Selling Chometz Before Pesach

The Ktzos HaChoshen in 194:4 has an interesting discussion about what is the best way to sell chometz before Pesach. He finds a downside to almost every kinyan. For example, kinyan agav may only be d'rabbanan, kinyan chatzer may get into a problem of ein shlichus l'akum, kinyan meshicha isn't practical, kinyan kesef won't really work with m'taltlin etc. The Ktzos then suggests a novel way of transferring the chometz to the non-Jew - by means of a kinyan odisa. What is a kinyan odisa? It comes from a strange story related in the gemara in Baba Basra 149a. Here is a rough translation of that story:

Issur Giyora had twelve thousand zuz by the house of Rava. Rav Mari his son was conceived not in holiness [before his father converted] but born in holiness (thus he did not legally inherit him). (Rashi: This refers to Issur the Ger who had relations with Rochel the daughter of Mar Shmuel before he converted and she became pregnant while he was still a goy with Rav Mari the son of Rochel. Then, while she was pregnant, he converted. Then Rav Mari was born so that his conception was not in holiness but his birth was. [Rochel] was one of the daughters of Shmuel who was held captive as described in Kesuvos 23a.) He was by the house of Rav. Rava said, "How can Rav Mari acquire this money? If by inheritance, he is not an inheritor. If through a matanah, matnas shchiv maira (i.e. the matana of someone prior to his death) is like an inheritance according to the Rabbis. If there is inheritance there can be matnas shchiv maira, otherwise no. If by meshichah, the money is not with him. If by chalipin, money isn't acquired through chalipin. If by kinyan agav, he has no land. If through maamad shlashtan, I'm not going! [Maamad Shlashtan is a kinyan that involves the mafkid, nifkad and the mekabel matana. The mafkid tells the nifkad in the presence of all three, "the money of mine that you have goes to him". Rava didn't want to participate in this, because he would stand to lose the money!] Finally, Rav Ikka the son of Rav Ami asked, "Why not have Issur admit that the money is Rav Mari's and Rav Mari will acquire through kinyan odisa?" After that, an odisa was, in fact, sent out of Issur's house. Rava was upset about this.

The Ktzos understands that Odisa is a real kinyan. If you "admit" that something belongs to someone else, even if, in fact, it doesn't, this can effect a kinyan. By chometz also, the Ktzos suggests writing a contract admitting that the chometz belongs to the non-Jew, and that will create the kinyan.

This idea of a kinyan odisa is relevant to the discussion we had in this previous post about how hodaas baal din works.

It should be noted that not everyone agrees that odisa is a kinyan. Some learn that it is merely an admission. See, for example, the Nimukei Yosef in Baba Basra 69b in Dapei HaRif.

Hodaas Baal Din

It is well known that a person cannot testify about himself l'zchus, for his benefit. However, a person may testify about himself to be mechayev himself. This is the concept of hodaas baal din kmeah eidim. The question is, how precisely does this idea work?

The Ktzos HaChoshen addresses this in a number of places (34:4, 37:1, 5, 9). First, we must address why a person cannot testify about himself l'zchus. The Ktzos brings two possibilities. First, maybe it is merely a chshash mesheker, we fear the person is lying. If so, it is understood why a person would be believed l'chov. The Ir Shushan has a different possibility. He holds that a person isn't believed l'zchus because of the psul of karov. We employ the rule of adam karov eitzel atzmo (a person is related to himself). If this is the case the question remains, why is a person allowed to testify on himself l'chov?

There are many possibilities offered. Some say the person is actually mechayev himself b'toras matanah. It's not that we really believe him that he owes the money. It's just that if he wants to give money to someone else, he is certainly entitled.

Along the same lines, some suggest there is a migo to believe him. After all, he could just give the money as a matanah if he wanted.

The Shach answers that a person isn't a karov to himself l'gabay chov.

Finally, the Ktzos himself learns the whole thing as part of the gezairas hakasuv by modeh b'miktzas, that even though a person is a karov to himself, the gezairas hakasuv overrides.

Al Hanissim in Al HaMichya - The Brisker Rav's Answer

In this previous post we mentioned the question of why it is that we do not mention Chanukah or Purim in the berachah me'ein shalosh. We brought the answer of R' Soloveitchik and I mentioned that I heard there was a Brisker Rav on this as well. Although I still don't know where the Brisker Rav is found, someone called me up and told me the gist of the answer. Here it is:

In regular bentching if someone misses yaaleh v'yavo or retzei and finishes the berachah of bonei yerushalayim there are special berachos that he says as a make-up. The Brisker Rav held that when we mention Shabbos or Yom Tov in the berachah me'ein shalosh, the hazkarah is as a replacement for those berachos, and not as a replacement of the actual yaaleh v'yavo or retzei. One proof to this is that in the beracha me'ein shalosh we place the mentioning of Shabbos and Yom Tov at the end, after Bonei Yerushalayim. If the hazkarah was meant to replace retzei and yaaleh v'yavo, it should go beforehand. Another proof is from the lashon of the hazkarah. When mentioning yom tov in the berachah me'ein shalosh we mention simcha. This is mentioned in the "make-up" berachos, but not in the actual yaaleh v'yavo.

