Tuesday, September 25, 2007

On Loans, Liens, and Land

Tosafos in Baba Basra 92b brings a machlokes by a loan if the borrower has both money and land must he pay in money or can he pay in land if he so chooses. This is dependent on a sugya in Kesuvos 86a. Tosafos also says that bimakom hefsed one may pay land. Tosafos in Baba Kama 9a also brings this idea of paying land instead of money. The Gra understands this Tosafos as following the opinion that holds in general that land can be paid even when the borrower has money. This he proves from another Tosafos in Baba Metzia on 14a. However, R' Elchonon writes that this is not so. Even according to the opinion that in general when one has money he cannot pay with land. This is not so bimakom hefsed. In case of a loss of money even that opinion holds that land can be paid. See the Kobetz Biurim Os 6 for this discussion.
The Ktzos Hachoshen in Siman 101:5 concludes from the fact that bimakom hefsed one may pay in land that the entire din of paying money first is only a din d'rabbanan.
The Nesivos, however, in Siman 107:4 that the din that one must pay money l'chatchila is a din d'orayssa. However, if the borrower dies and leaves yorshim, so there is no shibud haguf on yorshim and therefore they are not obligated to money l'chatchila. This is actually a bit of an issue because the Nesivos himself in Saif Koton 9 says there is a shibud haguf on yorshim. There is also a Rosh in Gittin 50a that implies this in a discussion about yesomim who are adults and there obligation to pay the debts of their father with idis. While the Nesivos has to dance around these issues in order to explain why yorshim are exempt from paying money, the Ktzos has no such problem. He can just say that paying money l'chatchila is only a din d'rabbanan, and the Rabbis weren't machmir on yorshim. The nesivos also has to deal with why money must be paid only l'chatichala and not bimakom hefsed, whereas the ktzos can easily explain that the Rabbis were lenient bimakom hefsed.
The Ktzos in Siman 116:2 discusses the issue of how you evaluate a field with a lien on it. Some say that we follow the price of the field at the time it is sold. Others say the purchaser always gets the upper hand (see the mechaber there). Finally others (see the Rav Hamagid) seem to hold that we follow the price at the time the land is collected.
The Griz on the Rambam in Hilchos Shechanim explains the issue as follows. Do we say that a lien is maikkar hadin in every sale; i.e. that any sale which will eventually be nullified due to a lender collecting the property, the sale is retroactively null and void. If so, the value should be set at the time of the sale. On the other hand a lien may be an added halacha. The seller accepts upon himself an added responsibility in addition to the sale. If the achrayus is not intrinsically linked to the sale, the valuation of the property could possibly follow the time of the collection.
In the Griz also we seem to be confronted with the issue of land and loans. When a borrower borrows money is there a specific shibud on land or is the original shibud simply on the borrower to pay money. The more we focus the shibud on the land, the easier it is to understand the opinion of those who say that we value the land's worth at the initial time of the sale.
R' Chaim in Ishus 16:25 asks why is a loan called "a denial of shiibud karka" if a loan is really paid up with money. The Grach gives a lomdishe answer regarding the michayav of kefirah of a of a debt. The Rashash in Baba Kama 9a also discusses this. However according to the ktzos, the answer may be more simple. The whole din of paying money l'chatchila is only d'rabbanan. Perhaps on a d'orayssa level, a loan really could be termed kefiras shibud karka.
What we then have according to this is a major machlokes to precisely define the relationship between loans and what kind of shibudim they create.
Although in my notes I see I have understood all these disputes under one umbrella of thought, this appears to be a complex issue and deserves more thought. At the very least, though, it's a good set of maareh mekomos.

