Hallel and the Challil

This post is a bit long and involved, but if you stick with it I think it's followable:

The Mishna in Erchin on 10a says that there are 12 days that during the time of the shiras haleviim (when the leviim sang in the bais hamikdash) they would also play the chalil (a certain musical instrument). The 12 days were:

1. the day of the shechitas korban pesach
2. the day of pesach sheni
3. the first day of pesach
4. the first day of shavuos
5. the 8 days of succos

Rashi on the mishna makes a somewhat perplexing statement that on the days of the shechitas korban pesach we say hallel. Where is there any mention of hallel in the mishna?

The Griz in Hilchos Korban Pesach writes that Rashi here is following the Yerushalmi that compares chalil to hallel. That is, any time the chalil is used hallel is recited.

Rashi, though, makes another interesting comment. The pashtus would've been that any time the chalil is used, individuals in their davening would say hallel. Rashi, however, says that the hallel is sung by the leviim in the mikdash instead of the shir shel yom. This Rashi needs to be explained.

Before we get into this issue, let's discuss precisely what Rashi is saying. Rashi in the beginning of Perek HaChalil says explicitly that the chalil was used at shacharis in the bais hamikdash. If so, Rashi here is saying that while they banged the chalil during shacharis, the leviim sang the hallel instead of the shir shel yom.

It's fascinating because the in Meseches Sukkah 55 says that on sukkos the tehillim of hu"mbi (an acronym) were recited. Rashi says this recitation took place during mussaf. The turei even in Rosh Hashana 30b says that Rashi must be saying this because at Shacharis the regular shir shel yom is recited. The Avnei Nezer 24:1 points out that the turei even in mistaken! Rashi says explicitly in Erchin that on sukkos the hallel replaces the shir shel yom. Even more interesting, I saw in the chasam sofer (Beitzah Daf 5) that on these days we really don't know what the leviim said in the Bais Hamikdash so one shouldn't say Hayom Yom... shebo hayu haleviim omrim.. because that would be dover shekarim!

Getting back now to our main issue, why does Rashi learn that hallel replaced the shir shel yom and was sung by the leviim? If you look at the gemara on the mishna, the gemara clearly says that these days corresponded to days where yechidim said hallel in their davening... but that the leviim said hallel as the shir shel yom seems to be from out of nowhere!?

Now, if you take a look at the gemara in Erchin, you will see that the gemara actually says that there were 18 days that full hallel was said. First of all, the gemara adds the days of chanuka. Rashi explains that although on Chanuka full hallel is said, still the chalil isn't beaten because chanuka has no korban mussaf. You may ask, if the chalil is beaten at shacharis, who cares if there is no korban mussaf. The Chikrei Lev says that, for whatever reason, korban mussaf and the challil are related. I thought to answer with what I saw in the Igros HaGrid, that without a Korban Mussaf there is no kedushas hayom. If that's the case then the chiddush may be that since chanuka has no kedushas hayom, so there is no challil.

All this answers for chanuka, but what about for the two days of shechitas korban pesach? On those days we do bang the challil, but the gemara doesn't mention that we say hallel on those days. Why not?

Tosafos answer that really on those days we do say hallel, but that is only in the times of the bais hamikdash. That is why the gemara doesn't mention those days.

Tosafos is therefore saying that in truth there is an obligation of hallel on these days of the shechitas hapesach. We will return to this shitah a little later.

There is another machlokes rishonim regarding chatzi hallel that I believe is very relevant. Tosafos there in Erchin (d"h Shemoneh Asar) says that any time one doesn't say a full hallel there is no chiyuv at all to say the hallel. Rather, it is only a minhag. This is explicit with regards to Rosh Chodesh in the gemara in Taanis 28b. The Ramban however (Shabbos dafei HaRif 11b see Ran there) argues that the minhag is only on Rosh Chodesh. On the second days of Pesach, however, there is a bona fide chiyuv to say a chatzi hallel. So the Ramban argues that there could be a chiyuv of chatzi hallel.

In a similar fashion, the Griz in Chanuka 3:4 points out that by the hallel by korban pesach the "third group" often didn't finish saying the whole hallel (see Pesachim 64b). The Griz asks, how is there a chiyuv of less than full hallel? The Griz asks the same question by the hallel of the seder and the hallel on nissim (see there). He answers based on a Rav Hai Gaon that there are two dinim in hallel. There is krias hallel, in which the whole hallel is recited, and there is a din of shiras hallel (where you just sing praise to God) in which it's a chiyuv, but you need not say the whole thing.

This distinction of the Griz may work in the Ramban as well. The chiyuv on the second days of Pesach is a chiyuv of shiras hallel and not krias hallel. Thus, the entire thing need not be recited.

Now, if we were to view the gemara in Erchin through the eyes of the Ramban, when the gemara says that there are 18 days when one must finish hallel, it probably means as opposed to the other days where there is only a chiyuv of chatzi hallel (or shiras hallel as the Griz may say).
If so, on the days of korban pesach there is no chiyuv of full hallel (in contrast to Tosafos) , only a chiyuv of shiras hallel. This is, as the Griz pointed out, explicit from Pesachim 64b that by korban pesach the third group never finished reciting the full hallel. The question of Tosafos would now swing back on the Ramban. If there is no chiyuv of full hallel on the days of korban pesach why is there banging of the chalil on those days?? (Remember Tosafos answered that there really is a chiyuv of full hallel on the days of korban pesach and the gemara only omitted it because it only applied during the bais hamikdash. We are suggesting that the Ramban disputes that based on Pesachim 64b.)

This is where Rashi steps in. Rashi in Taanis on 28b is mashma that he agrees with the Ramban's position that there is a chiyuv of chatzi hallel. Rashi here then is now stepping up and answering the question on the Ramban. If there is no chiyuv for a full hallel on days of korban pesach, why do we bang the challil? The answer is that the chiyuv of the challil is not dependent on the individuals recitation of full hallel during davening. Rather, the chiyuv depends upon the recitation of the leviim over the korbanos. The gemara in Pesachim 64b says explicitly that the leviim said hallel while the korban pesach was brought. This is the chiyuv of shiras hallel of the Griz. That chiyuv is mechayiv challil because the challil accompanies the leviim when they sing hallel in the mikdash.

The gemara in Erchin, however, was merely listing the days where individuals say full hallel in their davening. This does not apply on the days of korban pesach. However, on all days where this does apply there is a general rule that the leviim also sing the hallel on the korban tamid. Thus, on those days the challil bangs during the korban tamid.

The rule therefore is that the challil is used with a korban that the leviim say hallel on. When is this? Any time the individual says full hallel and additionally by the korban pesach as the gemara says in Pesachim 64b.

Hallel

On the Yom Tov of Pesach we only recite full Hallel on the first days. After that we recite only a chatzi hallel. On Succos this is not the case. Rather, on Succos we recite a full hallel the entire Yom Tov.

Why the distinction?

There are two reasons given for this. The gemara in Erchin on 10a/b says that on Succos there is a different korban every day. Therefore each day is like an independant Yom Tov and deserves its own full Hallel.

The Midrash gives a different reason. The Midrash asks why don't we say a full hallel on the 7th day of Pesach? After all, weren't the Jews saved at the Yam Suf?

The Midrash answers with the Pasuk of Binfol Oyvecha Al Tismach... Maasei Yadi Tovim Bayam V'Atem Omrim Shira? In other words, we don't say hallel on the downfall of Hashem's creations.

Rav Aharon Kotler explains the necessity for two separate reasons. There are in fact two separate michayvim for hallel. One mechayev is Yom Tov. Since Pesach is all one Yom Tov there is no need for a full hallel every day. Succos, on the other hand, is a new Yom Tov every day because of the different Parei HaChag, the different korbanos of each day.

The other mechayev of hallel is nes. We say hallel any day that a miracle occured to Klal Yisroel. Thus, the midrash asks, even if the 7th day of Pesach is not a Yom Tov independantly, perhaps the nes of the Yam Suf should be mechayev hallel? To which the midrash responds that this is not the case because this nes also represents the downfall of God's creations.

Lomdus of Selichos

In the previous post we discussed the source of B"H"B. Interestingly Selichos during Chodesh Elul differ from B"HB in that there is a kaddish with tiskabel after the selcihos of Chodesh Elul.
Rav Moshe Feinstein in Igros Moshe 3rd Chelek of Orach Chaim Siman 81 proves from selichos in chodesh elul that really all "tsibbur things" should get a kaddish tiskabel. He suggests some reasons there as to why on B"HB this isn't the case. I'll let you check there for the details.
I once heard in the name of Rav Soloveitchik a different explanation of the kaddish tiskabel. He held that selichos is really a form of tefillah. There are actually two forms of tefillah. Shemoneh Esrai is a "formal" tefillah. Our feet are together, there is a standard nusach, we start with shevach then bakasha, etc. We end this tefillah with a kaddish tiskabel, asking Hashem to accept our tefillos.

