# dafyomi

lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>INHERITANCE FROM TRIBE TO TRIBE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why did R. Yishmael need a second verse?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have said that perhaps a husband does
          not inherit his wife, and the Torah forbade a woman who
          inherits from marrying into a different tribe because her
          son (who will be of her husband's tribe) will inherit
          her.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Therefore, he cited 'v'Lo Tisov Nachalah li'Vnei
               Yisrael mi'Mateh El Mateh';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One might have said that this does not teach that
               a husband inherits, rather it adds a Lav to the Isur
               Aseh for her to marry into another tribe;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Therefore he cited 'v'Lo Tisov Nachalah mi'Mateh
               l'Mateh Acher.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> One might have said that this comes only to add a
               second Lav, along with the positive Isur for her to
               marry into another tribe;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Therefore, he cited 'v'Elazar... b'Giv'as
               Pinchas.'
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> How would Pinchas have land if he did
               not inherit it from his father?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> One might have said that Elazar married a woman
               who inherited from her father, and Pinchas inherited
               his mother;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Therefore, he cited 'u'Sguv Holid Es Ya'ir va'Yhi
               Lo Esrim v'Shalosh Arim'.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps also Ya'ir inherited his
               mother!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'>  Rejection:</font></b> If so, there would be two verses
               showing that a man inherits his mother!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> Perhaps a husband does not
          inherit. The three verses of the Torah all discuss
          transfer of inheritance through the son; and Ya'ir and
          Pinchas bought fields!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> You cannot say that Pinchas bought a
          field and buried his father in it. Since the field
          reverts to the seller in Yovel, Elazar would be buried in
          someone else's land!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> One could say that Pinchas received a Cherem
          field (it is given permanently to the Kohanim in Yovel)!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHEN IS TRANSFER OF INHERITANCE A PROBLEM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Rashbam) Question (Abaye):</font></b> If a daughter
          inherited both her parents, even if she marries a man of
          her father's tribe, her mother's property will transfer!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps we are not concerned for this,
          since the inheritance already transferred from her
          mother's tribe to her father's.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps we are still concerned!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Question (Abaye):</font></b> Even if a man
          does not inherit his wife, there will still be transferal
          of inheritance!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If a daughter inherits her father and mother, and
               they are of different tribes, no matter who she
               marries, there is a transfer!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (If a husband inherits his wife, we shall see
               that there is a way to prevent additional transfer.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Suggestion (Rav Papa):</font></b> Perhaps we are not concerned for
          this, since the inheritance already transferred from her
          mother's tribe to her father's.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> No, we are still concerned.(End of
          Version #2)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Yemar):</font></b> We understand if we are no longer
          concerned. The verses of the Torah discuss transferal
          through the husband and the son (in both cases, it
          suffices to marry a man of her father's tribe);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if we are still concerned, even if she
               marries a man of her father's tribe, this still
               transfers the inheritance of her mother!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> She marries a man whose parents are
          from the same two tribes as her parents. When he inherits
          her, no additional transfer occurs.
<br>
<br>

sjt:
<font><b>1) THE 'SEDEH CHARAMIM' OF PINCHAS</b></font><b>
<br>OPINIONS:</b> The Gemara discusses how it was possible that Pinchas owned a field in Eretz Yisrael which did not belong to Elazar, his father, as the verse says, 'Elazar, the son of Aharon, died, and they buried him in the hill of Pinchas, his son, which was given to him on Mount Efrayim' (Yehoshua 24:33). The Gemara answers that Pinchas had a field from the 'Sedeh Charamim.' What kind of field is this?
</p><p>
(a) The <b>RASHBAM</b> (DH mi'Sedeh Charamim) says that this type of field is what the verse refers to when it says, 'Any Cherem in Yisrael is for you (the Kohanim)' (Bamidbar 18:14). If a person consecrates his field as 'Cherem,' it goes to the Kohanim.
</p><p>
(b) Alternatively, the Rashbam explains that the Gemara refers to one who consecrated his Sedeh Achuzah (the ancestral field he inherited in Eretz Yisrael) to Hekdesh. This type of field is left for the owner to redeem. If the owner does not redeem it by the time the Yovel year arrives, the field is given over to the Kohanim. This field is also called 'Cherem,' as the verse refers to it as 'Cherem': 'And when the field goes out in the Yovel year it will be holy to Hash-m, like a consecrated field (ki'Sedeh ha'Cherem)' (Vayikra 27:21).
</p><p>
The <b>RAMBAN</b> writes that the first explanation of the Rashbam is correct, while the second explanation is implausible. The Seder Olam states that Elazar died before the first Yovel was proclaimed in Eretz Yisrael. The only possible Sedeh ha'Cherem which Pinchas could have acquired in which to bury Elazar at that time was a field which was declared to be sanctified as Cherem by its owner. (Y. Montrose)
</p><p>


<font><b>2) A TRANSFER OF PROPERTY TO ANOTHER TRIBE THROUGH INHERITANCE</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a situation in which the transfer of inheritance potentially contradicts the Torah's rule that property of one Shevet should not be transferred (through inheritance) to another Shevet. Abaye asks a question which the Gemara attempts to answer. The Rishonim have two divergent versions of the Gemara's discussion.
</p><p>
(a) The <b>RASHBAM</b> (DH Hachi Garsinan) quotes the text of <b>RABEINU GERSHOM</b>. According to his text, Abaye asks a question which is not directly related to the previous discussion of the Gemara. Abaye asks that when the verse states, 'And every daughter who inherits her father's estate from the tribes (mi'Matos) of Bnei Yisrael, shall get married to a member of the tribe of her father' (Bamidbar 36:8), the word 'mi'Matos' ('from the tribes') indicates that the girl is inheriting from two tribes, from the tribe of her father and from the tribe of her mother. If this is so, Abaye asks, how will it help to require the girl to marry only a man from the Shevet of her father? She still will pass the inheritance of her mother to a Shevet other than her mother's Shevet. Accordingly, why does the Torah mention the word 'mi'Matos' when it says that the inheritance shall not be passed to another Shevet? It should say simply 'mi'Mateh' -- 'from the tribe,' referring only to the inheritance she receives from her father. Rav Papa answers that the inheritance she receives from her mother is not really considered the property of the Shevet of her mother, since the daughter inherits her mother only through her father, as the Gemara earlier teaches that one cannot receive inheritance through the family of the mother ('Mishpachas Em Einah Keruyah Mishpachah'). The final answer to Abaye's question is that the Torah is advising such a woman to marry a man whose father is from the Shevet of her father and whose mother is from the Shevet of her mother.
</p><p>
(b) <b>TOSFOS</b> (DH Eima) quotes the <b><b><b>RI</b></b></b> who has an entirely different text and understanding of Abaye's question. Abaye is questioning Rav Papa's statement that the Torah was not concerned that a woman would inherit her father's property and then her husband (from a different Shevet than her father) would inherit it from her. Rav Papa suggests that according to Torah law, a husband does not inherit his wife. What, then, is the Torah concerned about when it warns the daughters of Tzelofchad to only marry within their Shevet? The answer is that the Torah is concerned about the son of this woman, who inherits his mother's property. Abaye asks, how can the Torah let this woman, who inherits from both her father and her mother (as explained above in the Rashbam), marry into the Shevet of her father? The inheritance she receives from the Shevet of her mother will now go to her son who is from a different Shevet!
</p><p>
Abaye therefore concludes that if the Torah maintains that a husband inherits his wife, and it is concerned only about a husband who inherits the property of his wife from another Shevet, it makes sense that the Torah resolves this concern by requiring that she marry a man from her own Shevet. However, according to Rav Papa, the Torah is concerned about the <i>son</i> receiving inheritance from another Shevet. If this is the Torah's concern, then the Torah's advice that a woman marry a husband from the same Shevet as her father seems irrelevant. It must be that a husband <i>does</i> inherit his wife according to the Torah!
</p><p>
Rav Papa answers that once the daughter inherits her mother, the inheritance is deemed to have passed already from the mother's Shevet to the father's Shevet. (Y. Montrose)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MOVING THE DEAD</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'> (Abaye):</font></b> You cannot say that Pinchas bought a field 
               and buried his father in it. Since the field reverts
               to the seller in Yovel, Elazar would be buried in
               someone else's land!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Makos 11b (Beraisa):</font></b> If a Shogeg murderer died (and
               was buried in his Ir Miklat), and then the Kohen
               Gadol died, we take the murderer's bones and bury
               them near his family's burial place - 'Yashuv
               ha'Rotze'ach El Eretz Achuzaso' refers to burial.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Hagahos Ashri (Mo'ed Katan 3:39):</font></b> A case occurred in
               which a Mes was taken on Yom Tov Sheni to another
               city for burial. R. Tam was angry, even though there
               was no cemetery where he died. They should have
               buried him in the city, and moved him to the
               cemetery after Yom Tov. One should not take a Mes
               from a city with a cemetery to another city. One may
               take it to Eretz Yisrael. We do not take a Mes even
               from a disgraceful grave to an honorable one, but to
               be buried in his own we take even from an honorable
               one to a disgraceful one, for one wants to be buried
               near his fathers. If the Mes will not be guarded in
               this grave, i.e. there is concern lest Nochrim take
               it out or water will enter or it is a grave that was
               found, it is a Mitzvah to relocate it, due to its
               pain and disgrace.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rashba (1:369, brought in Bedek ha'Bayis YD 363):</font></b> If
               Reuven commanded at the time of his death to be
               buried in his fathers' gravesite, and due to Ones
               they could not do so immediately after he died, and
               they temporarily buried him near where he died, we
               may put plaster on the body to hasten decomposition
               to enable moving the bones. This is not pain to the
               Mes. His flesh does not feel a knife, and all the
               more so plaster. Embalmers cut a Mes and remove the
               intestines; this is not pain or disgrace. One may
               move it to bury it where he commanded. The Isur to
               move a Mes from grave to grave is when it is not for
               its honor. One wants to be buried with his fathers,
               like Yakov commanded his children. The Yerushalmi
               permits to move to his own gravesite, or when one
               was buried with intent to reinter elsewhere. A case
               occurred here in which one was buried in the
               neighborhood on a Nochri holiday when they could not
               bury it in the cemetery, and later they moved it to
               the cemetery. All the more so when he commanded to
               do so, it is a Mitzvah for his children to fulfill
               his words.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 363:1):</font></b> We do not take a Mes from
               one grave to another, even from a disgraceful grave
               to an honorable one, but to be buried in his own we
               take even from an honorable one to a disgraceful
               one, for one wants to be buried near his fathers.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beis Yosef (DH u'Mah she'Chosav l'Chaparah):
                    The only honor for which we move a Mes or bones
                    is to be buried in his fathers' gravesite.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav ha'Kol):</font></b> Kol Bo says
                    that we do not move a Mes, for this confounds
                    and pains it. It fears the day of judgment.
                    When Shmuel ha'Navi was conjured up, he said
                    'why did you agitate me?'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gilyon Maharsha:</font></b> Noda b'Yehudah (89) says that
                    Rekev (the corroded remains of a Mes) does not
                    feel confounded or pain if it is moved. The
                    same applies to bones without flesh. Therefore,
                    one may move them so they not remain near a
                    Nochri. Chacham Tzvi says that fear of judgment
                    applies even to a minor; Chavos Ya'ir said
                    oppositely.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Pischei Teshuvah (1):</font></b> Chacham Tzvi (50) says
                    that if a Mes was buried in a Nochri's land,
                    they may take it out to bury it in a cemetery
                    of Yisrael. Tiferes Tzvi says that if one wants
                    to be buried in a new cemetery, we are not
                    concerned for disgrace to those buried in the
                    old cemetery. One need not bear small disgrace
                    to avoid disgrace to others. A case occurred in
                    which Mesim were buried in land bought for 150
                    years, and afterwards the original owner may
                    plow or build there. The children wanted to
                    move them to a permanent burial site. The Noda
                    b'Yehudah (YD 89) said that we cannot learn
                    from the Chacham Tzvi's ruling. The current
                    situation is less disgraceful than being buried
                    amidst Nochrim. Also, perhaps the dead will be
                    revived before the 150 years expire, or the
                    children will be able to permanently buy the
                    burial site. If we know that the Mesim could be
                    moved towards the end of the 150 years, one may
                    not move them now. If it is doubtful whether
                    they could be moved later, one may move them
                    now. In any case, future Mesim should be buried
                    in the permanent cemetery. Once, there was a
                    plague, and Nochri law allowed Yisre'elim to be
                    buried in a cemetery without a wall (which is a
                    disgrace, for they are not guarded). In six
                    years the bodies will be removed and the place
                    will be seeded. Most of the Mesim had families
                    in the old cemetery of Yisre'elim, and were
                    reinterred there. Perhaps through great effort
                    and expenditure, the Tzibur could get the
                    Nochrim to agree to a wall and to leave the
                    area for a permanent cemetery. The Chasam Sofer
                    (334) ruled that the Tzibur need not bear this
                    expense. It is a Mitzvah to move the remaining
                    bodies to the old cemetery. Also, since the
                    temporary cemetery is not of Yisrael, this is
                    like a Tzadik buried in a grave that is not
                    his, which is disgraceful (Bava Basra 112a).
                    The old cemetery is of the Chevra (Kadisha).
                    Everyone buried there owns a portion.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Similarly, it is permitted in
               order to bury it in Eretz Yisrael. If he was buried
               in a grave with intent to be moved to another grave,
               it is permitted in every case.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source:</font></b> R. Yerucham, cited in Beis Yosef DH
                    Yerushalmi. Reinterment in Eretz Yisrael is an
                    atonement (Beis Yosef DH u'Mah she'Chosav
                    l'Chaparah).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (3):</font></b> We learn from 'v'Chiper Admaso Amo.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Pischei Teshuvah (2):</font></b> Teshuvas Ben Chaviv (63)
                    says that this is even if the Mes had revealed
                    that he disapproves of moving Mesim to Eretz
                    Yisrael (like one opinion in the Yerushalmi),
                    his children can move him, unless he explicitly
                    commanded that he not be taken to Eretz
                    Yisrael.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If the Mes will not be
               guarded in this grave, i.e. there is concern lest
               Nochrim take it out or water will enter or it is a
               grave that was found, it is a Mitzvah to relocate
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pischei Teshuvah (3):</font></b> If one bought a gravesite
                    and someone unknowingly buried a (Nefel)
                    miscarriage there, the owner may relocate the
                    Nefel.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> We do not take a Mes from a city
               in which there is a cemetery to another city, unless
               it is from Chutz la'Aretz to Eretz Yisrael.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (4):</font></b> It is a disgrace to Mesim in this
                    city that he does not want to be buried with
                    them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Zichron Yosef CM 9, cited by R. Akiva
                    Eiger):</font></b> If so, it would be forbidden even if
                    the Mes commanded to do so! Rather, it is pain
                    and disgrace to the Mes to move it a long way.
                    Perhaps before burial the flesh will rot, or
                    limbs will fall off, which is a disgrace. This
                    is why when a city collects for a nearby
                    cemetery, we collect half according to wealth,
                    and half according to the number of people. The
                    rich pay more because they are more concerned
                    for disgrace than the poor.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> Or, if we take it for burial where its fathers
               were buried.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra 4):</font></b> We learn from Makos 11b.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Keneses Yechezkeil (43, cited by Gilyon R.
                    Akiva Eiger):</font></b> Surely, if part of a family was
                    buried in an old cemetery, one may reinter them
                    near (the rest of) their family. The Yerushalmi
                    says that one prefers to be buried amidst his
                    own, even to be moved from an honorable grave
                    to a disgraceful one. However, perhaps this is
                    only when the only concern is that the Mes
                    fears Yom ha'Din. However, if it was buried
                    among other Mesim, we are concerned for their
                    disgrace to clear a Mes from their midst. The
                    Shulchan Aruch forbids taking a Mes from a city
                    with a cemetery to another city, and there is
                    even more disgrace regarding a Mes that was
                    already buried! The Rema permits taking it for
                    burial where its fathers were buried. Perhaps
                    this is only before he was buried. It seems
                    that the Rashba permits even this. Even though
                    he gave three reasons to be lenient - he
                    commanded, it was his fathers' gravesite, and
                    he was buried with intent to reinter - it seems
                    that any one of these suffices. The reason is,
                    this is the honor of the Mes.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rema (OC 526:8):</font></b> On Yom Tov Sheni, one may bring a
               Mes from outside the Techum (more than 2000 Amos
               friom the city; normally, one may not leave the
               Techum on Yom Tov) to bury it in a cemetery of
               Yisre'elim, even though it could be buried in its
               place.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magen Avraham (18):</font></b> Yam Shel Shlomo says that
                    if a Mes is in a city without a cemetery, one
                    may move it to a city with a cemetery. This is
                    no less than cutting myrtle for its honor. If
                    there is a cemetery and he commanded to be
                    taken to his fathers' gravesite, even though it
                    is a Mitzvah to fulfill the Mes' command, and
                    especially in a case like this, in which he
                    wants to be buried with his fathers for his
                    honor, it is not his honor to desecrate Yom Tov
                    needlessly. Had he not commanded, it would be
                    forbidden to move it to another grave. If so,
                    his actions and command caused this. If there
                    is concern lest the body decay, we bury it in
                    its place. If there is no concern for decay, we
                    leave the body and bury it after Yom Tov in his
                    fathers' gravesite. See YD 363:2.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Machatzis ha'Shekel (18):</font></b> Yam Shel Shlomo says
                    that if he did not command, we may not reinter
                    the body. The Magen Avraham refers to YD 363,
                    in which we permit in order to bury in his
                    fathers' gravesite.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the Torah should have commanded her to
          marry 'a man of the tribe of her father and mother'!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it said so, one would have thought that it
          suffices if her husband's father is from her mother's
          tribe, and her husband's mother is from her father's
          tribe.
<br> <b>    <b><font color='darkgreen'>(k)</font></b></b>  	There are two Beraisos. One first learns transfer
          through the son, and then transfer through the husband.
          The other learns in the reverse order.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> 'V'Lo Tisov Nachalah li'Vnei
               Yisrael mi'Mateh El Mateh' refers to transfer
               through the son;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it discusses transfer through
               the husband!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> 'V'Lo Tisov Nachalah mi'Mateh l'Mateh
               Acher' discusses transfer through the husband!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that the first verse discusses
                    transfer through the son.
<br>

<p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TRANSFER OF INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'V'Lo Tisov Nachalah mi'Mateh l'Mateh Acher'
          refers to transfer through the husband;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps it discusses transfer through
               the son!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'V'Lo Tisov Nachalah li'Vnei Yisrael
               mi'Mateh El Mateh' discusses transfer through the
               son!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The other verse must discuss transfer through the
                    husband.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Both Beraisos agree that 'v'Lo Tisov Nachalah
          mi'Mateh l'Mateh Acher' refers to transfer through the
          husband. How did the Tana'im know this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Rav Shilo):</font></b> The verse says 'Ish'
          (which can mean 'husband').
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> Both verses say 'Ish'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Nachman bar Yitzchak):</font></b> It says
          'Yidbeku.' (Elsewhere, the Torah discusses a husband
          clinging.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> Both verses say 'Yidbeku'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #3 (Rava):</font></b> It says 'Yidbeku Matos' (marriage
          makes two tribes cling).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4 (Rav Ashi):</font></b> It says 'l'Mateh Acher' - a son
          who inherits is not called 'Acher'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A HUSBAND INHERITS ONLY WHAT HIS WIFE ALREADY OWNED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Avahu):</font></b> What is the source that a husband
          does not inherit what was Ra'uy (destined to be his
          wife's), i.e. he inherits only what was Muchzak (she
          owned it when she died)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (R. Avahu):</font></b> 'U'Sguv Holid Es Ya'ir va'Yhi Lo
          Esrim v'Shalosh Arim.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How would Ya'ir have land that did not
               belong to his father?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that Seguv married a woman,
               and she died before a relative who was destined to
               bequeath to her. When that relative died, (Seguv did
               not inherit;) Ya'ir inherited through his mother.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	It also says 'v'Elazar... va'Yikberu Oso b'Giv'as
          Pinchas Beno'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How did Pinchas have land that did not
               belong to his father?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We must say that Elazar married a woman,
               and she died before a relative who was destined to
               bequeath to her. When that relative died, Pinchas
               inherited through his mother.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why was it necessary to bring a proof also
          from Pinchas?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One might have said that Ya'ir married a woman
          and inherited her. Therefore, he brought a proof from
          Pinchas.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Pinchas (inherited his wife,
               or) received a Cherem field!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> '(B'Giv'as Pinchas) Beno' connotes
               that the inheritance was destined to fall to Elazar,
               but fell to his son.
<br>
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>INHERITANCE OF NEPHEWS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (Some inherit but do not bequeath:) sons of
          sisters (i.e. a man from his mother's sister).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Sons of sisters (inherit), but not daughters
          of sisters.
<br>
<br>

sjt:
<font><b>1) AGADAH: WHO WAS 'KORCHA'?</b></font><b>
<br>OPINIONS:</b> The Gemara cites a Halachah in the name of Rebbi Yehoshua ben Korcha. Who was Korcha?
</p><p>
(a) <b>TOSFOS</b> (DH u'Matu) quotes the <b><b><b>RI</b></b></b> who says that 'Korcha' was another name for Rebbi Akiva. He was called 'Korcha' because he was 'Kere'ach,' baldheaded. The Gemara in Bechoros (58a) relates that Ben Azai said that 'all of the wise men of Yisrael are before me like the peel of a garlic except for this bald one (Kere'ach),' presumably a reference to Rebbi Akiva. Rebbi Akiva had a son named Yehoshua, as is evident from the Gemara in Shevuos (6a).
</p><p>
(b) Tosfos quotes <b>RABEINU TAM</b> who disputes the Ri's conclusion. Even if Ben Azai would have said this phrase in a jesting manner, it is unreasonable to assume that the Chachamim would refer to a Tana's famous and righteous father based on his baldness. A number of sources, both in Navi and in the Gemara, indicate that baldness is not considered beautiful, and to be called bald is considered an insult.
</p><p>
Moreover, Rabeinu Tam cites the Gemara in Megilah (28a) to prove that this Rebbi Yehoshua could not have been the son of Rebbi Akiva. In that Gemara, Rebbi asked an aged Rebbi Yehoshua ben Korcha to bless him. Rebbi Yehoshua blessed Rebbi that he should live half of his own years. According to Rabeinu Tam's calculation, if this Rebbi Yehoshua was the son of Rebbi Akiva, then Rebbi would have been 60 years old when Rebbi Yehoshua ben Korcha was 140 years old. Why would Rebbi Yehoshua bless Rebbi that he should live for only another ten years (as half of Rebbi Yehoshua's years at that time was 70)? Also, if Rebbi Yehoshua ben Korcha was Rebbi Akiva's son, then it makes sense that Rebbi was actually 84 years old at the time of this blessing.
</p><p>
Finally, Rabeinu Tam quotes <b>RABEINU NISIM</b> who says that he found a Midrash in Bereishis Rabah which says that the statement of Ben Azai in the Gemara in Bechoros refers to Rebbi Elazar ben Azaryah, and not to Rebbi Akiva.
</p><p>
Rabeinu Tam therefore says that 'Korcha' is the name of a person, like the name 'Korach,' and does not denote baldness. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A HUSBAND INHERITS ONLY WHAT WAS MUCHZAK</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 (R. Avahu):</font></b> What is the source that a
               husband does not inherit Ra'uy (what is apt to
               come), only what was Muchzak (in her possession)?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Avahu):</font></b> 'V'Elazar... va'Yikberu Oso
               b'Giv'as Pinchas Beno'.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> How did Pinchas have land that did
                    not belong to his father?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> We must say that Elazar married a
                    woman, and she died before Morishah (a relative
                    who was destined to bequeath to her). When
                    Morishah died, (Elazar did not inherit; and)
                    Pinchas inherited through his mother.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Pinchas (inherited his wife, or)
               received a Cherem field!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> '(B'Giv'as Pinchas) Beno' connotes that
               the inheritance was destined to fall to Elazar, but
               fell to his son.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 125b:</font></b> A case occurred in which Levi said 'my
               property should go (after my death) to my
               grandmother, and after her, to my heirs.' Levi had a
               married daughter; she died in the life of her
               husband and the grandmother. When the grandmother
               later died, the daughter's husband claimed the
               property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Huna:</font></b> Levi said 'to my heirs.' This
                    includes his heirs' heirs.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rav Anan:</font></b> 'My heirs' excludes his heirs' heirs.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Chachamim of Eretz Yisrael):</font></b> The Halachah follows
               Rav Anan, that the husband does not inherit, but his
               reason is wrong. Rav Anan holds that even if the
               daughter had a son, her son would not inherit.
               Really, her son would inherit!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Her husband does not inherit because the
                    property was only Ra'uy, and a husband inherits
                    only what was Muchzak.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Suggestion:</font></b> Rav Huna says that the husband inherits.
               He must hold that a husband inherits property that
               was Ra'uy!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rejection (R. Elazar):</font></b> If one says 'after you, the
               property will go to Ploni...', it is as if he said
               'the property should belong to Ploni from now.' (The
               grandmother had only Peros (usage rights). The
               daughter received the Guf (permanent rights to the
               property) right away, so her husband inherited it
               when she died.)
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Rava):</font></b> Presumably, Chachamim of Eretz Yisrael hold
               that if the grandmother sold the property, the sale
               stands. (Therefore, the property might not fall to
               the daughter. It is only Ra'uy, and a husband does
               not inherit Ra'uy.)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rav Papa):</font></b> The Halachah is, a husband inherits only
               Muchzak, but not Ra'uy.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Gitin 48a (Rava):</font></b> A Beraisa supports Reish Lakish
               (who says that Kinyan Peros (the rights to the
               produce) is like Kinyan ha'Guf (owning the land
               itself).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> A Bechor receives a double portion
                    in a field that returns to his father in Yovel.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (55a):</font></b> The Halachah does not follow R. Elazar's
               explanation of Rav Huna.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (8:12):</font></b> We infer that it is Ra'uy only
               because he said 'after you.' Had he said 'from now',
               it would be Muchzak, and her husband would inherit.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 1:11):</font></b> If Levi's wife died,
               and afterwards died her father or brother or someone
               else who bequeaths to her, Levi does not inherit
               her. Rather, if she had descendants, they inherit
               her. Or, (if not,) the inheritance returns to her
               father's family. A husband does not inherit what is
               Ra'uy to come, rather, only what came to her Reshus
               before she died.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The Rosh (8:1) brings the Gemara in 113a.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (11):</font></b> He does not inherit a loan owed to her. A
               husband does not inherit damages owed to his wife
               according to Rabanan, for it is like a loan, even
               though had it come to her in her lifetime it would
               have been Nichsei Melug. However, if Morishah died
               and someone owed him a loan, and she died before
               collecting it, her husband does not inherit it. This
               is like damages due to her.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Mordechai (574):</font></b> Rava proved that Kinyan Peros is
               not like Kinyan ha'Guf from a Beraisa that says that
               a Bechor gets a double portion in a field that
               returns to his father in Yovel. This shows that if
               one gave property 'from today and after death' (i.e.
               Kinyan Peros), it is not Ra'uy regarding the giver's
               Bechor or husband.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 90:1):</font></b> A man inherits his wife.
               This refers to what is Muchzak (in her possession).
               He does not inherit Ra'uy, e.g. an inheritance she
               was apt to inherit, and she died in the lifetime of
               Morishah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (1):</font></b> He inherits even property
                    for which he had no rights to eat the Peros.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> One does not inherit a loan
               due to his wife, e.g. Morishah died, and others owed
               a loan to Morishah from when she married, and she
               died before collecting it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (6):</font></b> 'From when she married'
                    is a printing mistake. The same applies if they
                    lent during the marriage. In either case it is
                    Ra'uy, for she did not collect it! However, if
                    they had deposits with others, this is not
                    Ra'uy, for they are in the Reshus of the owner
                    whenever they are.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (7):</font></b> Perhaps 'from when she
                    married' teaches that even if Morishah died
                    before she married, and her husband knew that
                    she is sure to inherit the loan, it is Ra'uy
                    because she did not collect it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> However, if Morishah left property, even if
               she did not collect it in her lifetime, and even if
               it was Meshubad to (there was a lien on it to pay) a
               widow's Kesuvah, it is Muchzak to the daughter and
               her husband inherits it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (7):</font></b> The same applies if it
                    was Meshubad to other creditors, for we hold
                    that a creditor does not collect retroactively.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chelkas Mechokek (8):</font></b> If one had a loan from
                    his wife and she died, it seems that he is
                    Muchzak in it and inherits it. Even though this
                    is a Safek regarding a Bechor (who had a loan
                    from his father), that is because it says
                    'b'Chol Asher Yimatzei Lo)', i.e. what the 
                    father had. Here, it is not Ra'uy, for her
                    husband has the money. However, the Rashba says
                    that he inherits only half. If her Nichsei
                    Melug were stolen and returned after she died,
                    this is Ra'uy, unless land or Seforim were
                    stolen, for these cannot be (Halachically)
                    stolen. Wages that she did not collect in her
                    lifetime are Ra'uy.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A HUSBAND DOES NOT INHERIT RA'UY </b></b>(</font><font color='blue'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What does this teach?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> It teaches that sons inherit
          before the daughters.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Shmuel bar Rav Yitzchak):</font></b> 'V'Yorash' equates the
          second inheritance (Tosfos - grandchildren; Rashbam -
          siblings) to the first inheritance (children).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like sons inherit before daughters, also in
               the second inheritance (Tosfos - if Yakov died after
               his son Reuven died, Reuven's sons inherit Yakov,
               and Reuven's daughters do not; Rashbam - brothers
               inherit before sisters).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rabah bar Chanina - Beraisa):</font></b> 'B'Yom Hanchilu Es
          Banav' - inheritances fall during the day, but not at
          night.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Abaye):</font></b> Will you say that if a man dies at
          night, his children don't inherit him?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion (Abaye):</font></b> Perhaps you referred to
               judging cases of inheritance.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'V'Haysah li'Vnei Yisrael l'Chukas
               Mishpat' - the entire Parshah is considered
               judgment.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Yehudah):</font></b> If three men came to visit a sick
               man (and he commanded who should inherit his
               property), they may write down his command, or
               execute it, whichever they want;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If two came, they write down his command, but
                    they may not execute it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rav Chisda):</font></b> This applies only during the day.
               At night, even three can only write, but they cannot
               execute (even the next day).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This is because when they heard the command, they
               could be only witnesses, but not judges; and a
               witness cannot be a judge (about what he saw).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rabah bar Chanina):</font></b> Indeed, my Beraisa teaches
          about judging inheritance.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE ELEMENT OF 'DIN' IN THE PARSHAH OF INHERITANCE</b></font><b>
<br>OPINIONS:</b> The Beraisa says that the verse, 'v'Hayesah li'Vnei Yisrael l'Chukas Mishpat' -- 'And it will be for Bnei Yisrael a statute of judgment' (Bamidbar 27:11), teaches that the entire Parshah is one of 'Din,' judgment. To what form of judgment does the Beraisa refer?
</p><p>
(a) The <b>RASHBAM</b> (DH Orah) explains that the Beraisa refers to the Parshah of the division of inheritance. The division of inheritance has the Halachic status of 'Din,' judgment. This means that all of the laws that apply to judgment apply to inheritance as well.
</p><p>
The <b>HAGAHOS ASHIRI</b> (#2) questions the Rashbam's explanation. According to the Rashbam, when will a case of inheritance have the laws of 'Din'? If the parties involved do not agree on the division of the inheritance, then it is obvious that a Beis Din is necessary and the laws of 'Din' apply. If the parties involved agree on the division of the inheritance, then no Beis Din is necessary!
</p><p>
<b>RAV GERSHON EIDELSTEIN</b> shlit'a (in <b>SHI'UREI REBBI GERSHON</b>) explains that the Rashbam refers to a case in which the inheritance is detailed, and one of the parties wants to take his share without consulting the other party. In such a case, that party must go to Beis Din to secure his portion.
</p><p>
(b) <b>TOSFOS</b> (DH Orah) explains that the Beraisa refers to the law that the people in the presence of a man who wants to divide his estate may be made into judges to establish the division of the estate against the will of the potential heirs. The heirs cannot say that they want the division to be established only in the presence of the Beis Din ha'Gadol or the main Beis Din of the city. The <b>ROSH</b> explains that included in this law is that the Beis Din present is also the Beis Din that may resolve any doubt which may arise in the language of the person's statement.
</p><p>
Tosfos points out that the case is not actually a case of inheritance, but a case of a 'Matnas Bari' -- the gift of a healthy person, which does not have any unique laws. This is in contrast to a 'Matnas Shechiv Mera' -- the gift of a deathly ill person.
</p><p>
How does Tosfos know that the Beraisa is not referring to a Matnas Shechiv Mera? Tosfos explains that the special laws that apply to a Shechiv Mera (for example, the law that his words alone are a binding Kinyan) are only mid'Rabanan and not mid'Oraisa. Since the Beraisa is discussing the intent of the verse, it cannot refer to a Matnas Shechiv Mera, the laws of which are mid'Rabanan.
</p><p>
If, however, the subject of the verse is a Matnas Bari, in what way is related to inheritance at all? Tosfos explains that since a Matnas Bari is often formulated in such a way that the gift takes place only upon the death of the benefactor, it is similar to inheritance. Moreover, according to the view of Rebbi Yochanan ben Berokah (130a), a Matnas Bari contains an element of inheritance. Rebbi Yochanan ben Berokah maintains that when a person says that someone who is a relative of his should inherit him, even if there is a closer relative alive, his words are valid and the more distant relative inherits him. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CANCELLING GIFTS OF A SHECHIV MERA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> If a Shechiv Mera (one who fears lest he die
          from his illness) gave a gift, until when can he cancel
          it?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rabah):</font></b> He can cancel it as long as the
          parties are seated.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rav Yosef):</font></b> He can cancel it as long as they
          are engaged in the Kinyan.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Support (Rav Yosef, for himself):</font></b> Rav Yehudah taught
          that if three men came to visit a sick man, they may
          write down his command, or execute it, whichever they
          want.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he can cancel a Kinyan as long as they are
               sitting, why can they execute his command? Perhaps
               he will cancel it!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (Rav Kahana):</font></b> Rav Yehudah opposes also Rav
          Yosef. Why can they execute his command? We should be
          concerned lest the sick man retract!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Yosef must say that they execute the command
               only after the sick man begins a new matter.
<br>
<br>