Sunday, September 23, 2007

Shem Chometz/Shem Ochel

In Pesachim 21b Rava says that if chometz is "scorched" (chorchu) before Pesach it is mutar on Pesach. Tosafos there says the case is where it was damaged to the point that it is not even edible by a dog. He proves this from the case of Pas Sheipsha (bread that got moldy) where the halacha is that it needs to be unedible to a dog to be mutar.
R' Boruch Povarski in his chiddushim asks on this from the general halacha that we find by neveilah that you only need it to be unedible to people to be mutar. So why on Pesach must it even be unedible to a dog?
He anwers from R' Chaim that for Issurei Achilah it is true that you need it to only be unedible by man. However, by chometz it is not only an issur achilah. There are other issurim as well. Therefore, you need to get rid of the "shem ochel" completely, and you need it to be unedible even to a dog. (By other non kosher foods you only need to remove the maaseh achila, but the shem ochel can still be intact.)
Rashi on the sugya describes the case of chorchu as "losing its taste and appearance". It is mashma that it still hasn't reached the level of unedible to a dog. Many achronim in fact say that it need only be unedible to a human. The question on Rashi then, is from the case of pas sheipsha, the moldy bread. Why over there must it be unedible to a dog and here it need only be unedible to a human. This question is asked by many of the achronim on Rashi.
In terms of the mashmaos of Rashi it is possible Rashi is saying an even bigger chiddush. It could be that "losing its taste and appearance" is still even edible to people. Of course, the difficulty on Rashi would remain in an even stronger fashion with this understanding. The Meiri in fact does bring opinions that seem to hold that in this case of chorchu it is still fit for human consumption, and nevertheless becomes mutar. The question remains, why?
Perhaps we can suggest in Rashi that in order to transgress the issur of chometz the chometz must fulfill two dinim. First, it must have "shem ochel", it must be considered a food. Second, it must also have a "shem chometz", it must still be considered chometz. If so, by moldy bread it is still "bread", only unedible bread. Therefore, it must be unedible even to a dog in order to not be considered food anymore, as per R' Chaim's understanding. However, by chorchu even though it is still edible, and considered a food, it has no appearance or taste of chometz. It loses the shem chometz. Therefore it is mutar even though it is entirely edible.
The real chiddush that we are suggesting then is that the shem ochel and the shem chometz are entirely independent. Moldy bread can lose it's shem ochel even though the shem chometz is still there. Once that happens it becomes muttar even though the shem chometz is there because the issur of chometz on pesach is only on edible chometz and not unedible chometz.

Friday, September 21, 2007

Thursday, September 20, 2007

Can a shliach provide the hankerchief for a Kinyan Chalipin?

In Chiddushei R' Shmuel in Kiddushin Siman 3, R' Shmuel points out a machlokes haposkim whether by kinyan chalipin, if a shliach were to do the chalipin for someone, must he use the mishaleach's sudar, or can he use his own. It is a machlokes between the Sma and the Taz. The question is, what is the point of dispute?
R' Shmuel answers that by kinyan kesef, certainly if a shliach does the kinyan he should use the mishaleach's money. After all, the mishaleach is the koneh so his money should do the purchasing. In fact, Rashi seems to state this explicitly, although the Ritva seems to argue.
On the other hand, by regular kinyanim like hagbahah and meshicha, certainly the shliach does the whole maaseh kinyan.
This then is the question by chalipin. Do we say that the hankerchief acts like a payment for the object being acquired, in which case the koneh should supply it. Or, is the hankerchief just a maaseh kinyan, like hagbahah, in which case the shliach can supply his own.

Yaharog V'Al Yaavor

The Rambam in Yesodei HaTorah 5:1 seems to hold that one must give up his or her life for the aveirah of gilui arayos. The problem is that we learn that one must give up his life for gilui arayos from the fact that one must give up his life and not commit murder. By murder the halacha is that it is b'shev vaal taaseh, meaning since we cannot judge whose life is worth more, so don't do anything. If so, by arayos also the din should be shev vaal taaseh, and all by woman all gilui arayos are considered shev vaal taaseh, so why should she have to give up her life?
This point regarding gilui arayos is already made by Tosafos.
R' Chaim attempts to answer this question in his first piece in his sefer on the Rambam. Basically, R' Chaim offers two approaches. First, he suggests that even though by retzicha it's simply a sevara that one should not decide whose life to take, the question is how that sevara is transferred to arayos. By arayos we say that the maaseh aveirah of arayos is more important than the person's life. Thus, since it is a maaseh aveirah whether it is b'kum v'asei or b'shev vaal taaseh, so it becomes assur either way.
Then, R' Chaim takes it a step further. He suggests within the Rambam that even by retzicha this may be the case. Even by retzicha, the sevara of "whose life is more important" really tells us that the aveirah of retzicha can never be transgressed. Thus, if one could imagine a maaseh retzicha b'shev v'aal taaseh, one could not transgress that aveirah and would have to give up his life. R' Chaim just notes that practically speaking this won't occur because if one is forced by someone else to commit retzicha (meaning physically forced - like he is thrown on top of a baby), so it wouldn't be his retzicha anyway, but, rather, the one who forced him. Thus, in that case the person wouldn't have to give up his life.