The second kind of tefillah is learnt out of the following Rambam:

א מצות עשה מן התורה, לזעוק ולהריע בחצוצרות על כל צרה שתבוא על הציבור, שנאמר "על הצר הצורר אתכם--והרעותם, בחצוצרות" (במדבר י,ט)--כלומר כל דבר שיצר לכם כגון בצורת ודבר וארבה וכיוצא בהן, זעקו עליהן והריעו

From here we learn the tefillah of zeaka - to cry out to Hashem in an es tzarah. This tefillah is informal. Our feet our not together nor is the nusach as "standard". Rather, we "scream out" to our Father in Heaven to help us.

[I would add to this that the formal tefillah is relating to Hashem more as a King, whereas the informal zeakah relates to Him as a Father.]

Selichos represents this second, more informal, type of tefillah. It is for this reason that it too ends with a kaddish tiskabel.

Interesting to note that the Rambam implies that tachanun after shemoneh esrai becomes a part of the Shemoneh Esrai and merges with it. As the Rambam states at the end of Perek 5 of Tefillah:

יג] השתחוויה כיצד: אחר שמגביה ראשו מכריעה חמישית, יושב לארץ, ונופל על פניו ארצה, ומתחנן בכל התחנונים שירצה.
טו כריעה האמורה בכל מקום, על ברכיים; קידה, על אפיים; השתחוויה--זו פישוט ידיים ורגליים, עד שנמצא מוטל על פניו על הארץ.
טז [יד] כשהוא עושה נפילת פנים אחר תפילה, יש מי שהוא עושה קידה, ויש מי שהוא עושה השתחוויה; ואסור לעשות השתחוויה על האבנים אלא במקדש, כמו שביארנו בהלכות עבודה זרה. ואין אדם חשוב רשאי ליפול על פניו, אלא אם כן הוא יודע בעצמו שהוא צדיק כיהושוע; אבל מטה הוא פניו מעט, ואינו כובש אותם בקרקע. ומותר לאדם להתפלל במקום זה, ולנפול על פניו במקום אחר.

We also find by selichos that tachanun immediately follows it. This would seem to be yet another connection between the two.

This explanation of kaddish tiskabel would seem to go against Rav Moshe's idea that all tzibbur activities require that kaddish. Rather, it is only a din in tefillah and selichos has such a din.

B"H"B

Many congregations said selichos today as the last Monday of Behab. The source of saying selichos on Behab comes from a gemara in Kiddushin 81a that after the regalim we need a kapparah because of the socializing between the men and the women. Because of this (see Tosafos there) a minhag developed to fast on the Monday, Thursday, and Monday after the regalim. However, this couldn't be done in the actual months of tishrei and nissan because one doesn't fast in those months. Therefore Behab is the first M, Th, M after Rosh Chodesh. These halachos are found in Shulchan Aruch in Siman 566 and 492.

Cheresh, Shoteh, V'Katan in Shlichus

The Gemara in Baba Metziah 72a says that there is zchiya for a katan. That means that a gadol can be zocheh in something on behalf of a katan. The gemara says that the reason for this is "asi lichlal shlichus", meaning when the katan grows up he will become eligible to be a shliach.

Rashi in Baba Basra 156b says that this halacha is only midrabbanan. On a d'orayssa level there is no way a katan can have zchiya.

Rav Chaim in stencils, however, brings a Raavad that this zchiya is even on a d'orayssa level. Rav Chaim asks from the fact that most rishonim hold zchiya works m'taam shlichus (that the mizakeh is actually acting as a shliach of the zocheh). If so the katan is actually having the m'zakeh act as a shliach for him. This, however, is not possible because there is no shlichus for a katan. So, the question is, how can the Raavad say that a katan can have zchiya on a d'orayssa level?

Rav Chaim brings a Rambam in Mechira 29:11 as follows:

יא] ייראה לי שקטן שקנה קרקע, ונתן דמים, והחזיק--תעמוד בידו, אף על פי שאין ממכרו בקרקע כלום: שהקטן כמי שאינו לפנינו הוא; וזכין לאדם שלא בפניו, ואין חבין לו אלא בפניו.

Here the Rambam is saying a remarkable idea. If a katan acquires a field we say zachin l'adam shelo b'fanav and the kinyan works. The problem is that zchiya would usually mean that a gadol would do the maaseh for the katan and the zchiya would be that the gadol acts as a shliach for the katan. Here, the katan is doing the maaseh. So what is the zchiya for?

Rav Chaim learns from here that zchiya can also mean that we are mezakeh daas to the katan. This is not a zchiya of shlichus. Rather, it is as though impart daas to the katan where he doesn't actually have it. Since acquiring property is a good thing, we act as if the katan had daas and we allow him to acquire the property.

Rav Chaim says that this is also the pshat in Kesuvos on 11a where it says we use zchiya to allow a katan to go into the mikveh to be migayer. Again, isn't the katan doing the maaseh? Rav Chaim says the same idea, the zchiya here is only on the daas and is not working through shlichus at all. (See Tosafos there in Kesuvos who also deals with Rav Chaim's questions.)

With this idea, Rav Chaim explains the Raavad as follows:
The Raavad in Gerushin 6:9 says the only reason a katan cannot have a shliach is because the katan has no daas. Therefore, by zchiya we can be mezakeh the daas to the katan. Once he has daas we can then act as a shliach for him, even on a d'orayssa level. Rashi, on the other hand, in Baba Metzia 72a says that a katan is totally mufka from shlichus, from the pasuk of ish - prat l'koton. If so, a katan cannot have a shliach act for him in any circumstance, and the zchiya cannot possibly work on a d'orayssa level.

What about the other way around? Can a katan be zocheh for a gadol?
This is a machlokes Rashi and Tosafos in Gittin on 64b. Rashi says this can only happen on a d'rabbanan level. Tosafos argue and say the zchiya is even midorayssa. Tosafos there ask, how can this be? Isn't zchiya mitaam shlichus and a katan cannot be a shliach? Tosafos answer that the only reason a katan cannot be a shliach is because they have no daas. But, again, since a katan eventually will have daas its not a problem. This may be following the Raavad that we are mizakeh the daas to the katan. Rashi may argue that ktanim are totally mufka from shlichus, and nothing can be done to help. (Rav Chaim in zchiya and matana 4:6 discusses this Rashi as well.)

To sum up we basically have two mehalchim in why a Cheresh, Shoteh, V'Katan are not in the parsha of shlichus. One pshat is because they have no daas. The second is that they are mufka from shlichus from a gezairas hakasuv. The nafka minah is, in cases where you can "give" them daas can they be in the parsha of shlichus.

[More maareh mekomos on this topic: See Gemara Gittin 23a, Birchas Avraham on that Gemara, Kobetz Biurim Os 16. See also Kobetz Hearos Siman 5: 12, 13 that discusses a very similar issue regarding bnei krisus]

Sources of Halacha

The Rambam in his introduction to Mishna Torah explains that the purpose of his writing the Mishna Torah was to codify the halachos of the Torah She'baal Peh. He thus went through all the sugyos in Shas Bavli and Yerushalmi and determined the final halacha in each case and recorded it. The Bais Yosef in his introduction explains how he codified the halacha. He first determined the opinions of the Rambam, the Rif, and the Rosh. He then followed a majority to determine the halacha. Of course, this approach of the Beis Yosef favors the Sefardim (for two of the three he relied upon were Sefardi) and, thus, we have the hagahos of the Rema on the Shulchan Aruch.

The Rif and the Rosh, like the Rambam, essentially wrote seforim that recorded the maskanos of the sugyas hashas. Thus, "halacha" really should be nothing more than the maskanos of the gemara. This approach would end up completely ignoring sources in Sifrei Kabbalah, like the Zohar.

In fact, the Chasam Sofer in Orach Chaim at the end of Siman 51 writes that anyone who mixes Kabbalah into Psak Halacha, it is a forbidden mixture (like shaatnez or kilayim). This would seem to be consistent with what we wrote above.

In reality, however, this does not seem to be the case. Both the Bais Yosef and the Magen Avraham are filled with citations of the Zohar, despite the fact that they are both sifrei halacha. How do we reconcile this fact with the statement of the Chasam Sofer?

This issue is dealt with by the Shevet HaLevi in Chelek Alef Siman Bais. He essentially says that even the Chasam Sofer would admit that kabbalah can make its way into halacha, and the Chasam Sofer's statement is only to be applied in limited situations. You can check yourself for the details of his answer.

Finally, the Mishna Berurah in Siman 25:42 quotes the Knesses HaGedolah on this issue. Here is a rough translation:

The Knesses HaGedolah writes that in terms of the rules of psak: any time the baalei kabbalah and Zohar argue on the Gemara and the Poskim we follow the Gemara and the Poskim. However, if the Baalei Kabbalah are machmir one should be machmir as well. And if the issue isn't mentioned in the Gemara and the Poskim even though it is mentioned in Kabbalah we cannot force someone to be noheg like that. And a din that is not mentioned the opposite way in Shas one should follow Kabbalah. And also, in a place where the Poskim argue one can use the words of Kabbalah to be machria.