sjt:
<font><b>1) RETRACTING A 'KINYAN'</b></font><b>
<br>OPINIONS:</b> Rabah and Rav Yosef argue about when a Kinyan may be retracted. Rabah rules that a Kinyan may be retracted as long as the parties are still sitting. Rav Yosef rules that a Kinyan may be retracted as long as the parties are still discussing the transaction.
</p><p>
What type of Kinyan are Rabah and Rav Yosef discussing?
</p><p>
(a) The <b>CHIDUSHEI HA'RAN</b> quotes an opinion that explains that the Gemara refers only to a Matnas Shechiv Mera (the gift of a deathly ill person), because a sick person is likely to retract his words as long as they are talking about the topic of his estate. In contrast, in the case of a Matnas Bari (the gift of a healthy person), the person may retract his words only 'Toch Kedei Dibur.'
</p><p>
(b) The <b>RASHBAM</b> (DH Hachi Garsinan) explains that the Gemara clearly refers to the type of Kinyan which the Gemara discussed previously, a Matnas Bari or a Matnas Shechiv Mera. The Ran quotes this opinion in the name of most of the Rishonim, including the <b>RAMBAM</b> and <b>RAMBAN</b>. The Rashbam explains that one certainly may retract the Kinyan as long as the parties are still discussing the conditions of the transaction (the gift). The Rabanan understood that a person does not finalize the gift until he is satisfied with all of the conditions which he stipulates.
</p><p>
Does this reasoning apply to other forms of Kinyanim?
</p><p>
1. The <b>ROSH</b> (#5) writes that the Rabanan gave time for the parties to consider the conditions of the transaction only in the case of a Kinyan Sudar (which is often used to finalize a Matanah). However, 'in other Kinyanim, such as where the person picks up, pulls, or gives over an object... a person cannot retract the Kinyan after Kedei Dibur.' The Rosh clearly says that although there is no <i>extended</i> time period in which one may retract in the case of other Kinyanim, one <i>may</i> retract <i>any</i> Kinyan within the time of 'Toch Kedei Dibur.'
</p><p>
2. <b>RABEINU YONAH</b> initially agrees with the Rosh, but then he says that one can argue that when one takes possession of an object (Metaltelin) through Meshichah or one takes possession of land through Chazakah, the Kinyan is finalized with the action of the Kinyan, and it cannot be retracted even within 'Toch Kedei Dibur.'
</p><p>
Why, though, should Meshichah and Chazakah differ from all other forms of Kinyan? <b>RAV GERSHON EIDELSTEIN</b> shlit'a writes that Rabeinu Yonah clearly understands that the degree of finality of an act of Kinyan in the mind of the person depends on the specific type of Kinyan. For example, when the Gemara in Nedarim (87a) states that acts of Kidushin and Gerushin cannot be retracted even within 'Toch Kedei Dibur,' it is because the acts of Kidushin and Gerushin are so serious that a person deems them final at the moment he performs the act. Similarly, when one performs an act of Meshichah or Chazakah, such an act may be considered more final and conclusive than other forms of Kinyan. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN CAN WITNESSES BECOME JUDGES?</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'> 113b (Rav Yehudah):</font></b> If three men came to visit a
               sick man (and he commanded who should inherit his
               property), they may write down his command, or
               execute it, whichever they want. If two came, they
               write down his command, but they may not execute it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Chisda):</font></b> This applies only during the day.
                    At night, even three can only write, and they
                    cannot execute (even the next day).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This is because when they heard the command
                    they were able to be only witnesses, not
                    judges, and a witness cannot be a judge.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Sanhedrin 28a - Question:</font></b> What is the source that
               two relatives cannot testify together (about someone
               else)?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #1 (Rami bar Chama):</font></b> Reasoning teaches this.
               Witnesses are not made Zomemim unless both are
               Huzmu. If relatives could testify about someone
               else, they could be killed due to each other's
               testimony!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Objection (Rava - Mishnah):</font></b> If David testified about
               three years of Chazakah, and three brothers
               testified, each about one of the three years, (this
               is testimony of Chazakah, for) testimony of each
               year is separate. It is like one testimony for
               Hazamah (they are exempt unless all of them are
               Huzmu).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> If they will be Huzmu, the brothers
                    will pay due to each other's testimony!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer:</font></b> You must say that they pay due to the
                    Hazamah, not due to each other's testimony.
                    Likewise, if relatives testified together and
                    were Huzmu, they are killed due to the Hazamah,
                    not due to each other's testimony!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Rava):</font></b> Rather, the Torah could have said
               'Ben Al Avos' or 'Hem Al Avos.' Instead, it says
               'u'Vanim' to teach that Banim (i.e. relatives)
               cannot testify with each other.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 34a (Beraisa - R. Meir):</font></b> 'V'Al Pihem Yihyeh Kol Riv
               v'Chol Naga' equates Dinim and Tzara'as. Just like
               the Kohen looks at Tzara'as only during the day
               ('uv'Yom Hera'os') also Dinim must be judged during
               the day.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Meir expounds 'b'Yom Hanchilo' like Rabah bar
               Chinena, to teach that (judgment about) bequeathing
               is during the day, but not at night.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Rosh Hashanah 25b (Mishnah):</font></b> If only Beis Din saw
               the new moon, two of them stand and testify in front
               of them, and the others are Mekadesh the new month.
               If three saw the new moon and they are Beis Din, two
               of them stand and seat from their colleagues with
               the third, and testify in front of them, and they
               (those sitting) are Mekadesh the new month.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> Why must two stand and testify? Hearing
               (testimony) is no better than seeing! (The judges
               themselves saw the new moon!)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer (R. Zeira):</font></b> The case is, they saw at night.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Suggestion:</font></b> In the Seifa, a witness becomes a judge.
               This is unlike R. Akiva!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - Rebbi Tarfon):</font></b> If the Sanhedrin saw
                    a murder, some members testify on this in front
                    of other members (who judge the case);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Akiva says, they are all witnesses, and a
                    witness cannot become a judge.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rejection:</font></b> R. Akiva says so only about capital
               cases, for it says 'the congregation will judge and
               the congregation will save.' Judges who saw the
               murder will not see a reason to acquit. He could
               agree about Kidush ha'Chodesh.
<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 in Bava Basra.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Ran (Kesuvos 8b DH HIlkach):</font></b> Some say that only for
               Kidush ha'Chodesh we say that hearing (testimony) is
               no better than seeing, for the Torah did not mention
               Hagadah (verbal testimony).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Edus 5:8):</font></b> In capital cases, a
               witness who testified may not give a reason to
               convict or acquit the Nidon. If he says that he has
               a reason to acquit the Nidon, we silence him, for it
               says 'Lo Ya'aneh b'Nefesh Lamus' - to acquit or
               convict. In monetary cases, a witness may give
               reasons to convict or acquit the Nidon, but he may
               not be counted among the judges. A witness cannot
               become a judge even in monetary cases.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Sanhedrin 3:6):</font></b> If two came to visit
               a sick man and he commanded in front of them, they
               write down his command, but may not execute it. If
               three came, they may write down his command, or
               execute it, whichever they want. If two came, they
               write down his command, but may not execute it. This
               applies only during the day. At night, even three
               can only write, and they cannot execute.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Kidush ha'Chodesh and validation of
               documents do not need Hagadah, but other monetary
               cases do!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Kesef Mishneh, citing the Ritva):</font></b> Since
               he cmd in front of them, this is like Hagadah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Answer #2 (Kesef Mishneh, citing the Nimukei Yosef):
               Rashi holds that he made them a Beis Din, so they
               can rule based on what they saw. Since they know the
               truth, they do not need testimony. Others say that
               Hagadah is needed; one's admission is like 100
               witnesses.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Kesef Mishneh:</font></b> It seems that Rashi requires Hagadah!
               He said that they can act like they <i>heard</i>. This
               connotes that that the command is like Hagadah.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Tosfos (Bava Kama 90b DH Kegon (1)):</font></b> Some say that a
               witness cannot become a judge because he would not
               accept Hazamah about himself. The Ri of Orlins
               disagrees, for if so, also relatives of the judges
               should not be able to testify in front of them, for
               they cannot be Huzam. We do not say so, for they can
               be Huzam in another Beis Din. For the same reason, a
               witness can become a judge! The Ri says that we
               learn from 'b'Yom Hanchilo' that judgment about
               bequeathing is not at night, i.e. if three heard a
               command at night they cannot execute it, because
               they were witnesses, and cannot become judges.
<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 7:5):</font></b> A witness who testified
               cannot become a judge (about this case). If one of 
               the judges testified in front of his collegues about
               what he saw, he cannot join with them to judge it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Beis Yosef (DH Ein):</font></b> The Rashbam learns from 'the
               two men (witnesses) will stand in front of Hash-m
               (the judges).' Others say that it is because it is
               Iy Efshar Lehazimah. This is only if he testified.
               If he need not testify, e.g. there are other
               witnesses, or Beis Din saw during the day, witnesses
               can become judges.  This refers to mid'Oraisa
               matters. For mid'Rabanan matters, even a witness who
               testified can become a judge.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> SMA (14):</font></b> He cannot judge only if he testified in
               front of three colleagues. Ir Shushan disqualifies
               if he testified in front of one colleague. This is
               wrong.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shach (4):</font></b> Intent to testify makes one a witness
               regarding if one of the witnesses was found to be a
               relative or Pasul. Even though the Ran equates this
               to witnesses becoming judges, we follow Tosfos and
               the Rosh, who distinguish. Witnesses cannot become
               judges due to 'the two men will stand in front of
               Hash-m', or because it is Iy Efshar Lehazimah. These
               apply only to a witness who testified.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If he did not testify, e.g.
               three judges saw an act, even if they intended to be
               witnesses, if they saw during the day they become
               judges.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (13):</font></b> Witnesses cannot become judges
                    because the testimony cannot be Huzam. This
                    does not apply when three judges saw together.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> If they saw at night, they
               cannot judge by themselves; others must testify in
               front of them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (DH v'Tu):</font></b> Why did the Tur write 'at a
                    time when we can judge', and not 'during the
                    day', like Tosfos and the other Poskim? It
                    seems that he includes Shabbos and Yom Tov.
                    Even though the Isur to judge then is
                    mid'Rabanan, Chachamim enacted like mid'Oraisa,
                    and they may not judge based on what they saw
                    then.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Taz DH Im):</font></b> In Siman 253, the Tur
                    himself says 'during the day'! Also, what is
                    the source for this Chidush? The Poskim discuss
                    only days when the Torah forbids judging. They
                    did not teach this bigger Chidush! Also,
                    witnesses can become judges for mid'Rabanan
                    testimony. Here, we do not say that Chachamim
                    enacted like mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'> Rema:</font></b> This refers to mid'Oraisa matters. For
                    mid'Rabanan matters, witnesses can become
                    judges.
<br>

<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rabah can similarly answer that they execute it
               only after they leave where they were sitting!
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah follows Rav Yosef regarding a field (12b),
          (beginning) a (new) matter (our law), and one who gives
          half his property to his wife and sons (143a).
          (Everywhere else (Tosfos - in Bava Basra) that Rabah
          argues with Rav Yosef, the Halachah follows Rabah.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A WOMAN BEQUEATHS TO HER SON</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A woman bequeaths to her son (and does not
          inherit him)...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why was it needed to teach this? We already
          learned that a son inherits his mother, but does not
          bequeath to her!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that a mother bequeaths to her son
          like to her husband;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a husband does not inherit his wife
               when he is dead (to cause her property to pass to
               his heirs), also a son does not inherit his mother
               after his death to bequeath to his paternal
               brothers.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DOES A MOTHER INHERIT HER SON?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	(R. Yochanan citing R. Yehudah b'Rebbi Shimon):
          Mid'Oraisa, a father inherits his son and a mother
          inherits her son, for it says 'Matos';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This equates the tribes of the mother and father.
               Just like the father inherits the son, also the
               mother.
<br>

<p>

sjt:
</p><p>
<font><b>2) WHY DOES THE GEMARA MENTION THE CASE OF 'MECHTZAH'?</b></font><b>
<br>QUESTION:</b> The Gemara discusses the argument between Rabah and Rav Yosef, who disagree about when one may retract a Kinyan. The Gemara states that the Halachah follows the view of Rav Yosef in three cases: 'Sadeh,' 'Inyan,' and 'Mechtzah' (see <b>RASHBAM</b>).
</p><p>
<b>TOSFOS</b> (DH v'Hilchesa) is bothered by the Gemara's inclusion of the case of 'Mechtzah.' The word 'Mechtzah' apparently refers to Rav Yosef's statement in the case of the Gemara later (143a), in which a man says to his wife that he is bequeathing his possessions to her and her son. Rav Yosef rules that they split the possessions. However, in that case no one argues with Rav Yosef! Why does the Gemara need to mention that the Halachah follows Rav Yosef in that case, if no one argues?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that while no one argues with Rav Yosef, Abaye <i>did</i> question his ruling. Although Rav Yosef answered the question, one might have thought that Rav Yosef's answer is not acceptable due to the fact that he became ill and forgot his learning. The Gemara therefore needs to teach that the Halachah indeed follows the view of Rav Yosef in that case as well.
</p><p>
(b) The <b>CHIDUSHEI HA'RAN</b> answers that while Abaye's question on Rav Yosef's ruling is <i>not</i> a reason to say that the Halachah is not like Rav Yosef, since the Halachah always follows the view of the teacher (Rav Yosef) when his student (Abaye) disagrees with him, there may be another reason why the Halachah should not follow Rav Yosef in that case. The Gemara may have had a tradition that Abaye's position was actually the position of Rabah, Rav Yosef's contemporary. This is why the Gemara here needs to teach that the Halachah indeed follows the view of Rav Yosef in the case of 'Mechtzah.'
</p><p>
(c) The <b>RAMBAN</b> answers that the Gemara's rule here, that the Halachah follows the view of Rav Yosef in three cases, applies only to arguments between Rav Yosef and Rabah. The Gemara includes the case of 'Mechtzah' because of the case of 'Sadeh.' Since the Halachah follows the view of Rav Yosef in the case of 'Sadeh,' Abaye's question on Rav Yosef in the case of 'Mechtzah' is no longer a question. This is why the Gemara here includes mention of the case of 'Mechtzah.'
</p><p>
(d) In his second answer, the Ramban explains that since the case of 'Mechtzah' appears in the same Mesechta as the other two cases in which the Halachah follows Rav Yosef, the Gemara mentions the case of 'Mechtzah' together with the other cases. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOES A MOTHER INHERIT HER SON? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Yochanan - Mishnah):</font></b> The following
          bequeath but do not inherit: a woman to her sons, a woman
          to her husband, and a man to his sister's children.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	R. Yehudah b'Rebbi Shimon:</font></b> I do not know who taught our
          Mishnah.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why didn't he say that it is R. Zecharyah ben
          ha'Katzav, who does not expound 'Matos'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> We cannot establish our Mishnah like R.
          Zecharyah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> (The following inherit but do not
               bequeath)... sons of sisters.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A man inherits his mother's sister, 
               but a woman does not inherit her mother's sister.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> Why does the Beraisa exclude 'a woman
                    from her mother's sister'?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> If she has brothers,
                    they inherit before her.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Culmination of answer:</font></b> According to R. Zecharyah,
               a woman inherits her mother equally with her
               brothers!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How does the Tana of our Mishnah expound?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he expounds 'Matos', a woman should inherit
               her son!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he does not expound 'Matos', how does he know
               that a son inherits before a daughter in the
               mother's property?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, he expounds 'Matos'. A daughter does
          not inherit with a son in their mother's property, for it
          says 'v'Chol Bas Yoreshes Nachalah (mi'Matos)' - she
          inherits two Matos (if she had no brothers, and her
          mother was from a different tribe than her father, but
          she does not bequeath to two Matos (a son and a
          daughter).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE ORDER OF INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The order of inheritance: 'Ish Ki Yamus
          u'Ven Ein Lo v'Ha'avarta Es Nachalso l'Vito' - a son
          precedes a daughter, and all the descendants of a son
          precede a daughter;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	A daughter precedes the brother of the deceased, and
          all her descendants precede a brother;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	A brother precedes the brothers of the father, and all
          his descendants precede the father's brothers;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	The general rule is, whoever has precedence to inherit,
          all his descendants have precedence.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Beraisa) Question:</font></b> Perhaps 'u'Ven' teaches
          only a son (that he inherits before a daughter)! What is
          the source for the son or daughter or grandson of a son?
          (E.g. if Dosan died before his father Eli'av, and, Dosan
          left a son or daughter or grandson, Dosan's descendant
          inherits Eli'av, and Eli'av's daughters do not inherit.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> 'Ein Lo' - we read this 'Ayen'
               (investigate).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps 'Vas' teaches only a daughter
               (she inherits before the father and brothers of the
               Mes)! What is the source for the son or daughter or
               granddaughter of a daughter?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We read 'Ein Lo' like 'Ayen'.
<br>
<br>

sjt:
<font><b>1) IS EVERY JEW CONSIDERED A 'GER'?</b></font><b>
<br>QUESTION:</b> The Gemara teaches that, in the laws of inheritance, when no direct descendant is alive to inherit the deceased, the ownership of the estate goes back in history, so to speak, until one of the ancestors of the deceased is found who has a living relative, who is entitled to inherit his ancestor's property. The Gemara explains that this law applies even if the property must be viewed as going as far back as Reuven, the oldest son of Yakov Avinu.
</p><p>
<b>RAV GERSHON EIDELSTEIN</b> shlit'a (in <b>SHIUREI REBBI GERSHON</b>) questions this law. The Gemara in Yevamos (46a) derives many of the laws of Gerus (conversion) from the procedures performed by the Jewish people at Har Sinai at the time of Matan Torah, the giving of the Torah. The Gemara clearly understands that the Jewish people had the status of converts at that time. However, there is a well-known principle that 'Ger she'Nisgayer k'Katan she'Nolad Dami' -- 'a convert who converts is like a newborn child.' This means that the convert is no longer considered related to his previous family members. If this is so, how can an inheritance go back to Reuven such that his descendant should inherit it? No Jew is considered related to Reuven after Matan Torah!
</p><p>
<b>ANSWERS:</b>
<br>(a) Rav Gershon records the classic statement of the <b>MAHARAL</b> (in <b>GUR ARYEH</b>, Parshas Vayigash) who asks this question in a different context. The Torah says that the Jewish people 'cried about their families' (Bamidbar 11:10). The Gemara (Shabbos 130a) interprets this to mean that at the time of Matan Torah, the Jewish people cried about the familial relationships that were now forbidden to them once they received the Torah. The Maharal asks that according to the concept of 'Ger she'Nisgayer k'Katan she'Nolad Dami,' no relationships became forbidden such that the Jewish people should have cried! Since everyone had the status of a convert at the time of Matan Torah, no one was considered related to his former family members. The Gur Aryeh answers that the concept of 'Ger she'Nisgayer...' applies only to a person who willingly converts. The Jewish people were forced to convert by Hash-m, as it were, as the Gemara in Shabbos (88a) relates, 'Kafah Aleihem Har k'Gigis' -- 'he held over them the mountain like a barrel.' This unique form of conversion does not give one the status of a 'Katan she'Nolad.
</p><p>
(b) Rav Gershon adds an answer of his own. The concept of 'Ger she'Nisgayer...' applies only to a person who was a Nochri and became a Jew. The Jews before Matan Torah, however, were already semi-Jewish, since they already had received some Mitzvos. They therefore were not considered 'k'Katan she'Nolad' when they converted. (Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SEDER NACHALAH</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'> 113b (Rav Shmuel bar Rav Yitzchak):</font></b> 'V'Yorash'
               equates the second inheritance to the first
               inheritance. Just like sons inherit before daughters
               in the first inheritance, also in the second.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 115a (Mishnah):</font></b> The order of inheritance: 'Ish Ki
               Yamus u'Ven Ein Lo v'Ha'avarta Es Nachalso l'Vito' -
               a son precedes a daughter, and all the descendants
               of a son precede a daughter;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> A daughter precedes the brother of the deceased, and
               all her descendants precede a brother;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A brother precedes the brothers of the father, and
               all his descendants precede the father's brothers;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The general rule is, whoever has precedence to
               inherit, all his descendants have precedence.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (8:7) bring the Mishnah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 1:3):</font></b> Whoever has
               precedence to inherit, all his descendants have
               precedence. If a man or woman (Simchah) died and
               left a son, he inherits everything. If the son died,
               we see if there are any male or female descendants
               of the son, any number of generations down. Even if
               it is his daughter's daughter's daughter, she
               inherits everything. If not, we go to the daughter.
               If she is alive, she inherits everything. If she
               died, if she left any descendants, he or she
               inherits everything. If not, the inheritance reverts
               to the father. If he died, we see if he has
               descendants, i.e. Simchah's brothers. Males and
               their descendants have precedence over females, just
               like regarding Simchah's descendants. If he has a
               brother or a descendant of a brother, he inherits
               everything. If not, we see if Simchah left a sister
               or descendants of a sister. If there is, she
               inherits everything. If not, the inheritance reverts
               to the grandfather.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> 'V'Yorash' equates the second
                    inheritance to the first inheritance. Just like
                    sons inherit before daughters in the first
                    inheritance, i.e. of the deceased, also in the
                    second, i.e. of his relatives.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If one had two sons, and they died in
               his lifetime, and one left three sons and the other
               son left a daughter, the three grandsons inherit
               half, and the granddaughter inherits half. Each
               inherits what was due to his father. The same
               applies to nephews or cousins.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (2:7):</font></b> If one had two sons, and one was a
               Bechor, and they died in his lifetime, and the
               Bechor left a daughter and the other son left a son,
               the grandson inherits a third, which was due to his
               father, and the granddaughter inherits two thirds,
               which was due to her father. The same applies to
               nephews or cousins. If the father of an heir was a
               Bechor, the heir inherits his extra share.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Objection (Tur CM 277:24):</font></b> I do not understand
                    this. Bechorah applies only to a son inheriting
                    a father, but not to other heirs!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magid Mishneh:</font></b> If Yakov died in the life of his
                    father Yitzchak, and after Yitzchak died later,
                    Yakov's Bechor Reuven does not get a double
                    share in Yitzchak's property, for it was only
                    Ra'uy to fall to Yakov. However, if Yakov was a
                    Bechor, his children inherit his double share
                    of Yitzchak's property. We cannot say that the
                    Rambam discusses when Yakov died without
                    children, and Yitzchak was dead and Yitzchak's
                    descendants inherit. A Bechor would not get
                    double, for Yakov's property was Ra'uy to come
                    to Yitzchak! Rather, Yakov died, and afterwards
                    Yitzchak died. However, why did he need to
                    discuss a case like this? It does not matter
                    how the property came to Yitzchak. His Bechor,
                    or descendants of his Bechor, receive a double
                    portion in any case!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (CM 277:24):</font></b> The Rambam's intent is clear,
                    like he wrote in (1:5). He explains 'the second
                    inheritance is like the first inheritance' like
                    Tosfos, that the first inheritance is what is
                    explicit in the Torah, and the second
                    inheritance is grandchildren. The Hekesh
                    equates them (the children of explicit heirs
                    inherit like their parents would inherit). The
                    same applies to Bechorah. If all Yakov's
                    children died, the heirs of his Bechor inherit
                    the double portion due to their father. This
                    applies to any heirs of Yakov's children, e.g.
                    nephews (of Yakov's grandchildren). Bechorah
                    applies to anyone who inherits Yakov's Bechor.
                    The Semag copied the Rambam without challenging
                    it, for it is clear like I explained.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 276:1):</font></b> The order of inheritance:
               if Simchah died, his son inherits. If the son died,
               if there are any male or female descendants of the
               son, any number of generations down, he stands in
               place of the son and inherits everything. If not, if
               there is a daughter, she inherits everything. If she
               died, if she left any descendants, he or she
               inherits everything. If not, the inheritance reverts
               to the father. If he died, if he has a descendant,
               i.e. Simchah's brother, he inherits everything. If
               he has no brother, but there is a descendant of a
               brother, he inherits everything. If not, we see if
               Simchah left a sister or descendants of a sister. If
               there is, she inherits everything. If not, the
               inheritance reverts to the grandfather.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chasam Sofer (EH 2:158, cited in Pischei
                    Teshuvah 1):</font></b> A case occurred in which a man
                    wouned his mother and made her bleed. The
                    congregation fined him, and forced him to say
                    'I remove myself from inheriting her when she
                    will die.' He signed on this. His mother died,
                    and he claims that one cannot remove himself
                    from Torah inheritance. This is true, like the
                    Ran and Beis Shmuel (Sof Siman 92) say, unlike
                    Chavos Ya'ir and Nachalas Shiv'ah. However,
                    here it was a fine. We force him to fulfill his
                    vow not to benefit from the property. A husband
                    must pay a fine that his wife owes, for it is
                    like a Korban, which he must bring for her. The
                    Rambam and Shulchan Aruch (CM 212:7), who rule
                    that if one said 'I will give to Aniyim what
                    will come for this tree', even though it is
                    Davar she'Lo Ba l'Olam, it is a vow and we
                    force him to fulfill it. Surely, the same
                    applies here. The Rema (EH 91) favors those who
                    say that it is not a vow (for he did not forbid
                    anything), and he need not fulfill it. Here, he
                    accepted not to receive the money, to atone for
                    his sin. It is like a vow not to eat. However,
                    if he has sons, they can inherit their
                    grandmother. Our fine is no stronger than the
                    Torah's law regarding one who stole from his
                    father, according to Tosfos (Bava Kama 108b DH
                    l'Vanav. He must remove the theft from his
                    Reshus, but his children may take it.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (4):</font></b> The mother's family is not
               considered family. A woman does not inherit her son
               or daughter. Maternal brothers from different
               fathers do not inherit each other. Rather, paternal
               heirs inherit.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Maternal relatives do not inherit even a
               Shtuki (one who does not know whom is his father.
               His property is Hefker after he dies), even though
               he has no paternal heirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pischei Teshuvah (2):</font></b> A case occurred in which
                    a man came to a city, married Leah, fathered a
                    girl Dinah, divorced Leah and went away. No one
                    knows about the man. Leah died, leaving a house
                    rented out to Ploni. Surely, Leah's family has
                    no claim to inherit her. The question is
                    whether Dinah's property is Hefker, like that
                    of a Shtuki. Mayim Chayim (CM 24) answered that
                    this is unlike a Shtuki. There, the father has
                    no Chazakah, even if Eliyahu would tell us that
                    he is the father. Even though inheritance does 
                    not need testimony, it needs a Chazakah that
                    one was a relative (CM 284). Here, the father
                    was known, and he could come and clarify this.
                    This is like one who saw an Aveidah fall from
                    two or three people, but does not know from
                    whom. He holds it until Eliyahu comes (CM
                    262:4).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Chavos Ya'ir (231, b'Sof):</font></b> If one seized
                    property of a Shtuki, he keeps it, for it is
                    Hefker, like the Rema says. This requires
                    investigation. It seems that he should leave it
                    until Eliyahu comes.<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Just like we look for descendants, we also look
               for ancestors. (If Dosan left no descendants, and
               there are no living descendants to his father, we
               look for his father's father (or his descendants)...
               even if we must go until Reuven (ben Yakov Avinu).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why not say 'even if we must go until
               Yakov'?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> Tradition teaches that no tribe
               will ever die out (we will never need to go back to
               Yakov).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> If anyone says that a daughter inherits
          with a daughter of a son, even if the Nasi says so, we do
          not heed him, for this is what Tzedukim say.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Teves 24 is the holiday of returning
               to the original law (we may not fast or eulogize on
               this day);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Tzedukim used to say that a daughter inherits
               with a daughter of a son. R. Yochanan ben Zakai
               challenged their source. A lone Tzeduki responded.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> The Tzeduki:</font></b> We learn from a Kal va'Chomer. A
               son's daughter inherits due to her father (the son
               of the deceased), and she inherits (with surviving
               sons). A daughter inherits due to herself, so all
               the more so she inherits with sons!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> R. Yochanan ben Zakai:</font></b> It says 'Eleh Benei
               Se'ir... Yoshevei ha'Aretz... v'Tzivon va'Anah', and
               it says 'v'Eleh Benei Tzivon v'Ayah va'Anah'!
               (Rashbam - Anah inherited with his uncles from his
               grandfather. This shows that a son's descendants
               inherit just like he would have inherited. Since a
               daughter does not inherit with a son, she does not
               inherit with a son's daughter! Tosfos - Anah was a
               girl. We will explain the proof soon.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We must say that Tzivon fathered Anah through his
                    own mother (therefore, Anah is also listed
                    among children of Se'ir).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> Perhaps there were two people
                    named Anah!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer (Rabah):</font></b> 'Hu Anah' - this is the
                    same Anah listed above.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> The Tzeduki:</font></b> How does that refute me?! (Tosfos -
               he did not understand R. Yochanan's intent.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> R. Yochanan ben Zakai:</font></b> This shows that a son's
               daughter inherits with other sons of the deceased,
               but a daughter does not.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The Tzedukim were defeated. Chachamim made the
               day a holiday.
<br>

sjt:
</p><p>
<font><b>2) WHO WAS 'ANAH'?</b></font><b>
<br>QUESTION:</b> The Gemara relates that the Tzedukim used to say that the daughter of the deceased inherits together with the daughter of the son of the deceased. Rebbi Yochanan disproved their assertion from the verses that discuss Anah. One verse states that Se'ir had a son named Anah, while another verse states that Se'ir's son, Tziv'on, had a son named Anah. Rebbi Yochanan derives from these verses that Tziv'on had relations with his mother, Se'ir's wife, and gave birth to Anah. The verse is teaching that Se'ir is still called the father of Anah because of the rule that one's grandson is considered his own son. Therefore, it is incorrect to say that the daughter of a son should have to share an inheritance with the daughter of the deceased, since such a situation is similar to a case of a son and a daughter, in which case the son receives all of the inheritance.
</p><p>
<b>TOSFOS</b> (DH Melamed) quotes <b>RABEINU TAM</b> who asks that Rebbi Yochanan's proof seems inconclusive. The Tzedukim could have responded that the verse refers only to sons of sons, not to <i>daughters</i> of sons!
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RABEINU TAM</b> answers that Anah in fact was a woman, and thus Rebbi Yochanan's proof against the Tzedukim is well-founded.
</p><p>
How can one suggest that Anah was a woman, when the verse itself refers to Anah with the masculine word 'Hu' ('he') and not 'Hi' ('she')? Rabeinu Tam answers that the verse refers to her as 'Hu' only because she inherited along with her brother.
</p><p>
(b) The <b>RITVA</b> answers that it is possible that there is no difference between the daughter of a son and the son of a son, as both are linked to their grandfather through the son. However, this is not a valid answer to the Tzedukim's claim (see 116a for the real answer), because even if one agrees that the daughter of a son is like a son, it does not mean that she is <i>better</i> than an actual daughter. It appears from this statement that the Ritva understands that the word 'like' a son is not to be understood literally.
</p><p>
(c) The <b>RASHBAM</b> (DH b'Kach) understands that Anah was a male, and that Rabeinu Tam's point is explicitly addressed in the Gemara. When the Gemara says, 'Rebbi, b'Kach Atah Potreni' -- 'My teacher, with this you are letting me go?' it refers to this weakness in the teaching of Rebbi Yochanan, which prompted another teaching. (Y. Montrose)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ONE WHO DIES WITHOUT SONS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> 'Yerushas Peleitah l'Vinyamin v'Lo
          Yimacheh Shevet mi'Yisrael' teaches that they stipulated
          about Binyamin (after the war, when very few Bnei
          Binyamin remained) that a daughter of a son will not
          inherit with the brothers (lest she marry into a
          different tribe, and a large portion of Binyamin's
          inheritance will go to other tribes).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Hash-m hates one who dies without a son
          to inherit him;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'v'Ha'avartem Es Nachalso l'Vito',
               similar to 'Yom Evrah.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(R. Yochanan or R. Yehoshua ben Levi):</font></b> 'Asher Ein
          Chalifos Lamo v'Lo Yar'u Elokim' refers to one who dies
          without a son;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	(The other of R. Yochanan and R. Yehoshua ben Levi):
          This is one who dies without a Talmid.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Surely, R. Yochanan said the latter, for he would say
          (to console mourners) 'this is a bone (Rashbam - tooth)
          from my tenth son' (all died in his lifetime. He would
          not say this if he held that such a person does not fear
          Hash-m!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, R. Yehoshua ben Levi must have said
          the former. However, R. Yehoshua ben Levi would
          (interrupt learning to) go to a house of mourning only
          for one who died without a son;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, he does not say that such a person does
               not fear Hash-m. He must say that the verse
               discusses one who dies without a Talmid, and R.
               Yochanan says that it discusses one who dies without
               a son;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> However, R. Yochanan publicized about himself
               that he lost all his sons!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Yochanan agrees that the verse discusses one
          who dies without a Talmid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan said in his Rebbi's name (but he
               himself disagrees) that it refers to one who dies
               without a son.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (R. Pinchas ben Chama):</font></b> 'Ki Shachav David...
          v'Chi Mes Yo'av' - why does it say that David lied (with
          his fathers), and that Yo'av died?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (R. Pinchas):</font></b> David left a son, so it says that
          he lied. Yo'av left no son, so it says that he died.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Yo'av left a son - 'mi'Benei Yo'av
          Ovadyah...'!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Correction:</font></b> Rather, David left a son like himself.
          Yo'av did not leave a son like himself.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(R. Pinchas ben Chama):</font></b> Poverty in a man's house in
          worse than 50 plagues - 'Yad Eloka Nog'ah Bi' (the 10
          Makos in Mitzrayim are called the finger of Hash-m, so
          the hand is like 50), and Iyov's friends answered 'Zeh
          Bocharta me'Oni'.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(R. Pinchas ben Chama):</font></b> If a man has a sick person in
          his house, he should ask a Chacham to pray for him -
          'v'Ish Chacham Yechaperenah'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE ORDER OF INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The general rule is: whoever has precedence
          to inherit, all his descendants have precedence. A father
          precedes his own descendants.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> Who has precedence to
          inherit a man (Esav), his paternal grandfather (Avraham)
          or his paternal uncle (Yishmael)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava - Mishnah):</font></b> A father precedes his own
          descendants.
<br>
<br>

sjt:
<font><b>1) THE ENACTMENT MADE FOR SHEVET BINYAMIN</b></font><b>
<br>QUESTION:</b> The Gemara relates that after the incident of Pilegesh b'Giv'ah (Shoftim 19-21; see Background to the Daf), when Shevet Binyamin was almost wiped out, a decree was established for Shevet Binyamin in order that its ancestral property remain in the ownership of the Shevet. The decree was that whenever there would be sons who are supposed to inherit from their father, along with a daughter of a deceased son, the daughter would not inherit. This decree was made despite the Torah's law that a deceased son inherits from his father, and his daughter (if he had no son) subsequently inherits that portion of her grandfather's estate.
</p><p>
The <b>RASHBAM</b> (DH she'Lo) explains that at that point, there were only 600 males left in the entire Shevet of Binyamin, which meant that if one person died, a lot of land would transfer ownership as an inheritance. To ensure that the land would remain in the ownership of the Shevet and would not be taken by other Shevatim (who would marry women from Binyamin who would inherit large tracts of land from their fathers), this decree was enacted.
</p><p>
The <b>MAHARSHA</b> asks an obvious question on the Gemara. If the concern was that land from Shevet Binyamin would be given to other Shevatim, why did the Chachamim not simply follow the Torah's own decree for the daughters of Tzelofchad? In order to prevent their father's share of the land from being transferred to another Shevet, the Torah required that the daughters of Tzelofchad marry only men in their own Shevet. Why did the Chachamim instead decree that a granddaughter (whose father is not alive) does not inherit her father's share of her grandfather's estate?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> answers that it is possible that since only 600 males were left in Shevet Binyamin at the time, it was not appropriate to decree that all of the women should marry only men from Shevet Binyamin, because of the pool of eligible men was extremely limited. The daughters of Tzelofchad, in contrast, had thousands of men from Shevet Menasheh to marry, and therefore the Torah required that they marry only within their Shevet.
</p><p>
The Maharsha quotes the Rashbam (DH she'Lo) who writes that this decree applied only when there were sons available to inherit their father. If a man died with no sons, and a granddaughter stood to inherit alongside her aunt, she would receive her the portion to which she was entitled. The Rashbam adds that in such a case, where a man died with no sons, the daughters and granddaughters presumably were careful to marry within the Shevet in order to ensure that the land they inherit would not become the portion of a different Shevet.
</p><p>
(b) The <b>IYUN YAKOV</b> writes that there was another reason behind this decree. The Chachamim wanted the males of Shevet Binyamin to have large properties through inheritance in order to entice the rest of the Jewish people to start allowing their daughters to marry into Shevet Binyamin after they had stopped doing so because of the war against Binyamin. This would make the men of Binyamin more attractive to potential fathers-in-law. (Y. Montrose)
</p><p>
<br>