Wednesday, September 19, 2007

Atzitz Nakuv on Yesaidos

The Rambam in Hilchos Shabbos 8:4 says that if one lifts a mound of dirt with grass in it on shabbos from the ground and places it onto poles he is chayav due to tolesh.
Tosafos in Gittin 7b writes that this chiyuv is only d'rabbanan because an atzitz nakuv (a pot with a plant in it that has a hole on the bottom) is really considered mechubar (attached to the ground) m'dioraysa. So too, if you were to lift this mound of dirt up and place it on poles it would be no worse than atzitz nakuv and would still be mechubar m'dioraysa. Thus, the chiyuv for telisha according to Tosafos is only d'rabbanan. The Rambam however uses the word chayav. This indicates that the chiyuv is d'oraysa acc. to the Rambam and indicates that the Rambam holds that atzitz nakuv on yeseidos is considered talush (detached from the ground) on a biblical level. Therefore, the Rambam holds that one is chayav m'doraysa in this case.
There is a mishna in uktzim (2:9) which states that a kishus (type of vegetable) that is planted in an atzitz and grows outside the atzitz is tahor. The idea is that it is tahor because it has a din of mechubar l'karka. From the Rambam in his peirush hamishnayos it is clear that it is tahor because the atzitz is nakuv and that is what makes it mechubar l'karka. In the Rambam in Tumas Ochlin 5:9 it further becomes clear that it is only considered mechubar because it is resting on the surface of the ground. Had the atzitz been raised in the air it would not be mechubar. This Rambam is l'shitaso that atzitz nakuv on poles is considered talush.
The Rash on the mishna, however, states that that its only the part of the vegetable that is overgrown outside the pot that is mechubar. The rest isn't (because he learns the atzitz isn't nakuv - i.e. there is no hole in it). The Raavad in his hasagos argues the same. This is because they hold like tosafos that atzitz nakuv on yeseidos is considered mechubar.
This summary can be found in the chidushei hagrach stencils under atzitz nakuv al gabay yesaidos.
Interestingly, R' Chaim there mentions another way acc. to the Rambam that the atztitz can be considered mechubar, even without a hole. This would be in a case where the atzitz has no "shem kli". Let's say for instance that it was so filled with earth that it was mevatel the shem kli. Then the atzitz becomes batel to the earth and it has a din of mechubar.
Acc. to the Rambam that atzitz nakuv on yesaidos is considered talush we can ask what the din would be in terumos and maasros. The pashtus is that it would not be chayav in tru"m midioraysa, because it is like talush. A priori, it is similar to a atzitz sheaino nakuv (without a hole) that is only chayav on a drabanan level.
There are many different Rambam's to bring on this issue, but for now we will just state that R' Chaim proves otherwise in the Rambam. He concludes that the Rambam would hold that atzitz nakuv on yesaidos is chayav in tru"m on a d'oraysa level even though it has a din of talush. The question is why?
R' Chaim explains this with his classical approach. There are two separate dinim. There is talush and mechubar. And then, there is gidulo min haaretz. By terumos and maasros you don't need the food to be mechubar l'karka, attached to the ground. Rather, you merely need it to derive yenikah min hakarka... it has to get its sustanence from the ground. This is a totally separate category from mechubar which applies in hilchos shabbos in the laws of telisha.
However, R' Chaim leaves off with a question, because he assumes that in a regular atzitz nakuv the dirt itself would certainly not be considered mechubar l'karka... only the plant would be. Thus it should be a food that grew in bothe aretz and chutz laaretz and be tevel and chullin mixed together. Basically, R' Chaim could not accept the fact that the dirt in the atzitz would ever have a din of mechubar and thus ran into problems.
I found that the ri malki tzedek in challah 2:2 in fact holds that the dirt can have kedushas haaretz. See also the afikei yam in chelek 2:43 that says the same idea.
I see in my notes quite a bit more on this subject which I will hopefully be able to write on some other time.