Aseh V'lo Saaseh

In this post, Chaim B. tackles the question of the Maharatz Chiyus (posed here) by discussing a situation where we have one mitzvah that is both a lav and an aseh. He writes as follows:

Kiddushin 34 gives examples of mitzvos aseh which are not zman gerama which women therefore are obligated to perform: hashavas aveidah, ma’akah, shiluach hakan. Tosfos asks why it is relevant whether these mitzvos are zman gerama or not - since each of these mitzvos also is linked to a lav which women are obligated in, women have to perform the action associated with the mitzvah irrespective of the aseh.Tosfos answers by devising cases where the aseh applies without the lav. The Ramban, however, offers a more fundemental argument. In these cases the lav does not function as an independent issur, but is the Torah’s way of strengthening the mitzvas aseh – if the aseh does not apply, the lav which goes hand in hand with it does not apply either.The debate between Tosfos and Ramban seems to be how to understand intersecting lavim/mitzvos – do we treat each factor independently, or do the aseh and lav merge together and function as one unit either based on the criteria of the aseh (in these cases) or the lav (perhaps in other cases).

A commenter, Anon1 makes the following comment on this Ramban:

I remember when R'Mayer Twersky explained this machlokes rishonim -- he gave two mehalchim -- one focusing on whether the aseh and the lav were concurrent or not and the other focusing on the mechanics of aseh docheh lo taaseh (hutrah vs. dechuyah).

First, I'm not sure what Anon1 means by explaining this Ramban as having to do with aseh docheh lo saaseh. There is a separate issue also mentioned by Chaim B. in this post as follows:

why can’t women, who are not obligated in the aseh of Yom Tov because it is zman gerama, use this oil for hadlakas neiros – since they are only obligated in the lav of Yom Tov, we should invoke aseh doche lo ta’aseh?
Tofos answers that since the lav of Yom Tov is conjoined to an aseh, it indicates (is a siman) that this lav is stronger than other lavim and cannot be pushed off by an aseh.

This issue is obviously relevant to aseh docheh lo saseh. The issue is if you have a mitzvah that is both an aseh shehazman grama and a lav, do we say the rule of ein aseh docheh lo saaseh v'aseh for women. Clearly, that issue may be related to how the rules of aseh docheh lo saaseh work.

The first issue is a different one altogether. That issue is whether women are chayav at all in a mitzvas aseh shehazman gerama that also has a lav associated with it. Meaning, even though they are clearly patur from the aseh part, are they still chayav in the lav aspect.

I looked at the Ramban and my understanding was that the Ramban was saying that it depends on how we phrase the lav. In a case like maakeh for example, how do we understand the lav? Is the lav:

Do not refrain from putting up a maakeh.

Or is it:

Do not refrain from performing the mitzvah of maakeh.

The Ramban says that it all depends on how the lav is written in the Torah. In the cases above (maakeh, hashavas aveidah, etc.) we read the lav in the latter sense. The lav is to not refrain from the mitzvah. Therefore, if the aseh is zman gerama and, thus, there is no mitzvah, there is no lav either by extension.
In my understanding of the Ramban I did not think the Ramban was making a general rule by all mitzvos that have an aseh and a lav. Rather, the Ramban would analyze each case differently to determine how exactly the lav is phrased.

Osek B'mitzvah Patur Min Hamitzvah

Chaim B., once again, poses a lomdishe question in this post. The basic question is that Tosafos says that one may coerce someone to perform the mitzvah of tzedaka because it is not only an aseh, but a lav as well.
The problem is that the gemara says that one who is involved in the mitzva of hashavas aveidah is patur from the mitzva of tzedaka because of osek b'mitzvah patur min hamitzvah. Now, osek b'mitzvah pater min hamitzvah makes perfect sense if the mitzvah of tzedaka was only a mitzvas aseh. If, however, there is a lav as well, osek b'mitzva does not allow one to transgress a lav in the torah!
The first answer that comes to mind here is to distinguish between kum v'aseh and shev v'aal taaseh. When we say that osek b'mitzva doesn't allow one to transgress a lav, that is when the lav is b'kum v'aseh. Osek B'mitzvah is only a poter that allows you to be shev v'al taaseh. It is not, however, a mattir that allows you to actively transgress aveiros b'kum v'aseh.

Kibbush Yachid

The gemara talks about an area called Surya which, during the times of kedusha rishona, was captured "by individuals" and not by the whole Klal Yisroel (what exactly this means is the subject of another discussion). There are various halachos of Eretz Yisroel which, even nowadays, Surya is different than "bona fide" Israel.

This is somewhat problematic because wasn't the kedusha rishona batel? If that is the case, then if Surya was part of kedusha shniyah it should be the same as the rest of Israel. And if not, it should be total chutz la'aretz. Why should Surya be any different nowadays?

Rav Chaim in Stencils (on the din of Yesh Kinyan L'Akum) explains that kedusha shniya must literally be "the second". It has to be built off kedusha rishona. Thus, Surya remains different even in kedusha shniya because its kedusha shniya is built off of a kibbush yachid. This is another example of kedusha rishona still being in effect for some dinim (see this post for other examples).

Kedushas Eretz Yisroel

In this post we brought 3 opinions regarding terumah bizman hazeh. The Rambam holds it's d'rabbanan now and was even midrabbanan in the times of the second bais hamikdash. The Sefer HaTerumos holds that the kedusha of the second bais hamikdash was batel after its destruction and that is why terumah nowadays is d'rabbanan. Finally, the Raavad holds that terumah nowadays is a d'orayssa.

One of the assumptions in this discussion is that the kedusha rishona (meaning the kedusha that came upon Eretz Yisroel from the times of Yehoshua) was totally batel. Thus, the question the rishonim are grappling with here is the kedusha shniya and its relationship to terumos and maasros.

However, it is not so pashut that all the dinim of Eretz Yisroel nowadays are dependent on the kedusha sheniya.

For example, the Rambam in Sanhedrin 4:6 says that as far as giving semicha in Eretz Yisroel is concerned we follow the boundaries of the olei mitzrayim (kedusha rishona) and not those of olei bavel (kedusha shniya). The Radbaz says there that the same would be true regarding burial and the mitzva of yishuv in Eretz Yisroel.

For further discussion of this issue see Sefer Nefesh HaRav and Mishnas R' Aharaon in Gittin Siman 11.

Terumah Bizman Hazeh

Rambam in Perek Alef of Hilchos Terumos Halacha 26:

כו] התרומה בזמן הזה, ואפילו במקום שהחזיקו עולי בבל, ואפילו בימי עזרא--אינה מן התורה, אלא מדבריהם: שאין לך
תרומה של תורה אלא בארץ ישראל, ובזמן שיהיו כל ישראל שם, שנאמר "כי תבואו" (ויקרא כה,ב), ביאת כולכם כשהיו בירושה ראשונה וכמו שהן עתידין לחזור בירושה שלישית; לא כשהיו בירושה שנייה שהייתה בימי עזרא, שהייתה ביאת מקצתן--ולפיכך לא חייבה אותן מן התורה. וכן ייראה לי שהוא הדין במעשרות, שאין חייבין בהן בזמן הזה אלא מדבריהם כתרומה.

The Rambam here is saying that terumah nowadays, and even in the times of Ezra is only D'Rabbanan because by terumah there is a requirement of "bias kulchem", meaning that all of Klal Yisroel need to be in Eretz Yisroel. This did not exist in the times of Ezra and therefore terumah, even at that time, was only mi'drabbanan.

The problem with this Rambam is that the gemara in Kesuvos on 25a clearly implies that the halacha of bial kulchem applies to challah, and not to terumah. The Rambam, in fact, in Hilchos Bikkurim 5:5 brings the halacha of bial kulchem by challah.

Another problem with the Rambam is that the pasuk of Ki Savou that the Rambam cites, is written by Shemittah, and not by terumah.

The Shu"t Bais HaLevi (Chelek 3 Siman Alef Os Daled) and Chiddushei HaGrach Al HaRambam (Shemittah V'Yovel 12:16) explain that by terumah there is no direct requirement of bias kulchem. However, terumah is dependent on Shemittah. Shemittah, in turn, is dependent on Kibbush and Chilluk. In order to have Chilluk one needs all of Klal Yisroel there. Mimeilah, it turns out that you need bias kulchem by terumah. By challah, on the other hand, there is a direct requirement of bias kulchem and no requirement of chilluk. The nafka minah would be during the years of after kibbush, but before chilluk. There would be a requirement for challah (because you have bias kulchem). However, there is no requirement for terumah, because there is no chilluk yet.

It is important to note that according to the Rambam Kedusha Shniyah is kidsha l'asid lavo. Meaning that the kedushas ha'aretz of Eretz Yisroel remains nowadays even after the second Bais Hamikdash was destroyed. Nevertheless, terumah is d'rabbanan because the kedushas haaretz (the second time around) never included terumos and maasros or shemittah.

The Raavad disputes the Rambam and holds that even nowadays terumah is d'orayssa. Finally, a third shittah - the sefer haterumos - holds that during the times of the second Bais Hamikdash terumah was d'orayssa. However, after the destruction the kedusha was batel and terumah is, therefore, no longer d'orayssa.