loi:
<p class='newsubafdaf'><span class='numt'>1)</span> WHEN IS THERE A MITZVAH TO BURY A MES OR ITS LIMBS?</p>
<p class='firstindenthalachah'><span class='numl1'>(a)</span>	GEMARA</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Question:</span> Is the reason for burial to avoid disgrace (of a rotting corpse), or for atonement?</p>
<p class='thirdindent'><span class='numl3'>i.</span>	The answer teaches about one who asked (before he died) not to be buried - if we are concerned for disgrace, we do not comply. If it is for atonement, since he does not want it, we honor his request.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Nazir 43b (Rav Chisda citing Rav):</span> A Kohen may not be Mitamei to bury his father if the head was cut off. It says 'for his father' - when his father is intact.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	Question (Beraisa):</span> ' He will be Mitamei for her (his sister)', but not for her limbs. He may return for a bone the size of a barley seed.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'>	Inference:</span> The Mes was lacking (a bone), and he was permitted to be Mitamei for it (and again for the remaining bone)!</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'>	Answer:</span> The Beraisa is like R. Yehudah (but Chachamim permit him to be Mitamei only for an intact Mes).</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	(Beraisa - R. Yehudah):</span> 'For her he will be Mitamei', but not for her limbs. He may be Mitamei for a limb that separated after death.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'>	Question (Rav Kahana's Beraisa - R. Eliezer ben Yakov):</span> 'For her he will be Mitamei', but not for limbs. This excludes a k'Zayis of flesh of a Mes. He may be Mitamei for her spine, skull, or bones comprising the majority of the stature (i.e. three bones out of the shins and thighs) or of the number (of bones of the body, 248). We learn from the repetition 'say... and you will say.'</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'>	Answer:</span> Also this Beraisa is like R. Yehudah. Rav holds like the following Tana:</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	(Beraisa):</span> R. Yitzchak's father died in Ninzak. R. Yitzchak did not hear until three years later. R. Yehoshua ben Elisha and four Chachamim expounded 'for his father' - he may be Mitamei only for an intact Mes.</p>
<p class='secondindent'><span class='numl2'>7.</span><span class='desl2'>	Shabbos 93b (Mishnah):</span> If one takes a k'Zayis of a Mes to Reshus ha'Rabim, he is liable;</p>
<p class='secondindent'><span class='numl2'>8.</span>	R. Shimon exempts.</p>
<p class='secondindent'><span class='numl2'>9.</span><span class='desl2'>	Berachos 5b:</span> R. Yochanan would say (to console mourners) 'this is a bone from my tenth son.'</p>
<p class='firstindenthalachah'><span class='numl1'>(b)</span>	RISHONIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Rif (Hilchos Tum'ah 1b):</span> A Kohen may be Mitamei for a bone of his father that is the size of a barley seed.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Rebuttal (Rosh Hilchos Tum'ah 7 and Ramban (Toras ha'Adam, brought in Kesef Mishneh Hilchos Evel 2:14)):</span> The Rif means that if one was Mitamei for his father, and a bone was not buried, he is Mitamei again to bury it. We must say that this is like R. Yehudah, who argues with R. Yehoshua ben Elisha and the four Chachamim. However, we rule like was done in practice (they forbade R. Yitzchak to be Mitamei for his father, because the body was not intact)! Also, this was the majority opinion. Also, Rav forbids, and we do not find an Amora who argues with him.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	Defense (Kesef Mishneh Hilchos Evel 2:14):</span> R. Yehudah is not a lone opinion. R. Eliezer ben Yakov agrees. Even though R. Yehoshua ben Elisha and the four Chachamim disagree, we follow the two because they appear more regularly in the Gemara. Also, the Halachah always follows R. Eliezer ben Yakov. It seems that Rav Kahana held like the Beraisa he taught (of R. Eliezer ben Yakov). Perhaps in the Rif's text, Rav Chisda said his law himself (not in the name of Rav). Even if he said it in the name of Rav, perhaps it is according to the Tana who argues with R. Yehudah, but Rav himself holds like R. Yehudah. The Gemara says so sometimes. However, since the Rambam, Ramban and Rosh agree, we rule like them.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	Rambam (Hilchos Evel 2:14):</span> A Kohen may not be Mitamei for Ever Min ha'Chai of his father, nor for a bone the size of a barley seed.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'>	Ra'avad:</span> The Rif disagrees.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'>	Rambam (Hilchos Evel 12:1):</span> If one commanded 'do not bury me', we do not heed him, for it is a Mitzvah - 'you will bury him.'</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'>	Radvaz:</span> Why didn't the Gemara learn from the verse? Perhaps the verse applies to Stam Mesim, but not to one who asked not to be buried. It is a Safek mid'Oraisa, so we are stringent. Alternatively, we brought proofs that it is due to disgrace, and we do not rely on the rejections.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'>	Radvaz (2:780):</span> Why did the Gemara ask about the reason we bury Mesim? In any case the Torah commands to bury Mesim! It seems that if it is for Kaparah, if one asked not to be buried, we bury him, but he does not get a Kaparah. Perhaps this is why the Rif did not bring this, for it does not affect us. Hash-m knows whether or not he gets a Kaparah!</p>
<p class='firstindenthalachah'><span class='numl1'>(c)</span>	POSKIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Shulchan Aruch (374:2):</span> A Mes Mitzvah for which one must become Tamei is only if one found the head and majority. If he found the head and majority except for one limb, he becomes Tamei again for that limb.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	Source (Beis Yosef DH u'Mah):</span> The Ramban brings this from the Yerushalmi.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	Radvaz (8:197):</span> There is a custom to bring bones from Mitzrayim to be buried in Yerushalayim. This is proper. We have a tradition that Techiyas ha'Mesim will be only in the valley of Yehoshafat. Bringing the bones saves the Mes from the pain of rolling through tunnels. However, one must ensure that nothing remains of the Mes (in the old grave). If anything remains, after Techiyas ha'Mesim, the person will be lacking until that remnant rolls to Yerushalayim. Therefore, one must take also the dirt he is in. Then, one may put a new Mes in the grave of the one moved.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'>	Chasam Sofer (EH 2:134):</span> A case occurred in which blood of a Mes was absorbed in dirt. It need not be buried together with the Mes. People were not particular to bury limbs that fell from Mesim together with the Mes (Rashi Mo'ed Katan 5b DH Mishum).</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'>	Mishneh Halachos (16:113):</span> Ha'Emek She'elah (YD 97) discusses a man who lost a finger, moved, and died. The father wanted them to send his son's finger to be buried with him. Is this proper, in order that he will not lack a limb at the time of Techiyas ha'Mesim? The Chasam Sofer brings from Rashi that people were not particular to bury limbs that fell from Mesim together with the Mes. The Radvaz teaches a big Chidush (that if anything remains in the old grave, the person will be lacking until the remnant rolls to Yerushalayim). This is another reason not to reinter Mesim. Rashi (Pesachim 68 DH Hachi) says that Mesim will be revived the way they were buried, and afterwards Hash-m wil heal them.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'>	Tosfos Yom Tov (Shabbos 10:5 DH v'Chen):</span> The Mishnah obligates one who takes to Reshus ha'Rabim a k'Zayis of a Mes. Perhaps the Mitzvah to bury is only if there is at least a k'Zayis.</p>
<p class='thirdindent'><span class='numl3'>vi.</span><span class='desl2'>	Rebuttal (Mishneh l'Melech Hilchos Evel 14:21, DH Asher):</span> The Yerushalmi (Nazir 7:1) obligates burial only if the head and majority are intact. Perhaps the Mishnah discusses a Mes Nochri. A k'Zayis is useful to feed to a dog.</p>
<p class='thirdindent'><span class='numl3'>vii.</span><span class='desl2'>	Gesher ha'Chayim (1:16:2:1,2):</span> Even those who say that the Mitzvah to bury is only if the head and majority were found, they agree that a limb or a k'Zayis of flesh must be buried, if not for the Mitzvah of burial, for one of four reasons. 1) One may not benefit from a Mes. (We bury Isur Hana'ah unless there is a Mitzvah to burn them.) 2) We are concerned lest people become Tamei from it. 3) The body was like the margin or case of Kedushah (the Neshamah), so any part of it so it requires Genizah (burial). 4) Burial of any part of a Mes shows anticipation of Techiyas ha'Mesim.</p>
<p class='thirdindent'><span class='numl3'>viii.</span><span class='desl2'>	Kol Mevaser (1:70):</span> It seems that he becomes Tamei again even for part of a limb. R. Yehudah (Nazir 43) requires this even for a bone the size of a barley seed, for one's father! The Rif rules like R. Yehudah, but the Poskim disagree (Beis Yosef Sof Siman 374). Shirei Korban says that Tana'im argue about relatives, but regarding a Mes Mitzvah, all agree to R. Yehudah. The Tur (374) and Shach (1) say so. When the head and majority are intact, one must return to bury even a partial limb or a bone less than a k'Zayis. There was no need to teach that a Kohen may bury these, for these are not Metamei. Rather, we learn that they must be buried.</p>
<p class='thirdindent'><span class='numl3'>ix.</span><span class='desl3'>	Note:</span> Perhaps the Chidush is that a Kohen buries them with the rest of the body, and he becomes Tamei from entering the cemetery or opening the coffin!</p>
<p class='thirdindent'><span class='numl3'>x.</span><span class='desl2'>	Kol Mevaser (1:70):</span> It seems that since less than a k'Zayis is not Metamei, one need not bury it. One must bury a bone the size of a barley seed, even though it has no Tum'as Ohel, just like one must bury Nochrim, who have no Tum'as Ohel. Rav Nisim Gaon (Berachos 5b) explains that R. Yochanan's tenth son fell into a boiling cauldron, and all his flesh melted, and only bones remained. Since the head and majority did not remain, there was no Mitzvah to bury even bones with a Shi'ur Tum'ah.</p>
<p class='seealso'>See also:</p>
<p class='seealsotext'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rami bar Chama was distracted by another
               question, therefore he did not realize that the
               Mishnah answers his question.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rami bar Chama):</font></b> Who has precedence to
          inherit a man (Esav), his paternal grandfather (Avraham)
          or his brother (Yakov)?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava - Mishnah):</font></b> A father precedes his own
          descendants.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	Rami bar Chama does not consider this conclusive.
          Perhaps it means that a father precedes his own children,
          but not his children's children.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (for the latter understanding - Mishnah):</font></b> The
          general rule is, whoever has precedence to inherit, all
          his descendants have precedence;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the father (Yitzchak) was alive, he would
               inherit before Avraham. Therefore, if Yitzchak is
               dead, his son (Yakov) inherits before Avraham.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TZELAFCHAD'S DAUGHTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Tzelafchad's daughters received three
          portions of Eretz Yisrael for an inheritance: the portion
          of Tzelafchad, who left Mitzrayim; Tzelafchad's share of
          Chefer's (his father) portion; and Tzelafchad's extra
          share of his father's portion, for Tzelafchad was a
          firstborn.
<br>

<p>

sjt:
</p><p>
<font><b>2) TZELOFCHAD'S DOUBLE PORTION</b></font><b>
<br>QUESTION:</b> The Mishnah states that the daughters of Tzelofchad inherited three different portions from their father, Tzelofchad. One portion was the portion that Tzelofchad received by virtue of being one of the people who left Mitzrayim. A second portion was the inheritance which Tzelofchad received from his father, Chefer, who also came out of Mitzrayim. A third portion was the double portion that Tzelofchad inherited from his father by virtue of his status as the Bechor, the firstborn son of Chefer.
</p><p>
An interesting question is raised by the Rishonim. Due to Tzelofchad's untimely death, he was outlived by his father, Chefer. The Gemara later (119a) teaches the rule that a Bechor receives a double portion only of property which is actually in his father's possession ('Muchzak') and not of property that will eventually come into his father's possession ('Ra'uy'). Accordingly, since Chefer did not yet receive his portion of Eretz Yisrael before Tzelofchad died, Tzelofchad should not inherit a double portion of that land as the Bechor.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>RASHBAM</b> (DH v'she'Hayah) quotes the Tosefta in Bechoros (6:5) which states clearly that the rule that a Bechor does not inherit a double portion of 'Ra'uy' property does not apply in this case. The Tosefta states that if a man dies in the lifetime of his father, the man's Bechor receives a double portion of his property, but he does not receive a double portion of his grandfather's property. The Tosefta illustrates this point by using the case of Yitzchak, Yakov, and Reuven as an example. Assuming that Yakov is not a Bechor, and his son Reuven is a Bechor, when Yakov dies Reuven does not inherit a double portion from his grandfather, Yitzchak. The Rashbam explains that since Yakov himself would have inherited only a single portion from Yitzchak, since Yakov is a second-born son, certainly Yakov's son, Reuven, should not inherit a double portion from Yitzchak through Yakov. However, if Yakov would be a Bechor, then he clearly would receive a double portion from Yitzchak, which in turn would be passed to Reuven.
</p><p>
This Tosefta is proof that the fact that Tzelofchad was a Bechor entitled him to receive a double portion from Chefer, even though he died before Chefer. The Rashbam points out that the Tosefta teaches that a Bechor does not inherit a double portion from his grandfather only when his father died before his grandfather <i>and was an ordinary son</i>, but he <i>does</i> inherit a double portion from his father who died if his father was a Bechor.
</p><p>
The <b>RAN</b> takes issue with the Rashbam's interpretation of the Tosefta. According to the Rashbam's understanding, why does the Tosefta emphasize the fact that a grandson who is the son of a deceased, ordinary (non-Bechor) son does not inherit two portions from his grandfather? This is obvious! Why would he inherit two portions when his father would inherit only a single portion?
</p><p>
(b) The <b>RAN</b> therefore understands that the intent of the Tosefta is to teach a different lesson. The Tosefta teaches that although Yakov (in the example above) has a share in the estate of Yitzchak even if he dies before Yitzchak, Yakov's firstborn son, Reuven, does not inherit the possessions which Yakov 'inherited' from Yitzchak any differently from his other brothers. This is because the portion of inheritance which was going to be passed to the deceased Yakov is considered 'Ra'uy,' since Yakov never actually owned the property in his lifetime. Since Reuven's portion of that inheritance comes from Yakov, and Reuven inherits a double portion only from what Yakov actually owned, Reuven does not receive a double portion in Yakov's share of the possessions of Yitzchak when Yitzchak dies. However, he <i>does</i> inherit an ordinary share. Similarly, the daughters of Tzelofchad inherited the double share that Tzelofchad received from Chefer. (Only if Tzelofchad would have had a Bechor and ordinary sons would the Halachah of the Tosefta have taught that the Bechor inherits an ordinary share of that inheritance and not a double share). (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO RECEIVED PORTIONS OF THE LAND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> According to the opinion that shares were
          allocated to those who left Mitzrayim, we understand why
          Tzelafchad's daughters complained.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> According to the opinion that
          shares were allocated to those that entered, why did they
          complain? No sons entered to receive portions!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Nephews of Tzelafchad entered. Their
          portions reverted to their grandfather Chefer, and
          Tzelafchad's children deserved to receive a share of
          them.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	According to the opinion that portions were allocated
          to those that left Mitzrayim, we understand why the
          tribes of Yosef's children complained. (Now, they had
          more people than left Mitzrayim, so they would receive
          less per person than the other tribes.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that portions were
          allocated to those that entered, why did they complain?
          Everyone who entered received one portion!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> They had many men less than 20 years old who
          entered and received no portion.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Abaye):</font></b> We may deduce that everyone who entered the
          land received a portion. If someone did not, he would
          have complained!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Perhaps someone didn't receive a portion,
          but the Torah wrote only complaints (e.g. of Tzelafchad's
          daughters) that helped!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> The complaint of the tribes from Yosef did
          not help, yet it was written!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection of rejection:</font></b> That was written to teach good
          counsel, that one should beware of Ayin ha'Ra (envy).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support:</font></b> 'Im Am Rav Atah Ale Lecha ha'Harah' -
               conceal yourselves in forests, lest an Ayin ha'Ra
               prevail over you.
<br>
<br>

sjt:
<font><b>1) MAY A PERSON SAY THAT HE IS NOT CONCERNED ABOUT AN 'AYIN HA'RA'?</b></font><b>
<br>OPINIONS:</b> The Gemara says that Yehoshua advised the descendants of Yosef, who felt that they needed more land in Eretz Yisrael, to settle in the forests. Part of his advice was practical -- to settle a portion of their land which they had not considered settling. However, the Gemara says that Yehoshua also intended to advise Shevet Yosef that settling in the forests is generally a good thing; since people cannot see one's dwelling in the forest, living there protects a person from an 'Ayin ha'Ra.'
</p><p>
The concept of 'Ayin ha'Ra' is mentioned many times throughout the Gemara as well as in the <b>SHULCHAN ARUCH</b> (CM 378:5), which states the Halachah that one is not permitted to stand next to another person's field and admire the fine crop which has grown in the field, because his Ayin ha'Ra might cause harm to the crop.
</p><p>
Is a person entitled to say that he does not care about an Ayin ha'Ra such that it should not affect him at all? The Gemara in Pesachim (110b) teaches that one who is not afraid of and pays no attention to the Shedim ('demons,' or forces that inflict harm) is not subject to the Shedim's harm. Does the same apply to the potential harm of an Ayin ha'Ra? Could the members of Shevet Yosef told Yehoshua that they did not want to settle in the forests because they had no concern for Ayin ha'Ra?
</p><p>
(a) <b>RAV MOSHE FEINSTEIN</b> zt'l (in <b>IGROS MOSHE</b> EH 3:26) writes that one who is not concerned for an Ayin ha'Ra indeed will not be harmed by an Ayin ha'Ra. Nevertheless, even one who is not concerned for an Ayin ha'Ra should avoid doing something which is extremely out of the ordinary, since such an act definitely will cause an Ayin ha'Ra. Rav Moshe therefore rules that a young woman who is pregnant should not be concerned about Ayin ha'Ra, since it is normal for young women to become pregnant. This is also implied by the <b>CHASAM SOFER</b> (EH 116).
</p><p>
(b) The author of <b>SEFER L'RE'ACHA KAMOCHA</b> (vol. 2, ch. 4, fn. 231) has difficulty with the ruling of the Igros Moshe. The <b>SHULCHAN ARUCH</b> (OC 141:6) rules that two brothers are not allowed to be called up for an Aliyah to the Torah one after another because of the concern for Ayin ha'Ra. The <b>BIRKEI YOSEF</b>, <b>KAF HA'CHAIM</b>, and many others point out that this concern applies even if the brothers say that they are not concerned about an Ayin ha'Ra. This Halachah is also quoted by the <b>MISHNAH BERURAH</b> (OC 141:19). The l'Re'acha Kamocha writes that although the <b>ARUCH HA'SHULCHAN</b> (OC 141:8) rules that one who is not concern about Ayin ha'Ra may do whatever he wants, he may not mean that such a person will not be harmed by an Ayin ha'Ra, but rather that such a person may choose to ignore the fact that he probably will be harmed if he and his brother accept two consecutive Aliyos. (<b>RAV REFAEL LEVIN</b> zt'l, the brother-in-law of <b>RAV</b> Y. S. <b>ELYASHIV</b> shlit'a yblch'a, used to give young women who were pregnant a paper with the eleven verses which were organized by <b>RABEINU BACHYE</b> in his commentary on Parshas Matos to ward off any Ayin ha'Ra, and he told them to say this Tefilah every day.)
</p><p>
It seems that it is possible to refute the l'Re'acha Kamocha's proof from the Halachah that two brothers may not receive consecutive Aliyos. In that case, where the act is a public one, the Rabanan were concerned that if enough sets of brothers who are not concerned about Ayin ha'Ra will allow themselves to be called up to the Torah consecutively, people might forget the Halachah altogether, and eventually even brothers who <i>are</i> concerned about Ayin ha'Ra will be called to the Torah consecutively and they will suffer harm as a result. (Y. Montrose)
</p><p>
<br>

loi:
<p class='newsubafdaf'><span class='numt'>1)</span> CONCERN FOR AYIN HA'RA</p>
<p class='firstindenthalachah'><span class='numl1'>(a)</span>	GEMARA</p>
<p class='secondindent'><span class='numl2'>1.</span>	Yehoshua told Bnei Yosef 'Im Am Rav Atah Ale Lecha ha'Harah' - (since you are numerous,) conceal yourselves in forests, lest an Ayin ha'Ra prevail over you.</p>
<p class='secondindent'><span class='numl2'>2.</span>	They responded 'we descend from Yosef, over whom Ayin ha'Ra does not prevail. In the Berachah to Yosef, it says 'Alei Ayin (he has grace in the eyes of all who see him).''</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	(R. Avahu):</span> This may be read 'Olei Ayin' (his descendants prevail over Ayin ha'Ra).</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	(R. Yosi bar Chanina):</span> We can learn from 'v'Yidgu la'Rov' - just like fish are covered in water, so no Ayin ha'Ra prevails over them, also Ayin ha'Ra does not prevail over Yosef's seed.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	Berachos 20a:</span> Alternatively, since Yosef's eye did not want to look at what was forbidden to him (Potifar's wife), Ayin ha'Ra does not rule over him (or his seed).</p>
<p class='secondindent'><span class='numl2'>4.</span>	Rav Huna wrote 70 Sifrei Torah. In only one Sefer, the dimensions matched (the height equaled the circumference). Rav Acha bar Yakov wrote one Sefer Torah; the dimensions matched. Rabanan were envious, and Rav Acha died.</p>
<p class='secondindent'><span class='numl2'>5.</span>	Rav Chanina brei d'Rav Ika saw Rav Papa and Rav Huna brei d'Rav Yehoshua and said 'to me, you are like 600,000 Yisre'elim. For seeing you, I can bless 'blessed is He who knows secrets.''</p>
<p class='secondindent'><span class='numl2'>6.</span>	Rav Papa and Rav Huna exclaimed 'are you such a Chacham?!' They put their eyes on him, and he died.</p>
<p class='secondindent'><span class='numl2'>7.</span><span class='desl2'>	Bava Metzi'a 84b:</span> Rebbi and R. Elazar b'Rebbi Shimon used to sit on the ground in front of (older) Rabanan, who sat on benches. Rabanan learned much from them, and made benches for them to sit on.</p>
<p class='secondindent'><span class='numl2'>8.</span><span class='desl2'>	R. Shimon ben Gamliel:</span> I have one precious son (Rebbi). Do you seek to make me lose him (through Ayin ha'Ra)?</p>
<p class='secondindent'><span class='numl2'>9.</span>	They returned Rebbi to the ground. R. Yehoshua ben Korchah exclaimed 'should R. Elazar, who has no father (to guard him from situations of Ayin ha'Ra), die?!'</p>
<p class='secondindent'><span class='numl2'>10.</span><span class='desl2'>	107b (Rav):</span> 'V'Hesir Hash-m Mimecha Kol Choli' refers to Ayin ha'Ra;</p>
<p class='thirdindent'><span class='numl3'>i.</span>	Rav went to a graveyard and said that 99 of every 100 died from Ayin ha'Ra. Only one died normally.</p>
<p class='secondindent'><span class='numl2'>11.</span><span class='desl2'>	Sanhedrin 93a (Rav):</span> Chananyah, Misha'el and Azaryah died (after they refused to bow to the image and a great miracle was done for them) due to Ayin ha'Ra.</p>
<p class='secondindent'><span class='numl2'>12.</span><span class='desl2'>	Avos 2:11 (Mishnah - R. Yehoshua):</span> Ayin ha'Ra, Yetzer Ra and hatred of people remove a person from the world.</p>
<p class='firstindenthalachah'><span class='numl1'>(b)</span>	RISHONIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	R. Yonah (Avos 2:11):</span> Ayin ha'Ra is one who is unhappy with his portion and looks at the portion of one richer than himself. He causes evil to himself, and, scientists say, also to the one he envies. He himself becomes short of breath; this is how it removes him from the world.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Milchamos Hash-m (Berachos 44a):</span> R. Chanina had awesome Chachmah to see from the faces of Rav Papa and Rav Huna that they contained all forms of wisdom, like 600,000 Yisre'elim. He died from Ayin ha'Ra.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	Chazon Ish (Likutim Bava Basra 21 for Daf 14 DH Sham Yahavu):</span> A basis of the world is that man's thoughts motor hidden forces; they can destroy physical things. When people are impressed by success, this endangers it. In any case everything is from Shamayim. Something will be lost only if this was decreed. A decree is fulfilled through Ayin ha'Ra. Rav saw that 99 out of 100 died through Ayin ha'Ra; this was the agent for the decree of Yom Kipur. The time had arrived for Rav Acha bar Yakov to die. Hash-m caused it to happen through Rabanan's astonishment at his success. R. Shimon ben Gamliel was concerned lest Rebbi die through Ayin ha'Ra, for the Satan prosecutes at times of danger; man is judged every day. Also, sometimes the judgment on Yom Kipur is that one will be left to nature, and a miracle will not be done for him. The Ayin ha'Ra of Rav Papa and Rav Huna killed R. Chanina. If someone is at a high level, all his faculties are greater, including his eye.</p>
<p class='firstindenthalachah'><span class='numl1'>(c)</span>	POSKIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Shulchan Aruch (OC 141:6):</span> Two brothers, or a father and son can be called to read from the Torah one after the other. We refrain only due to Ayin ha'Ra.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	Beis Yosef (DH Kasuv):</span> Orchos Chayim (Hilchos Sheni v'Chamishi 26) forbids because they cannot testify together, and it says 'Edus Hash-m Ne'emanah'. The Kolbo (20:10b) and Mordechai (Hilchos Ketanos 968) cite the Tashbatz (190), who says that we refrain only due to Ayin ha'Ra.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	Gra (10):</span> It is due to Ayin ha'Ra. Women and children can count towards the required number of Aliyos, even though they cannot testify.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'>	Be'er Heitev (5):</span> Shirei Keneses ha'Gedolah forbids a man and his grandson. The Pri Chodosh disagrees. L'Chatchilah we do not allow one to read after his brother or father or son, but if he already went up, he does not go down.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'>	Mishnah Berurah (19):</span> This applies to paternal or maternal brothers. When necessary, a man and his grandson can be called consecutively.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'>	Hagahos in Birkei Yosef (4):</span> The Birkei Yosef (in Machazik Berachah 5) says that we do not call one and his grandson consecutively if they are concerned for this. We do not call brothers consecutively even if they are not concerned.</p>
<p class='thirdindent'><span class='numl3'>vi.</span><span class='desl2'>	Kaf ha'Chayim (27):</span> When there is no custom to be lenient, one should be stringent, for we are more stringent about danger than Isur. The concern is only for a son's son, who bears the same name, but not for a daughter's son.</p>
<p class='thirdindent'><span class='numl3'>vii.</span><span class='desl2'>	Kaf ha'Chayim (30):</span> Some places do not call brothers even not consecutively. This is not the custom of Eretz Yisrael, Miztrayim or Turkey.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Shulchan Aruch (ibid.):</span> Even if one reads Shevi'i and the other reads Maftir, we do not call the latter by his name due to Ayin ha'Ra.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'>	Source:</span> Maharil Hilchos Kri'as ha'Torah, cited by Darchei Moshe 3.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	Mishnah Berurah (20):</span> This is on Shabbos, when they read from the same Sefer Torah, but not on Yom Tov. We always permit if the Maftir is a minor.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'>	Kaf ha'Chayim (33):</span> Some say that since Kaddish is not a sufficient break when they read from one Sefer, we forbid even from a second Sefer. Some say that Kaddish is a sufficient break, and permit even from one Sefer. We follow the Rema.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'>	Mishnah Berurah (21):</span> Where the custom is to call the Maftir Stam (without mentioning his name), it is permitted. Where he is called by name, one should not call a brother Stam, for this arouses attention.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'>	Kaf ha'Chayim (32):</span> Where a Mi she'Berach is made for the Oleh and his name is mentioned, we are concerned even if he was called to read Stam.</p>
<p class='firstindenthalachah'><span class='numl1'>(d)</span>	ACHARONIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Ben Yehoyada (118a DH Eitzah):</span> Why did the Gemara say about Bnei Yosef's request for more land that it was a good counsel to avoid Ayin ha'Ra? It should have said so about Yehoshua's answer! Rather, it is good counsel to request or bless Hash-m when mentioning one's good fortune, like they said 'we have many people... Hash-m has blessed us to this point.'</p><p align='right'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They responded 'we descend from Yosef, over whom
               Ayin ha'Ra does not prevail. In the Berachah to
               Yosef, it says 'Alei Ayin (he has grace in the eyes
               of all that see him)'.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Avahu):</font></b> This may be read 'Olei Ayin' (his
                    descendants prevail over Ayin ha'Ra).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (R. Yosi bar Chanina):</font></b> We can learn from
                    'v'Yidgu la'Rov' - just like fish are covered
                    in water, so no Ayin ha'Ra prevails over them,
                    also Ayin ha'Ra does not prevail over Yosef's
                    seed.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>PORTIONS OF THE MERAGLIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Yehoshua and Kalev received the portions of
          the Meraglim ...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the source for this?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Ula):</font></b> 'Vi'Hoshua Bin Nun v'Chalev ben Yefuneh
          Chayu Min ha'Anashim'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this means simply that they
               survived!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> Another verse says, 'v'Lo Nosar Mehem
               Ish Ki Im Kalev ben Yefuneh vi'Hoshua'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rather, the verse means that they lived in their
               portions of the other Meraglim.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The complainers and Korach's congregation
          did not receive portions.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> Yehoshua and Kalev received
          the portions of the Meraglim, the complainers and
          Korach's congregation.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Tana of the Beraisa equates the complainers
          to the Meraglim. The Tana of our Mishnah does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Avinu Mes ba'Midbar' refers to
               Tzelafchad. 'V'Lo Hayah b'Soch ha'Edah' refers to
               the congregation of the Meraglim. 'Ha'No'adim Al
               Hash-m' refers to the complainers. 'Ba'Adas Korach'
               is understood simply.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> The Beraisa equates the
          complainers to the Meraglim. Just like Yehoshua and Kalev
          received the Meraglim's portions, they should have
          received all (really, most) of Eretz Yisrael! (Most of
          Yisrael complained when they lacked water!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> 'The complainers' refers to those in
          Korach's congregation.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> According to the opinion that
          portions were allocated to those who left Mitzrayim, we
          understand 'Chavlei Menasheh Asarah' (10 portions fell to
          Tzelafchad's daughters) - six from Chefer and his five
          brothers, and four of their own (from Tzelafchad, his
          brother, and Tzelafchad's double share of his father's
          inheritance);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, according to the opinion that portions
               were allocated to those that entered, there are only
               eight! There are six from Chefer and his five
               brothers, and two of their own (Tzelafchad's double
               share of portions that reverted to Chefer through
               Chefer's grandsons who entered Eretz Yisrael)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Counter-question:</font></b> According to the former
               opinion, it is really only nine (the Mishnah lists
               only three portions of their own. It does not say
               that Tzelafchad had a brother!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> You must say that Tzelafchad had a
               brother.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We can likewise answer that Tzelafchad had two
          brothers!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> 'Nason Titen Lahem' refers to
          inheritance of their father; 'b'Soch Achei Avihem' refers
          to inheritance of their father's father; 'v'Ha'avarta Es
          Nachalas Avihen Lahen' refers to the extra share of the
          firstborn;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Eliezer Ben Yakov says, they also received the
               portions of their father's brother(s) - 'Nason
               Titen'.
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	The opinion that he had two brothers learns this from
          'Achuzas Nachalah'.
<br>