Tuesday, September 18, 2007

Shinui Koneh - this one requires a bit of background

The Rosh in Perek 9 of Baba Kama Siman 3 asks the following question. If one steals a pregnant cow and it gives birth, must the gazlan pay the value of the cow as it was stolen, or must be pay it's value a moment before birth. The Rosh says at first that you probably must pay the value a moment before birth because the increase in value belongs to the nigzal. He compares the case to one who steals a barrel of wine that appreciates in value. The halacha is that if you break that barrel you pay the higher price because it appreciated in the "possession" of the nigzal.
In the end, however, the Rosh concludes that the gazlan pays like the time of the gezeilah, because that is the general rule, and there is no similarity to breaking the barrel because there he is destroying the object and it is like he is becoming a gazlan at that moment.
This Rosh is very strange because he never makes the obvious distinction in comparison between when the barrel breaks on its own accord, or when the gazlan breaks it. In the case of the cow that should be the determining factor, what caused the shinui? Yet, that factor never appears in the Rosh at all. R' Chaim learns from this that only when the item is completely destroyed do we say that one is considered a gazlan when he breaks it. However, if all that happened was a shinui of some type, so there is no difference at all between the item changing of its own accord or not.
Nevertheless, it is difficult why the Rosh never mentions this distinction at all.
To answer this question we must analyze why when the item breaks on its own the gazlan is not responsible as a gazlan.
The Rosh in Merubah Siman 2 explains that the reason is because a gazlan never is mekabel shmirah.
The Shitah Mekubetzes in Baba Metziah 43a says that in fact a gazlan is a shomer. Rather, for whatever reason, only when the gazlan actively breaks the item is he considered a gazlan again at that moment.
Acc. to this we can explain that the Rosh holds when the item breaks on its own, forsure there is no mechayev at that time, for a gazlan is not a shomer. The only question is by shinui. There the shinui koneh may be mechayev the gazlan. This doesn't exist where the item is destroyed because there is no shinuy koneh. This explains the hava amina and maskana of the Rosh.
In the Shitah Mekubetzes however, a gazlan is a shomer and still is not chayav if the item breaks of its own accord. In that case the same would surely be true by a shinui, that the gazlan would not be chayav at the time of the shinui if it was a shinui memailah, because it is entirely comparable to a case where it broke of its own accord.

Kesef Kiddushin - no background needed for this one

One of the ways a man can marry a woman is by either giving her money or the equivalent of money (like a ring). This is called kesef kiddushin. Kesef can also be used to acquire land and the gemara in the beginning of kiddushin, in fact, learns kesef kiddushin from a gezairah shaveh from land.
When it comes to the purchasing of land with kesef, there is a well known debate between the Sma and the Taz in Choshen Mishpat. (See the Birchas Avraham in the beginning of Kiddushin who brings the exacts source.)
The Sma is of the opinion that the kesef used to buy land should function as the techilas piraon, the beginning of the payment for that land. So, if you put down a dollar for a piece of land that dollar will not only create a kinyan on the land, but it will also serve as a down payment on the land. The rest of the money will be owed by the purchaser. The Sma's proof to this is that kinyan kesef is learned from the field that Avraham Avinu bought from Efron for money. In that case the money was not merely a ceremonial kinyan, but it functioned as payment as well. From there we see that all kesef kinyan should serve as piraon.
The Taz disagrees and argues that, in fact, kesef kinyan is merely a ceremonial kinyan and the money does not serve in any way as payment for the field. His proof is from the fact that the gemara compares the acquisition of a field to marrying a woman. In the case of marriage, no one would say that the money a man gives a woman is a payment for her! If so, we cannot say that the money one uses to acquire a field acts as payment.
In yeshivos in general this dispute between the Sma and the Taz is viewed as the classic "chakira" in kinyan kesef, whether it is piraon or a ceremonial kinyan. In fact this dispute is really only one nafka mina within a much broader chakira in kinyanim in general.
When it comes to kinyanim we can classify them into three basic categories. Most kinyanim, like meshicha, hagbahah and chazaka (pulling, lifting, or using the object being acquired) work because they are an act of a demonstration of baalus, or ownership, of the object. These are the most classic of kinyanim.
In the Birchas Shmuel in Siman 5 of Kiddushin, R' Boruch Ber points out that kinyan kesef works in a different fashion. It is not a demonstration of baalus over the field being acquired, but, rather, it creates a shibud. That is to say, the person receiving the money becomes "obligated" to the buyer because he received money from him. That obligation, or shibud, allows the field to transfer from the seller to the buyer.
Finally, the Birchas Shmuel points out that kinyan chalipin may fall into a third category. In chalipin, the buyer gives a basically worthless item to the seller, and by simply lifting the object, the field (or whatever is being purchased) is transferred to the buyer.
In this case there is no shibud because the item used for the chalipin is worthless. Also, the buyer is in no way demonstrating any type of baalus on the object. Rather, in this kinyan, the action of lifting the hankerchief (or whatever worthless item is chosen) is only to enable the seller to have the proper daas to transfer the item to the buyer. In other words, the kinyan is mainly effected through the daas makneh. The action being done is merely to concretize that daas.
With this in mind we can revisit the dispute between the Sma and the Taz. All agree that the kesef works by means of creating a shibud. The question is how directly is that shibud related to the field being purchased. The Sma argues that the shibud is directly related in that the money is the actual money being used to purchase the field. The Taz, on the other hand, holds that the shibud is unrelated to the payment for the field.