Birchas Hamapil

In this post Chaim B. asks the following question regarding Birchas Hamapil:

The Rosh writes that the reason a bracha is not recited over sleeping in the sukkah is because there is always the chance that one will not be able to fall asleep, rendering the bracha l’vatalah. By the same logic, asks the M.C., how can we say a bracha of hamapil – why is there no concern that one will recite the bracha and not be able to fall asleep?

Rabbi Ehrman in this post also discusses the bracha of Hamapil and says as follows:

Yoni is a good boy! He is in Yeshiva and learning WELL!! He is giving his parents a lot of nachas. One night Yoni said the bracha of Hamapil and krias shema al hamitah before he turned off the lights and was ready to fall into a deep sweet slumber.All of the sudden he hears Avraham Fried belting out a niggun. His cellphone is ringing! Uh oh. He looks at caller ID and discovers that it's Mom. Holy beloved Mom. But after Hamapil and Shema he may no longer talk. On the other hand to answer would be Kibbud Aim. Question: May he answer?Answer: Answer! [See Shu"t Be'er Moshe 1/63] Note: One may also say Asher Yatzar if he relieved himself after Hamapil.

I actually looked up this Be'er Moshe and I found that he not only discusses Rabbi Ehrman's question, but he answers Chaim B.'s as well... with the same logic.

Basically, the Be'er Moshe holds (unlike the Mishna Berurah) that there is really no inyan to not make a hefsek between the bracha of Hamapil and sleeping. The only real reason to be quiet after Krias Shma Al Hamitah is in order to fall asleep "mitoch divrei torah". As far as Hamapil is concerned, it's not a bracha on the actual act of sleeping at all, but rather just a bracha on the "concept" of sleep. (He compares the bracha to HaNosen LaSechvi Binah.) Because the bracha is not on the act of sleeping, there is no worry of hefsek between the bracha and the act of falling asleep.

With this understanding, the Be'er Moshe explains the difference between Sukkah and HaMapil. By Sukkah, if there would be a bracha on sleeping in the Sukkah it would be on the act of sleep. Thus, the concern for bracha l'vatalah. By Hamapil, since the bracha is not on the act of sleep, there is no such concern.

Moser Shtarosav L'Bais Din

In Meseches Makkos there is a machlokes between Rashi and Tosafos regarding moser shtarosav l'bais din. As we know the shmitah year cancels all loans. Hillel was mesaken something called a pruzbul whereby a person can essentially make Bais Din the baal din on his loans. By doing this, shmittah no longer cancels his loans. The gemara in Makkos says that one can "give his shtaros to Bais Din" (moser shtarosav l'bais din) in order to avoid the shemittah cancellation. Rashi says that this terminology [of moser shtarosav l'bais din] is just another way of saying pruzbul.
Tosafos, however, argue that pruzbul and moser shtarosav are two separate things. A pruzbul is an enactment of the Rabbis. However, when one actually gives over his shtaros to bais din, this is a d'orayssa halacha. In this case, min haTorah, the loan is not cancelled.

Here is how the Rambam brings the halacha of moser shtarosav l'bais din:

[טו] המוסר שטרותיו לבית דין, ואמר להם אתם גבו לי חובי זה--אינו נשמט: שנאמר "ואשר יהיה לך את אחיך" (דברים
טו,ג), וזה בית דין תובעין אותו. וכן בית דין שחתכו את הדין, וכתבו איש פלוני אתה חייב ליתן לזה כך וכך--אינו נשמט: שזה כגבוי הוא, וכאילו בא לידו; ואינו כמלווה.

The Rambam brings down the case of moser shtarosav and quotes a source in the torah for the fact that shemittah does not cancel institutional loans. The simple implication of the Rambam is that moser shtarosav l'bais din is a d'orayssa concept and is separate from the concept of Tosafos. This is the way the Mahari Kurkus learns the Rambam.

I saw a strong question on this Rambam. We mentioned in this post that the Rambam has a unique shittah, that shtarei mamon only exist on a d'rabbanan level. On a d'orayssa level a shtar wouldn't work because it would be a problem of mipihem v'lo mipi ksavam. If all shtaros are, in fact midrabbanan, how could the Rambam say that moser shtarosav l'bais din is a d'orayssa?

Nesinas HaGet

The general assumption by get is that there is a halacha that the husband has to do a maaseh nesinah. That is to say, that he has to give the get to his wife in order for her to be divorced.

Acc. to Rav Soloveitchick this assumption is not entirely correct. The gemara in Gittin on 78a has a case of "arak leih chartzeh" (where the husband has the get in his belt and moves toward her). There is also the case on 77b where the woman only has to make a kinyan chatzer where the get is and that is good. Finally, the gemara on 21a says giving a shtar matanah to the woman on an eved or chatzer that is holding the get is also a nesinah.

Tosafos on 77b (d"h v'tezil) uses the lashon of "k'ilu nasnu lah" to explain why these cases are considered nesinah.

I heard that Rav Soloveitchick explained all these gemaras by quoting his grandfather Rav Chaim that by get a maaseh nesinah is not required. Rather, the halacha is that nesinas haget means to cause the woman to be tofes (to take possession of) the get.

To explain this more clearly Rav Soloveitchick elaborated that the rishonim say that arik leih chartzeih is a m'sayha. The Rav asked, don't we pasken that m'sayha ein bo mamash (for example by cos shel bracha and mishkav u'moshav). If it is ein bo mamash, so it is not a maaseh. Rather, you see that you don't need a maaseh nesinah at all.

[Side Point: There was a case in Brisk where a guy gave a get in an envelope. Rav Chaim said it's a safek megureshes. Why? The envelope is a chatzer. If there is no chatzitza however, it is like tli giteich m'al gabay karka, because the chatzer is karka. However, if there is chatzitza so she is divorced because she is koneh through the chatzer, like the case when he is makneh the chatzer to the woman and the get is in it.]

There is a stirah in Rambams. The Rambam in 1:11 of Gerushin says that saying ha giteich when you give a get is only a d'rabbanan. However, in 1:12 it is implied that it is d'orayssa. Acc. to what we have been saying, the answer may be that by a bona fide maaseh nesinah the requirement to say it is only d'rabbanan. However, if the husband is only m'sayha, so the requirement is then d'rabbanan.

The gemara in Hazorek uses a funny lashon by tli giteich m'al gabay karka. The gemara says that one who says "tli giteich m'al gabay karka, lo amar clum". What does that mean? Why doesn't the gemara just say it is pasul?

I heard a beautiful answer along the lines of what we have been discussing. The idea is that the amirah of "ha giteich" doesn't help if she just picks it up off the ground. Even though by m'sayha an amirah can make it a gerushin, tli giteich is worse than even m'syaha.

Why is that?

Rav Chaim explained that even by m'sayha you need it to be "m'yado mamash".

To summarize:

By get you don't need a bona fide maaseh nesinah, but even m'sayha qualifies. That which m'sayha works, according to the Rambam, is only with an amirah. The amirah combines with the m'sayha to make it a good gerushin.

Davar V'lo Chatzi Davar

The Rishonim on daf 70b in Baba Kama discuss the halacha of davar v'lo chatzi davar. This halacha states that when eidim testify on something they must testify on "a whole thing" and not "a half thing". The gemara says within the shitas Rabbanan that the halacha applies in certain cases and not in others. For example, it takes three years of living on a piece of land for someone to make a chazaka on that land. Once he makes a chazaka the land is presumed to be his. This is the halacha of shnei chazaka. The gemara says that if three sets of eidim come and each set testifies that the baal din has been living on the land for one year, the three sets of eidus are mitztaref and it is not a problem of chatzi davar. The gemara gives then gives a contrasting case. In order for a woman to be a gedolah she must display two hairs as a sign of maturity. Now, if two sets of eidim come and one testifies about one hair and one the other, that is a problem of chatzi davar. The gemara explains that in this case each set of eidim is actually only testifying that the girl is a ktana. Thus, the eidus cannot be mitztaref to make her a gedolah. This is the case of achas b'kreisa v'achas b'gabba. The Rishonim all try to figure out what precisely is the difference between the case of shnei chazaka and achas b'gabba v'achas b'kreisa.

Here is a rundown of the basic shittos:

Rashi: By the case of achas b'gabba each one is in the end testifying that she is a k'tana, so it's chatzi davar. However, in the case of shnei chazaka each group is testifying that the person currently on the land is a muchzak. Thus, we can add the eidus together to give the baal din a chazaka.
R' Chaim in M'Ginzei HaGrach Siman 54 explains Rashi along the lines of the shitah of the Ramban in Baba Basra. That shitah is that really when someone is on a piece of land even for a minute he makes a chazaka. Why then is three years needed? The three years are needed because in every chazaka there is a reyusa (a deficiency) of the missing shtar. If this baal din really is the owner why doesn't he have a shtar? Once three years go by there is good reason for him to have lost his shtar and the original chazaka kicks in.
Acc. to this, Rashi is saying that each set of eidim are in fact testifying to a chazaka. It's only a reyusa that forces us to be mitztaref the three sets. This, therefore is still considered a "full" davar.

Rif: The Rif answers that by shnei chazaka the eidus is considered complete because even one set of eidus could be effective with regards to making the baal din have to pay for any peiros he ate from the field should the field turn out not to be his. So, even though the eidus is not effective independently for a chazaka, since it can affect other dinim it is not a problem of chatzi davar.