<p>

sjt:
</p><p>
<font><b>2) AGADAH: THE 'MISLONENIM BA'ADAS KORACH'</b></font><b>
<br>OPINIONS:</b> The Gemara quotes a Beraisa which suggests that the portions of Eretz Yisrael that were supposed to go to the Meraglim, Mislonenim, and Adas Korach (the members of the congregation of Korach) were given instead to Yehoshua and Kalev. The Gemara later says that it is impossible that so much land was given to Yehoshua and Kalev. Rather, it must be that the Beraisa means that the portions of land that were supposed to go to the Mislonenim <i>of</i> Adas Korach were given instead to Yehoshua and Kalev.
</p><p>
Who were the 'Mislonenim of Adas Korach,' and how did they differ from 'Adas Korach' itself?
</p><p>
(a) The <b>RASHBAM</b> (DH Elu Mislonenim) explains that the Gemara calls the people who gathered together with Korach the 'Mislonenim of Adas Korach.' Korach and his family are called 'Adas Korach.'
</p><p>
The <b>RITVA</b> challenges this explanation, because nowhere are the people who gathered around Korach called the 'Mislonenim' of Adas Korach.
</p><p>
(b) The Ritva quotes the <b>RE'EM</b> who explains that the people who were burned by the fire which descended to punish anyone affiliated with Korach are called 'Adas Korach,' while the people who later complained to Moshe and Aharon, 'You have killed the nation of Hash-m' (Bamidbar 17:6), are called the 'Mislonenim' of Adas Korach.
</p><p>
The Ritva is not satisfied with this explanation. The people who complained to Moshe and Aharon after the members of Korach's rebellion were punished were a large group, and thus the Gemara's question, that it is impossible that Yehoshua and Kalev inherited so much land, remains. Moreover, these people were not part of Korach's group. They merely complained that the killing of that group was too much. Why should they be called the 'Mislonenim <i>that were in</i> in the congregation of Korach'?
</p><p>
(c) The Ritva therefore concludes that the 'Mislonenim of Adas Korach' are the people who complained originally, at the incident of the Meraglim, and who later joined Korach's congregation. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHO RECEIVED PORTIONS OF THE LAND?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> What does the verse ('Chavlei
          Menasheh Asarah') count?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it counts all brothers in Menasheh who
               received their father's portion, there were many
               more!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If it counts only the heads of families, it
               should only count six!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Really, it counts the heads of
          families. It includes the other portions only to teach
          that Tzelafchad's daughters received the extra portion of
          a firstborn.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This implies that Eretz Yisrael already belonged
               to Benei Yisrael before Yisrael entered (a firstborn
               does not receive an extra portion in property that
               his father did not own in his lifetime).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> The children (of the Meraglim and of
          Korach's congregation) received portions from their
          grandfathers.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> They received portions in
          their own merit.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Beraisa #1 holds that portions were
          allocated to those who left Mitzrayim. Beraisa #2 holds
          that they were allocated to those that entered.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Both Beraisos hold that portions were
          allocated to those that left Mitzrayim. Beraisa #1
          discusses children below 20 (when they entered Eretz
          Yisrael), and Beraisa #2 discusses children above 20.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> He received two portions because he was a
          firstborn.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Chefer never received a share of Eretz
          Yisrael in his life. It was only Ra'uy (destined) to come
          to him. A firstborn gets an extra share of Muchzak
          property, but not of Ra'uy!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> He received an extra share of
          tent pegs (or other Metaltelin). Chefer was Muchzak in
          them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Question (Rabah - Beraisa - R. Yehudah):
               Tzelafchad's daughters received four portions (of
               land) - 'Chavlei Menasheh...'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, Eretz Yisrael already belonged to
          Benei Yisrael before they entered.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Beraisa - R. Shimon ha'Shakmoni):</font></b> Moshe knew
          that Tzelafchad's daughters receive a part of Eretz
          Yisrael; but he didn't know whether they receive an extra
          share, for Tzelafchad was a firstborn.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Parshah of inheritance was fitting to be said
               through Moshe. Tzelafchad's daughters merited that
               it was said through them.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Moshe knew that the man who gathered wood on
               Shabbos would be killed - 'Mechaleleha Mos Yumas.'
               He just didn't know which death penalty.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This Parshah should have been taught (directly)
                    through Moshe. The Mekoshesh was guilty, and it
                    was written through him.
<br>
<br>

sjt:
<font><b>1) MOSHE RABEINU'S UNCERTAINTY REGARDING THE PUNISHMENT OF THE 'MEKOSHESH'</b></font><b>
<br>QUESTION:</b> The Gemara says that Moshe Rabeinu knew that the Mekoshesh was supposed to be punished by death for desecrating Shabbos. He merely was unsure of what type of death the Mekoshesh deserved.
</p><p>
<b>TOSFOS</b> (DH she'Ne'emar) and other Rishonim are bothered with Moshe's doubt. The Gemara in Sanhedrin (52b) states that whenever the Torah says that someone is put to death but does not specify which of the four deaths (Sekilah, Sereifah, Hereg, Chenek) the sinner receives, the rule is that the Torah prescribes 'Chenek' ('strangulation'). Since the Torah says that one who violates Shabbos is put to death and does not specify which form of death, Moshe Rabeinu should have known that the prescribed form of death for the Mekoshesh was 'Chenek.'
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that Moshe Rabeinu thought that logic should dictate that the Mekoshesh should be punished with Sekilah, since that is the punishment given to an idolater. One who desecrates Shabbos is compared to one who worships idols (see, for example, Chulin 5a).
</p><p>
(b) The <b>PARDES YOSEF</b> (end of Parshas Shelach) quotes the <b>ROKE'ACH</b> who explains that Moshe Rabeinu was told explicitly by Hash-m that whenever the Torah says that a sin is punishable with death but no specific form of death is mentioned, the Torah means Chenek <i>except</i> in the case of desecration of Shabbos. Accordingly, Moshe Rabeinu knew that the prescribed form of death was <i>not</i> Chenek, but he did not know what form of death <i>was</i> prescribed, and thus he needed to ask Hash-m.
</p><p>
According to both of these explanations, a difficulty remains. Moshe Rabeinu was told all of these Halachos at Har Sinai (at least according to Rebbi Akiva (Chagigah 6b), who maintains that all Halachos and their details were said to Moshe Rabeinu at Har Sinai). If that was the case, why did Moshe Rabeinu not remember the Halachah?
</p><p>
The <b>ANAF YOSEF</b> answers that when the Gemara says that all of the Halachos and their details were given to Moshe Rabeinu at Har Sinai, it does not mean that everything was given over <i>explicitly</i>. It means that the ability to understand all of the Halachos of the Torah was given over to Moshe Rabeinu. Some Halachos were stated clearly, while others were stated only in allusions and could be derived through the thirteen methods of Halachic derivation, such as Kal va'Chomer and Gezeirah Shavah. The punishment for Shabbos desecration was given over in such a manner. Moshe Rabeinu, however, was unable to discern the appropriate Derashah which would tell him the punishment for someone who desecrated Shabbos, and he therefore needed to ask Hash-m. (Y. Montrose)
</p><p>
<br>

loi:
<p class='newsubafbbb'><span class='numt'>1)</span> ONE MAY NOT RELY ON A MIRACLE</p>
<p class='firstindenthalachah'><span class='numl1'>(a)</span>	GEMARA</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	(Beraisa - R. Eliezer Ben Yakov):</span> Each of Tzelafchad's daughters was at least 40 years old when she married.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Question:</span> Rav Chisda taught that a woman that marries before age 20 will bear children until age 60. If she marries at 20, she will bear children until age 40. If she marries at 40, she will not bear children.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	Answer:</span> Since they were righteous, a miracle was done for them and they were able to conceive, like Yocheved.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'>	Shabbos 32a:</span> Men are judged when they pass over a bridge, or anything similar (any place of danger).</p>
<p class='secondindent'><span class='numl2'>5.</span>	R. Yanai would check a ferry (for leaks) before going on it. He taught that one should not go in a place of danger, expecting a miracle. Perhaps a miracle will not be done for him; even if a miracle is done, it reduces his merits.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'>	(R. Chanin):</span> He learns from 'Katonti mi'Kol ha'Chasadim...' (Yakov's merits were reduced through the miracles Hash-m did for him).</p>
<p class='secondindent'><span class='numl2'>7.</span><span class='desl2'>	156a - Avraham Avinu:</span> I see in my Itztagninus (the Chachmah of reading the stars) that I am not fitting to father a son!</p>
<p class='secondindent'><span class='numl2'>8.</span><span class='desl2'>	Hash-m:</span> I will change your Mazel.</p>
<p class='secondindent'><span class='numl2'>9.</span>	Astrologers told R. Akiva that the day his daughter gets married, she will be killed by a snake. He was very worried. The day of her Chupah she did a great Mitzvah. Later, she stuck a pin in the wall. It struck a snake and killed it.</p>
<p class='secondindent'><span class='numl2'>10.</span><span class='desl2'>	Chulin 9b (Rav Huna):</span> We are more stringent about danger than about Isurim.</p>
<p class='secondindent'><span class='numl2'>11.</span><span class='desl2'>	Berachos 60a (Mishnah):</span> If one's wife is pregnant, it is a vain prayer to request that it will be a boy.</p>
<p class='secondindent'><span class='numl2'>12.</span><span class='desl2'>	Question (Rav Yosef):</span> Rav taught that Leah knew that twelve sons would be born. She reasoned that if she has a seventh son, Rachel will have less than one of the Shefachos! The fetus was (miraculously) switched to a girl.</p>
<p class='secondindent'><span class='numl2'>13.</span><span class='desl2'>	Answer #1:</span> We do not learn from miracles.</p>
<p class='secondindent'><span class='numl2'>14.</span><span class='desl2'>	Answer #2:</span> Leah prayed for this within 40 days of conception.</p>
<p class='secondindent'><span class='numl2'>15.</span><span class='desl2'>	Kidushin 82a (Mishnah - R. Nehurai):</span> I will not teach my son any trade, only Torah, for one enjoys its reward in this world, and the principal remains intact for the next world.</p>
<p class='secondindent'><span class='numl2'>16.</span><span class='desl2'>	Yevamos 12b (Rav Bivi - Beraisa):</span> Three women use a contraceptive wad to prevent pregnancy. A minor does so, lest she get pregnant and die. A pregnant woman does so lest the fetus get mashed. A nursing woman does so lest pregnancy force her to wean her baby, and it will die.</p>
<p class='thirdindent'><span class='numl3'>i.</span>	R. Meir says, a girl between 11 and 12 years uses a wad. If she is younger or older, she has relations normally.</p>
<p class='thirdindent'><span class='numl3'>ii.</span>	Chachamim say, at any age she has relations normally. Shomayim will have mercy on her - 'Hash-m guards the simple.'</p>
<p class='firstindenthalachah'><span class='numl1'>(b)</span>	RISHONIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Rambam (Hilchos Rotze'ach 11:5):</span> Chachamim forbade many things due to mortal danger. One who violates them and says 'I will endager myself. It does not harm others!', or 'I am not concerned for this' is lashed mid'Rabanan.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Rambam (12:6):</span> One may not pass under a leaning wall or on a shaky bridge or enter a ruin. One may not stand in a place of all such dangers.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	R. Bechaye (Bamidbar 16:21, brought in R. Akiva Eiger YD 116:5):</span> Hash-m can kill and leave alive whomever He wants even if they are together - 'Yipol mi'Tzidcha Elef...' Even so, he told everyone to separate from Korach, Dasan and Aviram, lest the bad air in Dever cling to them, like we find that Lot's wife looked at Sedom (and died). Alternatively, this is because when Midas ha'Din is ruling, it does not distinguish between Tzadikim and Resha'im.</p>
<p class='firstindenthalachah'><span class='numl1'>(c)</span>	POSKIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Rema (YD 116:5):</span> One must beware of everything that leads to danger. Danger is more stringent that Isur. One must be more careful about Safek danger than Safek Isur. Therefore, Chachamim forbade to go in any dangerous place, e.g. under a leaning wall or alone at night. One may not rely on a miracle or endanger oneself.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Shulchan Aruch (CM 427:10):</span> Anyone who transgresses these matters and says 'I will endager myself. What does is matter to others?', or 'I am not concerned for this' is lashed mid'Rabanan. One who is careful will be blessed.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl3'>	Taz:</span> The Medrash (Shir ha'Shirim 5:16) says 'not only does he (one who is careful) save himself from danger. He is even rewarded!'</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl3'>	Beis Yosef (YD 179 DH Kosav, citing Teshuvas Rashba (attributed to Ramban) 283:</span>  Astrology is not Nichush (superstition), which is forbidden. We find that Avraham heeded astrology, and R. Akiva was concerned for it. However, Hash-m sometimes does miracles for Tzadikim.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'>	Birkei Yosef (OC 37:2):</span> One opinion (cited in R. Yerucham, and Orchos Chayim citing Rav Yehudai Gaon) requires a clean body for one who relies on a miracle to wear Tefilin at a time of Nochri decrees against them. This is difficult, for Abaye and Rava said that he may not sleep or pass gas in them. They should require him to be a Tzadik like Elisha! The Rosh (Rosh Hashanah 1:5) explains that we discuss anyone who wears Tefilin.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'>	Kitzur Shulchan Aruch (192:3):</span> The Torah gave permission for a doctor to heal. Therefore, a Choleh may not rely on a miracle. He must conduct in the way of the world and seek a doctor to cure him. Many of the greatest Chasidim were cured through doctors. One who refrains from doing so does two evils to himself. Firstly, one may not rely on a miracle when there is danger. This causes his sins to be mentioned. Further, it is haughtiness to rely on his righteousness to be healed miraculously. He should call the most expert doctor, but his heart must be to Shamayim and request mercy from the faithful Doctor, and trust in Him.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'>	Igros Moshe (OC 2:111 DH b'Davar):</span> Taking an insurance policy does not show any lack of trust in Hash-m. It is like all business deals. One is not merely permitted, rather he must do business and work for his income. He may not say 'even if I do nothing, Hash-m will bring my income in some way.' How can one say that he has such merit? One may not rely on a miracle or pray for one, even if he is worthy of it. The Gemara asked why Leah prayed for a miracle, even though she was worthy of it and the Avos and Imahos were used to miracles. We answered that only she could pray for a miracle. Alternatively, even she did (and could) not! Therefore, one must engage in work and business, but he must know that what he gets is only from Hash-m, like was decreed on Rosh Hashanah. R. Nehurai said 'I will not teach his son any trade, only Torah.' He agrees that one may not rely on a miracle. He holds that most children cannot learn Torah properly if they also learn a trade then, and one is obligated to teach Torah to his son. He can rely on Hash-m to present to his son a job when his son is older, even if he did not learn a trade in his youth. The Rambam rules like R. Nehurai, for he does not obligate teaching a trade to one's son, yet the Rambam obligates one to get a job.</p>
<p class='thirdindent'><span class='numl3'>vi.</span><span class='desl2'>	Igros Moshe (3 OC 69 DH uv'Davar):</span> If one will be in mortal danger later on Shabbos, and Melachah will be required, may one do the Melachah now, before it is needed? We should be concerned lest he recover and the danger will pass. When there is danger, the Torah commands use doctors and cures and to transgress Shabbos and all Isurim and not to rely on miracles. Before there is danger, there is no obligation (to use doctors), and one may rely on a miracle that there will be no danger, even though doctors say that there will be. Therefore, one may not transgress Shabbos until there is danger. However, if later one will be unable to save him, surely one may not rely on miracles, and he must use all natural means now to save, even if he must transgress Shabbos and Isurim. The Amuk Davar (Korach 17:12, in the footnote) says that if Erev Shabbos is Yom Tov, and there will be danger on Shabbos, he should transgress Yom Tov to avoid Chilul Shabbos tomorrow, which is more stringent. This is difficult.</p>
<p class='thirdindent'><span class='numl3'>vii.</span><span class='desl2'>	Igros Moshe (EH 1:63 DH v'Od):</span> Birth is always a danger for which we are Mechalel Shabbos. It is a Mitzvah to have children; we rely on a miracle, for it is the way of the world. Chachamim rely on 'Shomer Pesa'im Hash-m' also for the three women, for it is unreasonable that other women must rely on 'Shomer Pesa'im', but the three women may not rely on it.</p>
<p class='thirdindent'><span class='numl3'>viii.</span><span class='desl2'>	Minchas Yitzchak (9:136 DH v'Hinei):</span> Divrei Yo'el concluded that if doctors say that it is dangerous for an adult to become pregnant, she has normal Bi'ah, and Hash-m will have mercy. He does not mean that she must do so. In Siman 124(3), he discussed a woman for whom it was dangerous to give birth. He said that since we rule like Chachamim, who forbid a was even for a minor who will surely die if she becomes pregnant, all the more so in this case, especially since doctors often lie and say through estimation that there is danger, and really there is no more danger than for a minor. Later, he retracted. Only for the three women, for whom it is the nature of the world that it is dangerous, Chacham say to rely on Hashem's mercy. If a particular woman is sick, unlike nature, we may not rely on a miracle. However, we cannot bring a proof to here, for the husband need not agree to have Bi'ah with a wad. If he agrees to use methods to avoid relying on miracles, there is no Isur. Most Rishonim hold like this. However, if he did not yet fulfill Peru u'Rvu, he should not consent.</p><p align='right'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This teaches that good things come through those
               with merit, and bad things come through unworthy
               people.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If they owned Eretz
               Yisrael before entering, why was Moshe unsure?!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> Moshe was unsure whether they already owned
          Eretz Yisrael!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'v'Nosati Osah Lachem Morasha (something
               you bequeath).' Is it also an inheritance (and the
               firstborn gets double)? Or, does this teach only
               that the parents bequeath but do not inherit?
<br> <b>    <b><font color='darkgreen'>(m)</font></b></b>  	Hash-m revealed to Moshe that it is also an
          inheritance.
<br> <b>    <b><font color='darkgreen'>(n)</font></b></b>  	'Tevi'emo (Hash-m will bring him, i.e. the congregation
          of Yisrael) v'Sita'emo b'Har Nachalsecha' - Benei Yisrael
          (who walked through Yam Suf) prophesized, without
          recognizing the prophecy (that they themselves will not
          enter Eretz Yisrael; it does not say 'Hashem will bring
          us').
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TZELAFCHAD'S DAUGHTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> 'Va'Ta'amodna Lifnei Moshe v'Lifnei Elazar
          ha'Kohen v'Lifnei ha'Nesi'im v'Chol ha'Edah' - can we say
          that they asked Moshe, and did not receive an answer, and
          then they went to ask Elazar ... and then the Nesi'im and
          the congregation?!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Yoshiyah):</font></b> The verse is written out of
          order (first they came before the congregation, then
          before the Nesi'im, then Elazar, then Moshe).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Aba Chanan):</font></b> They were all sitting in the
          Beis Medrash, and they came before all of them at once.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Aba Chanan holds that one may honor a Talmid in
          front of his Rebbi (i.e. they addressed their question to
          all present, even though the others were Moshe's
          Talimidim), and R. Yoshiyah forbids.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The law is, one may honor a Talmid in front of
               his Rebbi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The law is, one may not honor a Talmid in front
               of his Rebbi.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> This is a contradiction!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The laws discuss different cases.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One may honor a Talmid in front of his Rebbi only
                    if the Rebbi himself honors the Talmid.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> Tzelafchad's daughters were Chachamos, and
          able to expound, and righteous;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	We know that they were Chachamos because they spoke at
          the proper time.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Shmuel bar Rav Yitzchak):</font></b> Moshe was
               expounding the Parshah of Yibum. They said 'if we
               are like a son, we should get an inheritance. If
               not, our mother should do Yibum.' 'Va'Yakriv Moshe
               Es Mishpatan Lifnei Hash-m'.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	They were able to expound - 'had our father left a son,
          we would not request an inheritance.'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> ('Had our father left a)
               daughter, (we would not request an inheritance.')
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (R. Yirmiyah):</font></b> The text of this Beraisa
               is mistaken (he did leave daughters! Had he left
               another daughter, they would all inherit together)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> We can explain the Beraisa. 'Even
               if our father had left a daughter <i>to a son</i>, we
               would not request.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	They were righteous - they married only men fitting for
          them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer Ben Yakov):</font></b> Each of them
               was at least 40 years old when she married.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Rav Chisda taught that a woman that
               marries before age 20 will bear children until age
<br>             <b>  <b><font color='darkgreen'>60. </font></b></b>If she marries at 20, she will bear children
               until age 40. If she marries at 40, she will not
               bear children.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Since they were righteous, a miracle was
               done for them and they were able to conceive, like
               Yocheved.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE DAUGHTERS OF TZELOFCHAD WERE 'DARSHANIYOS'</b></font><b>
<br>OPINIONS:</b> The Gemara states that the daughters of Tzelofchad were 'Darshaniyos' -- 'expounders'; they knew how to expound and understand the intent of the Torah. This is evident from the fact that they said, 'If he (our father) would have had a son, we would not have said anything.'
</p><p>
How did the daughters of Tzelofchad know that if there was a son, they would not inherit? Very little is said in the Torah about inheritance prior to the Torah's discussion of the daughters of Tzelofchad.
</p><p>
(a) The <b>RASHBAM</b> (DH Ilu Hayah Lo) explains that the daughters of Tzelofchad already knew the laws of inheritance which would be stated in the Torah after their query. Their only question was whether or not they would also receive a double portion of inheritance from their father's father, as Tzelofchad was the oldest son of Chefer. They knew that when the Torah states, 'When a man dies and he has no son, you shall pass his inheritance to his daughter' (Bamidbar 27:8), it means that if their father had a son, they would inherit nothing. Why, though, does this knowledge of the verse make them 'Darshaniyos'? While they certainly were 'Chochmaniyos' -- 'knowledgeable women' -- for knowing the Torah's discussion of inheritance, they did not <i>expound</i> anything.
</p><p>
The Rashbam answers that the daughters of Tzelofchad were 'Darshaniyos' because they knew the correct interpretation of the verse. The Gemara earlier quotes Rav Papa's possibility that the verse might mean only that when there is no son, the daughter inherits, but when there is a son and a daughter, they split the inheritance equally. The fact that they knew that this was not the correct interpretation of the verse shows that they were 'Darshaniyos.'
</p><p>
<b>TOSFOS</b> questions the Rashbam's assumption that the daughters of Tzelofchad knew the Parshah of Yerushah, even though it had not yet been written in the Torah. From where could they have known the Parshah of Yerushah?
</p><p>
(b) <b>TOSFOS</b> quotes the <b>RASH MI'SHANTZ</b> who explains that the daughters of Tzelofchad knew the verse, 'And you shall bequeath them to your sons after you' (Vayikra 25:46), stated with regard to Avadim Kena'aniyim. The daughters of Tzelofchad understood from the Torah's words, 'to your sons,' that Torah law gives inheritance to sons. They therefore were unsure whether daughters also inherited.
</p><p>
(c) Alternatively, the Rash mi'Shantz explains that they knew that when a woman marries, her husband becomes the owner of the property that she brings into the marriage. This means that when a woman inherits property from her father, she serves as a vehicle to transfer the property from one Shevet to another. The daughters of Tzelofchad were concerned that since Eretz Yisrael was to be divided among all of the Shevatim, perhaps it was not the will of Hash-m that they, as daughters, should inherit their father's portion.
</p><p>
(d) Tosfos suggests another possibility. The verse states, 'To these the land should be divided' (Bamidbar 26:53). This verse is said in reference to men, and thus the daughters of Tzelofchad were unsure if women inherited. (Y. Montrose)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>YOCHEVED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> 'Va'Yikach Es Bas Levi' - is a woman 130
          years old called a Bas?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Chama bar Chanina):</font></b> The verse discusses
               Yocheved, who was conceived on the journey to
               Mitzrayim, and born between the walls (when they
               entered Mitzrayim. The above verse discusses Amram
               remarrying her. Six months later she gave birth to
               Moshe, who was 80 years old at the time of Yetzi'as
               Mitzrayim, 210 years after Bnei Yisrael entered
               Mitzrayim. It follows that she was 130 years old
               when she remarried.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'Asher Yoldah Osah l'Levi b'Mitzrayim' - Yocheved
                    was born in Mitzrayim, but she was not
                    conceived there.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The question remains, since she was 130, why is
               she called 'Bas'?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah bar Zvida):</font></b> Signs of youth returned
          to her. Her skin became smooth, even the wrinkles. Her
          original beauty returned.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why does it say 'va'Yikach'? It should say
          'he returned'! (Amram remarried her, after separating
          from her.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah bar Zvida):</font></b> He acted like one who
          marries. He sat her in a bride's chair. Aharon and Miryam
          danced in front of her, and angels said 'Em ha'Banim
          Semechah'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE MARRIAGE OF TZELAFCHAD'S DAUGHTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	When the Torah discusses Tzelafchad's daughters
          marrying, it lists them in order of their age. Here (when
          they asked for an inheritance), it lists them according
          to their Chachmah!
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	This supports R. Ami.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Ami):</font></b> In matters of Torah, we give priority
               to the greatest Chacham. At a banquet, first
               priority is to the oldest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Ashi):</font></b> This applies only if he is extremely
               Chacham or old.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection (of the support for R. Ami - Beraisa - Tana
          d'Vei R. Yishmael):</font></b> 'Va'Tihyenah (they were)' -
          Tzelafchad's daughters were equal in Chachmah. (This is
          why they are listed in different orders.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> Tzelafchad's daughters were allowed to
          marry to any tribe - 'la'Tov b'Eineihem Tihyenah
          l'Nashim.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The verse continues 'Ach l'Mishpachas Mate
          Avihem'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> That is merely good counsel, that they should
          marry only suitable men.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rabah - Beraisa):</font></b> (It says before Aseres
          ha'Dibros) 'Emor Aleihem' - to those that stood on Har
          Sinai; 'l'Doroseichem' refers to generations to come;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If it mentions the fathers (who stood
               on Har Sinai), why must it mention the children
               (generations to come)? If it mentions the children,
               why must it mention the fathers?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> It must say both, because some Mitzvos
               apply only to the fathers, and others apply only to
               the children.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It says about the fathers 'v'Chol Bas Yoreshes
                    Nachalah' (any daughter who inherits will marry
                    a man of her tribe. This does not apply to the
                    children);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Many Mitzvos apply to the children that did
                    not apply to the fathers (i.e. Mitzvos of Eretz
                    Yisrael).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  Therefore, the verse needed to mention
                    fathers and children.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Summation of Rabah's question):</font></b> This shows that
               a daughter (of that generation) who inherited was
               commanded to marry within her tribe!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> All such daughters except for
          Tzelafchad's were commanded.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that 'v'Chol Bas Yoreshes
          Nachalah (will marry a man of her tribe)' applied only to
          the fathers. How do we learn this from the verse?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'Zeh ha'Davar' - this matter applies
          only to this generation.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rabah Zuti):</font></b> Regarding slaughtering Korbanos
          outside the Mikdash, it also says 'Zeh ha'Davar.' Did
          this only apply to that generation?!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> No. There, it says 'l'Dorosom'.
<br>
<br>

sjt:
<font><b>1) HALACHAH: MAY A YOUNGER SIBLING MARRY BEFORE AN OLDER SIBLING?</b></font><b>
<br>OPINIONS:</b> The Gemara points out that in the two places in the Torah where the daughters of Tzelofchad are mentioned, they are listed in different orders. The Gemara explains that in Parshas Pinchas (Bamidbar 27:1), the Torah lists them according to their wisdom, while in Parshas Mas'ei (Bamidbar 36:11), the Torah lists them according to their ages.
</p><p>
The <b>RASHBAM</b> (DH Lehalan) writes that it is logical to assume that the daughters married in the order of their ages, for we find that such a custom existed in ancient times. The Torah teaches that Lavan justified his deception of Yakov (when he stealthily gave him Leah in marriage and not Rachel) by saying that 'it is not the custom in our place to marry off the younger before the older' (Bereishis 29:26).
</p><p>
Is the custom of giving precedence to the older sibling in marriage observed today?
</p><p>
(a) The Gemara states that the fact that in one place the Torah lists the daughters of Tzelofchad in the order of their wisdom, and in another place it lists them in the order of their ages, supports Rav Ami's statement that when a meeting is convened for the purpose of teaching Torah, the wisest scholar is honored first and is given the most prominent place. In contrast, in a festive meal, the oldest person present is honored first and is given the most prominent place. The Rashbam (DH b'Mesibah) adds that at a wedding, honor is given to the oldest participant.
</p><p>
The <b>SHACH</b> (YD 244:13) cites the <b>BACH</b> who explains that the preference of age at a wedding means that if brothers (or sisters) from the same family are getting married, the wedding of the older one should be made first, even though the younger one might be more advanced in wisdom.
</p><p>
(b) <b>RAV MOSHE FEINSTEIN</b> zt'l (in <b>IGROS MOSHE</b> EH 2:1) discusses a case in which the father of a young woman wanted his daughter to marry a young man from a certain family, even though the young man had an older brother who was not yet married and who was upset that his younger brother might get married first. Rav Moshe Feinstein cites the Bach who says that the younger brother must wait for his older brother to get married first. Rav Moshe Feinstein disagrees with this ruling, however, and maintains that the Bach refers only to a case in which both brothers are already engaged to be married. Only in such a case is the younger brother obligated to honor his older brother by letting him get married first. If, however, the older brother has no bride yet, then the younger brother is not obligated to wait for the older brother to get married. On the contrast, Rav Moshe Feinstein concludes, the younger brother should marry immediately in order to fulfill the Mitzvah of marrying and having children.
</p><p>
The daughters of Tzelofchad had all found their prospective husbands, and therefore they were married in order of age.
</p><p>
The <b>TESHUVOS MAHARSHAM</b> (3:136) also rules that a younger sister may marry before an older sister. He states that the practice mentioned by Lavan is not obligatory law, but rather an act of Derech Eretz and proper manners. The <b>MINCHAS YITZCHAK</b> (8:125) rules similarly, and writes that the young brother should marry first when it is not possible for the older brother to get married immediately. (Y. Marcus)
</p><p>
<br>

loi:
<p class='newsubafdaf'><span class='numt'>1)</span> MAY ONE MARRY OFF THE YOUNGER SISTER BEFORE THE OLDEST?</p>
<p class='firstindenthalachah'><span class='numl1'>(a)</span>	GEMARA</p>
<p class='secondindent'><span class='numl2'>1.</span>	When the Torah discusses Tzelafchad's daughters marrying, it lists them in order of their age. Here (when they asked for an inheritance), it lists them according to their Chachmah! This supports R. Ami:</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	(R. Ami):</span> In matters of Torah, we give priority to the greatest Chacham. At a banquet, first priority is to the oldest.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	(Rav Ashi):</span> This is only if he is extremely Chacham or old.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	123a:</span> People talking on the crossroads said that Lavan's daughters will marry Rivkah's sons. The elder (Esav) will marry the elder (Leah), and the younger (Yakov) will marry the younger (Rachel).</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	Kidushin 51b (Mishnah):</span> If a man was Mekadesh his daughter to Levi, without specifying which daughter, the Bogros (adult daughters) are not even Safek Mekudashos.</p>
<p class='secondindent'><span class='numl2'>4.</span>	The case is, the Bogeres made her father a Shali'ach to be Mekadesh her, and said that he may keep the money. Even so, surely he was Mekadesh the minor, for that is a Mitzvah incumbent on him.</p>
<p class='firstindenthalachah'><span class='numl1'>(b)</span>	RISHONIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Rashbam (120a DH Lehalan):</span> Presumably, Tzelafchad's daughters married in order of their age, for 'here we do not give the younger before the oldest!'</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Tosfos (52a DH v'Hilchesa):</span> R. Tam says that if Ploni said that he would give his daughter Plonis to David, and David was Mekadesh 'your daughter' Stam, surely he intended for her, for 'Bnei Yisrael will not do unjustly.' If they never discussed a particular daughter and he was Mekadesh Stam, we say that he was Mekadesh the oldest, for 'here we do not give the younger before the oldest!' R. Menachem disagreed, for this is unlike Abaye and unlike Rava (neither holds that one is Mekudeshes to him). R. Tam retracted.</p>
<p class='secondindent'><span class='numl2'>3.</span><span class='desl2'>	Rosh (Kidushin 2:25):</span> R. Tam says that if Ploni made Shiduchin that his daughter Plonis will marry David (and David was Mekadesh 'your daughter' Stam), surely she is Mekudeshes, for 'Bnei Yisrael will not do unjustly.' One does not pass over a Mitzvah to do an Aveirah, especially if Plonis was there at the time. (When there were no Shiduchin,) R. Tam said that perhaps the Safek is only when he said 'one of your daughters', but if he said 'your daughter', he was Mekadesh the oldest. R. Tam did not say to rely on this in practice.</p>
<p class='secondindent'><span class='numl2'>4.</span><span class='desl2'>	Tosfos (52a DH v'Hilchesa):</span> R. Tam says that if one was Mekadesh 'your daughter' Stam, he was Mekadesh the oldest, for 'here we do not give the younger before the oldest!' R. Menachem disagreed, for this is unlike Abaye and unlike Rava (neither holds that one is Mekudeshes to him). R. Tam retracted.</p>
<p class='secondindent'><span class='numl2'>5.</span><span class='desl2'>	Rosh (Kidushin 2:25):</span> R. Tam said that perhaps the Safek is only when he said 'one of your daughters', but if he said 'your daughter', he was Mekadesh the oldest. R. Tam did not say to rely on this in practice.</p>
<p class='secondindent'><span class='numl2'>6.</span><span class='desl2'>	Ohr ha'Chayim (Bereishis 29:26):</span> How could Lavan claim 'here we do not give the younger before the oldest'? Yakov stipulated that he works to marry the younger! Perhaps Lavan said this only to justify himself to the people of his city. Or, he claimed 'I never agreed to violate the custom. I agreed to give Rachel after Leah married. Since you asked 'give to me my wife', I thought that you meant Leah!' Yakov held that the custom is not binding; Lavan was required to reveal his intent. In truth, all Lavan's claims were refutable.</p>
<p class='firstindenthalachah'><span class='numl1'>(c)</span>	POSKIM</p>
<p class='secondindent'><span class='numl2'>1.</span><span class='desl2'>	Shulchan Aruch (YD 244:18):</span> At a drinking fest or wedding feast, we follow seniority and seat the oldest at the head. If the younger is an outstanding Chacham, and the elder is not so old, the Chacham comes first.</p>
<p class='thirdindent'><span class='numl3'>i.</span><span class='desl2'>	Bach (13 and Shach 13):</span> Why was it necessarily to specify a wedding feast? This is included in a drinking fest! Rather, this teaches that if brothers or sisters are having Nisu'in, we first make Nisu'in for the older, even if the younger is a bigger Chacham. We learn from Tzelafchad's daughters, who married in order of their age.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	Maharsham (3:136):</span> A case occurred in which Shimon had daughters from his wife Leah, and after she died he married Esther and had a daughter (Sarah) from her. Shimon died, Esther remarried, and they found a Shiduch for Sarah. Leah's oldest daughter (Chanah) says 'I must marry first.' The questioner said that since the father is dead, he does not give the younger first, and there is no Isur on the daughters. The Rashbam disagrees, for he says that Tzelafchad's daughters married in order of their age, even though their father was dead. For such matters, we learn from what preceded Matan Torah. However, this case is pressed circumstances, for Sarah is already 22, and Chanah is 27 (and we do not know when she will marry)! Surely, the Isur does not apply here, for Sarah found a Shiduch with a rich Chacham. Who knows if another such Shiduch will arise?! The 'Isur' (for the younger to marry first) is mere Derech Eretz. Even though it is brought in YD 244, it is not an absolute law. We learn from Tosfos that one may rely more on 'Bnei Yisrael will not do unjustly' than on the Isur to marry off the younger daughter first. The Taz (YD 169:19) says that in pressed circumstances, one need not fulfill 'Bnei Yisrael will not do unjustly.' If so, the same applies to marrying off the younger one first.</p>
<p class='secondindent'><span class='numl2'>2.</span><span class='desl2'>	Shulchan Aruch (EH 37:16):</span> If one was Mekadesh his daughter to Levi, without specifying which daughter, the Bogeres is not even Safek Mekudeshes. This is even if she made her father a Shali'ach to be Mekadesh her, and said that he may keep the money.</p>
<p class='thirdindent'><span class='numl3'>i.</span>	Aruch ha'Shulchan 46)  Why aren't the Bogros in the Safek when they made their father a Shali'ach? Surely it is a Mitzvah for their father to be Mekadesh them. It is normal to marry off the oldest first. Lavan said 'here we do not give the younger before the oldest.' How can we disagree? R. Tam wanted to say so, but Chachamim of his generation disagreed, and he himself did not do so in practice. It is not clear why.</p>
<p class='thirdindent'><span class='numl3'>ii.</span><span class='desl2'>	Chasam Sofer (Likutei Teshuvos 5):</span> It is difficult to transgress what is explicit in the Torah. Rashi (Bamidbar 36:11) explains that Tzelafchad's daughters married in order of their age, to uphold the custom from before Matan Torah. My Rebbi Noson Adler said that a case occurred and he stumbled.</p>
<p class='thirdindent'><span class='numl3'>iii.</span><span class='desl2'>	Tzitz Eliezer (22:52):</span> The Shulchan Aruch and Rambam do not explicitly forbid to give the younger before the older. There is only a custom. Rishonim and Acharonim gave weight to this custom. Maharsham's Perush on the Torah (Techeiles Mordechai) connotes that there is a real Isur; he explains like the Chida that Yakov wanted to marry Rachel first, for she and Leah were twins, and he held that she is really the oldest (she was coinceived first - see Rashi Bereishis 25:26). However, Teshuvas Maharsham (3:136) says that it is only etiquette and proper conduct. He also says that it does not apply to a brother and sister, for only men are commanded Pru u'Rvu. Ginzei Yosef (120) says that all permit when the older sister is not the Bechor. He permitted a case in practice, in which the older sister consented. Beis Yechezkeil (60) says that we are careful not to marry off the younger first only if the father gives a dowry to his daughters. Bi'ur ha'Rif on Teshuvas Mahari Mintz (60:12) says that Mahari Chagiz disapproved of this custom. We should learn from Yakov, who wanted to marry the younger first, and not from Lavan! Ha'Rif concludes that if the father can marry off either first, he should marry off the older. Mahari Chagiz discusses one who found a Shiduch only for the younger.</p>
<p class='thirdindent'><span class='numl3'>iv.</span><span class='desl2'>	Chelkas Yakov (EH 41):</span> R. Tam assumes that one was Mekadesh the oldest, due to 'here we do not give...'. Why do we assume that a man was not Mekadesh his Bogeres? One does not do an Isur if he can accomplish his goal in a permitted way! We must say that even those who forbid marrying off the younger first hold that it is a mere custom with a support from the Torah. Chachamim concluded that due to the Mitzvah to marry off a minor, he intended for this (it overrides the custom). We say that one does not do an Isur (if he can accomplish his goal in a permitted way) only regarding an absolute Isur. Surely, if one was Meshadech Leah, and later was Mekadesh Stam, he did not intend for the older (to fulfill 'here we do not give...') at the expense of retracting from Shiduchin. This is when he said 'your daughter.' If he said 'one of your daughters', even if there was Shiduchin, perhaps he was Mekadesh another.</p>
<p class='thirdindent'><span class='numl3'>v.</span><span class='desl2'>	Mishneh Halachos (9:242):</span> In Kidushin, we say that surely he was not Mekadesh a Bogeres? Why don't we apply 'here we do not give...'! Rather, this applies only when there is no greater Mitzvah to marry off one than another. Here, it is a bigger Mitzvah to marry off a girl in his Reshus.</p>
<p class='seealso'>See also:</p>
<p class='seealsotext'>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Rabah Zuti):</font></b> Regarding annulment of vows, it
          also says 'Zeh ha'Davar.' Did this only apply to that
          generation?!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> We learn a Gezeirah Shavah 'Zeh-Zeh' 
          from slaughtering Korbanos outside the Mikdash, that it
          applies to all generations.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we should also learn 'Zeh-Zeh' to a
          daughter who inherits (that it applies to all
          generations)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, there would be no need to say 'Zeh
          ha'Davar' at all! (We normally assume that any Mitzvah
          applies to all generations.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Gezeirah Shavah between slaughtering outside
               the Mikdash and vows was needed for other laws.
<br>
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE GEZEIRAH SHAVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> For what was the Gezeirah Shavah needed?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa):</font></b> It says 'Zeh ha'Davar' here
          (regarding vows), and also there (regarding slaughtering
          outside the Mikdash)l
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There it says 'Aharon v'El Banav v'El Kol Bnei
               Yisrael.' This applies also to vows.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> In what sense does it apply to vows?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer (Rav Acha bar Yakov):</font></b> Three
                    commoners can annul a vow (if the one who vowed
                    regrets it).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Question:</font></b> It says 'Roshei ha'Matos'!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Answer:</font></b> That teaches like Rav Chisda
                    taught, that one expert may annul a vow.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here it says 'Roshei ha'Matos.' This applies also
               to slaughtering outside the Mikdash.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> In what sense does it apply?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rav Sheshes):</font></b> One who made something
               Hekdesh can retract this (if he regrets it, just
               like one can retract a vow).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> According to Beis Shamai, one cannot
               retract Hekdesh. What do they learn from 'Zeh
               ha'Davar' said regarding slaughtering outside the
               Mikdash?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - Beis Shamai):</font></b> If one made something
                    Hekdesh by mistake, it is Hekdesh;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Beis Hillel say, it is not. (We retract
                    Hekdesh by showing that it was a mistake.
                    According to Beis Shamai, in any case it is
                    Hekdesh!)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> One is liable only for <i>slaughtering</i>
               (Korbanos outside the Mikdash), but not for Melikah
               (cutting a bird's neck with the fingernail).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> What do Beis Shamai learn from 'Zeh
               ha'Davar' said regarding vows?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> A Chacham permits vows (retroactively,
               through regret of the one who vowed), but a husband
               cannot. A husband annuls vows (from now and onwards,
               without regret), but a Chacham cannot.
<br>

