, and he has a Din Torah, one may not ask
                    him afterwards what happened, for he is prone
                    to say bad things about the Beis Din. In our
                    many sins, many people resent the Beis Din due
                    to one ruling against them, therefore even if
                    one does not know that Ploni dislikes the Beis
                    Din, one should not ask him what the outcome
                    was. It is permitted only if the law is
                    relevant for the one who asks.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Chafetz Chayim (9:2):</font></b> It is always forbidden to
               praise Ploni in public, for normally some of them
               hate or envy him, and they will mention his faults.
               One may praise a person established to be a flawless
               Tzadik, even in front of Son'av.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Be'er Mayim Chayim (7):</font></b> One should not sit
                    among people praising even Gedolei ha'Dor, for
                    in the end they will come to Lashon ha'Ra.
                    Lashon ha'Ra about Gedolim is far more severe
                    than about a Stam Yisrael.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> It is a Chidush that Gedolei Yisrael are
                    not established to be Tzadikim without any
                    flaws!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Chafetz Chayim (9:3):</font></b> One may not praise Ploni in a
               way that will cause a loss, e.g. to publicize
               Ploni's generous hospitality. Through this, empty
               people will gather to Ploni and consume his money.
               One should not publicize that Ploni lent to him, for
               this often causes evil people to gather to him, and
               he cannot evade them. One must not bring himself to
               be suspected of Lashon ha'Ra.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>LASHON HA'RA SAID IN FRONT OF THREE PEOPLE </b></b>(</font><font color='blue'>