Saturday, September 15, 2007

Daas in Kinyanim, Shlichus, and T'naim

The Kobetz Hearos in Siman 76 asks why it is that in some things like writing a get, shechita, and chalitza we say that a koton is kosher in performing the action if a gadol is omed 'al gabav, whereas in other instances, like kinyanim, kiddushin, and gerushin we say that gadol omed al gabav doesn't help (see Tosafos in Yevamos 104b). See also the Chidushei HaGrach in Yibbum and Chalitza:4 that asks the same question.
In Tosafos (ibid) he says as far as the writing of a get that the reason gadol omed al gabav works is because it is clear that the koton knows whats going on because we see him writing the get. From this it would seem that the reason gadol omed al gabav doesn't work in other cases, like the actual gerushin etc. is because it is not clear that the koton is aware of what is happening.
R' Chaim answers with a distinction between daas and kavana. He explains that gadol omed al gabav can help for a koton to have kavana, and it is only kavana that is required in cases like chalitza or writing a get lishma. However, in an actual maaseh kinyan or maaseh gerushin/kiddushin, it is not only kavana that is needed, but daas as well. A koton can never have daas, even with a gadol omed as gabav.
It seems that this chiddush of the Grach goes hand in hand with another of the Grach's chiddushim. In the hosafos to the Chidushei HaGrach Stencils, the question of why one can't have a shliach do a mitzvah for him is raised. The opinion of the Ktzos is that mitzvos must be done specifically with the doers body and thus shlichus cannot work. The Grach argues that the reason is because shlichus only works in areas that are related to baalus. We see this in Kesuvos 74a where it says that something that a tnai works in shlichus also works in. The Grach explained that if someone can't make a tnai in something it shows he is lacking baalus, and m'maila he cannot appoint a shliach either.
Now, in that very sugya in Kesubos we find that chalitza is one of the things that one cannot make a tnai or a shliach in. Thus, it would seem that why one cannot make a shliach in chalitza would be subject to a machlokes between the Ktzos and R' Chaim. The Ktzos would say that it is specifically to be done b'gufo. R' Chaim would argue that there is no baalus involved in chalitza.
At this point, we have two separate chiddushim from the Grach within chalitza. First, that chalitza doesn't require daas. Number 2, that one has no baalus in chalitza. It would not seem such a stretch to now suggest that in reality the two concepts, daas and baalus, actually go hand in hand. Daas refers specifically to daas baalim, and one has baalus only in something that requires his daas.
In order to further clarify, we can pose the following question. When we find an area of halacha which requires one's kavana is the kavana a part of the maaseh, or a separate component. Logically it would seem that this would be dependent on whether a tnai can be made. For example, in shechita there is no inyan of kavana (see shchita 20:11). Certainly, one cannot make a tnai in shechita. If it's a kosher shechita it's kosher, it doesn't matter if you put some condition on the shechita or not.
Thus, by gerushin/kiddushin etc. a tnai works. The idea is that the kavana of the mekadesh is not part of the maaseh. Rather it is a separate component that controls the challos of the maaseh. A tnai can prevent the maaseh from being chal (as opposed to shechita where there is no challos, the maaseh was either done or it wasn't). By chalitza, a tnai doesn't work. The idea is that the kavana is a part of the maaseh chalitza. You can't make a tnai because the kavana isn't a separate component in the challos.
On this topic there is some more to investigate. For example, see Ishus 6:1 in the Kesef Mishna and Magid Mishna if we even pasken milsa d'laisa bishlichus lesa bitnai. Also, see Eretz Hatzvi Siman 25 that assumes (as we did) the reverse also, that milsa d'lesa bitnai lesa b'shlichus. However, in Stencils 93 it appeared to me that R' Chaim may not be assuming that. In that piece he seems to assume that tnai is a chiddush of the torah, and not dependent on daas.
This last point may be a machlokes rishonim. The Shut HaRosh 35:9 seems to see tnai as a chiddush of the torah. The Rashba in Gittin 74b is mashma that it's a svara peshuta that one can insert a tnai into his daas.