Tosafos: By shnei chazaka the eidim saw everything that was possible to be seen within that time frame. This makes it a complete eidus. However, by the case of gadlus the eidim could've seen both hairs, thus rendering their eidus incomplete and pasul.

Shita Mekubetzes (Baba Basra 56b): This answer is also mentioned in entry 2 in the Kobetz Shiurim on Pesachim. The answer is that by gadlus the hairs themselves are the gadlus (and not a mere siman for the gadlus), whereas by chazaka the years of chazaka are just a raaya that the land is his, but they don't make the land his. The idea here is that if the saaros are actual gadlus testifying on only one of them is considered testimony on a chatzi davar. This is a classic utilization of the sibah/siman chakirah which we recently mentioned here. This answer is quite puzzling because saaros of gadlus are actually referred to as simanim. Yet, here we are anwering that they, in fact, are not a siman, but a sibah! (Before you argue on this claim of mine, please read on.)

Ohr Sameach (first entry in Hilchos Sotah): This answer completely reverses the logic of the last one! Simanim are, in fact, a siman, not a sibah (as I would argue the name implies!). The Ohr Sameach proves this from the fact that there are cases where one becomes a gadol without them (like by a saris or if one has children). Therefore, since it is only a siman it is considered chatzi davar. The Ohr Sameach continues that shnei chazaka are also a siman, and that's why the Rif had to come up with his answer about the peiros. Had either of these cases been a sibah, no answer would have been necessary.

There are other answers to this question as well.

This example is a good illustration of some of the downsides of the sibah/siman chakirah:

1. The first issue here is that the achronim can't seem to agree on whether simanei gadlus are considered a siman or a sibah. What I think we should really ask ourselves is whether this is at all a provable chakirah!? The Ohr Sameach proves that they are a siman because it is possible to have gadlus without them. Is that a proof? Maybe there are different causes of gadlus? The siman/siba chakira is basically asking whether something is a cause of something or just a correlation. Are the hairs the actual gadlus or just a siman for gadlus? All we know is that the Torah says that when a woman displays these hairs she is legally considered a gedolah. She has a halachic change of status. It's not a scientific assertion that we are dealing with over here that we should be asking if it's cause and effect or not. It's a legal and halachic issue. The hairs cause us to change her status from a ktana to a gedolah. The issue of siman/sibah seems to belong more to the scientific realm.

2. The relevance of the sibah/siman chakirah here is very vague. Let's isolate the case of shnei chazakah. Remember, we are trying to determine why when one set of eidim testify to the fact that the baal din has been here for one year that it is considered a "full" eidus and not chatzi davar. So we are looking for some aspect of their eidus that is "complete". Rashi/Rav Chaim give us that in the fact that their eidus makes the guy "a muchzak". The Rif also renders the eidus complete in terms of the peiros. (Tosafos goes in a slightly different direction by giving us a complete reeyas haeidus within a time frame.)
However, when we move to the siba/siman chakira we seem to lose the direction. For example, in the Shitah/R' Elchonon the eidus is supposed to be complete because it is a siman. Why? For what specific issue has the eidus completed anything? What legal change did the eidus bring about? To make it even more confusing, the Ohr Sameach goes the other way - the eidus is complete davka because it is not a siman but a siba for the chazaka (if it would be true that it were a siba). Again, why? If it's a siba but it doesn't actually complete any chazaka why should it not be chatzi davar?

I don't know if these arguments can really overturn all the applications of the siman/sibah chakirah. That's not really even my goal here. However, intuitively I have almost always been bothered by this chakirah so I thought it would be worthwhile to try to concretize some of what's bothered me about it. If you can enlighten me on the subject I would appreciate your input.

Kiyum Shtaros - Mipihem v'Lo Mipi Ksavam

In our last post on kiyum shtaros we left off with a question on the Rambam (link). The Rambam says that if a woman produces a get in bais din, no certification is required. The question is, why is the Rambam so lenient?

To answer this question let us bring the Rambam in Hilchos Edus 3:4

[ד] דין תורה שאין מקבלין עדות, לא בדיני ממונות ולא בדיני נפשות, אלא מפי העדים: שנאמר "על פי שניים עדים" (דברים יז,ו)--מפיהם, ולא מכתב ידן. אבל מדברי סופרים שחותכין דיני ממונות בעדות שבשטר, אף על פי שאין העדים קיימין, כדי שלא תנעול דלת בפני לווין

The Rambam here says a remarkable thing. All shtarei mamon are only acceptable on a d'rabbanan level. On a d'orayssa level, we don't allow eidim to write down their testimony. It must be mipihem, from their mouthes. Rav Chaim speaks at length about what exactly is the Rambam's shitah. One thing is forsure, however. We know that a get isha is a concept mid'orayssa. The torah itself speaks about a sefer krisus!

Rav Chaim is basically michadesh that a get (and other shtarei kinyan - as opposed to shtarei raayah) has a "challos shem shtar". It is not eidus bichsav. Rather, it is in a different category altogether. A simple shtar raayah by dinei mamonos has no shem shtar, rather it is eidim giving their testimony in writing. A get is a different animal. It is part of the gezairas hakasuv of shtaros and works as a shtar, not as eidus bichsav.

In light of the Rambam's shitah one thing should become clear. We had a gemara in Kesuvos that said that kiyum shtaros is midrabbanan. Rashi interpereted that on a d'orayssa level the shtar is good, and only the Rabbis required kiyum.

The Rambam almost certainly argues. He says the gemara means that in general shtarei mamon are only d'rabbanan. It's all one halacha. The Rabbis accepted shtarei mamon as long as they had kiyum.

In gittin 3a on the other hand, when Reish Lakish says that eidim who sign a shtar it is as if their eidus was already admitted in court, that is specifically by get, and is even on a d'orayssa level. There the gemara is saying that on a d'orayssa level a get has a shem shtar.

[Interestingly, in Kesuvos 18a Reish Lakish's statement is mentioned in a totally different context of kevan shehigid shuv eino chozer umaggid. See Rabbeinu Kreskas in gittin 3a and the Birchas Shmuel siman 9. It would seem that the Rambam learns these seemingly identical statements of Reish Lakish as two separate halachos.]

Acc. to this understanding of the Rambam, we can say that there is no such thing as kiyum shtaros midrabbanan at all by get isha. When the gemara in gittin says that the Rabbis required a shliach to say b'fanei nichtav and b'fanei nichtam, that is not a din of kiyum shtaros. Kiyum shtaros was a din only by d'rabbanan shtaros. The din of b'fanei nichtav is because we are afraid the husband may come later and protest and there will be no eidim around to certify. In such a case, however, the get would need kiyum on a d'orayssa level. This is clear from Perek 7 of Hilchos Gerushin. (See the Griz in Hilchos Gerushim who explains that the "baal hashtar" has a special power to pasul the shtar.) The halacha of kiyum when a husband protests is unconnected to the rule of kiyum shtaros d'rabbanan according to the Rambam. This is in total contrast with the Raavad's view.

What emerges is a great chiddush in the Rambam that the whole halacha of kiyum shtaros midrabbanan doesn't exist at all by shtaros like a get which work on a d'orayssa level. This is the reason why the Rambam is so lenient with regards to a woman who produces a get in bais din that no certification is required. In light of this explanation in the Rambam, the Rambam in Gerushin 7:7 reads beautifully.

והרי הגט יוצא מתחת ידה--אינה צריכה לומר כלום; והרי היא בחזקת מגורשת, הואיל וגט שבידה כתוב כהלכתו והעדים חותמין עליו. ואף על פי שאין אנו מכירין כתב העדים, ולא נתקיים--אין חוששין לה, שמא זייפה אותו: שהרי אינה מקלקלת על עצמה; ועוד שהעדים החותמין על הגט, הרי הן כמי שנחקרה עדותן בבית דין, עד שיהיה שם מערער. לפיכך נעמיד הגט בחזקתו, ותינשא, ואין חוששין, שמא יימצא מזוייף: כמו שנעמיד הגט בחזקת כשר, כשיביא אותו השליח--עד שיערער הבעל, או עד
שיביא ראיה שהוא מזוייף או בטיל

The Rambam here is saying that if the woman is holding her get in court she needn't say anything. Why not? He quotes Reish Lakish's halacha that d'orayssa the get is as if it has already been admitted into court. There is no kiyum shtaros midrabbanan halacha at all, because it doesn't exist by get. The Rambam here also compares it to when a shliach delivers a get where we assume the get to be kosher. What does the Rambam mean by this? That is only true if the shliach delivered within Israel. Otherwise, don't we require b'fanei nichtav? Is the Rambam only talking about a shliach in Israel?

The answer is that acc. to the Rambam when one says b'fanei nichtav, it has nothing to do with kiyum and it has nothing to do with suspecting the kashrus of the get. The get is kosher forsure. The issue is a side issue that the baas may come in the future and pasul the get, because, as we said before the baal hashtar has the ability to pasul the shtar.