sjt:
</p><p>
<font><b>2) HALACHAH: THE QUALIFICATIONS OF A 'DAYAN' WHO MAY ANNUL VOWS</b></font><b>
<br>OPINIONS:</b> The Gemara derives from the verse that Hataras Nedarim, the annulment of vows, may be performed by Aharon, his sons, and by all of the Jewish people. Rav Acha bar Yakov infers from here that a Beis Din comprised of three laymen may annul a Neder. Although the Torah implies that a Neder may be annulled by any <i>one</i> of the leaders of the Shevatim (Bamidbar 30:2), Rav Chisda explains that this means that one who is an <i>expert</i> may annul a Neder on his own without the presence of two others.
</p><p>
1. What degree of expertise must a Dayan have in order to be qualified to annul vows on his own?
</p><p>
(a) The <b>RASHBAM</b> (DH Hachi Nami b'Yachid) writes that he must be an expert in Gemara, meaning a distinguished Rav who is capable of issuing Halachic rulings. This is also the view of the <b>RAMBAM</b> (Hilchos Shevu'os 6:5) who writes, 'How are oaths annulled? The person who swore should come to a distinguished wise man, or to three laymen if there is no expert available.'
</p><p>
(b) However, the <b>RAN</b> in Nedarim (23a, DH v'Heter Nedarim) cites the <b>RAMBAN</b> who writes that the expert must be one who has received Semichah, the ordination passed down personally through the generations from Moshe Rabeinu. Semichah is a higher qualification that just expertise in Gemara. The Ramban's source for this is the Gemara later (121a) which compares the expert Dayan who may annul a Neder by himself to the three expert Dayanim required to sanctify the new moon and declare Rosh Chodesh. Just as those three Dayanim must have Semichah, the single expert Dayan capable of annulling a Neder must also have Semichah. The <b>RITVA</b> (Nedarim 23a) writes that even Rav Nachman, a distinguished Dayan in the times of the Gemara, did not possess the appropriate Semichah for the annulment of vows, as is clear from the Gemara in the first Perek of Maseches Sanhedrin. (The Ritva's reference apparently is to Sanhedrin 14a, where the Gemara says that Semichah did not exist in Bavel, where Rav Nachman lived.)
</p><p>
2. When three laymen annul a Neder, what level of knowledge must they possess?
</p><p>
(a) The <b>RAN</b> in Nedarim maintains that although the laymen are not required to be expert in the Halachos of Nedarim, they nevertheless must be people capable of understanding those Halachos when explained to them.
</p><p>
(b) The <b>RAMBAM</b>, however, does not specify this as a qualification. The <b>KESEF MISHNEH</b> (Hilchos Shevu'os 6:1) states that the laymen qualify for Hataras Nedarim even when they are not capable of understanding the Halachos. The <b>LECHEM MISHNEH</b> (Hilchos Shevu'os 6:5) writes that even if the Halachah requires that these three Dayanim be capable of understanding the laws when explained to them, in practice they do <i>not</i> need to be capable of understanding the laws, since there is no one today who is capable of explaining the laws to them.
</p><p>
The <b>SHULCHAN ARUCH</b> (YD 228:1) and <b>SHACH</b> there (#2) rule that only laymen who are capable of understanding the laws of Nedarim when explained to them may serve as Dayanim to annul a Neder. The <b>LEVUSH</b> (cited by the Shach) rules that it suffices that they understand a little -- as much as it takes to know what vows they are annulling. They are not required to understand all of the Halachos well. (Y. Marcus)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>SANCTIFICATION OF THE FESTIVALS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Beis Shamai do not learn the Gezerah Shavah.
          What is their source that three commoners can annul a
          vow?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Beraisa - R. Yosi ha'Galili):</font></b> 'Va'Ydaber Moshe
          Es Mo'adei Hash-m El Bnei Yisrael' - the festivals were
          said, but Shabbos was not;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Ben Azai says, the festivals were said, but the
               passage of vows was not said.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Yosi bar Noson):</font></b> What is the meaning of
          'Shabbos was not said'?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> The festivals depend on Kidush
          Beis Din (deciding which day is Rosh Chodesh), but
          Shabbos does not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One might have thought that since Shabbos is
               mentioned with the Mo'adim, it also needs Kidush
               Beis Din. He teaches that this is not so.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What is the meaning of 'the festivals were
          said, but vows were not said'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Kidush of the festivals (through Kidush Rosh
          Chodesh) requires experts, but annulment of vows does not
          require experts.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> 'Roshei ha'Matos' is written regarding vows!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> Only an expert can annul a vow by
          himself. (For commoners to annul, there must be three.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE 15TH OF AV</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Shimon ben Gamliel):</font></b> Yisrael did not have
          days as joyous as Yom Kipur and the 15th of Av.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> On these days, girls of Yerushalayim went out in
               white clothing. Every girl borrowed, so a girl that
               did not have would not be embarrassed.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We understand why Yom Kipur was so festive. It is the
          day of pardon and forgiveness, the day the second Luchos
          were given!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What was special about the 15th of Av?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yehudah):</font></b> It was the day that
          intermarriage between the tribes was permitted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What Scriptural source did they have to
               permit this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Zeh ha'Davar (a daughter who inherits
               must marry within her tribe)' applies only to this
               generation.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rabah bar bar Chanah):</font></b> On this day, men of
          Binyamin were permitted to marry women of other tribes.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Yisrael Nishba ba'Mitzpah Leimor Ish Mimenu Lo
               Yiten Bito l'Vinyamin l'Ishah' (after the war
               against Binyamin, the other tribes swore not to
               marry off their daughters to men of Binyamin).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What Scriptural source did they have to
               later permit this?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The oath applies to 'Mimenu' (us), but
               not to our children.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Rav Dimi bar Yosef):</font></b> On this day, the
          generation that left Mitzrayim ceased dying in the
          wilderness.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Cha'asher Tamu Kol Anshei ha'Milchamah Lamus...;
               <i>Va'Ydaber</i> Hash-m Elai' - (from the time of the
               Meraglim,) until they all died, Hash-m did not speak
               with Moshe (so closely).
<br>
<br>

sjt:
<font><b>1) THE 'YOM TOV' OF THE FIFTEENTH OF AV</b></font><b>
<br>QUESTION:</b> The Gemara cites the Mishnah in Ta'anis (26b) which states that 'there were never such good days for Yisrael as the fifteenth of Av and Yom Kippur, for on those days the daughters of Yerushalayim would go out with borrowed white clothing in order not to embarrass those who did not have their own.' The Gemara discusses why the fifteenth of Av is such a special day. One of the reasons that the Gemara gives is that on that day, it became permitted for members of different Shevatim to marry each other. The <b>RASHBAM</b> (DH la'Vo) explains that marrying out of one's Shevet was prohibited for the generation that entered Eretz Yisrael. That prohibition was intended to prevent land that was given to one Shevet from being transferred through inheritance to a different Shevet; if a woman, with no brothers, would marry a man from a different Shevet, then the land that she inherited from her father would pass to her husband upon her death.
</p><p>
According to this reason, what was so special about the fifteenth of Av? Why was the annulment of this prohibition cause for such festivity?
</p><p>
<b>ANSWER:</b> The <b>MAHARSHA</b> (Chidushei Agados) answers that, as the Gemara implies, the fifteenth of Av was a joyous day primarily for the women of Yisrael. Until that time, a <i>man</i> was permitted to marry a woman from a different Shevet, because his family inheritance would not leave his Shevet as a result of his marriage to a woman from another Shevet. A woman, on the other hand, who had a family inheritance was <i>not</i> permitted to marry a man from another Shevet, because doing so would cause her family inheritance to leave her Shevet. The fifteenth of Av, therefore, was a joyous day for women in general because they were now permitted to marry without this restriction.
</p><p>
The <b>PNEI SHLOMO</b> adds to the Maharsha's explanation. He writes that the Maharsha's words may be used to explain the words of <b>TOSFOS</b> in Ta'anis (30b, DH Yom) who states that the day on which the Shevatim were permitted to marry into one another was a '<b>Y'T</b>' (sic). It is not clear what Tosfos means by adding this comment, as the Mishnah itself says that this day was a Yom Tov. The Pnei Shlomo suggests that '<b>Y'T</b>' is not the abbreviation for 'Yom Tov,' but rather for 'Yom Tovasan' -- <i>their Yom Tov</i>, referring to the day that was good for the daughters of Yisrael, since they were now permitted to marry men from any tribe.
</p><p>
The Maharsha continues and says that according to the Gemara's second reason for the festive nature of the fifteenth of Av -- that on that day, in the period of the Shoftim, the other Shevatim were permitted again to marry into Shevet Binyamin -- it was also a cause for celebration specifically for the women, because the ban prohibited only women from other Shevatim marrying men from Binyamin. The men from other Shevatim were always permitted to marry women from Binyamin. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HA'TOV VEHA'METIV</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 Masneh):</font></b> On the day that they were able to bury
               those killed in Beitar, the Sanhedrin in Yavneh
               enacted the fourth blessing of Birkas ha'Mazon,
               'ha'Tov veha'Metiv'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Ha'Tov' - Hash-m kept the bodies from decaying.
               'Ha'Metiv' - He enabled that they will be buried.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Berachos 49a (Aba Yosi ben Dosta'i or Rabanan):</font></b> One
               must mention Malchus (Hashem's kingship) in ha'Tov
               veha'Metiv;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (The other of Aba Yosi ben Dosta'i and Rabanan):</font></b> One
               need not mention Malchus in ha'Tov veha'Metiv.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The first opinion holds that ha'Tov veha'Metiv is
               mid'Rabanan (it is an independent Berachah by
               itself, therefore it needs Malchus). The latter
               opinion holds that it is mid'Oraisa (it follows the
               other Berachos of Birkas ha'Mazon. Malchus in the
               first Berachah suffices for all of the Berachos).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> One must mention (Hashem's) Malchus
               in ha'Tov veha'Metiv.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> Is the Chidush that every Berachah needs
               Malchus? R. Yochanan already taught this!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1 (R. Zeira):</font></b> He teaches that two Malchuyos
               are required. The second is to compensate for <i>not</i>
               mentioning Hashem's Malchus in Boneh Yerushalayim.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> If so, a third Malchus should be required,
               to compensate for not mentioning Malchus in Birkas
               ha'Aretz!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  You must say that we need not compensate for
                    (omitting Malchus in) Birkas ha'Aretz, for it
                    is adjacent to another Berachah (the Malchus of
                    Birkas ha'Zan counts for it). Likewise, we need
                    not compensate for Boneh Yerushalayim, for it
                    is adjacent to another Berachah!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> Indeed, compensation for Boneh Yerushalayim
               is <i>not</i> because it lacks the Malchus that every
               Berachah needs. It is not lacking, for it is
               adjacent to another Berachah. Rather, it is improper
               to mention Malchus Beis David without mentioning
               Malchus Hash-m. For <i>this</i> we compensate in ha'Tov
               veha'Metiv.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #2 (Rav Papa):</font></b> Two Malchuyos are required in
               ha'Tov veha'Metiv, in addition to the usual Malchus
               at the beginning.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Berachos 36a):</font></b> Ha'Tov veha'Metiv was enacted in
               Yavneh when they were able to bury those killed in
               Beitar. Rav Papa taught that two Malchuyos are
               required in ha'Tov veha'Metiv, in addition to the
               usual Malchus.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Berachos 1:17):</font></b> We answer Amen to
               Boneh Yerushalayim because it is the end of the
               primary Birkas ha'Mazon. Ha'Tov veha'Metiv was added
               by Chachmei ha'Mishnah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Berachos 7:22):</font></b> Ha'Tov veha'Metiv was enacted
               in Yavneh when they were able to bury those killed
               in Beitar. It was enacted in Birkas ha'Mazon, which
               is all praise. The Yerushalmi says that when Beitar
               was destroyed, the horn of Yisrael was cut off, and
               it will not return until Mashi'ach. Therefore, it
               was put next to Boneh Yerushalayim. It was enacted
               to mention Malchus Beis David in Boneh Yerushalayim.
               We should mention also Malchus Hash-m in the
               Berachah, but Chachamim did not want to have
               Hashem's Malchus next to human Malchus, so they
               enacted to mention Hashem's Malchus in ha'Tov
               veha'Metiv. Once they enacted Malchus in ha'Tov
               veha'Metiv corresponding to Boneh Yerushalayim, they
               also enacted Malchus in ha'Tov veha'Metiv
               corresponding to Birkas ha'Aretz (which does not
               have Malchus, for it follows Birkas ha'Zan). The
               Medrash says that one must mention in ha'Tov
               veha'Metiv three Hatavos and three Gemulus
               (bestowings - Hu Gemalanu Hu Gomleinu Hu Yigmeleinu
               la'Ad). Even so, we do not close the Berachah with
               Baruch Atah Hash-m... for it is considered a short
               Berachah. It was initially enacted to say only
               ha'Tov veha'Metiv, and later these other matters
               were added.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Yonah (DH uv'Kan):</font></b> Tosfos says that we do
                    not close the Berachah because it is a short
                    Berachah. It is all one matter. All the
                    additions are descriptions of Hash-m, i.e. he
                    is King, does good, bestows...
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (OC 189 DH u'Mah she'Chosav
                    Rabeinu):</font></b> The Rashba says that we do not close
                    the Berachah because we do not want to make it
                    better than the second and third Berachos,
                    which are mid'Oraisa.
<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 189:1):</font></b> In the fourth Berachah,
               we mention kingship three times - Baruch Atah...
               Melech ha'Olam... ha'Kel Avinu Malkeinu... ha'Melech
               ha'Tov. It mentions three Hatavos - He did good to
               us, does good to us, and will do good to us.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (1):</font></b> Since ha'Tov veha'Metiv is only
                    mid'Rabanan, it begins with Shem and Malchus.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Magen Avraham (1):</font></b> Nowadays the custom is to
                    say ('to us' only at the end,) 'He did good,
                    does good, and will do good to us', for we
                    already said 'ha'Tov veha'Metiv.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Machatzis ha'Shekel (1 DH Hetiv):</font></b> The Shulchan
                    Aruch holds like the Rosh, that we must say
                    three Tovos <i>other than</i> ha'Tov veha'Metiv,
                    which refers to the events in Beitar (the
                    bodies did not decay, and they were able to be
                    buried). Our custom is to count them among the
                    three, so we say 'He did good, does good, and
                    will do good to us', and this counts like one.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Eshel Avraham (1):</font></b> We say 'to us' only
                    regarding the future, for this is a Tefilah.
                    Clearly, He did and does good to <i>everyone</i>!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Birkei Yosef (2):</font></b> Some say that one says first
                    'He does good to us' (present). Our custom is
                    is like the Mechaber.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Hagahos Tur ha'Shalem (6):</font></b> In old editions of
                    the Tur and a Kesav Yad, the text puts 'He does
                    good' (present) first, and similarly regarding
                    'Hu Gomleinu.' This is like 'Hash-m Melech
                    Hash-m Molach Hash-m Yimloch.'
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Prishah (4 DH v'Ha):</font></b> The Tur explained why we
                    mention Malchus three times. He did not need to
                    explain regarding Hatavah and bestowing, for
                    there it is to mention past, present and
                    future.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Mishnah Berurah (4):</font></b> Since we mention kingship
                    three times, we mention three Hatavos, for the
                    Berachah was enacted due to Hatavah.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Darchei Moshe (1):</font></b> The Mordechai (at the very
                    end of Berachos) says that we close Birkas
                    Ba'al ha'Bayis 'v'Imru Amen', not v'Nomar Amen.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Mishnah Berurah (5):</font></b> We conclude Birkas Ba'al
                    ha'Bayis (surely this is the correct text, like
                    it says in Magen Avraham 1, which the Mishnah
                    Berurah is citing verbatim - <b><b><b>PF</b></b></b>) v'Nomar Amen,
                    for (it is a request that Hash-m bless the
                    Ba'al ha'Bayis, and) he cannot demand that
                    others answer. Oseh Shalom bi'Mromav is praise
                    of Hash-m, and all Yisrael must answer Amen,
                    therefore, we conclude v'Imru Amen.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Machatzis ha'Shekel (DH she'Hu):</font></b> Even though
                    Oseh Shalom concludes with a request (Hu
                    Ya'aseh Shalom...), it is primarily praise of
                    Hash-m. Also, one must answer Amen to the
                    praise it contains.
<br>             <b>  <b><font color='darkgreen'>xii. </font></b><font color='darkgreen'>Eshel Avraham (1):</font></b> One who says Birkas ha'Mazon
                    alone cannot say 'v'Imru Amen', nor v'Nomar
                    Amen. He says just Amen.
<br>             <b>  <b><font color='darkgreen'>xiii.</font></b><font color='darkgreen'>Kaf ha'Chayim (10):</font></b> The custom is that even an
                    individual says v'Nomar Amen, just like an
                    individual says 'v'Imru Amen' at the end of
                    Birkas ha'Mazon (and at the end of Shemoneh
                    Esre, even though no person hears him - <b><b><b>PF</b></b></b>).
<br><br>
<p>


lvr: 43
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #4 (Ula):</font></b> On this day Hoshe'ah ben Elah
          abolished the guards that Yeravam had set up to prevent
          people of the 10 tribes from ascending to Yerushalayim
          for the festivals.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #5 (Rav Masneh):</font></b> On this day they were able to
          bury those killed in Beitar (at the time of the Churban).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav Masneh):</font></b> On the day that they were able to
               bury those killed in Beitar, the Sanhedrin in Yavneh
               enacted the fourth blessing of Birkas ha'Mazon,
               'ha'Tov veha'Metiv'.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'Ha'Tov' - Hash-m kept the bodies from decaying;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  'Ha'Metiv' - He enabled that they will be
                    buried.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #6 (Rabah and Rav Yosef):</font></b> This is the day that
          they cease cutting wood for the fire on the altar
          (Rashbam - we celebrate completion of a great Mitzvah; R.
          Gershom - we are no longer Batel from Torah).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer ha'Gadol):</font></b> When the 15th of
               Av comes, the sun is not so strong, so they stop
               cutting wood for the altar (lest it be wormy).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Menashe):</font></b> It is called the day of breaking
               the saw.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	From this day onwards, (the nights get longer, so) one
          who increases learning at night will live longer. One who
          does not do so, Yasif.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> What does Yasif mean?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> His mother will bury him (i.e. he
          will perish).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SEVEN MEN WHO SPANNED THE WORLD</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> There are seven men whose lives cover all of
          time, from the creation of man until today: Adam,
          Mesushelach, Shem, Yakov, Amram, Achiyah ha'Shiloni, and
          Eliyahu.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> How could Achiyah ha'Shiloni have been
               born in Amram's lifetime? 'V'Lo Nosar Mehem Ish Ki
               Im Kalev ben Yefuneh vi'Hoshua' (only Yehoshua and
               Kalev entered Eretz Yisrael among the men who left
               Mitzrayim)!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Hamnuna):</font></b> The decree did not include
          Leviyim. It says 'l'Chol Misparchem mi'Ben Esrim Shanah
          va'Ma'alah';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This excludes Leviyim, who are counted from 30
               days and older.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Also men from other tribes who left Mitzrayim
          entered Eretz Yisrael!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Ya'ir ben Menashe and Machir ben
               Menashe were born in Yakov's lifetime, and they
               entered Eretz Yisrael.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Yehudah):</font></b> 'Va'Yaku Mehem Anshei
                    ha'Ai ki'Shloshim v'Shishah Ish' is literally
                    true;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  R. Nechemyah:</font></b> It says <i>like</i> 36! (How can
                    the number not be exact?!) Rather, they killed
                    Ya'ir ben Menashe, who is the equal of the
                    majority of a Sanhedrin.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Acha bar Yakov):</font></b> The decree was only on men
          between 20 and 60.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says 'mi'Ben Esrim Shanah va'Ma'alah'. We
               learn a Gezerah Shavah 'va'Ma'alah-va'Ma'alah' from
               Erchin (pledging to Hekdesh a sum based on the age
               and gender of a particular person).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like there, above 60 is like below 20 (both
                    have a lower Erech than one between 20 and 60),
                    also regarding the decree to die in the Midbar.
<br>

<p>

sjt:
</p><p>
<font><b>2) THE MOTHER'S ROLE IN HER SON'S TORAH STUDY</b></font><b>
<br>QUESTION:</b> Rabah and Rav Yosef state that the reason why the fifteenth of Av is a Yom Tov is that on this day each year the cutting of the wood for the Mizbe'ach in the Beis ha'Mikdash was completed. <b>RABEINU GERSHOM</b> explains that this was a joyous occasion because during the season of cutting the wood, the people had less time to learn Torah. From the fifteenth of Av, when the season of cutting the wood ended, they had more time for learning Torah. Therefore, this day was celebrated as a festive day.
</p><p>
The Gemara continues and says that from the fifteenth of Av onward, when the summer nights are long, someone who is 'Mosif' -- who adds to the time that he learns Torah at night -- will be rewarded by 'Yosif' -- Hash-m will add more time to his life. Someone who is not 'Mosif,' who does not add to the time that he learns Torah at night, will be punished by 'Yasif,' by being destroyed. Rav Yosef explains that this means that his mother will bury him (he will die prematurely). The <b>RASHBAM</b> (DH Mai Yasif) explains that as a punishment for not learning Torah, he will reach only half of his full lifespan.
</p><p>
What is the significance of Rav Yosef's statement that specifically this person's mother will bury him? Why does he not state simply that the person will die young?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> explains that a mother has a special role in ensuring that her son learns Torah. He cites the Gemara in Sanhedrin (70b) which explains the verse in Mishlei (31:1), '... the words with which his mother rebuked him.' Shlomo ha'Melech's mother exhorted him not to be like other kings who drink wine and become intoxicated. The Gemara there explains that when Shlomo ha'Melech married the daughter of Pharaoh, she draped over the window a sheet with images of stars on it in order to make him think that it was night, even though it was already morning. As a result, Shlomo ha'Melech slept four hours into the day (which is the daily practice of other kings). Since he did not make up for those four hours by learning Torah during the four extra hours of the winter night, his mother reprimanded him.
</p><p>
It is evident from there that a person's mother is responsible to oversee that he learns Torah. If a person does not learn more Torah each night after the fifteenth of Av passes, his mother is considered responsible for his neglectfulness. As a punishment to <i>her</i>, her son will die before she dies and she will have to bury him.
</p><p>
(b) The <b>VILNA GA'ON</b> (to YD 245:20) gives a different reason for why Rav Yosef mentions the person's mother. He cites the Gemara here as the source for the ruling of the <b>RAMBAM</b> (Hilchos Talmud Torah 2:2) and the <b>SHULCHAN ARUCH</b> (YD 245:11) who rule that one is obligated to teach Torah to children not only during the day, but also during part of the night, in order to educate the children about the importance of learning Torah at night.
</p><p>
The Rambam understands from the Gemara here that even young children must increase their nighttime Torah study after the fifteenth of Av. He infers this from the fact that Rav Yosef says that 'his mother will bury him.' The Vilna Ga'on asserts that the Gemara's mention of the mother proves that the Gemara refers even to young children, presumably because the mother has a special responsibility to care for young children. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE DIVISION OF THE LAND</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Was Eretz Yisrael divided among the tribes,
          or among the people?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> 'Bein Rav li'M'at (each tribe will receive
          an equal portion)'.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> In the future, Eretz Yisrael will
          be divided among 13 tribes. Originally, it was divided
          only among 12;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It was divided only according to the value of the
               land - 'Bein Rav li'M'at'.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  R. Yehudah says, a field in Yehudah (big enough
                    to sow) one Se'ah is equal to a five Sa'os
                    field in Galil.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It was divided only by lottery - 'Ach b'Goral'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It was divided only with the Urim v'Tumim (stones
               on the Kohen Gadol's garment on which letters would
               light up to answer questions) - 'Al Pi ha'Goral'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Elazar was wearing the Urim v'Tumim. Yehoshua and
                    all of Yisrael were in front of him. One box
                    contained the names of the tribes. Another box
                    contained the names of the portions of Eretz
                    Yisrael.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  With Divine inspiration, Elazar predicted
                    which tribe would be selected, and which
                    portion, e.g. Zevulun, and the portion by Ako.
                    He then pulled these from the respective boxes.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The division in this world is unlike the division
               in the world to come.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In this world, one who gets a grain field does
                    not get an orchard, and vice-versa. In the
                    world to come, everyone will receive a share in
                    the mountain, plain and valley - 'Sha'ar Reuven
                    Echad Sha'ar Yehudah Echad...';
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  (In the world to come), Hash-m will make
                    the division himself - 'v'Eleh Machlekosam
                    Ne'um Hash-m'.
<br>
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Summation of answer):</font></b> The Beraisa says that it was
          divided only among 12. This shows that it was divided to
          the tribes.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa says that Eretz Yisrael will be
          divided among 13 tribes. To whom is the extra portion?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> It is for the Nasi - 'veha'Oved
          ha'Ir Ya'avduhu (they will give to him an inheritance)
          mi'Kol Shivtei Yisrael'.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> Perhaps they just temporarily
          allow him to use their land!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> 'Veha'Nosar la'Nasi ...'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> It was divided only according to value -
          'Bein Rav li'M'at'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Regarding what was this taught?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It refers to the different qualities
               of land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> We do not discuss fools (who accept money
               in place of the proper amount of land)!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, a field closer (to the Mikdash) is
          worth more. (Chasam Sofer 1:29 DH v'Ye'ayen - at first,
          the Mishkan was in Shilo, and whoever was closer to Shilo
          compensated those further away. When Yerushalayim was
          chosen over 400 years later, those closer to Yerushalayim
          compensated those further away.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b></b>  	Tana'im argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Eliezer):</font></b> Those who received closer
               portions gave monetary compensation to those that
               received distant portions.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehoshua says, compensation was given in land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yehudah says, a field in Yehudah (big enough
               to sow) one Se'ah is equal to a field of five Se'im
               in Galil.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> It was divided only by lottery - 'Ach
          b'Goral.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Ach b'Goral' excludes Kalev and Yehoshua.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> In what sense are they excluded?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> They did not receive anything.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> They received even portions of others
               (the Meraglim), and all the more so they received
               what was due to them!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> Rather, they did not receive according to the
          lottery. Rather, Hash-m declared what they received.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Al Pi Hash-m Nosnu Lo Es ha'Ir... Timnas
               Serach.'
<br>
<br>

sjt:
<font><b>1) THE DIVISION OF ERETZ YISRAEL</b></font><b>
<br>QUESTIONS:</b> The Gemara states that the original division of Eretz Yisrael, in the times of Yehoshua bin Nun, was done with the augmentation of monetary payments. Rebbi Yehudah explains that one Se'ah of land in the region of Yehudah was worth five Se'ah of land in the region of Galil. Consequently, one who received his portion in Yehudah was required to pay money to one who received his portion in Galil in order to compensate for the lower value of his portion.
</p><p>
The Gemara states that the advantage of receiving land of greater value cannot be that one person received land of high quality, while the other person received land of low quality, because certainly no one would agree to forgo a land of high quality as his family inheritance for all generations to come in return for a mere one-time monetary payment. Rather, the advantage of land in Yehudah over land in Galil was that Yehudah was closer to the Beis ha'Mikdash. The <b>RASHBAM</b> (DH li'Kerovah) explains that one who received property near Yerushalayim was obligated to pay a monetary sum to one who received his portion far from Yerushalayim.
</p><p>
The <b>CHASAM SOFER</b> (Teshuvos OC 29) questions the Rashbam's explanation.
</p><p>
(a) The Gemara is discussing the division of Eretz Yisrael at the time of Yehoshua. At that time, the Mishkan was not in Yerushalayim, but rather in Shilo, where it remained for 369 years (see Zevachim 118b)! The identity of the future location of the permanent Beis ha'Mikdash would not be revealed until hundreds of years after the division of the land, in the times of David ha'Melech. What advantage, then, did Yerushalayim have over any other city at that time? The Rashbam should have explained that one who received property near <i>Shilo</i> was required to compensate one who received property far from Shilo.
</p><p>
(b) Proximity to Yerushalayim is not entirely advantageous. The Gemara in Sotah (22a, see Insights there) cites a dispute between Rav and Rebbi Yochanan with regard to whether it is better to live near a Beis ha'Keneses or to live far from one. Rebbi Yochanan, who says that one should live far away from a Beis ha'Keneses, explains that one receives 'Sechar Pesi'os' as reward for walking a longer distance to get to the Beis ha'Keneses. Accordingly, those who live farther away from Yerushalayim receive more reward for walking the greater distance, and thus <i>they</i> should have to pay those who live close to Yerushalayim as compensation!
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>CHASAM SOFER</b> answers that, indeed, at the time of the division of Eretz Yisrael, the Shevet which received land near Shilo needed to pay money to the Shevet which received land far from Shilo. Later, when Yerushalayim was revealed as the permanent place of the Beis ha'Mikdash, the Shevet which received land near Yerushalayim needed to pay money to the Shevet which received land far from Yerushalayim.
</p><p>
(b) The Chasam Sofer explains that the advantage (or disadvantage) in having property near Yerushalayim was not that the travel-distance to the city is shorter. Rather, the advantage is that a place closer to Yerushalayim is a more <i>important</i> place due to its proximity to the holy city. Since a place closer to Yerushalayim is more important, those who live there receive more honor and respect, and therefore they must compensate those who live far away.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>COMPENSATION FOR AN INFERIOR SHARE</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> Eretz Yisrael was divided only according
               to value - 'Bein Rav li'M'at'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Regarding what was this taught?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> It refers to the different
                    qualities of land.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rejection:</font></b> We do not discuss fools (who accept
                    money in place of the proper amount of land)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Tana'im argue about this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Eliezer):</font></b> Those who received
                    closer portions (to Yerushalayim) gave monetary
                    compensation to those who received distant
                    portions.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Yehoshua says, compensation was given in
                    land.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Teshuvah 98:3):</font></b> A case occurred in which
               Reuven left to a widow and son a house (Beis Din
               ruled that each gets half.) On top there was an
               Aliyah and a store, and there was a cellar
               underneath. The son wanted to sell it all together,
               to get the best price, and to give to her half. She
               wanted just the house, and whichever side was worth
               more would compensate the other. If the house is big
               enough to split, we split it and everything above
               and below it. If not, they use it together, because
               the son does not intend to buy it for his own needs.
               Here, the Aliyah is a dwelling unto itself, and also
               the store, and also the cellar, so the Halachah
               favors the widow. If the heir wants to buy through
               the estimation of Beis Din, one compensates the
               other.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Teshuvas Maimoniyos (Kinyan 36):</font></b> If there will be
               enough for each side (if they divide) only if rooms
               are broken, we do so only if this is possible with a
               small loss. If one side has more buildings, beter
               land or is closer to Reshus ha'Rabim, it compensates
               for his through money.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Ramban (12b DH v'Chol):</font></b> Whenever we compensate (one
               who received an inferior portion), it is with land,
               like we say on 122a. Even regarding distance, we
               hold like R. Yehoshua, who says that compensation
               was given in land. Therefore, if one offers
               compensation in money, and the other offers
               compensation in land, we follow the latter, for he
               says like the Halachah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rabbeinu Meir mi'Rottenberg (4:238):</font></b> The thickness
               of the wall does not count towards the calculation
               (whether each will receive a proper share if they
               divide) like the interior of the houses and Chatzer
               does. This is because destroying the wall causes a
               loss. Even if one desires this, we do not heed him.
               Even if a Chatzer would be big enough to divide if
               they built a (five Tefach) wall of smooth stones in
               the middle, but the custom in the city is to build a
               (six Tefach) wall of smooth stones in the middle,
               and then each will not receive a proper portion, one
               cannot force his neighbor to do unlike the custom.
               All the more so, he cannot force him to destroy a
               wall! If two are holding a Talis or riding an animal
               together, we do not divide it if it will cause a
               loss. If one will receive a portion near Reshus
               ha'Rabim, and the other will receive a portion open
               to a cReshus ha'Rabim. In such a case, compensation
               is given in land, like R. Yehoshua taught. We learn
               from division of brothers from the division of Eretz
               Yisrael (Kidushin 42a). However, if only one portion
               has a house with rooms and upper stories, even R.
               Yehoshua agrees that he gives monetary compensation,
               for with the money the other can also build
               similarly.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rivash (227):</font></b> Normally, one cannot force his partner
               to divide and each will take one house, for houses
               are unequal. Some have rooms, upper stories,
               kitchens, storage areas, etc. We do not trade a
               house for a room or upper story, or a room for a
               kitchen, for they have different uses. This is like
               two slaves. If one knows to make rugs, and the other
               knows to cook, one cannot (force his partner to)
               trade one for the other. This is obvious according
               to the Ramban, who holds that high and low quality
               land are like different items, even if they are
               worth the same, and one cannot trade one for the
               other. Normally, one house has better air or is
               built better than the other. Also, normally one
               would need to change openings or windows to avoid
               Hezek Re'iyah. We do not force one to divide if he
               will need to destroy, build and incur expenses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shitah Mekubetzes (122a DH Rebbi, citing the
                    Ran):</font></b> R. Yehoshua says that compensation even
                    for proximity and distance are with land, all
                    the more so we hold like this regarding poor
                    and good land.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (CM 171:5):</font></b> If in one side (of a Chatzer) there
               are buildings, and there are not so many buildings
               on the other side (or on one side there is Reshus
               ha'Rabim, and on the other side is a Simta (shoulder
               of Reshus ha'Rabim), we compensate with money until
               the portions are equal. This is all so we will not
               need to break buildings and cause a loss. If both
               sides agree, they may do whatever they want.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (18):</font></b> This is like we learned in Bava Basra
                    (that they compensated with money).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Einayim l'Mishpat 122a DH v'Lo):</font></b> The
                    Rema is from Teshuvas Maimoniyos (above), which
                    discusses poor and good land, not distance!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> Teshuvas Maimoniyos discusses
                    compensation for proxmity to Reshus ha'Rabim.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH v'Chosav):</font></b> If the entire Chatzer
                    had a privy, big oven and/or bathhouse, one
                    cannot force the other to divide unless he will
                    have all of these in his share. Even if he owns
                    these elsewhere, he can say 'I want to use them
                    here, without need to spend money.'
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Bi'urim 6):</font></b> In Sa'if 13, if
                    two things have the same use but they are not
                    worth the same, one opinion holds that one
                    cannot say set a price and say 'Gud O Agud'
                    (buy my share for this price, or I will buy
                    your share for this price). The same should
                    apply when one side has more buildings than the
                    other side! Perhaps Sa'if 13 discusses high and
                    low quality land. Monetary compensation cannot
                    transform bad land to make it good, but it can
                    be used to build buildings. One may force a
                    division when one of the Chatzeros opens to a
                    Simta if with monetary compensation one can
                    open it to a Reshus ha'Rabim. The Rivash says
                    that we do not divide different kinds of
                    houses, even if one is willing to give
                    compensation that would cover the costs to make
                    the other house equal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (13):</font></b> If partners have two things
               with the same use, and they are worth the same, and
               neither is big enough to split, surely 'Gud O Agud'
               applies. The same applies if they are not worth the
               same. Some disagree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (34):</font></b> The Tur disagrees, for good and bad
                    are like different items.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (14):</font></b> If two brothers inherited two
               big houses, and each is big enough be divided, and
               Reuven says 'we will each take half of each house',
               and Shimon says 'each of us will take one entire
               house', we heed Shimon.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> This is when they have the same use. Some say
               that we do not trade most houses, for they are not
               the same. We do not trade a house for a room or
               upper story, for they have different uses. All the
               more so we do not trade if one would need to seal
               windows or openings or spend money to build.
               However, the Rosh connotes that we trade a house for
               a store or cellar. It seems that we also trade a
               house for a room or upper story. Also this is called
               the same usage.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Sho'el v'Nish'al (5 CM 99):</font></b> It is clear from
                    the Rema that even though the houses are
                    unequal, the compensation is monetary.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (SMA 38):</font></b> The Rema says that the Rosh
                    connotes that one can force the other to trade
                    a house for a store or cellar. This is wrong.
                    He said that if the son wanted to sell it all
                    together, and she wanted just the house, we
                    heed her. If the son wants to remain partners,
                    she cannot force him to divide and trade!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Shach 13):</font></b> At the end of the Teshuvah,
                    the Rosh says 'the Halachah favors the widow.
                    If the heir wants to buy through the estimation
                    of Beis Din, one compensates the other.' This
                    supports the Rema.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Taz:</font></b> The <b>SMA</b> is correct. We should rule like
                    the first opinion, which is of the Rivash.
<br><br>
<p>