Thursday, September 6, 2007

"Yados" by Kiddusin

The Gemara in Nedarim 6b asks whether it is possible to have yados by kiddushin or not. A yad is a term generally used by neder that refers to our "completing" someone else's words in case they are missing information. The case in the Gemara is where someone says to one woman, Harei At Mekudeshes Li and then turns to another woman and says V'At (and you). If there are yados in kiddushin we "complete" his words and assume that he is trying to marry the second woman as well. Otherwise, we don't.
The Birchas Shmuel in his first siman on Kiddushin brings a question from R' Chaim Soloveitchick on this Gemara from a Gemara in Meseches Kiddushin. The Gemara in Kiddushin on 6a says that one doesn't even have to say Harei At Mekudeshes Li if he is already discussing inyanim of kiddushin with the woman. In other words, if they are asukin b'oso inyan, there is a clear umdana that the kesef he is giving is intended for kiddushin purposes and they are married. If it is true that all you need is an umdana the Gemara in Nedarim is difficult. This is because most of the rishonim there explain in that case in Nedarim 6b that there is in fact a yad mochiach (basically a clear intention) that the man really does intend to marry the second woman as well. If that is the case we have clear knowledge that the man is intending to marry the woman and why do we need to get involved in yados at all? Yados are only used in cases where dibbur, actual speech, is necessary (like by nedarim). Then we need to use yados to decide whether the person actually "said it" or not. By kiddushin, where all you have is umdana, wouldn't it be obvious here that the kiddushin works.
The Birchas Shmuel brings in the name of R' Chaim that you see from here that you can't make an umdana from a lashon by Kiddushin. The Birchas Shmuel elaborates that when it comes to most kinyanim, daas is needed in order to create the "challos". In such cases, umdana would be sufficient to reveal what the person's daas is. However, by kiddushin the umdana of the person's intention is not only part of the challos kinyan, but a part of the maaseh kiddushin as well. This is learnt out from the pasuk of Ki Yikach. By kiddushin one needs to have a maaseh kicha and that means the maaseh needs to clearly demonstrate that the person intends to marry the woman. Thus, the Birchas Shmuel concludes, that by kiddushin one needs either speech or an umdana in order to fulfill this inyan of having a maaseh kicha. However, you cannot have an umdana on the speech.
The Birchas Avraham in Nedarim 6b quotes this Birchas Shmuel and understands him as meaning that if one intends to use dibbur to clarify his actions, he can no longer rely on umdana. Rather, he can only use umdana if he is intending to use it in the first place. Based on this understanding the Birchas Avraham asks a question from Tosafos in Nedarim. Tosafos there says that the whole discussion of yados by kiddushin is only if they weren't asukin b'oso inyan, but if they were then they can rely on that and they don't need yados. The Birchas Avraham asks, that if they are trying to use dibbur, how can they now rely on the umdana of asukin b'oso inyan? He goes on to offer an alternative solution to R' Chaim's original question.
My understanding of R' Chaim's answer, however, is somewhat different than the Birchas Avraham's. R' Chaim wasn't saying that it goes by intention and if you intend to use dibbur you can't use umdana. Rather, R' Chaim was saying that there are two dinim in umdana. First, umdana reveals a person's daas. The question therefore was that isn't the yad mochiach also revealing the person's daas and the kiddushin should be good. However, R' Chaim answered that there is a second din in umdana. Umdana also can define a person's maaseh. In kiddushin, a proper umdana can make a person's maaseh kiddushin into a maaseh kicha. R' Chaim also held that a bona fide dibbur can turn a maaseh kiddushin into a maaseh kicha. However, a yad mochiach can only create an umdana in the person's lashon (if you don't hold of yados in kiddushin). In such a case, while it is true that we know the person's intention, the maaseh cannot be defined as a maaseh kicha. In order for the daas of the person to merge with the maaseh and redefine that maaseh you need either a bona fide pronouncement by the person of what he is intending or a bona fide umdana. You can't have an umdana in the person's lashon. While that is enough to reveal the person's daas, it is not enough to redefine his maaseh.
Acc. to this understanding, Tosafos is no problem. Tosafos was simply saying that if you have a bona fide umdana you don't need to worry about yados in kiddushin because the maaseh can be defined by the umdana instead of the dibbur. The fact that the person intended to use dibbur is irrelevant.
Note: After looking into the Birchas Shmuel I found that he does, in fact, describe R' Chaim's sevara as being dependent on the kavana of the mikadesh, as the Birchas Avraham states. Nevertheless, I will keep this post up because I feel the ideas are at least worth considering.