Again, we see that in the shitas HaRambam a get is intrisically kosher and never requires kiyum. B'fanei nichtav is a different din altogether.

Kiyum Shtaros - A Woman who produces a Get in Bais Din

Hilchos Gerushin 12:2

הוציאה גט מתחת ידה ואמרה, גירשני בעלי בזה--הרי זו נאמנת; ותינשא בו, אף על פי שאינו מקויים, כמו שביארנו

The Rambam holds that if a woman comes into court holding a get and says that my husband divorced me with this, she is believed. The get works fully even with no kiyum (i.e. even with no certification from witnesses that the signatures on the get weren't forged.

The Raavad here argues with the Rambam and writes that the get needs kiyum even though there has been no protest as of yet against the kashrus of the get.

Our goal will be to explain the machlokes between the Rambam and the Raavad.

First, the basis for the Raavad. The gemara in Kesuvos 28a says that kiyum shtaros is midrabbanan. Rashi explains that this means that on a biblical level the testimony on a shtar is good. Why? Because Reish Lakish says that eidim who are signed on a shtar it is as though their testimony was already investigated by a court and found to be admissible. The Rabbis were stringent and required kiyum. In gittin 3a Reish Lakish's statement is also brought and thus the Raavad concludes that there is a din of kiyum shtaros drabbanan even by get (and not only by other shtaros like shtarei mamonos - we will discuss possible differences between different types of shtaros later).

The second presumption of the Raavad is that we require kiyum even with no protest against the kashrus of the shtar. This is based on the shittah of tosafos in gittin 2a that Bais Din is taaninan mezuyaf, they voice a protest against any shtar if the defendant is not present. Thus, the Raavad is saying that also by get, if the husband is not in court, the court itself claims mezuyaf for him and the get requires certification.

Tosafos themselves ask that if it is true that a get always needs kiyum what about when a shliach delivers a get within Israel. In such a case the halacha is that we don't require certification, and the shliach need not say b'fanai nichtav u'b'ganai nichtam. Why not? Tosafos answer that mishum iguna akilu bah rabbanan, we don't want the woman to be an aguna, so we allow the divorce without requiring the certification. One could perhaps argue for the Rambam that he too is being lenient on this woman who produces the get in beis din for the same reason - mishum iguna. However, this answer does not hold, because the fact is that in a case where a shliach brings a get from chutz laaretz there is certainly a requirement of certification. So, even if the Rambam held of tosafos' leniency of iguna he should still require the woman to at least prove that the get originated in Israel. The Rambam seems to be remarkably lenient. He requires nothing at all from a woman who produces a get, even though everyone agrees that when a shliach delivers a get from chutz laaretz certification is required. The question then is why is the Rambam so lenient on the woman?

Bar Kerisus for Kesivas HaGet 3

We previously posted on the issue of Bar Kerisus in Kesivas HaGet here and here. We will now finish this topic (at least for now) with this third, and final, installment.
We stated previously that Rashi holds that one needs to be a bar kerisus to write a get based on the drasha of v'kasav v'nasan. We noted that this drasha doesn't seem to appear anywhere, and we suggested that the source of it is an expanded view of the drasha of ukshartem uchsavtem. Let us now elaborate on that point.
The Gemara in Gittin 45b states a drasha of ukshartem uchsavtem, that one who can "lay" tefillin can write tefillin. The idea is that a goy, eved, woman, or koton are not allowed to write STa"M (sefer torah, tefillin and mezuzos) because they are not "b'toras keshira". Tosafos over there (d"h kol) brings Rabbeinu Tam who says that likewise a woman may not bind the lulav or make tzitzis because she is not commanded in these mitzvos. Tosafos dispute Rabbeinu Tam. They bring a proof from the building of a sukkah, that is kosher even with a goy (sukkas ganbach kesheira) , even though the goy is not commanded in sukkah. Thus, the dispute is whether or not there is a general rule in kol hatorah kulah that to create a cheftza shel mitzvah one must be commanded in that mitzva. Rashi would seem to follow along the lines of Rabbeinu Tam. He holds that even by get, to create the cheftza of a get one must be a bar nesinas get. The drasha of vkasav vnasan is simply an expansion of ukshartem uchsavtem. This follows Rabbeinu Tam's expanded view of this halacha.
What does Rabbeinu Tam do with the building of a Sukkah? Take a look at the sefer B'ikvei Hatzon where R' Schachter brings the Mishkanos Yaakov that Rabbeinu Tam's shittah is only by the creation of a cheftza shel mitzvah that requires lishma. By the building of a sukkah there is no halacha that one must build the sukkah lishma, therefore anyone can build it. (This answer is logical because there has to be some line drawn as to what is considered the creation of a cheftza shel mitzvah. Is planting the tree for the lulav also prohibited to be done by a goy? Obviously not. The Mishkanos Yaakov is saying the line is drawn with lishma.) So essentially, Rabbeinu Tam's shitah is that someone who is not commanded in a mitzvah also doesn't have the power to create that cheftza shel mitzvah lishma. This understanding will fit perfectly with our previous understanding in Rashi and the Rambam. Namely, that when the gemara says a goy can't write a get because he lacks lishma, it really means that he lacks the ability halachically to create a challos of lishma in the get. This was R' Chaim's understanding. Acc. to this, the reason why a goy lacks this ability is because he is not commanded in the laws of gittin.
The question now swings back to tosafos. Tosafos proved that one need not be a bar krisus to write a get from bris milah. We asked, what is the comparison? By milah, one is not creating a cheftza shel mitzvah, he is doing the actual maaseh mitzvah! The proof we brought for Rashi is far superior because the creation of ST"aM is a cheftza shel mitzvah, a hechsher, just like get.
To further strengthen this point take a look at the Bais Yosef in Siman 14 that a woman may lay tefillin on a man (who is incapable of doing it himself) because it is the actual mitzvah and not just a hechsher. So what is the proof from milah?
On Daf 32b in Gittin it appears from Tosafos d"h hasam that one can be mevatel a get. The question is what kind of ridiculous idea is that, could one be mevatel a sefer torah after it was written? How could you undo it being a kosher get? It appears from Tosafos that the writing of a get is not called the "gmar hadavar". It is actually the beginning of the actual maaseh gerushin. See Eretz Hatzvi siman 24 who brings this from R' Soloveitchik. The idea is that the initial writing of the get lishma is the beginning of the gerushin process. Rashi there seems to dispute this point. Tosafos, however, works perfectly in bringing his proof from milah, both are considered the actual maaseh, and not mere hechsherim.
In the end, Rashi and the Rambam hold that the halacha of bar kerisus in kesivas haget and writing a get lishma are all one halacha. Also, they both hold that the din of lishma is part of a process of creating the cheftza shel mitzvah (which must be done by a bar hachi). As icing on the cake tosafos on 9b in gittin state clearly that lishma and bar kerisus are two separate halachos. The halacha of lishma is not related to the creation of a cheftza shel mitzvah, but to the beginning of the gerushin process. Thus, they prove from milah that one needn't not be a bar hachi when doing the actual maaseh mitzvah.

To summarize the main points of dispute:

Rashi and the Rambam: the din of lishma and the din of being a bar kerisus are intertwined. Writing a get lishma is a halacha in the creation of the cheftza of the get. Only a bar kerisus can create a cheftza of a get because only he has the power to infuse lishma into the get. Lishma doesn't merely mean having a certain kavana. It means having the halachic ability to create a cheftza shel get. Only a bar kerisus can do that. This is true by all cheftza shel mitzvah. If the creation of the cheftza shel mitzvah needs lishma, it means that only a bar hachi can create it. It's all one halacha.
Tosafos: the halacha of lishma has nothing to do with bar kerisus. Lishma is just a simple halacha in the writing of a get that it must be done with a certain intention. It is not creating a cheftza shel get by infusing the lishma into the get. Not only that, on the contrary! After a get is written it is not a "finished" cheftza at all. Rather, the writing of the get is viewed as the first step of the actual maaseh gerushin. Like bris milah, the writing of the get can even be performed by someone who is not a bar hachi. Lishma is not related at all to the halachos of being a bar hachi and thus has nothing to do with the "conditions" of the creation of a cheftza shel mitzvah. Rather, it is simply a din in the gerushin process as to what type of kavana needs to be had.

Note: There is a beauty to tosafos' shittah. Because he holds that writing the get is the first step in the gerushin process it is a chiddush that this doesn't need to be done by the husband himself. Rather, as long as the kavana is there it's fine. It is then logical to say that what advantage would being a bar kerisus be? After all, the husband is not doing it anyway. In Rashi, the writing of the get is a separate process from the giving of the get. It makes sense then, to add a requirement that to "create" a get one must be a bar kerisus.

When is a Shoel chayav in Onsin?

In this post on kim leh bdrabbah minei Chaim B. writes about the moment of chiyuv by a shoel. He writes as follows:

Once a cow is borrowed, the borrower is liable to return or replace the cow from that moment, which is why even if the borrower dies, his estate is liable. If so, why is a borrower who slaughters a cow on Shabbos exempt from payment because kam lei b’derabbah minei – the obligation for repayment occurrs when he borrowed the animal, not simultaneous with Shabbos? The answer is (see Ktzos 341) that when it comes to klb”m we don’t look at when the potential obligation of repayment occurred, we look at when the actual obligation of repayment is triggered. It is as if the obligation to pay exists on condition (tnai)– the lien is in effect from the moment the obligation is set, but klb”m applies to themoment the condition effecting payment is fulfilled.