lvr: 43
dfh: b
trd:
<p>
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Contradiction:</font></b> Elsewhere, it is called 'Cheres'!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer #1 (R. Elazar):</font></b> At first, its fruits
                    were as hard as earthenware (Cheres). After
                    Yehoshua received it, they were so juicy that
                    they could spoil (Masri'ach).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer #2:</font></b> At first, its fruits were juicy,
                    and would spoil. After Yehoshua received it,
                    they would never spoil, like earthenware.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Va'Yitenu l'Chalev Es Chevron...'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Chevron is a city of refuge (it belongs
               to the Leviyim)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> Kalev received the surrounding
               towns - 'v'Es Sede ha'Ir v'Es Chatzereha Nosenu
               l'Kalev.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SONS INHERIT MORE THAN DAUGHTERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A son and a daughter inherit the same way,
          except that a (firstborn) son receives a double portion
          in his father's property, but not in his mother's
          property;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Daughters are fed from the father's property, but not
          from the mother's property.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> What does it mean 'a son and a
          daughter inherit the same way?'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> They split the inheritance.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Mishnah):</font></b> A son inherits before a
               daughter.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman bar Yitzchak):</font></b> A son and a
          daughter both inherit property that is Ra'uy (destined)
          to come, just like they inherit property owned by the
          parent at the time of death.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection #1:</font></b> We already learned that in a Mishnah!
          Tzelafchad's daughters received three portions:
          Tzelafchad's own portion, his share of his father's
          portion (even though it was only Ra'uy)...
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection #2:</font></b> Why does our Mishnah say 'except'? (This
          is unrelated to what came before!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> Both a son and a daughter (i.e.
          when there are no sons and she inherits) inherit the
          extra share of the firstborn (if their father was a
          firstborn).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection #1:</font></b> We already learned that in a Mishnah!
          Tzelafchad's daughters received... and Tzelafchad's extra
          share of his father's portion, for he was a firstborn.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection #2:</font></b> Why does it say 'except'? (Also daughters
          do not receive a double portion in the mother's property,
          just like sons!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #3 (Rav Ashi):</font></b> A son among sons is like a
          daughter among daughters. If the parent said that he/she
          should inherit everything, this takes effect.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection #1:</font></b> This is like R. Yochanan ben Brokah. A
          coming Mishnah teaches this!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Yochanan ben Brokah):</font></b> If Reuven
               said 'Shimon should inherit me', if Shimon could
               inherit him, it takes effect; if not, not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps our Mishnah teaches it Stam
               (anonymously), to teach that this is the Halachah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> If a Stam Mishnah is followed by a
               Mishnah in which Tana'im argue, the Halachah does
               not (necessarily) follow the Stam Mishnah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection #2:</font></b> Why does it say 'except'?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #4 (Mar bar Rav Ashi):</font></b> A daughter (when there
          are no sons) inherits like a son would in the property of
          the mother and father, except that a (firstborn) son
          receives a double portion in the property of the father,
          and not in the property of the mother.
<br>

<p>

sjt:
</p><p>
<font><b>2) RULING IN ACCORDANCE WITH A 'STAM MISHNAH'</b></font><b>
<br>QUESTION:</b> The Mishnah states that a son and a daughter are equal with regard to inheritance. Rav Ashi explains that the meaning of the Mishnah is that when a man has several sons, or when a man has several daughters (and no sons), he is able to declare that one of his children should receive all of his possessions when he dies. The Gemara objects to this explanation, saying that this is the opinion of Rebbi Yochanan ben Beroka, cited by the Mishnah later (130a), and thus it is unnecessary for the Mishnah here to express his opinion again. The Gemara continues and says that it is not reasonable to suggest that the Mishnah here is expressing his opinion anonymously in order to teach that the Halachah follows his opinion (in accordance with the general rule that the Halachah follows the opinion of an anonymous Mishnah), because in this case the anonymous Mishnah (here) is followed by a Mishnah later (130a) in which the Chachamim disagree with Rebbi Yochanan ben Beroka. In such a situation -- when an anonymous Mishnah is followed by a Machlokes regarding the topic of the anonymous Mishnah -- the Halachah follows the dissenting opinion expressed in the later Mishnah.
</p><p>
<b>TOSFOS</b> (DH Stam) asks that there is another rule, however, which states that even though the fact that the anonymous Mishnah is followed by a dispute means that the Halachah does not automatically follow the anonymous Mishnah, nevertheless the anonymous Mishnah still gains the status of being the opinion of <i>several</i> Tana'im, rather than being a single, minority opinion. The <b>MAHARAM</b> explains that this means that even though several Tana'im disagree later with Rebbi Yochanan ben Beroka, the Machlokes should not be considered a Machlokes between a single, isolated opinion, and a majority opinion (Yachid v'Rabim). Rather, the Machlokes should be considered a Machlokes between two groups of Tana'im (of equal numbers). Consequently, it is possible, although not certain, that the Halachah follows Rebbi Yochanan ben Beroka. Why, then, does the Gemara here say with certainty that the Halachah does not follow Rebbi Yochanan ben Beroka?
</p><p>
<b>ANSWER:</b> The <b>RASHASH</b> in Beitzah (28b, to Tosfos DH Gabei) suggests that the later Mishnah to which the Gemara here refers is not the Mishnah on 130a, but rather the Mishnah on 126b. There, an anonymous Mishnah discusses the case of a deathly ill person who decides to give away his property, and he gives more of his property to one son than to another, or he gives to the firstborn son a portion equal to the portions he gives to his other sons. The Mishnah states that if the father articulates that he is giving away his property as an <i>inheritance</i> (and not as a <i>gift</i>), his declaration is not binding because it contradicts the law of the Torah which says that 'inheritance' means that the firstborn son receives a double share and the other sons all receive equal shares. The <b>RASHBAM</b> there (126b, DH v'Im Amar) says that the Mishnah there does <i>not</i> follow the opinion of Rebbi Yochanan ben Beroka, because Rebbi Yochanan ben Beroka maintains that if the person receiving the extra portion has the status of an heir (even if, according to the priority of inheritance, he is preceded by heirs with a higher priority), the father's declaration is valid even as an inheritance.
</p><p>
Accordingly, the Rashash asserts that the Mishnah here (122b) and the Mishnah there (126b) should be considered an anonymous Mishnah followed by another anonymous, but opposing, Mishnah. In such a case, the Halachah always follows the second anonymous Mishnah (and the first Mishnah is considered an isolated opinion, and not the opinion of several Tana'im).
</p><p>
It seems that the logic behind this is that when Rebbi compiled the Mishnayos, by writing the second Mishnah anonymously he intended to show that he did not accept the opinion expressed in the first Mishnah. This is why it is obvious to the Gemara here that the Halachah follows the later Mishnah and does not follow Rebbi Yochanan ben Beroka's opinion which is expressed in the Mishnah here. (See Tosfos, who gives a different answer to this question.) (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>THE EXTRA PORTION OF A FIRSTBORN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> 'Lases Lo Pi Shnayim' - he gets twice what a
          regular brother receives.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he receives two (thirds) of all the
          property!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is reasonable that he gets twice
               the share of a regular brother.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A firstborn's share when he has one brother
                    should resemble his share when he has five
                    brothers. In each case, he gets twice the share
                    of a regular brother.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> We can say otherwise. Just like when
               he has one brother he gets two thirds of the estate,
               also when he has five brothers!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> 'B'Yom Hanchilo Es Banav' is extra, to
          increase the inheritance of the other sons (i.e. the
          firstborn only gets twice the share of a regular
          brother).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2:</font></b> 'Reuven Bechor Yisrael... Nitenah Bechoraso
          li'Vnei Yosef v'Lo Lehisyaches la'Bechorah' (Yosef would
          not be called firstborn, just he would receive a double
          portion. He received twice the portion of a regular
          brother.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #3:</font></b> 'Veha'Bechorah l'Yosef' - just like Yosef's
          Bechorah entitled him to twice the portion of a regular
          brother, also firstborns in all generations.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #4:</font></b> 'Nosati Lecha Shechem Achad Al Achecha Asher
          Lokachti mi'Yad ha'Emori b'Charbi uv'Kashti (with my
          sword and bow)';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Yakov didn't get these through his
               weapons - 'Ki Lo v'Kashti Evtach v'Charbi Lo
               Soshi'eni'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Charbi means prayer, and Kashti
               means request.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Why were additional answers needed?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> One could reject the first answer. Perhaps
          'b'Yom Hanchilo Es Banav' teaches R. Yochanan ben
          Brokah's law (that one may give his entire inheritance to
          one heir). Therefore, we bring a proof from 'Reuven...
          (Bechoraso li'Vnei Yosef)'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One could reject also this proof. Perhaps we
               cannot learn Bechorah from that verse, for it says
               'Bechora<i>so</i>' (this is not the same word)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Therefore, we bring a proof from 'veha'Bechorah
               l'Yosef.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One could reject this, and say that Yosef himself
               received two thirds of all the property. Therefore,
               we bring 'Nosati Lecha Shechem Achad Al Achecha'.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> Perhaps Yosef only received an
          extra date tree!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> 'Efrayim u'Mnashe ki'Reuven v'Shimon
          Yihyu Li'.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>GIVING THE BECHORAH TO YOSEF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (R. Chelbo):</font></b> Why did Yakov take the Bechorah
          from Reuven and give it to Yosef?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The verse explicitly says why it was
               taken from Reuven - 'uv'Chalelo Yetzu'ei Aviv'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> The question was, why did he give it to
               Yosef?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Shmuel bar Nachmani):</font></b> We learn from a
          parable. A man raised an orphan in his home. Later, the
          orphan became rich; he decided to give some of his wealth
          to the man who raised him.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (R. Chelbo):</font></b> (According to your parable,) had
          Reuven not sinned, Yakov would not have given anything
          extra to Yosef!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (R. Yonason):</font></b> The Bechorah was fitting to
          come from Rachel - 'Eleh Toledos Yakov Yosef';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Through prayer, Leah merited to bear the
               firstborn. Hash-m returned the Bechorah to Rachel to
               reward for her modesty.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> How do we see that Le'ah merited through
          prayer?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> 'V'Einei Le'ah Rachos'.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Her eyes were teary.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> The Torah elaborated to say
                    'ha'Behemah Asher Einenah Tehorah' to avoid
                    using a derogatory expression (Tamei) for Tamei
                    animals. Surely it would not speak to the
                    detriment of Tzadikim!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer #1 (R. Elazar):</font></b> Her gifts (Kehunah,
               Levi'yah and kingship were given to her children)
               are Aruchos (lasting).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2 (Rav):</font></b> Really, it means that her eyes
               were weak. This is praiseworthy!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  She heard people talking on the crossroads that
                    Lavan's daughters will marry Rivkah's sons. The
                    elder (Esav) will marry the elder (Leah), and
                    the younger (Yakov) will marry the younger
                    (Rachel).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  She asked about the brothers. They told her
                    that the elder is an evil robber, and the
                    younger is a Tzadik who constantly learns.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> She cried until her eyelashes fell out - 'va'Yar
               Hash-m Ki Senu'ah Leah.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> She was hated.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> The Torah avoided using a
                    derogatory expression for Tamei animals. Would
                    it speak to the detriment of Tzadikim?!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, Hash-m saw that Esav's deeds were
               hateful to her, so He gave to her children.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What modesty did Rachel demonstrate?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Va'Yaged Yakov l'Rachel Ki Achi Aviha Hu...'
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Really, he is the son (not the brother)
               of her father's sister!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> When he told her to marry him, she
               agreed, but warned him that her father is a
               trickster, and Yakov cannot overcome him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Yakov:</font></b> What is his trickery?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rachel:</font></b> I have an older sister. He will not
                    marry me off before her.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Yakov:</font></b> I am your father's brother in
                    trickery.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Rachel:</font></b> May Tzadikim use trickery?
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Yakov:</font></b> Yes! 'Im Navar Titavar v'Im Ikesh
                    Titapal.'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Yakov gave to her a code. When she saw that Le'ah
               was being brought to the Chupah, she reasoned that
               Le'ah will not know the code, Yakov will protest,
               and Le'ah will be embarrassed. She gave the code to
               Le'ah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Support:</font></b> 'Va'Yhi va'Boker v'Hinei Hi Le'ah'.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> This implies that until the
                    morning, she was not Le'ah!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer:</font></b> Due to the code that Rachel gave to
                    Le'ah, Yakov did not know that she was Le'ah
                    until morning.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Aba Chalifa Karviya):</font></b> The Torah says that
          Yakov descended to Miztrayim with 70 people. When you
          count them there are only 69!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1 (R. Chiya bar Aba):</font></b> A twin sister was born
          with Dinah - 'v'Es Dinah.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection (Aba Chalifa):</font></b> If so, you should also say
          that a twin was born with Binyamin - 'v'Es Binyamin'!
<br>
<br>

sjt:
<font><b>1) AGADAH: HOW THE JEWISH PEOPLE ARE SAVED FROM THEIR ENEMIES</b></font><b>
<br>QUESTION:</b> The Gemara explains the words of Yakov Avinu to Yosef, 'I have given you an extra portion more than your brothers, which I took from the Emorite with my sword and with my bow' (Bereishis 48:22). Yakov certainly was not saying that he literally used his sword and bow to obtain the land, because the verse teaches that one is not to trust in his bow or sword: 'For I will not trust in my bow, and my sword will not save me' (Tehilim 44:7). Rather, 'my sword' refers to 'Tefilah,' prayer, and 'my bow' refers to 'Bakashah,' request.
</p><p>
The <b>YOSEF DA'AS</b> cites the <b>BEIS YAKOV</b> (Parshas Vayechi) who explains that even though the literal meaning of the verse is also true (and Yakov <i>did</i> fight physically with his sword and bow), nevertheless his fighting certainly was accompanied by his spiritual efforts -- his Tefilah and Bakashah.
</p><p>
What is the meaning of these two metaphors? What does it mean that Yakov acquired land through his Tefilah and Bakashah?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MAHARSHA</b> explains that prayer, which is compared to the sword, is what protects the Jewish people against the onslaught of Esav. Esav received a blessing from his father, Yitzchak, that he would live by his sword (Bereishis 27:40). The Midrash explains the verse, 'The voice is the voice of Yakov, but the hands are the hands of Esav' (Bereishis 27:22), to mean that when the voice of Yakov, the Jewish people, is strong in Torah and in prayer, the hands of the descendants of Esav cannot harm the descendants of Yakov. The 'sword' of Tefilah is Yakov's defense against Esav's sword.
</p><p>
The Maharsha explains that the word 'b'Kashti,' or 'with my bow,' is similar to the word 'Bakashah,' or 'request.' Yishmael received the blessing that he would be an archer who hunts with his bow (Bereishis 21:20). The 'Bakashah,' the supplications of the Jewish people to Hash-m, is their protection against the 'Keshes,' the bow, of Yishmael (see Parshah Page, Chayei Sarah 5758).
</p><p>
(b) The <b>MESHECH CHOCHMAH</b> (Bereishis 48:22) discusses another facet of the analogy of prayer and request to the sword and the bow. 'Tefilah' refers to the fixed prayers of the liturgy, established by the Sanhedrin for all to say. 'Bakashah' refers to the private and personal supplications of an individual to Hash-m. When an individual recites the prayers established for the Tzibur, he fulfills the Mitzvah of prayer even if his Kavanah is lacking; b'Di'eved, as long as one has proper Kavanah for the first Berachah of Shemoneh Esreh, he has fulfilled his obligation. An individual's personal prayer, in contrast, requires Kavanah throughout the prayer, and none of it can be said without Kavanah. Moreover, the Gemara in Ta'anis (8a) says that prayers which are said alone are accepted by Hash-m only if they are said with full and complete Kavanah. Prayers which are said together with a Minyan are accepted by Hash-m even if the individual is not totally concentrating; through the merit of the Tzibur with whom the individual is praying, Hash-m is merciful and accepts the individual's prayers.
</p><p>
The Meshech Chochmah explains that this is why Tefilah is compared to the sword. A sword is effective due to the sharpness of its blade, and even if the warrior using the sword does not put a lot of energy into swinging his sword, the sword still can inflict maximal damage. An arrow, in contrast, is not an effective weapon by itself. Its effectiveness comes from the strength which the archer puts into it by pulling the bow and aiming the arrow. Public Tefilah, like a sword, is effective due to its own intrinsic strength and the strength of the merits of the Tzibur, and it reaches Shamayim even without a high level of Kavanah. Private prayer, in contrast, is like a bow; the effectiveness of private prayer depends upon the Kavanah of the person praying. (See also <b>MEROMEI SADEH</b> and <b>BEN YEHOYADA</b>.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MAY ONE MARRY BEFORE OLDER SIBLINGS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 120a:</font></b> When the Torah discusses Tzelafchad's
               daughters marrying, it lists them in order of their
               age. Here (when they asked for an inheritance), it
               lists them according to their Chachmah! This
               supports R. Ami:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Ami):</font></b> In matters of Torah, we give priority
                    to the greatest Chacham. At a banquet, first
                    priority is to the oldest.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 123a:</font></b> People talking on the crossroads said that
               Lavan's daughters will marry Rivkah's sons. The
               elder (Esav) will marry the elder (Leah), and the
               younger (Yakov) will marry the younger (Rachel).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Kidushin 51b (Mishnah):</font></b> If a man was Mekadesh his
               daughter to Levi, without specifying which daughter,
               the Bogros (adult daughters) are not even Safek
               Mekudashos.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The case is, the Bogeres made her father a Shali'ach
               to be Mekadesh her, and said that he may keep the
               money. Even so, surely he was Mekadesh the minor,
               for that is a Mitzvah incumbent on him.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rashbam (120a DH Lehalan):</font></b> Presumably, Tzelafchad's
               daughters married in order of their age, for 'we do
               not give the younger before the oldest!'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tosfos (52a DH v'Hilchesa):</font></b> R. Tam says that if
                    one was Mekadesh 'your daughter' Stam, he was
                    Mekadesh the oldest, for 'here we do not give
                    the younger before the oldest!' R. Menachem
                    disagreed, for this is unlike Abaye and unlike
                    Rava (neither holds that one is Mekudeshes to
                    him). R. Tam retracted.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Kidushin 2:25):</font></b> R. Tam said that perhaps the
               Safek is only when he said 'one of your daughters',
               but if he said 'your daughter', he was Mekadesh the
               oldest. R. Tam did not say to rely on this in
               practice.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 244:18):</font></b> At a drinking fest or
               wedding feast, we follow seniority and seat the
               oldest at the head.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (13 and Shach 13):</font></b> A wedding feast is
                    included in a drinking fest! Rather, this
                    teaches that if brothers or sisters are having
                    Nisu'in, we first make Nisu'in for the older,
                    even if the younger is a bigger Chacham. We
                    learn from Tzelafchad's daughters, who married
                    in order of their age.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Maharit (Kidushin 51b DH umid'Amrinan):</font></b> A
                    Tosefta (4:12) says that if two brothers were
                    Mekadesh two sisters, it is a Safek who was
                    Mekadesh which, unless there were Shiduchin. We
                    should assume that the older was Mekadesh the
                    older, for if it not, neither couple could
                    marry, for one of each couple has an older
                    unmarried sibling! We can say that the Isur is
                    only for a father marrying off daughters, but
                    not for brothers who marry.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Note:</font></b> One could say that the Isur applies even
                    to brothers, and the older brother is already
                    married!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Maharit (ibid.):</font></b> When one was Mekadesh one of
                    two daughters, both are Safek Mekudeshes. We
                    must say that this is when their father was
                    dead. Even though Tzelafchad's daughters were
                    careful to marry in order after their father
                    died, regarding Nisu'in surely it is honorable
                    for the older to marry first, but we are not
                    concerned about Kidushin (unless the father
                    does it). We allow Kidushin during Chol
                    ha'Mo'ed lest someone else be Mekadesh her
                    first.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'>Note:</font></b> The Mishnah says that there is a Safek
                    even when the father was Mekadesh them!
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Maharshdam (CM 318):</font></b> Even though many argue
                    with R. Tam, and he himself retracted, this is
                    due to the severity of Ervah. Regarding
                    inheritance (Reuven commanded that his nephew
                    Levi will receive a certain sum if he will
                    marry the daughter of his uncle Shimon), surely
                    we follow the custom (he intended for Shimon's
                    oldest daughter).
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Maharsham (3:136):</font></b> The 'Isur' does not apply to
                    a son and daughter, for the son is commanded to
                    have children.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Igros Chazon Ish (1:166):</font></b> A case occurred in
                    which a mother refused to marry off her younger
                    son before the Bechor. This is improper.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Mishneh Halachos (9:242):</font></b> We do not give a
                    younger before the oldest, for the younger must
                    honor the oldest. Lavan said 'we do not do so
                    here', for the younger must honor the oldest.
                    The father is not commanded. The Ramban
                    (comments on Sefer ha'Mitzvos, Shoresh 2) says
                    that honoring older siblings is a branch of
                    Kivud Av v'Em, for the parents desire this. A
                    younger brother need not honor an older
                    brother's request 'do not marry before me', for
                    both are commanded Pru u'Rvu. One does not
                    honor a parent's request to be Mechalel
                    Shabbos! It seems that an orphan girl need not
                    wait for her older sister to marry (since she
                    is not commanded to honor parents). However,
                    Tzelafchad's daughters married in order of
                    their age even after their father died! This is
                    because their mother was alive. (They asked 'if
                    we are not like sons, our mother should do
                    Yibum!') Therefore, each was commanded to honor
                    her older sisters. (The Rosh expounds the
                    Mitzvah to honor an older brother from 'v'Es
                    Imo'.) This suggests that the Halachah applies
                    not only to the father. Rather, even orphans
                    should marry in age order. Tzelafchad's
                    daughters all married above 40 years of age. It
                    seems that the Halachah applies to only to
                    daughters, who are not commanded Pru u'Rvu, but
                    not to sons. However, the Shach connotes that
                    it applies even to sons.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Igros Moshe (EH 2:1):</font></b> Surely, a man may marry
                    before his older brother found a wife. The
                    younger is commanded to marry. He may not
                    neglect this because his brother did not yet
                    fulfill it! Even in a case of Ones, i.e. the
                    older did not yet find a proper girl, we cannot
                    tell the younger to wait for an unknown period
                    of time, especially if the father (of the girl
                    who wants to marry the younger) does not want
                    to wait. Some say that the Shach forbids. This
                    is a total mistake. He discusses when both
                    brothers made Shiduchin and are about to marry,
                    and teaches that we honor the older and marry
                    him off first, even if the younger is a
                    Chacham. This Halachah is brought in Yoreh
                    De'ah in laws of Kavod Chachamim. Tzelafchad's
                    daughters all found Shiduchin at the same time,
                    therefore, they married in order of their age.
                    Kidushin 51b proves this. If David was Mekadesh
                    his daughter to Levi Stam, the Bogros are not
                    even Safek Mekudashos. Even if the Bogeres made
                    David a Shali'ach to be Mekadesh her, and said
                    that he may keep the money, surely he was
                    Mekadesh the minor, for that is a Mitzvah
                    incumbent on him. If there were any Isur or
                    even if were slightly unethical, he should be
                    Mekadesh the older one first! He is commanded
                    to marry off a Bogeres just like a minor -
                    'Benoseichem Tenu l'Anashim' applies to both.
                    If a man died, we assume that he wanted each
                    daughter, even a Bogeres, to receive a 10th of
                    his estate to marry her off, due to this
                    Mitzvah.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Rebuttal (Mishneh Halachos 9:242):</font></b> The Rashbam
                    says that Tzelafchad's daughters married in
                    order due to 'we do not give a younger...' We
                    learn from Lavan, and Leah did not have a
                    Shiduch. Yakov desired Rachel, and worked for
                    her! We are concerned that brothers marry in
                    order only when they are not commanded Pru
                    u'Rvu, e.g. one marries them off just before
                    adulthood, or the younger already fulfilled Pru
                    u'Rvu through a previous wife. All the more so
                    a man need not wait for his older sister, for
                    she is not commanded Pru u'Rvu.
<br>             <b>  <b><font color='darkgreen'>xii. </font></b><font color='darkgreen'>Igros Moshe (ibid.):</font></b> The Gemara means that the
                    Mitzvah to marry off a minor is <i>only</i> on the
                    father, but a Bogeres is also commanded to
                    marry herself off. We say that surely he was
                    Mekadesh the minor, even though the Isur to
                    marry off the younger first was said regarding
                    daughters. All the more so one need not wait
                    for his brother to marry, for he has no
                    obligation to marry off his brother! Even
                    though R. Tam says that even without Shiduchin,
                    we assume that he married off the older due to
                    'here we do not do give...', surely this is not
                    an Isur. It is merely normal to be Mekadesh the
                    younger when both are minors or both are adults
                    who made him a Shali'ach. Even if the older is
                    pained to see his younger brother marry first,
                    he should not be pained. This is the Isur of
                    envy! The father may help the younger brother,
                    unless he suspects that this wil make the older
                    sick. We cannot forbid the younger to marry. If
                    David says 'if you will not give to me a gift,
                    I will become sick', one need not give to him
                    (unless he is obligated due to Tzedakah). The
                    same applies here. We need not be concerned
                    lest he embarrass his older brother; his
                    brother brings this upon himself. Also, there
                    is no need to be embarrassed, for many delay to
                    marry for many reasons: they want to learn
                    before they are burdened with a household, or
                    they want to establish an income first. Others
                    may assume that the older delays for such a
                    reason. One should marry a girl below his own
                    standing (Yevamos 63a). If he is haughty and
                    waits for a prestigious girl who desires him,
                    his younger brother need not wait for this. It
                    is unreasonable to forbid someone to engage in
                    his own bodily needs, lest someone else be
                    embarrassed that he did not succeed like him.
                    Certainly one should not postpone the great
                    Mitzvah of Pru u'Rvu, lest he be punished for
                    not marrying by the age of 20.
<br>             <b>  <b><font color='darkgreen'>xiii.</font></b><font color='darkgreen'>Mishneh Halachos (9:242):</font></b> Perhaps there is no
                    Chiyuv for a father to marry off a youger son,
                    if an older son is single, due to 'here we do
                    not give...' Perhaps it is improper! The Bach
                    and Shach teach that the father should not
                    marry off the younger first; the younger child
                    may do like he wants.
               xiv. Yabi'a Omer (4 EH 6): R. Tam did not rely on
                    his reasoning in practice. Regarding sons, who
                    are commanded Pru u'Rvu, even he would agree
                    that the younger may marry before the older.
                    However, if a man was Mekadesh on behalf of one
                    of his minor sons, who are not yet commanded,
                    this does not apply so much.
<br>
<font color='blue'><i>See also:</i>
<b>MAY ONE MARRY OFF THE YOUNGER SISTER BEFORE THE OLDEST</b>? (Bava Basra 120</font><font color='blue'>)


<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Chiya:</font></b> I had a gem (a precious teaching), and
               you want me to lose (publicize) it!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2 (R. Chiya citing R. Chama bar Chanina):</font></b> The
          70th is Yocheved, who was born between the walls.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Asher Yaldah Osah l'Levi b'Mitzrayim' - Yocheved
               was born in Mitzrayim, but not conceived there (she
               was conceived on the way).
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (R. Chelbo):</font></b> 'Ka'asher Yoldah Rachel Es Yosef'
          - what was special about Yosef (that Yakov now wanted to
          leave)?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer (R. Shmuel bar Nachmani):</font></b> Yakov saw that the
          seed of Esav will be defeated only by the seed of Yosef -
          'v'Hayah Veis Yakov Esh u'Veis Yosef Lehavah u'Veis Esav
          l'Kash.'
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> 'Va'Yakem David meha'Neshef v'Ad ha'Erev'
          (David is from Yehudah, and Amalek is from Esav)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Shmuel bar Nachmani:</font></b> You learned the Nevi'im
               (from which you asked this question) but not Kesuvim
               (a verse answers your question)!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer (R. Shmuel bar Nachmani):</font></b> 'B'Lechto El Tzikelag
          Nafelu Alav (to help David) mi'Menasheh...'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Rav Yosef):</font></b> 'Min Benei Shimon...Benei Yish'i
          b'Rosham. Va'Yaku Es She'eris ha'Peletah la'Amalek...'!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rabah bar Shilo):</font></b> Yish'i descended from
          Menasheh - 'Roshei Veis Avosam (of Menasheh) v'Efer
          v'Yish'i...' (Maharsha - presumably, this is the source.
          What is cited in the Gemara is not a verse.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>IN WHAT DOES A FIRSTBORN RECEIVE A DOUBLE SHARE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> A firstborn receives a double portion in
          Matanos (when one slaughters a Chulin animal, he gives
          the foreleg, jaw and stomach to a Kohen), and in Kodshim;
          and in Shevach (the increased value of the property after
          the father's death).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the father left a cow with others, and he was
               a partner in the profits, or he rented it to others,
               or it was grazing in the pasture and it gave birth,
               the firstborn gets an extra share in the profits,
               rental or calf;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the orphans built houses or planted vineyards,
               the firstborn does not get a double share in them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case of the Matanos?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> If the father already received them,
               clearly, the firstborn gets a double share in them!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> If the father did not receive them,
               they are only Ra'uy (destined to come to the
               father), and the firstborn has no extra share in
               such property, only what was Muchzak to the father
               when he died!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Ploni (a Yisrael who regularly
          gives Matanos to the father) slaughtered the animal in 
          the father's lifetime
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana holds that Matanos that were not yet
               separated, are considered as if they were separated.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why does he get an extra share of Kodshim?
          They do not belong to the father!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, they are Kodshim Kalim (those that
          become permitted even to a non-Kohen); the Tana holds
          like R. Yosi ha'Galili, who says that Kodshim Kalim are
          the property of the owner.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yosi ha'Galili):</font></b> 'U'Mo'alah Ma'al
               ba'Shem' includes Kodshim Kalim, which are the
               property of the owner.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If the father left a cow with others in
          which he was a partner in the profits, or he rented it to
          others, or it was grazing in the pasture and it gave
          birth, the firstborn gets an extra share in the profits,
          rental or calf.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If he gets an extra share in profits from a
          cow with others, there is no need to say that he gets an
          extra share in profits of a cow in the pasture!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The last clause teaches about the previous
          clauses;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When grazing in the pasture, the Shevach comes by
               itself; he need not pay for the food. Similarly, the
               case when it is with others and he shares the
               profits, or receives rental, is when the father was
               not obligated to pay for the food.
<br>