Wednesday, September 5, 2007

Ein Adam Oser Davar Sheaino Shelo

The sugya in chullin on 41a says that R' Nachman, R' Amram, and R' Yitzchak all hold that a person may not assur something that is not his (ein adam oser davar sheaino shelo). In the sugya there in the beginning it is mechalek that by shutfas (partnership) it is different and one may assur. Finally, the gemara says that even acc. to the one who holds that one may assur a davar sheaino shelo, that's only if it is a goy's, however, by a Jew's property we assume that the person assuring only intends ltziura (to inflict pain or to bother him), and doesn't have real intention to assur.
The question on the sugya is acc. to the end of the sugya, where it concludes with this sevara of l'tziura mechaven, so are we reversing the din by shutfin, and also say l'tziura mechaven there. This issue is subject to a machlokes Rashi and Tosafos. Rashi says by shutfin one may assur, and Tosafos says no, that we rather assume l'tziura mechaven.
In the Rambam in Chovel Umazik 7:6 he brings the halacha of ein adam oser davar sheaino shelo. The Raavad adds in "because l'tziura ka michaven". There is a question in the achronim if the Rambam agrees to this point of the Raavad (that the reason for ein adam oser is because of l'tziura michaven). In Chidushei R' Meir Simcha he contends that the Rambam holds that by shutfin one can assur, and we don't say l'tziura michaven, and the Rambam, in fact, argues with the Raavad. Acc. to this the reason the Rambam holds ain adam oser is not because l'tsiura michaven, but because one in fact doesn't have the halachic ability to assur a davar sheaino shelo. In contrast, by shutfin that koach does exist and the Rambam doesn't hold of l'tziura michaven at all. Finally there is another psak in the Rambam by kilayim that ain adam oser davar sheino shelo. R' Meir Simcha suggests there that there may be a special gezairas hakasuv by kilayim that it is like hekdesh, and just like one can't be makdish a davar sheaino shelo, the same is true by kilayim. (The Chiddushei R' Meir Simcha is found in Chullin 41.)

Tuesday, September 4, 2007

Mechusar Ketzitza

Unfortunately, I haven't had an internet connection for a few days so I've been off. But now it's back up so I am back to work.
The gemara in Gittin 21b states that one cannot write a get on mechubar l'karka, and then cut off the get and give it to the woman. Rashi explains that it says in the pasuk "v'kasav v'nasan", that one has to immediately be able to give the get after writing it, whereas if he writes the get on mechubar l'karka, so he will have to "cut" it after the writing, and then give it. This psul is referred to as "mechusar ketzitza".
The Ramban in Gittin brings a Yerushalmi that brings a different drasha of "sefer", that it's not called a "sefer" if it is written on mechubar l'karka. The Ramban has an interesting language where he says that acc. to the Yerushalmi that darshans "sefer", so it would not be a problem of "mechusar ketzitza" if one would simply write the get on a tree and give the woman the tree and the land (rather it would only be a problem on not being a "sefer"). What's interesting about the language is that the Ramban says to give the woman the tree and that land, why not simply say the land?
A possible answer to this could be that the Chiddushei R' Shmuel writes in Kiddushin Siman 4 that if one holds that kinyanim don't work by get (as the Ramban seems to hold in Gittin 77b) so one cannot simply give land to the woman as a get, because it's not a "nesinah", and the pasuk says "v'nasan". However, see the Chazon Yechezkel in Tosefta Gittin 2:6 that some hold that mechubar l'karka (like a tree) are dragged along with the kinyan karka similar to placing a get in a chatzer and then being makneh to the woman the chatzer. This would work even in the Ramban and explains why the Ramban focuses on a tree attached to the land. There are a number of other issues related to these drashos of "sefer" and "mechusar ketzitza", but we will save this for some other time.