I mentioned in my comments that I was troubled by this answer. Here I will elaborate on why. In Meseches Sanhedrin 72a, the gemara discusses the ptur of kim leh bdrabba minei. The gemara is talking specifically about a ba b'machteres. This is someone who breaks into someone else's house as a thief. The gemara's assumption is that such a person is patur from any monetary obligations incurred during the thievery because he is already chayav misah as a rodef (kim leh b'drabba minei).
The gemara seems to conclude that the issue is dependent on the following: Is the obligation to return a borrowed object qualified as mamona gabach, which would mean that the property is really owned by the original owner and it is just a chiyuv to return the object to him (a chiyuv hashava)? Or do we say that for purposes of onsin the item is owned by the borrower. If that's the case there exists a chiyuv tashlumin, a chiyuv of payment, and not a chiyuv hashava. The gemara says that if the shoel has a chiyuv hashava, the chiyuv is not cancelled in the face of kim leh b'drabba mineh because it's not a monetary obligation, it's the mashil's object that is being returned. One is not patur from returning someone else's object with kim leh. However, if there exists a chiyuv tashlumin, it would be canceled by kim leh.
You see from this gemara that when we speak of chiyuvim of a shoel it's either mamona gabach or a chiyuv tashlumin. I don't see anywhere this idea of potential chiyuv and actual chiyuv. There is only one shaas chiyuv. The chiyuv sets in at whatever moment it is kam leh birshusei (at whatever moment the torah says it is considered in the reshus of the shoel).

Maaseh Genaivah

Chaim B. posts here, here, and here on the topic of kim leh bdrabba mineih. The Rambam says in Hilchos Genaivah 3:4 that if a shomer slaughters an animal he is supposed to be watching on Shabbos, he is patur from the knas daled v'heh (the fine of 4 or 5 times the amount) because slaughtering on shabbos is chayav misah. Therefore we say kim leh bdrabba mineih and the genaiva and chiyuv misah come at the same time. Here is the loshon HaRambam:
ד] הייתה פרה שאולה אצלו, וטבחה בשבת דרך גניבה--פטור אף מן הכפל: שהרי איסור שבת ואיסור גניבה באין כאחת; ואם
אין גניבה, אין טביחה ואין מכירה
What is interesting about the lashon HaRambam here is that the cow is originally borrowed and then it is slaughtered "derech genaiva". What is the meaning of this? Can a slaughtering actually be a maaseh genaivah?
I found that the Chazon Yechezkel (Baba Metzia 3:6) quotes R' Chaim who attempts to explain the shitas HaRambam. This idea that the Rambam has that the slaughtering is a maaseh genaiva is actually based on a girsa in Baba Kama 112a that is mentioned by the teachers of Rashi. Rashi actually rejects the girsa on the grounds that if a shomer slaughters the cow he is watching he is not a ganav, but rather a gazlan. The proof is that the only way a shomer pays kefel is by a case of toan taanas ganav. This implies that in a normal case the shomer only becomes a gazlan. Rav Chaim explains that the real difference between a ganav and a gazlan is that a gazlan is when one causes the baalim to lose their mamon. However, ganav is defined by the added clause of lekicha b'issur. By a shomer the original taking of the object was b'heter. Now, by "stealing" it, it is only mechaser mamon habaalim, not lekicha b'issur, so it's gezailah and not genaivah. Rav Chaim suggests in the Rambam that a maaseh tevicha is considered a lekicha b'issur and therefore could qualify as genaiva if it is done b'derech genaivah (I assume he means in a secretive way). This explains the lashon HaRambam of derech genaivah.

Bar krisus for Kesivas HaGet - 2

We posted here regarding the issue of whether one needs to be a bar krisus to write a get or not. In that post we pointed out that Rashi seems to imply that one needs to be a bar krisus. What is strange about Rashi, however, is that he quotes a drasha that doesn't seem to be found anywhere. Rashi says that since the pasuk says V'kasav v'nasan, so we learn from there that one needs to be a "bar nesinah" of a get in order to be a "bar kesiva". There is another gemara in Gittin that discusses another very similar drasha of "ukshartem uchsavtem" that to write tefillin (and by extension sefer torah and mezuzah) one needs to be a "bar keshira" or one who in general would wear tefillin. The rishonim argue as to how far we expand this drasha. I once thought to suggest that Rashi holds like those rishonim who take a very expanded view of this drasha and applies the same exact drasha to v'kasav v'nasan. In other words, the source of Rashi's drasha on 9b in Gittin of V'kasav V'nasan is actually the later gemara in gittin regarding the writing of ST"aM. If this is the case then we will have to deal with why tosafos never brings the case of ST"aM as a proof that one does need to be a bar krisus to write a get, and instead brings the case of bris milah to prove that just like one need not be a bar bris milah to perform a milah, so too he need not be a bar krisus to write a get. Even further, milah seems to be totally different because there it's the actual maaseh milah that is being done. Here by the writing of the get, that is only a "hechsher" for the maaseh gerushin. Wouldn't it be much better to bring a proof from the writing of STa"M which is also a "hechsher" towards the actual mitzvah? It occured to me to answer this question by pointing out that R' Soloveitchick held within some rishonim that the writing of a get is actually the "haschalas gerushin" at some level. It is not a mere hechsher (as would be the pashtus), but, rather, a beginning of the kinyan. If tosafos held like this the comparison from milah makes perfect sense. Both are part of the actual maaseh, and not mere hechsherim. In future installments we will iy"h expand upon these ideas.

Who can write a get?

Tosafos in Gittin on 22b says that to write a get one need not be a "bar krisus", i.e. one who himself is fit to write a get (for example - a non jew who doesn't give a get because non-jews have no ishus). He proves this from the fact that the gemara only says a non-Jew cannot write a get because he doesn't have proper intention lishma. So, you see that otherwise a goy could write a get. Another proof of Tosafos is from milah. Just like by bris milah one need not be a "bar milah" to perform a milah, so too by get one need not be a "bar krisus" to write a get.
The Rambam in Hilchos Gerushin 3:25 seems to clearly imply otherwise, that one does need to be a bar krisus to write a get. The proofs of tosafos need to be answered by the Rambam.
Rashi also, in Gittin 9b (entitled: pesula) also implies like the Rambam when he says there is a drasha of "v'kasav v'nasan - that only a "bar nesina" can be a "bar kesiva" (meaning only one who can give a get can write one). Again, Tosafos proofs are questions on Rashi. We will present answers to these questions in another post. In the meantime, for anyone interested here are some maareh mekomos - Shiurei R' Shmuel on 10b in Gittin, Ginzei Hagrach siman 32, and Birchas Shemuel siman 16 in gittin.
The main issues we will address are the following. First the relationship between writing a get lishma and the requirement of being a bar krisus. Perhaps there is a din that a non-bar-krisus is incapable halachically of writing a get lishma. It's not that he doesn't have the proper intention, rather he doesn't have the halachic ability to create such a challos.
Another relevant issue is the comparison between milah and get. Milah is an actual maaseh mitzvah, whereas get would at first glance be merely a hechsher for the real maaseh of giving the get. What is the comparison of tosafos. Finally, one last point. Why does Tosafos not mention another gemara in gittin which talks about whether one who writes the tefillin must be one who also wears tefillin. That is a din that seems highly relevant to this issue of writing a get, yet it is completely ignored by tosafos. We will tie all these issues together iy"h.