<p>

sjt:
</p><p>
<font><b>2) 'RA'UY' WHEN THE OBJECTS ARE NOT DUE TO BECOME THE PROPERTY OF THE FATHER</b></font><b>
<br>QUESTION:</b> The Beraisa states that when a Kohen dies, his firstborn son receives a double portion of the Zero'a, Lechayayim, and Keivah (the priestly gifts of the foreleg, the [lower] jaw, and the maw or abomasum (the last of a cow's four stomachs), which a person must give to a Kohen whenever he slaughters an ox, sheep, or goat that is not Kodesh). The Gemara asks, what case is the Beraisa discussing? If it is discussing a case in which those gifts had been given to the father before he died, then it is obvious that the Bechor receives a double portion, because they are no different from the rest of the father's property. If, on the other hand, the father did not yet receive those gifts, then they are 'Ra'uy' and the law is that a Bechor does receive a double portion of property that is 'Ra'uy.'
</p><p>
Why does the Gemara call these gifts 'Ra'uy' when they have not been given to the Kohen? 'Ra'uy' refers specifically to property that will eventually come into the person's possession, such as an inheritance from his father. In the case of priestly gifts, if a Kohen dies before these gifts are given to him, then the gifts are not even 'Ra'uy' -- they were never due to come to him (but rather, now that he has died, they are given to another Kohen). It goes without saying that a Bechor or any other heir does not inherit property that his father never had. (<b>RASHBA</b> and others)
</p><p>
<b>ANSWERS:</b>
<br>(a) The Rishonim cite the <b><b><b>RI</b></b> MI'GASH</b> who emends the Girsa of the Gemara and deletes the words from 'Ra'uy Hu' until 'keve'Muchzak,' replacing them with the word 'Amai,' so that the Gemara reads, 'If they have not yet come into the hands of the father, then why [should the Bechor receive any of it]?'
</p><p>
(b) The <b>RASHBA</b> and other Rishonim explain that when the Gemara asks its question at this point, it knows part of the answer already. The Gemara knows that the Beraisa is referring to a case of 'Makirei Kehunah,' friends and relatives of the Kohen who always give him these gifts. Hence, these gifts <i>are</i> 'Ra'uy' -- they are destined to be given to this Kohen. However, they are not 'Muchzak,' they are not actually in the possession of the Kohen, and thus the Gemara asks that since they are only 'Ra'uy,' the Bechor should not receive a double portion.
</p><p>
The Gemara does <i>not</i> know at this point, however, that the Beraisa is referring to a case in which the animal was slaughtered before the Kohen died. Alternatively, the Gemara does not maintain that 'Matanos she'Lo Hurmu k'Mi she'Hurmu Damu' (the priestly gifts that must be separated from one's flock and given to Kohanim are considered as if they have already been separated), but rather it maintains that the gifts must actually be separated for the Kohen in order for them to be considered to be in the Kohen's possession. Although the Gemara, at this point, maintains that the gifts are not in the Kohen's possession, they <i>are</i> 'Ra'uy' because there is some degree of obligation for the Kohen's friends to give the gifts to this Kohen. (See <b>RITVA</b> and <b>RABEINU YONAH</b> who explain that this degree of obligation, which makes the gifts 'Ra'uy' and destined to come to the father, is because of the promise of the 'Makirei Kehunah' to give these gifts to their friend the Kohen. The Halachah is that one is not allowed to retract on a promise to give someone a small gift (Bava Metzia 49a). Hence, since the 'Makirei Kehunah' have an obligation to give the gifts to the Kohen, the gifts are considered 'Ra'uy' to come to him.)
</p><p>
The Gemara answers that the Beraisa is referring to when the animal was slaughtered before the Kohen died, and that the Tana of the Beraisa maintains that 'Matanos she'Lo Hurmu k'Mi she'Hurmu Damu.' Since the gifts <i>are</i> considered to be in the possession of the Kohen ('Muchzak') even before he actually receives them, the Bechor receives a double portion of those gifts.
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IN WHAT DOES A FIRSTBORN RECEIVE A DOUBLE SHARE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	The Beraisa is like Rebbi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A firstborn does not get a double
               share in Shevach after the father's death;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, he gets a double share in Shevach,
               but not in Shevach due to the orphans.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If they inherited a loan document, the firstborn
               collects an extra share. If a creditor showed a
               document showing that their father owed to him
               money, the firstborn pays a double share;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The firstborn may say 'I will not collect more
                    than one share, nor pay more than one share.'
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason for Chachamim?
<br>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> '<i>Lases</i> Lo Pi Shnayim' - the Torah calls it a
          gift.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a gift takes effect only after it comes
               to the receiver, also the extra share of the
               firstborn.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Rebbi expounds 'Pi Shnayim' to equate the regular share
          and the additional share.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like he inherits a regular share even in
               property that the father did not own in his
               lifetime, also the additional share.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What do Chachamim learn from 'Pi Shnayim'?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that he receives both portions in
          adjacent plots.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What does Rebbi learn from the fact that the
          Torah calls the extra share a gift?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> This teaches that he has the option not to
          receive and not pay extra (to a creditor of the father).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> If a date tree got stronger, or land became
          fertilized, all agree that the firstborn gets a double
          share;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They argue about unripe Peros that ripened.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi considers them like Shevach that comes by
               itself. Chachamim consider them like something new.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>WHAT IS THE HALACHAH?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Opinion #1 (Rabah bar Chana):</font></b> If one ruled like Rebbi,
          the ruling stands. If he ruled like Chachamim, the ruling
          stands.
<br>
<br>

sjt:
<font><b>1) A FIRSTBORN'S RIGHT TO DECLINE THE DOUBLE PORTION</b></font><b>
<br>QUESTION:</b> The Gemara teaches that if a man died owing money and his creditor produced a deed of debt to the heirs, the Bechor is required to give twice as much as his brothers towards the repayment of the debt. The Bechor, however, has another option. He is entitled to decline the double portion of the inheritance, and, consequently, he will not be obligated to pay a double share of the debt.
</p><p>
<b>RABEINU TAM</b> (cited by Tosfos DH v'Im) comments that this applies even in a case where the debt was not the father's, but rather the Bechor's debt, such as when the Bechor had taken a private loan for himself. By declining his right to receive the double portion, the Bechor will not have enough money to pay back his creditor. Even though the creditor will not be able to collect his money at all (the creditor cannot collect it from the other brothers since he has no claim against them), the Bechor is entitled to decline the double portion.
</p><p>
This Halachah seems to contradict the Gemara in Kesuvos (86a) which states that it is a Mitzvah to return a loan to a creditor, and that Beis Din can force the debtor to perform this Mitzvah. Why is the Bechor not forced to accept the double portion so that he can perform the Mitzvah of repaying his loan? How can Rabeinu Tam rule that the Bechor is entitled to forgo his double portion when he has a Mitzvah to pay back his creditor?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KETZOS HA'CHOSHEN</b> (9:1) answers based on the Gemara's explanation of the verse, '... to give him a double portion' (Devarim 21:17). The Gemara explains that this verse means that the firstborn's share is a gift that the Torah gives him ('Lases Lo'). The <b>SHULCHAN ARUCH</b> (CM 278:10) quotes the <b>RA'AVAD</b> (see also <b>RASHBA</b> and <b>RITVA</b>) who rules that since the double portion is a gift, the Bechor is entitled to refuse it, and if he does refuse it, he immediately loses his rights to it. If he later regrets forfeiting it, he cannot get it back.
</p><p>
Therefore, even if the Bechor owes money to a creditor, Beis Din is not able to force him to receive the double portion, because as soon as he renounces his rights to receive the Torah's gift, it is lost and cannot be retrieved.
</p><p>
(b) The <b>KOVETZ SHI'URIM</b> (#377) answers that there are limits to what a debtor is obligated to do in order to procure sufficient funds to repay his debt. Just as a debtor is not obligated to collect money from charity in order to repay his creditor, a debtor also is not obligated to receive presents in order to repay his creditor. The Torah calls the double portion of a Bechor a gift, as mentioned above, and thus the debtor is not obligated to receive it in order to repay his debt. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A BECHOR MAY CHOOSE NOT TO INHERIT AND NOT TO PAY</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 Bechor does not get a double share in
               Shevach (improvements to the property) after the
               father's death;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, he gets a double share in Shevach.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If they inherited a loan document, the Bechor
               collects an extra share. If their father's creditor
               brought a document against them, the Bechor pays a
               double share;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The Bechor may say 'I will not collect more
                    than one share, nor pay more than one share.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim learn from '<i>Lases</i> Lo Pi Shnayim' - the
               Torah calls the extra share it a gift. Just like a
               gift takes effect only after it comes to the
               receiver, also the extra share of the Bechor.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Rebbi learns from this that he has the option not to
               receive and not pay extra (to a creditor of the
               father).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Nimukei Yosef (54b DH Garsinan):</font></b> Even though a
               Bechor does not receive a double portion of a loan
               document owed to the father, for it is Ra'uy, he
               pays a double share of a document against his
               father, just like he receives a double portion of
               (Muchzak) property, for there is a lien on all the
               property to pay the debt. Even though a Bechor has
               rights in the extra share before receiving it, and
               he can sell or pardon it, he does not own it like a
               regular inheritance. Tosfos holds that even if he
               said 'I do not want it', he can retract, even if his
               brothers paid money. The Ra'avad holds that it is a
               gift. A simple pardon suffices. Therefore, he may
               say 'I will not collect more than one share, nor pay
               more than one share', for he cannot retract.
               However, it seems that also regarding the regular
               share, he can say 'I do not want to deal with it.
               Authorize him over the property and appraise it.'
               Any borrower can say this. We do not force him to
               deal with it. However, he must accept a Cherem that
               he does not have money to pay. The Rambam and
               Ge'onim agree.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Hagahos Ashri:</font></b> If a creditor brought a document
               against them, the Bechor pays a double share. If the
               Bechor says '<i>now</i> I will not collect the extra
               share, until later, when I want, so now I will pay
               only one share', he may. This affects the law in a
               case when the creditor cannot force his brothers,
               who went overseas. We do not give land to a creditor
               until we hear the claims. Also, it affects the law
               when the brothers are minors, and the creditor
               cannot take them to Din (now).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rashbam (DH v'Im):</font></b> Some say that the Bechor can say
               'I will not receive a double portion of a loan
               document owed to our father, and I will not pay a
               double share of a loan of the document against our
               father.' This is totally wrong. Creditors do not
               collect from a loan document owed to the father, for
               they have no lien against Metaltelim of orphans.
               Since the Bechor receives a double portion of land,
               he must pay a double portion of his father's debt.
<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 278:10):</font></b> If a creditor brought a
               document against them, the Bechor pays a double
               share. If the Bechor says 'I do not want to receive
               an extra share, nor to pay more than one share', he
               may.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Yitza):</font></b> The Rashbam explains
                    that if he pardons his extra share of the
                    entire estate, and will receive like a regular
                    brother, he pays only according to what he
                    receives.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (27):</font></b> This is because Bechorah is called a
                    gift; it is not his until he receives it. The
                    share of a regular brother is different. He
                    cannot dismiss it by saying 'I do not want it.'
                    He must say that he makes it Hefker.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> This affects the law in a
               case when the brothers are minors, or they are not
               here now. The creditor collects from the Bechor as
               if he receives only one share.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Prishah (10):</font></b> When the brothers are minors, he
                    collects from the Bechor the amount that a
                    regular brother must pay. When the brothers are
                    not here now, he collects (up to) the entire
                    debt from the single portion that the Bechor
                    opts to receive.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (28):</font></b> R. Tam gives another law that this
                    affects. If the Bechor owed money not due to
                    his father, when he pardons his extra share,
                    his creditor cannot collect it from the
                    brothers. This requires investigation (why the
                    Shulchan Aruch omitted this).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (10):</font></b> He can totally pardon his
                    inheritance, and his creditor cannot collect at
                    all.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> Some say that he cannot
               retract later.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (29):</font></b> The Tur cites the Ra'avad to say that
                    when he says 'I will not inherit my regular
                    portion and not pay', he can retract later, for
                    when his father died, he acquired his regular
                    portion. Saying 'I will not pay' is not a sale,
                    gift or Hefker. Only regarding the extra share,
                    which is called a gift, once he pardons it he
                    cannot retract. The Shulchan Aruch brought only
                    these last words of the Ra'avad. It holds that
                    one cannot say 'I will not inherit my regular
                    portion, and I will not pay', for a son is in
                    place of his father.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (R. Akiva Eiger):</font></b> The Ri mi'Gash
                    obligates the son to participate in paying the
                    creditor. The Shulchan Aruch could hold like
                    the Rashba and Nimukei Yosef, that a son cannot
                    say 'I will not inherit. You cannot collect at
                    all now friom my brothers, who are minors', but
                    he can say 'authorize him over the property,
                    and appraise for him.'
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (17):</font></b> The Ra'avad holds that we force a
                    borrower's children to pay his debt only when
                    they have money that they inherited from him.
                    We learned about a Bechor to teach about
                    retraction, but even a regular son can say 'I
                    will not inherit, and I will not pay.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Teshuvas Pnei Yehoshua (CM 1):</font></b> A loan document
                    came against Reuven's estate. The Bechor wants
                    to pay it from Ra'uy, so he can inherit a
                    double portion from Muchzak. The other brothers
                    want to pay it from Muchzak, so the Bechor will
                    inherit only one portion from Ra'uy. If the
                    Ra'uy was a loan owed to Reuven, we heed the
                    other brothers. A creditor collects from a loan
                    owed to the borrower due to Shibud d'R. Noson.
                    This is only when he cannot collect from
                    elsewhere. Here, he can collect from Muchzak!
                    Even if the heirs already collected the loan
                    and it is in their Reshus, there was no lien on
                    it to pay Reuven's debt when Reuven died, so
                    the other brothers acquired it all (except for
                    the Bechor's single share). However, if the
                    Muchzak property was flooded, the creditor
                    collects from the Ra'uy. We find that a
                    creditor does not collect from Meshubadim when
                    there are Bnei Chorin, but if the Bnei Chorin
                    were flooded, he collects from Meshubadim. The
                    Rashbam said that creditors do not collect from
                    a loan document owed to the father, for they
                    have no lien against Metaltelim of orphans. Do
                    not say that that is when the creditor wantsto
                    collect land, for his lien is against the
                    land', but when he wants to collect from
                    documents, we heed the Bechor. The Bechor can
                    force the creditor to collect from the
                    documents. The enactment that creditors do not
                    collect from orphans' Metaltelim is to benefit
                    the orphans, so they can decline the enactment.
                    Tosfos and the Rosh hold that a loan not yet
                    collected is not considered Metaltelim of
                    orphans. Why didn't they explain like the
                    opinion the Rashbam rejected? We must say that
                    a creditor has no lien against a loan as long
                    as there is other property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Noda b'Yehudah (CM 1:34):</font></b> This case (of the Pnei
               Yehoshua) is unlike Parnasah (a girl getting a 10th
               of her father's estate for a dowry), or a Chetzi
               Zachar document (it says that a daughter will
               receive half of what a son would receive). There,
               the Rema (EH 113:2) says that if land and Metaltelim
               remain, the heirs can choose to pay creditors with
               land in a case of Parnasah, or with Metaltelim in a
               case of a Chetzi Zachar document. There, the
               daughter does not inherit at all. The sons inherit.
               They are in place of the borrower, so they decide
               how to pay. A Bechor and a regular son both inherit.
               One has no more say than the other! We may learn
               from the Yesh Meforshim (the opinion that the
               Rashbam rejected). They hold that even though the
               Bechor gets double from some property, since he does
               not get double from all of it, he need not pay
               double. The same applies here. Since some property
               is Ra'uy, the Bechor need not pay more than other
               brothers. The Rashbam rejected this opinion <i>only</i>
               because the creditor cannot collect from loans owed
               to the borrower, for they are Metaltelim of orphans.
               Nowadays, we collect from Metaltelim of orphans, so
               the Halachah follows this opinion. In everyday
               practice, a creditor collects from debts owed to the
               borrower. The Shulchan Aruch (CM 107:1) obligates
               orphans to pay their father's debt from loans owed
               to their father. A creditor does not collect from
               loans due to Shibud d'R. Noson. Rather, our primary
               income is from loans to Nochrim on interest, and a
               creditor relies primarily on them, just like in
               certain places creditors rely primarily on ropes
               (Kesuvos 67a). The Rosh (36:3) says that a Kesuvah
               can be collected from loans for this reason.
               However, in the Rashbam's case, the Bechor's pardon
               helps the other brothers. We cannot learn to a case
               in which it harms them. Why didn't the Yesh
               Meforshim learn like the Rashbam, that the Bechor
               totally pardons his double portion? They hold like
               the Rashba, that any heir may say 'I will not
               inherit, and not pay.' If so, the Chidush of Bechor
               must be that if he pardons any part of his extra
               share, he pays only one share. Here, there is no
               reason why the Bechor can force the creditor to
               collect from the loan. The regular brothers can say
               that he will collect from Muchzak.
<br><br>
<p>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He is unsure if the Halachah follows Rebbi
               against one colleague, but not against many
               colleagues;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps the Halachah follows Rebbi even
               against many colleagues.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Opinion #2 (Rav Nachman citing Rav):</font></b> One may not rule
          like Rebbi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that the Halachah follows Rebbi against
               one colleague, but not against many.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Opinion #3 (Rav Nachman himself):</font></b> One may rule like
          Rebbi.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that (Tosfos - here) the Halachah
               follows Rebbi even against many colleagues.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Opinion #4 (Rava):</font></b> One may not rule like Rebbi. If one
          did, the ruling stands.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that the general rule that (we follow
               Rebbi against one colleague but) we do not follow
               Rebbi against many colleagues is not absolute. The
               rule says only that we <i>lean</i> to rule like this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman - Beraisa):</font></b> 'B'Chol Asher Yimatzei
               Lo' excludes increased value due to the orphans
               after the father died.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If the property went up in value by itself, the
               firstborn gets an extra share of this.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This Beraisa is like Rebbi (in the Beraisa on
               124a).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rami bar Chama - Beraisa):</font></b> 'B'Chol Asher Yimatzei Lo'
          excludes if the property went up in value by itself, the
          firstborn gets no extra share;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> All the more so, he has no extra share in
               increased value due to the orphans after the father
               died.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This Beraisa is like Chachamim.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>DEBTS DUE TO THE FATHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> A firstborn does not receive a double
          portion in a loan due to the father.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> According to which Tana is this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> They say that he does not get an extra
               share even in increased value of property that the
               father's owned. They need not teach that he has no
               extra share in a loan!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It is like Rebbi.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection (Beraisa):</font></b> If they inherit a loan document,
          the firstborn receives a double portion in the principal
          and the interest.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Rebbi admits that he has no extra share in a
               loan, this Beraisa is not like Rebbi, and not like
               Chachamim!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, Rav Yehudah's law is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It was not obvious that he has no extra share.
               One might have thought that a document is considered
               as if it was collected. Chachamim teach that this is
               not so.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Chachamim of Eretz Yisrael):</font></b> (If they inherit a loan,)
          the firstborn receives a double portion in the principal,
          but not in the interest.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Like which Tana is this?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> They say that he has no extra share even
               in increased value of property in the father's
               possession. Surely he has no extra share in a loan!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It is according to Rebbi.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection:</font></b> Rebbi holds that he receives an extra share
          in the interest!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi):</font></b> (If they inherit a loan,) the
               firstborn receives a double portion in the principal
               and the interest.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Really, it is like Chachamim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A loan is considered as if it were already
               collected.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> (If they inherit a loan,) the firstborn
          receives a double portion in the principal, but not in
          the interest.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Ravina):</font></b> This is the opinion of Chachamim of Neharde'a
          (which includes Ameimar and Rabah).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rabah):</font></b> If they collected land for a debt due to
               their father, the firstborn gets a double share in
               this. If they collected money, he gets no extra
               share.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Nachman):</font></b> If they collected land, the
               firstborn gets no extra share. If they collected
               money, he gets an extra share.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> Both of these opinions are
          difficult!
<br>

<p>

sjt:
</p><p>
<font><b>2) MONEY OWED TO AN ESTATE</b></font><b>
<br>QUESTION:</b> The Gemara (124a) states that according to Rebbi, if the brothers inherited from their father a Shtar Chov, a contract attesting to a debt that someone owes him, the Bechor receives a double portion of the loan repayment. The <b>RASHBAM</b> (DH Yarshu) explains that this is because the Shtar is considered equivalent to the 'Guf,' the body of the property, and the money of the loan is considered like a profit that automatically accrues from that property. Rebbi maintains that the Bechor receives a double portion of the profits that come automatically from the estate after the father dies and before the estate is divided. The Rashbam adds that according to the Chachamim, the firstborn does <i>not</i> receive a double portion from the money of the loan repayment.
</p><p>
<b>TOSFOS</b> (DH Ein) questions the Rashbam's explanation. If a Shtar is considered like the 'Guf' of the property, then why do the Chachamim maintain that the Bechor does not receive a double portion? The Shtar should be divided among the brothers and the Bechor should receive a double portion of the Shtar. Once the Bechor has a double share of the Shtar, he automatically receives a double share of the profits that come later! Tosfos explains that once the estate has been divided, any profits which accrue afterwards belong to the owner of the 'Guf' of the property, even according to the Chachamim. The <b>MAHARAM</b> explains that Tosfos' question on the Rashbam is that since, according to the Chachamim, the Bechor does not receive a double portion of the money of the loan repayment, this proves that the Shtar is not the body of the property but rather just a piece of paper which gives the bearer the right to collect the loan, in contrast to the assertion of the Rashbam.
</p><p>
If the Shtar is considered like the 'Guf' of the property according to the Rashbam, then why does the Bechor not receive a double portion of the money of the loan repayment, as Tosfos asks?
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (278:6) answers that the Rashbam might follow the view of the <b>TESHUVOS HA'RASHBA</b> (3:137) who says that Beis Din does not divide a Shtar Chov which is in the possession of partners, because a Shtar is 'Ein Gufo Mamon' -- a Shtar is not considered to be tangible property which Beis Din is capable of dividing. Rebbi, though, maintains that before the distribution of the estate, the Bechor receives a double portion from any profit that accumulates automatically, and therefore the Bechor receives a double portion from the loan returned by the debtor.
</p><p>
In contrast, according to the Chachamim -- who maintain that before the estate is divided the Bechor does not receive a double portion of profits that come automatically -- a Shtar is never divided, and thus the situation is always considered as though it is before the division of the property. Therefore, according to the Chachamim, the Bechor does not receive a double portion from the loan paid back to the estate. (Y. Marcus)
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AN EXTRA SHARE IN A LOAN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Objection #1 (against Rabah):</font></b> Rabah says that if they
          collected money, he gets no extra share. We must consider
          it as if the father did not leave this money.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The same applies if they collected land!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Objection #2:</font></b> Presumably the Halachah follows Chachamim
          of Eretz Yisrael, who say (in the case on 125b) that if
          the grandmother sells, the sale is valid.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection #1 (against Rav Nachman):</font></b> Rav Nachman says
          that if they collected land, he gets no extra share. We
          must consider it as if the father did not leave this
          land.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The same applies if they collected money!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection #2:</font></b> Rav Nachman himself said in the name of
          Rabah bar Avuha that if orphans collected land for a debt
          owed to their father, a creditor of their father can
          collect that land. (This shows that it is considered like
          property of the father!)
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> These do not refute me, nor Rav
          Nachman.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We only came to explain the Halachah sent from
               Eretz Yisrael (124b, that the firstborn receives a
               double portion in the principal, but not in the
               interest). We personally hold that he does not even
               get a double share even in the principal.
<br>
<br>

sjt:
<font><b>1) INHERITING PROPERTY FROM ONE'S FATHER THROUGH HIS GRANDMOTHER</b></font><b>
<br>OPINIONS:</b> The Gemara discusses a case in which a man gave his possessions to his grandmother, stipulating that after her death the possessions should be inherited by <i>his</i> heirs and not by his grandmother's heirs. The man's sole heir was his daughter, but she died during his grandmother's lifetime. The daughter's husband claimed that he was entitled to the estate.
</p><p>
The 'Benei Ma'arava' asserted that if the daughter had been survived by a son, then he would have inherited the estate (in place of his mother). Her husband is not entitled to inherit the estate through his wife, because a husband does not inherit from his wife property that is 'Ra'uy' -- property which was not in the possession of his wife at the time of her death but which will come later to his wife, after her death.
</p><p>
Rabah supports this view by reasoning that had the grandmother sold the possessions, the sale certainly would have been valid (even though she is not permitted to sell the property l'Chatchilah, as the Gemara teaches on 137a), and after the grandmother's death the property would not have reverted back to the heirs.
</p><p>
How does Rabah's proof support the ruling of 'Benei Ma'arava'?
</p><p>
(a) The <b>RASHBAM</b> explains that Rabah means that it is not possible that the father intended to give his daughter the estate itself (Guf ha'Karka), reserving only the Peros (i.e. the rights to the produce of the property) for the grandmother. His proof for this is that had the grandmother sold not only the Peros but even the estate, the sale would have been valid. It is evident that the grandmother owns the field until her death, and the man's daughter would have inherited the property from her had the grandmother died first. A husband, though, does not inherit from his wife property that his wife <i>would have</i> inherited ('Ra'uy'). In contrast, the child of the deceased <i>does</i> inherit property that is 'Ra'uy,' and thus had the daughter been survived by a son he would have inherited that property.
</p><p>
(b) <b>TOSFOS</b> (DH l'Ta'amaihu) suggests that according to Rabah, the man actually intended to give the estate to his daughter, but he reserved the Peros for his grandmother. It is only because the grandmother can sell the estate that the daughter's ownership is considered insufficient as far as the husband is concerned, and that is why the daughter's husband does not inherit the estate from her.
</p><p>
The <b>KOVETZ SHI'URIM</b> (#392) points out that according to the Rashbam, since the daughter never owned the estate, her son would have inherited directly from his grandfather (his mother's father), and it would have been as if his grandfather had stipulated that the estate should go to his heir's heir. According to Tosfos, though, since the daughter <i>did</i> own the actual property (except for the rights to the Peros during the grandmother's lifetime), her son could have inherited the property from her. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHIBUD D'R. NOSON</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 citing Rabah bar Avuha):</font></b> If orphans
               collected land for a debt owed to their father, a
               creditor of their father can collect that land.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Bava Kama 33b (Rav Huna brei d'Rav Yehoshua):</font></b> We
               learn from a Beraisa that if Reuven damages land
               Meshubad to Levi (he has a lien on it), he is
               exempt.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Rabah already taught that one who burns
               Ploni's documents is exempt!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> One might have thought that there he can say
               'I burned only paper', but for a real action, such
               as digging pits on a field, he would be liable.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 40b (Beraisa - R. Noson):</font></b> 'He will give to the one
               he sinned against' - if Reuven owes to Shimon, and
               Shimon owes to Levi, we take from Reuven to pay
               Levi.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Kesuvos 6a and 2:9):</font></b> If Reuven owes to
               Shimon, and Shimon owes to Levi, we take from Reuven 
               to pay Levi.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 2:6):</font></b> If Reuven owes 100 to
               Shimon, and Levi owes 100 to Reuven, we take from
               Levi and give to Shimon. Therefore, if Reuven had no
               property and he had a loan document against Levi,
               and Levi said that it was a document of Emanah (the
               loan was never given) or it was paid up and Reuven
               agreed, we ignore his admission. Perhaps they scheme
               to uproot Shimon's collection rights. Rather, Shimon
               swears and collects from Levi, like anyone who is
               Toref (collects from one who bought from the
               borrower), who collects only with an oath.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri (Bava Kama 4:4, citing Or
                    Zaru'a):</font></b> R. Noson's law applies to a debt due
                    to a loan... or Moser (inciting the kingdom to
                    take another's money). R. Simchah argues about
                    a Moser.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (CM 86:2):</font></b> A Moser pays due to the law of
                    Garmi. R. Simchah holds that this is only
                    mid'Rabanan, therefore Shibud d'R. Noson does
                    not apply to it. I say that even so, Chachamim
                    enacted like Torah law. We do not find anyone
                    who distinguishes between mid'Oraisa and
                    mid'Rabanan debts regarding Shibud d'R. Noson.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hagahos Ashri (ibid.):</font></b> If a congregation
                    imposed a tax, someone holding a deposit of
                    someone liable to pay the tax must give it, due
                    to Shibud d'R. Noson. If Reuven owed Shimon and
                    Levi stole from Reuven, we take from Levi to
                    pay Shimon. R. Chananel rules like R. Noson,
                    provided that we know that he still owes him.
                    If Reuven says that he paid Shimon, Avi ha'Ezri
                    was unsure whether Levi can make him swear.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH Kasuv bi'Teshuvas):</font></b> I say that
                    surely Levi cannot make him swear, for Levi is
                    unsure! He can impose a Stam Cherem (against
                    one who falsely claims that he paid).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Hagahos Ashri (ibid.):</font></b> R. Meshulam says that if
                    Reuven paid Levi before Beis Din obligated him
                    due to Shibud d'R. Noson, he must pay also
                    Shimon.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Teshuvos Maimoniyos (Mishpatim 9):</font></b> This
                    requires great investigation.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Hagahos Ashri (ibid.):</font></b> Shibud d'R. Noson is
                    only when Levi borrowed from Shimon before
                    Shimon borrowed from Reuven. It is only when
                    Reuven himself could have collected. A husband
                    does not inherit money owed to his wife for
                    damage or a loan, even though had she collected
                    in her lifetime the money would have become
                    Nichsei Melug.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Mordechai (31, citing Rabbeinu Meir):</font></b> If Reuven 
                    dug in land Meshubad to Levi, since he must pay
                    the owner, he should owe Levi due to R. Noson's
                    law! My Rebbi derived that R. Noson's law
                    applies only when Shimon (who owes and is owed)
                    lent before he borrowed. Then, when he becomes
                    Meshubad to Levi, also Reuven becomes Meshubad
                    to Levi. It does not apply here, for Shimon
                    owed Levi before Reuven owed Shimon. I reject
                    this proof. Here, Shimon damaged his own
                    property that was Meshubad to Levi!
<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 86:1):</font></b> If Shimon owes 100 to
               Reuven, and Levi owes 100 to Shimon, we take from
               Levi and give to Reuven. We do not distinguish
               whether or not Levi already owed Shimon when Shimon
               borrowed from Reuven.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> This
                    is like the Tur. Hagahos Ashri (Bava Kama 4:4)
                    and the Mordechai (Bava Kama 31) apply Shibud
                    d'R. Noson only when Shimon lent to Levi before
                    Reuven lent to Shimon.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (1):</font></b> R. Noson expounds that 'Asham' refers
                    to the Keren (principal). When Reuven lent
                    first, we can say that Shimon lent Reuven's
                    Keren to Levi. Rather, even when Shimon lent
                    first, it is called Reuven's Keren, for he will
                    collect it after Shimon collects it from Levi.
                    There is also a reason to say oppositely. When
                    Shimon lent first, when Reuven later lent to
                    Shimon, his lien takes effect on all Shimon's
                    property and everything Meshubad to Shimon,
                    i.e. Levi's property. Rather, even when Reuven
                    lent first, and later Shimon lent, Reuven gets
                    a Shibud against Levi. The latter reasoning is
                    better. Sefer ha'Terumos holds like it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (3):</font></b> Even when Shimon has no
               property, Reuven cannot force him to claim from Levi
               and pay. This toil is not incumbent on Shimon.
               Rather, Reuven must toil to collect from Levi.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source #1 (Gra 13):</font></b> If Reuven (Ploni's
                    creditor) collected a field that Ploni sold,
                    Ploni can take Reuven to Beis Din to contest
                    this. Reuven cannot say 'you have no claim
                    against me', only because Ploni needs to
                    compensate the buyer (or similar concerns -
                    Bava Kama 8b). This implies that Reuven himself
                    takes from the buyer. Shibud d'R. Noson is like
                    collecting from a buyer.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Source #2 (Beis Yosef DH v'Af):</font></b> Sefer
                    ha'Terumos derives this because it says 'we
                    take.' I.e. Beis Din takes, not Shimon. Also, a
                    borrower need not sell his property to pay
                    money. The toil to claim from Levi is like the
                    toil to sell.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Shach 8):</font></b> 'We take' refers to when
                    Shimon is not here, or when Levi refuses to
                    pay. When Shimon is here, he is not Yotzei
                    until he pays, therefore he must utilize all
                    possible ways to collect from Levi and pay
                    Reuven. A borrower need not sell Metaltelim to
                    repay money, for Shavah Kesef is like Kesef
                    (but here, he did not pay). Perhaps Sefer
                    ha'Terumos, the Tur and Shulchan Aruch discuss
                    when Shimon gives appraised documents, which
                    are like Shavah Kesef. Normally, documents are
                    not Shavah Kesef. All the more so Shimon is not
                    Yotzei by authorizing Reuven to collect from
                    Levi! If Shimon does not claim from Levi in
                    order to try to pay Reuven, we apply to him 'a
                    Rasha borrows and does not pay.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> SMA (6):</font></b> If Shimon wrote 'I accept to deal with
                    the merchandise, sell it, and pay money', the
                    toil (to collect from Levi) is included.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Beis Yosef (DH u'Motzasi):</font></b> Rav Amram Gaon ruled
                    that we do not take from Levi to pay Reuven
                    until Reuven claims from Shimon. If Shimon does
                    not pay, then we take from Levi, after Reuven
                    swears that he was not paid. If Shimon died
                    before Reuven claimed from him, Reuven must
                    claim from Shimon's orphans before collecting
                    from Levi. The Yerushalmi supports this.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (107:1):</font></b> It is a Mitzvah for orphans
               to pay their father's debt. We force them just like
               we would force their father. This is if they
               inherited land, but not if they inherited
               Metaltelim. However, the Ge'onim enacted that a
               creditor collects from Metaltelim that orphans
               inherited, so nowadays we force them even if they
               inherited Metaltelim. Similarly, they must pay from
               a loan owed to their father, whether they collected
               land or Metaltelim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (Kosav ha'Rashba):</font></b> The Rashba
                    explains that Rav Nachman taught that if
                    orphans collected land for a debt owed to their
                    father, a creditor of their father can collect
                    that land due to R. Noson's law. If the orphans
                    collected Metaltelim, a creditor of their
                    father cannot collect it, for a creditor has no
                    lien against Metaltelim of orphans.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (4):</font></b> According to the Gemara (before the
                    Ge'onim's enactment), they must pay only if
                    they collected land.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (3):</font></b> Due to R. Noson's law, Reuven can
                    collect even Metaltelim of orphans of Shimon,
                    who borrowed from Levi (who borrowed from
                    Reuven).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TO WHICH DEBTS DOES SHIBUD D'R. NOSON APPLY? </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'>THE GIFT TO THE GRANDMOTHER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	A case occurred in which Levi said 'my property should
          go (after my death) to my grandmother, and after her, to
          my heirs.' Levi had a married daughter; she died in the
          life of her husband and the grandmother. When the
          grandmother later died, the daughter's husband claimed
          the property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Huna:</font></b> Levi said 'to my heirs.' This includes
               his heirs' heirs.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Anan:</font></b> 'My heirs' excludes his heirs' heirs.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Chachamim of Eretz Yisrael):</font></b> The Halachah follows Rav
          Anan, but his reason is wrong.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	The Halachah follows Rav Anan, that the husband does
          not inherit. However, Rav Anan would say that even if the
          daughter had a son, her son would not inherit, but this
          is wrong. Her son certainly would inherit!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Her husband does not inherit because the property
               was only Ra'uy (apt to fall to his wife), and a
               husband inherits only what his wife was Muchzak in.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Rav Huna says that the husband inherits. He
          must hold that a husband inherits property that was
          Ra'uy!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (R. Elazar):</font></b> This discussion started with
          great sages, and will conclude with lower sages (myself);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one says 'after you, the property will go to
               Ploni...', it is as if he said 'the property should
               belong to Ploni from now.' (The first recipient (the
               grandmother) has only usage rights, so the daughter
               received the (permanent rights to the) property
               right away, so her husband inherited it when she
               died.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava):</font></b> Presumably, Chachamim of Eretz Yisrael hold
          that if the grandmother sold the property, the sale
          stands. (Therefore, the property might not fall to the
          daughter. It is only Ra'uy, and a husband does not
          inherit Ra'uy.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> The Halachah is, a husband inherits only
          what his wife is Muchzak in, but not what was Ra'uy to
          fall to her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A firstborn gets an extra share only in what his
               father was Muchzak in, but not what was Ra'uy to
               fall to the father;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A firstborn does not get an extra share in a loan
               owed to the father, whether it was paid with money
               or land.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If a firstborn owed money to his father, they
               divide (he keeps half his extra share of it, and
               gives half to his brothers. We are unsure whether it
               is considered Muchzak to his father.)
<br>