Lack of Bracha on Sleeping in the Succah II

In my previous post (here) I mentioned the issue of why we don't make a bracha on sleeping in the succah. There are three basic approaches to this. Rabbeinu Tam says that the ikkar yeshivas succah is by eating. The Rosh answers that one doesn't make a bracha on sleeping because one may not fall asleep (see Rosh 4:3) . Finally, the Rogotchover answers that it is not a kiyum aseh when one sleeps in the succah, rather it is just an issur aseh not to sleep in the succah.
I would like to offer an answer to this question along the lines of the Rogotchover, but perhaps slightly different. We can ask a different question. We know that part of the mitzvah of yeshivas succah is "tiyul" - to simply "hang out" in the succah. Why is there no bracha on tiyul in the succah?
The most simple answer to this would seem to be that a bracha is only made on a chiyuv aseh. One is not required to spend his time in the succah. While it may be a kiyum aseh to spend time in the succah, it is not a chiyuv, and therefore there is no bracha. Why is there no bracha on a kiyum aseh? Because in a bracha one says v'tzivanu (and He commanded us) and it can only be considered a command if there is a chiyuv. In contrast, eating in the succah is a chiyuv aseh, and therefore a bracha is recited.
According to this, one may ask why not make a bracha on sleeping in the succah? Isn't it, after all, a chiyuv to sleep in the succah, similar to eating?
We have already seen that the Rogotchover says this is not the case. It is not a chiyuv aseh to sleep in the succah, rather it is an issur aseh to sleep outside of the succah. Before we try to prove the Rogotchover's yesod, let's reframe it in our terms.
As we have suggested, tiyul in general in the succah while not a chiyuv aseh, is still considered a kiyum aseh. It seems likely that sleeping in the succah should be no worse than tiyul. In fact, it would seem to be a form of tiyul. Combining this with the Rogotchover's idea, we can say that sleeping in the succah is a kiyum aseh (meaning a kiyum of tiyul) as well as an avoidance of an issur aseh(of sleeping outside the succah). However, there is not a chiyuv aseh per se to actually sleep in the succah.
Although it is hard to logically "prove" that this is true, it seems very reasonable. Let us pose the following chakirah. We know that one must sleep in the succah on succos. However, one does not have to do tiyul in the succah on succos. Why the distinction? One could suggest that sleeping in the succah is more of a "yeshivas succah" than tiyul. But is this really logical? Actually this seems counterintuitive. If you take a look at Reshimos Shiurim in Succah (on Mitzvas Yeshiva B'succah) he discusses whether sleeping is a kum v'aseh or a shev v'al taaseh (do you go to sleep or do you fall asleep?). He seems to say it's shev v'al taaseh. Essentially, sleeping could be termed as tiyul b'shev v'al taaseh. Even if you don't go this far, it would certainly seem to be a "lower" form of tiyul. So, how could sleeping be more of a yeshiva b'succah than tiyul? It seems the opposite is true!
Rather, the reason why one must sleep in the succah would seem not to be because it is more of a yeshiva b'succah than tiyul, but rather that it is a form of tiyul that is assur outside the succah. In other words, it is an issur aseh to sleep outside the succah. However, sleep cannot be "better" than tiyul that we should say that it is a chiyuv aseh to sleep in the succah, when tiyul itself is only a kiyyum aseh.
Thus, we have proven that there is not chiyuv aseh to sleep in the succah, because if there were it would be more of a yeshiva b'succah than tiyul, which is counterintuitive.

No Bracha on Sleeping in the Sukkah

Chaim B. writes about why we don't make a bracha on sleeping in the sukkah here, here, here, and here. I guess he likes this topic a lot. In one of the posts Mike S. makes the following comment regarding the other bracha made on sleeping, Birchas Hamapil:

By the way, although I don't know the reason for it, R. Y. Halberstam, in reporting a discussion between one of his daughters and a teacher, once told me that in Chassidic families the custom is not to say birchat Hamapil.

I actually saw a short paragraph on this issue on page 153 of the Sefer Nefesh HaRav by R' Hershel Schachter. I will paraphrase into English:

Birchas Hamapil: Even though this bracha is mentioned in the Gemara in Brachos 60b, many do not have the custom to say it. We have to understand - what changed now from the times of the gemara that nowadays we no longer need to say it? It seems that what changed is that in the times of the Savoraim (after the zman hagemara) the minhag became to say Baruch Hashem Liolam Amen V'Amen, in which we say the phrase Byadcha Afkid Ruchi and other pesukim of emunah, and all the ideas that are included in Hamapil we already said in the pesukim of Baruch Hashem L'Olam, and therefore it is possible to say that it is no longer applicable the Takanah of saying Birchas Hamapil.

Shem Ochel/Shem Chometz - clarification

In an earlier post we quoted a chiddush from R' Boruch Povarski in the name of R' Chaim regarding the issur of chometz on Pesach. Here is a quote from that post:

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.)

Asher M. in the comments asked the following question:

Chametz is not only an issur achilah – it is also an issur hana’ah. Now by neveilah, even thought it’s fit for a dog, if it’s not fit for a human it is not considered a maaseh achilah. So we generalize this principle to “if a person eats any object which is not fit for human consumption he has not violated any prohibition of eating”. So, under the same circumstances by chametz – it would not be considered a maaseh achilah. Perhaps the person has gained some benefit from the object – but that would not be the same as violating the issur achilah. So, how did we answer the question?

Asher is basically asking that if the chometz is not fit for human consumption you haven't done a "maaseh achilah" so how could you possibly have transgressed the lav of eating chometz?

This is a very strong question and I believe my original post was unclear. I didn't manage to get a hold of R' Povarski's sefer, but I did see the inyan discussed in the Birchas Avraham in Pesachim on 45b. I also saw the issue discussed in R' Chaim stencils under the title "netzel" (in my edition it's on page 242 Siman 409) and also in R' Chaim on the Rambam in Maachalos Asuros 15:1.

Basically the real issue that R' Chaim is addressing is not whether one can eat chometz that is not edible to humans. On a d'orayssa level that would probably be mutar (I'm using the word probably on purpose... at the end of the post I will discuss this further) because the Gemara in Pesachim on 24b says that one is only chayav in maachalos asuros if he eats them "derech hanaah". The Rambam brings this down in Maachalos Asuros 14:10. The only exceptions to this rule are basar b'chalav and kilei hakerem, because the torah doesn't use a lashon of achilah by them.

R' Chaim was addressing the issur of bal yeraeh and bal yimatzei. The issur for one to own chometz on Pesach. The gemara by pas sheipshah (moldy bread) says that one must do biur on the bread as long as it is fit for a dog. That is to say, that as long as the chometz is fit for a dog one may not own it on Pesach. The question is why not follow the criteria of fit for a human, that as long as it is not fit for human consumption one may own it on Pesach. This is indeed the criteria by the issur of eating neveilah, that if it's not fit for a human one may eat it.

R' Chaim explained that when food is not fit for a dog it is no longer food. However, when food is not fit for human consumption (but still fit for a dog) it is still "food", it's just not a maaseh achilah. This could also affect the din of tumaas ochlin. If it's not food, it has no tumaas ochlin. If it is food, just not a maaseh achila, so it could have tumaas ochlin. [Update: As Asher points out in the comments by kabbalas tumah the Rambam actually says that if it's not fit for human consumption it is not mekabel tumah. However, R' Chaim in the stencils is dealing not with kabbalas tumah but with the halacha that neveilah has it's own tumah (the neveilah of a tahor bird and the neveilah of a beheimah are tamei). By neveilah of a bird specifically the Rambam says that it must be not fit for a dog to be tahor. We will still have to deal with the Rambam by kabbalas tumah although I don't think it is that difficult of a question to deal with. In support of Asher's contention that something not fit for human consumption is not "food" I should mention that the gemara does give a reason why chometz that is not fit for humans still needs destruction. The gemara says the reason is because that chometz is still fit to cause other dough to rise and turn into chometz (lchametz isos acheiros). R' Chaim himself mentions this in his piece on the Rambam.] So when it comes to owning chometz on Pesach one needs the chometz to be not fit for a dog so that it's not a cheftza of chometz. By neveilah, one is only getting rid of an issur achilah so it suffices that it's not fit for human consumption, in which case it is not a maaseh achilah.

I would just like to add some interesting points I saw in R' Chaim's writings that may clarify where R' Chaim was going with all of this. In the stencils R' Chaim notes that the Rambam puts two separate halachos in the same grouping. The Rambam groups together the halacha that if one eats shelo k'derech it is mutar and the halacha of einah reuyah l'ger in the same halacha. These are really two separate halachos, as R' Chaim points out, because the halacha of shelo k'derech does not apply to basar b'chalav, as we already noted. However, the halacha of not fit for a ger (i.e. for human consumption), does apply to basar b'chalav. Meaning, if one eats basar b'chalav in a "strange" manner he does transgress the issur. However, if he eats basar b'chalav that's not fit for human consumption he does not transgress the issur. So, why does the Rambam group together these two halachos? R' Chaim answers that it's to teach us that both dinim are not dinim in the cheftza of the food, but in the maaseh achila. Meaning, just like if one eats issur in a "strange" manner the reason why he is patur is not because the food is not food, it's because the eating is not a proper eating. So too, by the din of not fit for a ger, it's the eating that doesn't qualify as a proper eating that makes it mutar. It's a din in the maaseh achila.

So going back to the issue of eating chometz not fit for human consumption on Pesach, do you transgress the issur of eating chometz on Pesach? I wrote earlier that it should probably be fine because it is like the case of eating the chometz shelo k'derech. As you can see, it is not so simple to say that the two heterim are really one in the same. Nevertheless, I believe that the general consensus would be that one does not transgress the issur because it is nevertheless not a maaseh achila.

Finally, let me bring something from R' Chaim on the Rambam. R' Chaim there discusses the differences between taaroves chometz (chometz that cannot be seen, but is part of a mixture) and chometz bein (actual bona fide chometz). He says that by taaroves chometz, as long as the chometz is not fit for human consumption there is no issur to own it. This is not the case by bona fide chometz, where it must be unfit even for a dog. Why the difference? R' Chaim explains that the reason why taaroves chometz is assur to own is because of the din of taam k'ikkar. That din is nullified when the food is unedible to humans. However, actual chometz is still considered "food" (it has a shem ochel) even if it is unfit for humans. Only when it is unfit for dogs is it no longer considered food.

As you can see, this idea that food unfit for human consumption is still food just not a maaseh achila seems to be a major theme in R' Chaim's writing.