sjt:
</p><p>
<font><b>2) HALACHAH: COLLECTING A DEBT OWED TO ONE'S DECEASED WIFE</b></font><b>
<br>OPINIONS:</b> The Gemara says that when a woman dies, her husband does not inherit her property that is 'Ra'uy,' property which was not in the possession of his wife at the time of her death but which will come later to his wife, after her death.
</p><p>
When a married woman lends money and dies before she collects the debt, does her husband collect the loan from the debtor?
</p><p>
(a) <b>TOSFOS</b> (DH Amar Rav Papa) maintains that he is not entitled to collect money owed to his wife after her death, even when she lent money of her 'Nichsei Melug' (of which the husband has the rights to consume the Peros).
</p><p>
(b) The <b>ROSH</b> (9:11) rules that in the case of the death of the wife, a husband generally may not collect loans owed to his wife, except when the money that she lent was from her 'Nichsei Melug,' property owned by the wife from which the husband is entitled to eat the Peros. Since the produce belongs to the husband, the money is considered to be in his possession, and she had no right to lend it out. Therefore, the husband collects the money even after her death.
</p><p>
(c) The <b>MAGID MISHNEH</b> (Hilchos Nachalos 1:11) cites the view of the <b><b><b>RI</b></b> MI'GASH</b> who rules that a husband <i>does</i> collect loans owed to his wife after his wife dies. He asserts that the Rambam also seems to be of this opinion.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (EH 90:1) rules that a husband may not collect loans owed to his deceased wife. The <b>BEIS SHMUEL</b> there (#6) adds that since this is the opinion of the majority of Rishonim, even if the husband seizes the money from the debtor and claims that he is certain that the ruling of the Ri mi'Gash is correct, his claim is not accepted and he must return the money. (Y. Marcus)
</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN A FIRSTBORN 'SAVES' HIS EXTRA SHARE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 - Rashbam - (Rav Huna):</font></b> (Even though a
          firstborn does not receive a double portion in
          (posthumous) improvements that the brothers made to the
          property), if he insisted 'let us divide, and I will
          improve my own property' and they improved all the
          property, he receives a double portion in the
          improvements.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah):</font></b> Presumably, this is if they harvested grapes
          or olives, but not if they pressed them. (This is a
          Shinuy (change). They acquire them, like thieves acquire
          through Shinuy);
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> Even if they pressed them, the firstborn
          gets a double portion in the improvements.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Objection:</font></b> The firstborn is not entitled to a double
          portion of wine (since the brothers 'stole' the grapes
          and acquired them through Shinuy)!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #2 - (R. Chananel cited by Rashbam) - (Rav
          Huna):</font></b> If the firstborn said 'I do not forfeit my extra
          portion', he does not forfeit it (even if they divided
          the property equally).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rabah):</font></b> Presumably, this is if they harvested grapes
          or olives, but not if they pressed them (his silence
          shows that he pardoned his extra share).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> Even if they pressed them, the firstborn
          gets a double portion.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection:</font></b> If they changed from grapes to wine, surely
          he pardoned his extra share! (End of Version #2)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yosef meant that if the wine is worth less
          than the grapes were worth, the firstborn receives the
          value of a double portion of the grapes;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is like Rav Ukva bar Chama said (elsewhere).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> Where did he say this?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Yehudah taught that if a man left grapes or
          olives to his two sons and they harvested them, the
          firstborn gets a double portion, even if they pressed
          them.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Objection:</font></b> The firstborn is only entitled to a double
          portion of grapes, but not of wine!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rav Ukva bar Chama):</font></b> (Even) if the wine is
          worth less than the grapes were worth, the firstborn
          receives the value of a double portion of the grapes.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>A FIRSTBORN WHO PARDONED HIS EXTRA SHARE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Asi):</font></b> If a firstborn took a portion like a regular
          son, he pardoned his extra share.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What did he pardon?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Papa citing Rava):</font></b> He pardoned his extra
          share in that field.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that the firstborn does not own his
               extra share until they divide. (He cannot pardon
               what he does not yet own.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papi citing Rava):</font></b> He pardoned his extra
          share in all the property.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He holds that a firstborn owns the extra even
               before they divide. (Since he pardoned his extra
               share in this field, he pardoned his extra share in
               all the property.)
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rav Papa and Rav Papi did not explicitly hear Rava say
          this. Rather, they derived their opinions from the
          following episode.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A firstborn sold his property and that of his
               brothers. His brothers went to eat dates of the
               property. The buyer hit them. Their relatives
               complained to Rava.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> The sale is void.
<br>
<br>

sjt:
<font><b>1) GIVING AWAY AN INHERITANCE BEFORE ONE RECEIVES IT</b></font><b>
<br>OPINIONS:</b> Rav Asi states that in a case in which a Bechor chose to receive an ordinary share of a field together with his brother, and not a double portion, he thereby forgoes his rights to the double portion. Rav Papa maintains that the Bechor has relinquished his rights only to the double portion of <i>that</i> field, but he still receives a double portion of the rest of the estate. Rav Papi argues and maintains that the Bechor has shown that he does not want a double portion, and thus he has relinquished his rights to the double portion of the entire estate. The Gemara explains that the Machlokes between Rav Papa and Rav Papi is whether or not a Bechor is considered to have a share in the estate before the estate is divided among the heirs.
</p><p>
Does this Machlokes apply only to a Bechor, or also to an ordinary son? May an heir sell or give away his portion of the inherited estate before the estate is divided?
</p><p>
(a) The <b>RASHBAM</b> maintains that Rav Papa and Rav Papi argue only about the extra portion that a Bechor is entitled to receive. Only this portion may be sold or given away before the estate is divided, according to Rav Papi who maintains that 'Yesh Lo l'Bechor Kodem Yerushah'; the Bechor owns his portion even before the estate is divided among the heirs. An ordinary son's portion of the inheritance, though, certainly cannot be sold before the estate is divided.
</p><p>
(b) <b>TOSFOS</b> (126b, DH Lo Asa) maintains that the opposite is true. The argument between Rav Papa and Rav Papi is <i>only</i> with regard to the special portion of the Bechor. The portion of an ordinary son certainly may be sold before the division of the estate according to both Amora'im.
</p><p>
<b>HA'GA'ON RAV NAFTALI TROP</b> (#192) explains that the Rashbam and Tosfos disagree with regard to the status of the estate before division. The estate before division is called, 'Tefusas ha'Bayis.' Tosfos maintains that the Tefusas ha'Bayis is considered like property owned by partners in a partnership; all of the brothers have a share of the estate, but it has not yet been clarified which heir owns which part of the property. Since each of the brothers own a share of the estate, he essentially is a partner in the ownership of the estate with his brothers, and thus he may sell or give away his own portion just as a partner may sell or give away his share of property owned in a partnership.
</p><p>
The Rashbam disagrees and maintains that heirs, before the division of the 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 Tefusas ha'Bayis, each heir owns the <i>entire</i> estate collectively with the other heirs. Since he does not own any specific portion by himself, but rather he owns the entire estate together with the other heirs, he may not sell or give away his portion. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A BECHOR WHO PARDONED HIS EXTRA SHARE</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'> 124a (Beraisa):</font></b> A Bechor does not get a double share
               in Shevach (improvements to the property) after the
               father's death;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rebbi says, he gets a double share in Shevach.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If they inherited a loan document, the Bechor
               collects an extra share.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b>Chachamim learn from '<i>Lases</i> Lo Pi Shnayim' - the
               Torah calls the extra share a gift. Just like a gift
               takes effect only after it comes to the receiver,
               also the extra share of the Bechor.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Rami bar Chama - Beraisa):</font></b> 'B'Chol Asher Yimatzei
               Lo' excludes if the property went up in value by
               itself. The Bechor gets no extra share;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 125b (Rav Papa):</font></b> The Halachah is, a Bechor does not
               get an extra share in a loan owed to the father,
               whether it was paid with money or land.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'>(Rav Asi):</font></b> If a Bechor took a portion like a regular
               son, he pardoned his extra share.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> What did he pardon?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #1 (Rav Papa citing Rava):</font></b> He pardoned his
               extra share in that field.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He holds that the Bechor does not own his extra
                    share until they divide. (He cannot pardon what
                    he does not yet own.)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Rav Papi citing Rava):</font></b> He pardoned his
               extra share in all the property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He holds that a Bechor owns the extra even
                    before they divide. (Since he pardoned his
                    extra share in this field, he pardoned his
                    extra share in all the property.)
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> Rav Papa and Rav Papi did not explicitly hear Rava
               say this. Rather, they derived their opinions from a
               case in which a Bechor sold his property and that of
               his brothers. His brothers went to eat dates of the
               property. The buyer hit them. Their relatives
               complained to Rava. Rava ruled that the sale is
               void.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rav Papi understood that the sale of the
                    brothers' property is void, but the sale of his
                    own property stands. Rav Papa understood that
                    the entire sale is void.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> (Chachamim of Eretz Yisrael):</font></b> If a Bechor sold (his
               extra share) before the property was divided, the
               sale is void.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  They hold that the Bechor does not own his
                    extra share until they divide.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> The Halachah is, a Bechor owns his extra share even
               before they divide.
<br>        <b>  <b><font color='darkgreen'>14. </font></b></b> Mar Zutra of Darishba (a Bechor) divided a basket of
               peppers equally with his brothers.
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> (Rav Ashi):</font></b> Since you pardoned your extra share in
               the peppers, you pardoned your extra share in all
               the property.
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Bechoros 52a (Mishnah):</font></b> A Yavam does not receive
               Shevach.
<br>        <b>  <b><font color='darkgreen'>17. </font></b></b> He is called 'Bechor' (therefore, he inherits like a
               Bechor).
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> (Abaye):</font></b> He does not receive Shevach between the
               death and Yibum, but he receives Shevach between
               Yibum and division. 'Yakum Al Shem Achiv' - once he
               did Yibum, his brother's property is his.
<br>        <b>  <b><font color='darkgreen'>19. </font></b><font color='darkgreen'> (Rava):</font></b> He does not receive even Shevach between
               Yibum and division, like a Bechor, who receives no
               Shevach before division.
<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 (8:14):</font></b> The Halachah is, a Bechor owns
               his extra share even before they divide. A case
               occurred in which a Bechor divided a basket of
               peppers equally with his brothers. Rav Ashi ruled
               that he pardoned his extra share in all the
               property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (DH Garsinan):</font></b> Rava ruled that
                    the Bechor's sale of his brothers' property was
                    invalid, but the sale of his extra share was
                    valid, and all the more so the sale of his
                    regular share was valid. Alll Meforshim explain
                    like this, except for the Rashbam (who says
                    that only the sale of his extra share was
                    valid). In Bechoros, we rule that a Bechor does
                    not get Shevach before division. Here we
                    discuss ownership of the property itself.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Me'iri (126b DH mi'Mah):</font></b> The Rashbam saw that
                    one opinion says that the sale did not work <i>at
                    all</i>. We rule unlike this, for he owns the
                    extra share even before division, but all agree
                    that the sale of his regular share was void.
                    This is wrong. That opinion only meant that the
                    sale did not work for the extra share and the
                    brothers' shares, but there is no reason it
                    should not work for his regular share.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif:</font></b> Someone rules like Rebbi that a Bechor gets a
               double portion in a loan. He brings a proof from
               here, that we rule that he owns his extra share even
               before they divide. This shows that it is as if it
               already came to his hands. One may not rely on this.
               We rule that it is as if it already came to his
               hands only regarding what was in the father's
               Reshus. This does not apply to a loan. Also Rav Hai
               Gaon says so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (Rosh):</font></b> Above (125b), we rule like Rav
               Papa, who says that a Bechor does not get an extra
               share in a loan owed to the father. This is like
               Chachamim, who say that a Bechor does not get a
               double share in Shevach, because the extra share is
               called a gift, and he owns it only after it comes to
               him!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rosh):</font></b> Really, Chachamim exclude Shevach
               from 'b'Chol Asher Yimatzei Lo', like the Beraisa.
               On 124a, we said that they learn from 'Lases Lo Pi
               Shnayim', because both verses are needed. Really,
               Chachamim hold that the property is in his Reshus
               even before they divide. He can pardon the extra
               share through mere words, for it is a gift.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Nachalos 3:6):</font></b> If a Bechor sold his
               extra share before dividing, the sale stands, for he
               owns his extra share even before division.
               Therefore, if he divided part of the property with
               his brothers, either land or Metaltelim, and
               received a share like a regular brother, he pardoned
               his extra share in all the property and receives
               like a regular brother.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Me'iri (126a DH Zeh):</font></b> If he didn't acquire his
                    extra share before division, his pardon would
                    not apply to what he does not own yet. Since we
                    conclude that he owns his his extra share
                    before division, if he sold it, the buyer
                    acquired. If he sold it to his brothers, this
                    is pardon, and no Kinyan is needed.
<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 278:8):</font></b> If a Bechor sold his
               extra share before dividing, the sale stands, for he
               owns his extra share even before division.
               Therefore, if he divided part of the property with
               his brothers, either land or Metaltelim, and
               received a share like a regular brother, he was
               Mevater (i.e. he was silent and pardoned something
               he could have claimed) his extra share in all the
               property and receives like a regular brother.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Piresh):</font></b> The Rashbam explains
                    that since it is a gift, he may decline it and
                    not need pay an extra share of a debt against
                    his father.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (25):</font></b> If he didn't yet acquire, his pardon
                    would not show that he pardons his extra share
                    in other property. This is why the Shulchan
                    Aruch says 'therefore'.
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>MONETARY TENA'IM AGAINST THE TORAH </b></b>(</font><font color='darkblue'>


lvr: 43
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rav Papi understood that the sale is void
               regarding the brothers' property, but the sale of
               his own property stands;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Rav Papa understood that the entire sale is void.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Chachamim of Eretz Yisrael):</font></b> If a firstborn sold (his
          extra share) before the property was divided, the sale is
          void.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They hold that the firstborn does not own his
               extra share until they divide.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	The Halachah is, a firstborn owns his extra share even
          before they divide.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Mar Zutra of Darishba (a firstborn) divided a basket of
          peppers equally with his brothers.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Since you pardoned your extra share in the
          peppers, you pardoned your extra share in all the
          property.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>STIPULATING ABOUT INHERITANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one said 'Ploni my firstborn will not
          receive a double portion', or 'Almoni my son will not
          inherit with his brothers', this does not take effect,
          for he stipulated against the Torah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If one (a Shechiv Mera, one who fears lest he die from
          his illness) stipulated how much each son should receive,
          and gave some sons more than others, or gave the
          firstborn as much as the others, this takes effect;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said that this was their inheritance, it
               does not take effect;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he wrote at the beginning, middle or end that
               it is a gift, it takes effect.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> Our Mishnah is not like R.
          Yehudah, who says that a stipulation against the Torah
          takes effect.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If one said 'you are
               Mekudeshes to me on condition that you have no claim
               against me for food, clothing or Onah (Bi'ah at the
               proper frequency)', she is Mekudeshes, and the
               stipulation is void;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, the stipulation takes effect in
               monetary matters (food and clothing).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Our Mishnah is even like R. Yehudah. There,
          she accepted Kidushin with the stipulation, and she
          pardoned her rights. Here, the son does not pardon his
          inheritance.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHO IS CALLED A FIRSTBORN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> If (we do not know who is Reuven's
          firstborn, and) he said 'my son Ploni is my firstborn',
          Ploni receives a double portion;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'he is a firstborn', he does not
               receive a double portion. Perhaps he meant that he
               is a firstborn to his mother.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Shimon:</font></b> I am sure that Levi is a firstborn. (There was
          also a second witness.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rabah bar bar Chanah:</font></b> How do you know?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Shimon:</font></b> His father called him 'foolish firstborn'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rabah bar bar Chanah:</font></b> A firstborn to the mother is also
          called a foolish firstborn.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Reuven:</font></b> I am sure that this man (Shichchas) is a
          firstborn.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	R. Chanina:</font></b> How do you know?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Reuven:</font></b> When people with eye-aches would come to his
          father, the father would tell them 'go to my son
          Shichchas. He is a firstborn, so his spit will heal you.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Perhaps he is a firstborn to his mother (but
          not to his father)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> If so, his spit would not heal.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(R. Ami):</font></b> (A Tumtum is one whose genitals are covered,
          so we cannot tell if he is a male or female.) If (the
          skin covering the genitals of) a (firstborn) Tumtum was
          torn and he was found to be a male, he does not receive a
          double portion. 'V'*Hayah ha'Ben* ha'Bechor la'Seni'ah' -
          he must be (recognizably) a son from his Havayah (birth).
<br>

<p>

sjt:
</p><p>
<font><b>2) A FIRSTBORN'S RIGHT TO DECLINE THE DOUBLE PORTION WHILE HIS FATHER IS ALIVE</b></font><b>
<br>OPINIONS:</b> The Mishnah states that when one stipulates that 'my firstborn son shall not inherit the double portion,' his stipulation is not valid because it conflicts with the law of the Torah which entitles the Bechor to a double portion. The Gemara asks that this stipulation is one concerning a monetary matter, and such a stipulation <i>is</i> binding even when it conflicts with the law of the Torah. The Gemara answers that such a stipulation is binding only when it may be assumed that there is consent on the part of all of those who are affected by the stipulation. In this case, it cannot be assumed that the Bechor consents.
</p><p>
This seems to imply that if the Bechor explicitly expresses his consent, then he indeed relinquishes his right to his double portion. Does this mean that a Bechor may relinquish his right, during his father's lifetime, to receive the double portion of inheritance after his father dies?
</p><p>
(a) The <b>RASHBAM</b> (DH Hasam Ka Machlah) writes that the reason why the father's statement is not binding in this case is that the silence of the Bechor is not considered consent; he remains quiet merely in order to avoid angering his father. He does not have any intention to forgo his double portion. The Rashbam's words imply that if the Bechor explicitly consents to forgo his double portion, then his consent is valid and he does not receive the double portion.
</p><p>
The <b><b><b>OR</b></b> ZARU'A</b> suggests that the Rashbam maintains that only a Bechor can forgo his double portion, but an ordinary son cannot forgo his portion. This is because the Torah refers to the Bechor's double portion as a 'gift' (see Insights to Bava Basra 124:1). Since a person is entitled to decline a gift, the Bechor is entitled to decline the double portion. An ordinary heir, in contrast, cannot decline his share, because doing so would be counter to the Torah's law of Yerushah. (See also <b>KOVETZ SHI'URIM</b> #403.)
</p><p>
The <b>KETZOS HA'CHOSHEN</b> (278:13) explains that, according to the Rashbam, the Bechor's right to forgo his double portion applies not only when his father says that he does not want the Bechor to receive the double portion, but even when the Bechor, on his own initiative, declares that he does not want the double portion. This is because the mechanism by which the Bechor is able to forgo his double portion is through <i>Mechilah</i>; a person can be Mochel and forgo something that he is entitled to receive. The <b>NESIVOS HA'MISHPAT</b>, on the other hand, explains that the Bechor <i>cannot</i> forgo his double portion; the Torah requires that he receive it as an inheritance. Only when the <i>father</i> of the Bechor says that he does not want the Bechor to receive the double portion, and the Bechor consents, does the Bechor not receive the double portion. This is because the father has the right to re-direct the inheritance to any of his heirs. Even though the Torah prohibits him from re-directing the double portion away from the Bechor, when the Bechor consents the Torah's prohibition is removed and the double portion can be re-directed by the father. When the father does not re-direct the double portion, though, and the Bechor declares that he wishes to forgo the double portion, he cannot forgo the double portion that the Torah gives him.
</p><p>
(b) The <b>RASHBA</b> and other Rishonim argue and maintain that a Bechor cannot forgo his right to the double portion while his father is alive. The Torah gives the property to the Bechor when his father dies, and until that time there is nothing that the Bechor can do to stop the Torah's law from taking effect.
</p><p>
(The <b>RAMAH</b> explains that the son's right to receive the inheritance comes at the moment that he is born. At that moment, he did not renounce that right, and thus the Torah's law takes effect and he receives the Yerushah and he cannot decline it.)
</p><p>
The Rashba adds that the Gemara, when it says that the Bechor did not consent, does not mean that if he <i>did</i> consent his consent would be valid. Rather, the Gemara means that the Bechor <i>cannot</i> consent to forgo his double portion, and even if he does consent, his consent is not valid. This is also the explanation of the <b>NIMUKEI YOSEF</b> here (see also <b>TOSFOS</b> to Kesuvos 56b).
</p><p>



</p><p>


lvr: 43
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A TUMTUM THAT WAS TORN</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman bar Yitzchak):</font></b> If he steals (twice) from
          his parents to buy meat and wine, he is not killed. 'Ki
          <i>Yihyeh l'Ish</i> Ben Sorer u'Moreh' - he must be
          (recognizably) a son from his birth.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> (If he was not the firstborn,) he does not 
          count like a son to diminish the extra portion of the
          firstborn. (E.g. if there are three normal sons, the
          firstborn gets an added quarter, and all the sons divide
          the remaining property equally. 'V'Yoldu Lo Banim' - we
          consider sons recognizable from birth.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Shizbi):</font></b> He is not circumcised on the eighth day
          (if it falls on Shabbos). 'V'Yoldah Zachar... uva'Yom
          ha'Shemini Yimol' applies only if he was (recognizably)
          male from birth.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav Sharbiya):</font></b> His mother is not Temei'ah like one who
          gave birth to a male. 'V'Yoldah Zachar v'Tam'ah Shiv'as
          Yomim...' applies only if he was (recognizably) male from
          birth.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (against Rav Sharbiya - Mishnah):</font></b> If a woman
          miscarried a Tumtum or Androginus (one with male and
          female genitals), she is doubtfully Temei'ah like one who
          is unsure if she gave birth to a male or female.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This refutes Rav Sharbiya.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This also refutes Rav Shizbi! (He expounded
          just like Rav Sharbiya.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the Tana is unsure whether we require a
          male recognizable from birth regarding circumcision and
          Tum'ah. He is stringent about both (therefore, we do not
          circumcise the baby on Shabbos).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, (perhaps the special laws of Tum'ah of
          childbirth (that for 33 or 66 days after her Tum'ah, any
          blood she sees is Tahor) do not apply, so) she should be
          is doubtfully Temei'ah like one who is unsure if she gave
          birth to a male or female, or a regular Nidah (due to the
          blood that came out during the birth)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	This is left difficult.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (for R. Ami - Beraisa):</font></b> (Bechorah applies to a
          normal) 'Ben', but not to a Tumtum. It applies to
          'Bechor', but not to a Safek (this will be explained).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SAFEK FIRSTBORNS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, ''Ben', but not a Tumtum' teaches
          about R. Ami's case;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> What is the case of ''Bechor', but not a Safek?
               (Obviously, a Safek firstborn does not receive a
               double portion!)
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches about Rava's case.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If Reuven's two wives gave birth, and it
               was not known who gave birth first (one of the sons
               is the firstborn) one writes a Harsha'ah (power of
               attorney) to the other. ('If I am the firstborn, you
               may take my extra portion.' This enables the other
               to take the extra portion (and they split it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Rav Papa):</font></b> R. Yanai taught that if it
               was once known which was the firstborn, and then it
               was forgotten, one writes a Harsha'ah to the other.
               If it was never known which the firstborn was,
               Harsha'ah does not help.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Rava publicized his mistake and taught like R.
               Yanai.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (people of Akra):</font></b> If the Chazakah was that
          Shimon was Levi's firstborn, and Levi said that Yehudah
          is his firstborn, what is the law?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> One writes a Harsha'ah to the other,
          and they divide the extra portion.
<br>
<br>

sjt:
<font><b>1) THE DIFFERENCE BETWEEN A 'KASHYA' AND A 'TEYUVTA'</b></font><b>
<br>QUESTIONS:</b> Rav Shizbi states that a Bris Milah not be performed on a Tumtum on Shabbos, because the verse which permits Milah on Shabbos specifically says that the child must be a Zachar, a fully-recognizable male, from the time he is born. Similarly, Rav Sheravya states that a woman who gives birth to a Tumtum is not Tamei with Tum'as Leidah, since the verse implies that the child must be a fully-recognizable male (or female) at the time of birth in order for the mother to become Tamei with Tum'as Leidah.
</p><p>
The Gemara challenges both opinions from the Mishnah in Nidah (28a) which says that a woman who gives birth to a stillborn Tumtum is Tamei out of doubt for 14 days as if she gave birth to a female, and afterwards she has only 26 days of Taharah (until 40 days after her birth) as if she gave birth to a male. This clearly contradicts Rav Sheravya's statement, who rules leniently and says that the birth of a Tumtum does not make the mother Tamei at all, and thus the Gemara says 'Teyuvta.'
</p><p>
The Gemara suggests that it does not contradict Rav Shizbi's assertion. Perhaps the Mishnah in Nidah means that the woman must conduct herself stringently, out of doubt whether or not the verse indeed excludes the birth of a Tumtum from the law of Tum'as Leidah. Rav Shizbi, too, requires that one be stringent and not perform the Milah of a Tumtum on Shabbos, out of doubt whether or not the verse excludes a Tumtum from the allowance to perform Milah on Shabbos.
</p><p>
The Gemara refutes this answer and says that if the Mishnah in Nidah means that the woman should conduct herself stringently out of doubt whether or not the birth of a Tumtum is considered a birth, then it should also require her to conduct herself like a Nidah out of doubt that perhaps a Tumtum is excluded altogether from Tum'as Leidah. It must be that the Mishnah in Nidah maintains that the birth of a Tumtum <i>definitely</i> makes the mother Tamei, and the only doubt is whether the Tumtum is considered a male or a female. The Gemara calls its refutation of the view of Rav Shizbi a 'Kashya.'
</p><p>
(a) The <b>RASHBAM</b> writes that although the Gemara concludes with a 'Kashya' on Rav Shizbi, the Halachah still may follow his view. This is because the Gemara does not conclude its challenge with the word 'Teyuvta.' Indeed, the <b>RIF</b> rules like Rav Shizbi for this reason (see <b>BEIS YOSEF</b> YD 266, and <b>PILPULA CHARIFTA</b> #200).
</p><p>
However, the Rashbam seems to contradict his comments. Earlier (52b, DH u'Pasak), the Rashbam cites the opinion of <b>RABEINU CHANANEL</b> who says that whenever the Gemara concludes a challenge with the word 'Teyuvta,' that opinion is considered refuted entirely, but when the Gemara concludes a challenge with the word 'Kashya,' the opinion that it challenged is <i>not</i> refuted and it is possible to find an answer to the Gemara's challenge and to rule in accordance with that opinion. The Rashbam there disagrees with Rabeinu Chananel and maintains that there is no essential difference between these two expressions. The only difference is that when the challenge is from a Tana, the Gemara uses the word 'Teyuvta,' and when the challenge is from an Amora, the Gemara uses the word 'Kashya.' The Rashbam here, however, agrees with Rabeinu Chananel's explanation!
</p><p>
(b) There also appears to be a contradiction in the words of the <b>ROSH</b> (8:16). The Rosh asks how can the Rif rule in accordance with Rav Shizbi after the Gemara refutes his opinion from a Mishnah. The Rosh earlier (3:58), however, rules in accordance with the view of Shmuel, even though the Gemara there (52b) refutes Shmuel's opinion and concludes with the word 'Kashya.' Why, then, does the Rosh question the Rif's ruling in the case of the Gemara here?
</p><p>
Similarly, the <b>RAMBAM</b> does not rule like Rav Shizbi, presumably because his opinion is refuted and the Gemara concludes with the word 'Kashya.' However, the Rambam (Hilchos Nachalos 9:8) <i>does</i> rule like Shmuel, even though the Gemara refutes his opinion and concludes 'Kashya.'
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>NODA B'YEHUDAH</b> (YD 2:163) answers the contradiction in the words of the Rashbam by explaining that when the challenge is from an Amora and the Gemara concludes 'Kashya' as in the case of the Gemara earlier (52b), there is no indication that the position being refuted can be answered. In the case of the Gemara here, however, the challenge on Rav Shizbi is from a Mishnah. When the challenge is from a Mishnah, the Gemara should conclude 'Teyuvta.' Since the Gemara instead concludes 'Kashya,' it is hinting that there is an answer to the question and the Halachah may follow Rav Shizbi.
</p><p>
(b) The questions on the Rosh and the Rambam may be answered if the Rosh and Rambam concur with the view of <b>TOSFOS</b> in Moed Katan (2b, DH Chayav). Tosfos writes that the Gemara concludes 'Kashya' <i>only</i> when the question is from a <i>Tana</i> (the opposite of the Rashbam's approach according to the Noda b'Yehudah). Accordingly, when the question is from an Amora and the Gemara concludes 'Kashya,' that word is an error, since one Amora may argue with another Amora. Therefore, the Gemara earlier (52b) which challenges Shmuel's opinion from an Amora should not have concluded with the word 'Kashya'; that word in the text of the Gemara is a mistake, and the Halachah indeed may follow the view of Shmuel. In the Gemara here, the challenge is from a Tana, and thus the Gemara appropriately concludes 'Kashya,' refuting the opinion of Rav Shizbi. (Y. Marcus)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN A GOSES GIVE PROPERTY OR DIVORCE?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> Chachamim learn from 'Yakir' that a man is
               believed about who is his Bechor (when we have no
               Chazakah).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Is this needed in order to give to him an
               extra portion? One can give his money to whomever he
               wants!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> He must establish him to be the Bechor in
               order that the son will receive an extra portion in
               money that the father will receive (after this).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> According to R. Meir, one can transfer
               ownership of something that is not yet in the world.
               He can give now an extra portion in money he will
               get later. Why do we need the verse?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> It enables him to give an extra portion in
               property that the father will receive when he is
               Goses (deathly sick. Most Gosesim die.)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Gitin 28a (Mishnah):</font></b> If Reuven made a Shali'ach to
               give a Get, (even) if he was old or sick, the
               Shali'ach gives the Get. We rely on the Chazakah
               that Reuven is still alive.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> (Rava):</font></b> This is if Shimon was was less than 80 years
               old, and only moderately sick, but not if he was at
               least 80, or Goses, for most Gosesim die.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 70b (Shmuel):</font></b> If a man's windpipe and foodpipe were
               cut, and he gestured to witnesses to write a Get for
               his wife, they write and give it;
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a man was found cut up or hanging, and
               he gestured to witnesses to write a Get, they write
               and give it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Mishnah):</font></b> If a man became unable to speak, and
               others asked him if we should write a Get for his
               wife and he nodded his head, we test him. If he
               answers properly, we write and give the Get.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 71a (Beraisa):</font></b> Just like we test him to give a Get,
               we test also regarding sales and gifts, for
               testimony, and for inheritances.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Erchin 6b:</font></b> All agree that a Goses he can vow, be
               Ma'arich (vow to Hekdesh a certain amount based on a
               person's age and gender) and be Makdish.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rosh (Kidushin 4:16):</font></b> Rashi explains that believing
               the father enables him to give an extra portion in
               property that the father will receive when he is
               Goses. Had he said 'what I will receive when I am
               Goses is to my son', it would not work, for when he
               gets the property, he cannot give it. R. Chananel
               explains similarly. Most Gosesim die, so he is
               considered dead, and he cannot give. Therefore, had
               he said 'what I will receive when I am Goses is to
               my son', it would not work. However, regarding
               inheritance he is alive. What he receives then is
               considered Muchzak, and not Ra'uy, and the Bechor
               gets a extra share of it. R. Yo'el derived from here
               that a Goses cannot divorce, even if his mind is
               settled, for the Torah says 'he will <i>give</i> in her
               hand.' He must be able to give. A Tosefta (Semachos
               1) says 'a Goses is like a living person in every
               way. He inherits, bequeaths, obligates (his
               brother's widow) to do Yibum (or Chalitzah) and
               exempts (his mother) from Yibum. Regarding what is
               automatic, it is as if he is alive, but not for what
               requires an action. In Gitin we say that if Reuven
               made a Shali'ach to divorce, if he was Goses, the
               Shali'ach does not give the Get, for mpst Gosesim
               die. This is when that he became Goses after sending
               the Get. Once he is Goses, he cannot make a
               Shali'ach to divorce. In Erchin, we say that a Goses
               can vow, be Ma'arich and be Makdish. This is a
               stringency, for speech to Hekdesh is like Mesirah
               (giving Metaltelim) to a person.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (ibid):</font></b> The Rashbam (127b DH b'Nechasim) says
               that a father is believed about property that will
               come to him when he is Goses and unable to speak and
               give. This connotes that if he could speak, he could
               give. R. Yo'el asked, if so, why does it discuss a
               Goses? The same applies to any sick person who
               became mute! We check his sanity. If he is sane, he
               can divorce or give (Gitin 71a)! Rather, we discuss
               only a Goses. Even if he can speak, he cannot give.
               The Ri proves that he is alive in every way. The
               ultimate Goses is one who was slaughtered, and (if
               he authorizes a Get) we write and give it. If one
               was found cut up or hanging, and he gestured to
               witnesses to write a Get, they write and give it,
               and all the more so if he speaks and his mind is
               settled! Gitin 28a is a great proof. We do not give
               a Get sent by a Goses, because most Gosesim die. If
               we knew that he were alive, we would give it! If he
               were considered to be dead, his Shali'ach could not
               give it. Also, it connotes that his Shali'ach may
               not give it, but he himself could give it directly
               to his wife, just like an old person, which was
               taught with a Goses. R. Yo'el rejected the proof
               from Erchin, for speech to Hekdesh is like Mesirah
               to a person. This is wrong. If a Goses cannot give,
               also his Mesirah to a person is invalid! It is not
               difficult for the Rashbam why we say that 'Yakir'
               teaches about property that he gets when he is
               Goses. If he merely became mute, he can give it when
               he recovers! Rather, he became Goses and mute, and
               he will not recover. Also, it is common for people
               to become Goses before death, but not to be
               slaughtered or become mute.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Ran (Gitin 34a DH ul'Inyan):</font></b> R. Yo'el explains that
               when a man became Goses after sending a Get, we do
               not assume 'surely he recovered, and therefore we
               may give it.' This is because most Gosesim die. The
               Ri says that a Goses is considered alive in every
               way as long as he can speak and his mind is settled.
               One who was slaughtered is even worse than a Goses, 
               for he cannot recover, and he can divorce. We
               discuss property that he gets when he is Goses, for
               most Gosesim cannot talk. If he can talk, he can
               give it away.
<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 250:6):</font></b> The gift of a Goses is a
               gift.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (2:327, cited in R. Akiva Eiger and Beis
                    Yosef 257:1):</font></b> Likewise, one can acquire for a
                    Goses. Therefore, if one says 'my property is
                    to you with (i.e. right before) your death', he
                    acquires.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Machaneh Efrayim, Hilchos Zechiyah
                    16):</font></b> We say that a Goses can give only if he
                    can speak and has a sound mind at the time.
                    Likewise, one can receive just before his death
                    only if he could speak and had a sound mind the
                    moment before death, which is rare!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 141:68):</font></b> If Reuven made a
               Shali'ach to divorce, and he was Goses when the
               Shali'ach left him, he should not give it, for most
               Gosesim die. If he gave it to her she is Safek
               divorced.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (EH Sof Siman 121 DH Mihu):</font></b> The
                    Mordechai, Semag and Semak connote that that a
                    Goses can divorce only if he can speak. I
                    disagree. Since he is considered to be alive,
                    he is like a Shechiv Mera who became mute.
                    These three Poskim said so because they saw the
                    Ri say 'he can speak.' The Ri (and Ran and
                    Rashba) said so only regarding a gift, but he
                    can divorce even if he cannot speak. They bring
                    a proof from one who was slaughtered and
                    gestured to write a Get. The same applies to a
                    Goses due to illness. Also, a Tosefta (Gitin
                    5:1) says that if one authorized a Get and fell
                    off the roof, we may write and give it as long
                    as he has a Neshamah. It does not depend on
                    ability to speak! Also Gitin 28a connotes that
                    if he were alive, we would give the Get without
                    knowing whether or not he can speak. Tosfos
                    (Kidushin 78b DH Lo) brings these proofs that
                    he can divorce through gesturing, and concludes
                    that if he cannot speak, he cannot give a gift.
                    However, Gitin 71a equates a gift to a Get! 
                    Rather, he can give a gift even if he cannot
                    speak. Tosfos means that if he cannot speak,
                    presumably there is no time to test him if he
                    wants to give a gift, or his mind is not
                    settled, so he cannot give a gift. R. Yerucham
                    explicitly says that his gift is valid even if
                    he cannot talk.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Shmuel (105):</font></b> Only a Goses who can talk
                    can divorce. If he cannot speak now, even
                    though he could speak when he gave the Get to
                    the Shali'ach, we are concerned that he lost
                    sanity, for a Goses must be checked. However,
                    we could say that if he could speak and was
                    sound-minded when he gave the Get, and later he
                    became mute, he need not be checked, since he
                    was Goses and his mind was settled.
<br>

<p>