On Chanuka and Purim there are no "make-up" berachos, and therefore no mention of them in the beracha me'ein shalosh.

Why is it that we don't mention actual retzei and yaaleh v'yavo in the berachah me'ein shalosh? To answer this the Brisker Rav pointed to the beracha of havineinu (abridged shemoneh esrai mentioned in the gemara in berachos). In this abridged beracha we do not mention havdalah (if it is motzei shabbos). The idea is that in abridged berachos we don't like to add major hazkaros. For a more detailed reason see Rabbeinu Yonah on this issue of Havinenu. In any case, the Brisker Rav said the same would be with the beracha me'ein shalosh. It too is an abridged berachah like havinenu.

This is basically the answer as I heard it over. Again, I haven't yet seen it inside so I don't want to get too much into the details.

Update Dec. 26, 2007: I finally found the Brisker Rav inside - see here for details.

Nimtza Echad Mehem Karov O' Pasul

There is a halacha in Hilchos Eidus that if even one of the eidim in a set of witnesses is found to be a karov (a relative) or a passul, the entire set of witnesses is thrown out. Based on this halacha there is a famous question dealt with by the rishonim as to how anyone can ever get married. Assuming that at the wedding there is at least one relative who witnesses the maaseh kiddushin, shouldn't we say that nimtza echad mehem karov o' passul eidusan b'tailah. Since one of the witnesses to the marriage is a relative, all the witnesses should be thrown out, and the kiddushin should be nullified.

This issue is addressed by Tosafos in Makkos on daf 6a. Tosafos answers that shaas reiyah alone is not enough to be mitztaref eidim for this halacha. In other words, the halacha of nimtza echad does not kick in at the time the event is witnessed. Rather, if a group of eidim are involved in hagadas eidus (i.e. they are testifying to something in court), only then would the halacha apply.
The Ritva brings a Ramban in Kiddushin with another answer, that the husband can be meyached eidim. If the husband says that these two people are my eidim for the kiddushin and no one else, so everyone else in the crowd is automatically excluded from the eidus, and the kiddushin is valid. Based on this shitah some are noheg in weddings to announce "So and so are eidei kiddushin... to the exclusion of all others".

One question on the Ramban is, what kind of crazy idea is this to be meyached eidim? If someone is about to commit retzicha, can he exclude people who are present from being eidim?

I heard over in the name of R' Soloveitchik that this is one of the reasons to say that when it comes to eidus l'kiyum hadavar, the eidus is actually a part of the maaseh habaal. There are two distinct categories of eidus. One is eidus l'birur hadavar. These are eidim that determine what happened. For example, eidim witness a maaseh retzicha and clarify what precisely took place. Obviously, there is no yichud eidim in this scenario. However, by marriage (and divorce) the eidim are l'kiyum hadavar. They are a part of the maaseh habaal. By being present at the time of the kiddushin they allow the daas of the baal to create the challos kiddushin. They aren't determining what happened, they are actually enabling it to happen. Since eidim l'kiyum hadavar are a part of the maaseh kiddushin, we can imagine a concept of yichud eidim. (For more on this issue of eidus l'kiyum hadavar see Rav Chaim in Yibbum V' Chalitza which we mentioned in this post.)

The Ktzos in Siman 36:6 also addresses this issue of how our weddings work. He gives an answer that is similar to the Ramban's.

Why There is no Al Hanissim in Al Hamichya

Although we mention Shabbos and Rosh Chodesh in the Bracha Me'ein Shalosh (i.e. al hamichya) there is never a mention of Chanukah and Purim. Why not?

I saw in the Iggros HaGrid (Berachos 3:13) that Rav Soloveitchik addresses himself to this question. He explains that when it comes to Shabbos and Rosh Chodesh, the days are mentioned in our tefillos because the days themselves "deserve" mentioning. The inherent kedushas hayom of the day is mechayev hazkarah. Thus, these days are mentioned even in the Bracha Me'ein Shalosh. However, when it comes to Purim and Chanukah, there is no kedushas hayom. The mentioning of al hanissim is not due to the day being mechuyav in hazkarah. Rather, al hanissim is said as an expansion of the bracha of hodaah. Once we thank Hashem in Modim it is fitting to mention the specific miracle of the day. This explains why Chanukah and Purim are not mentioned in the Bracha Me'ein Shalosh. The Bracha Me'ein Shalosh is essentially a "shrinking" of the real Birchas HaMazon. The whole point is to abbreviate, not to expand. Thus, to expand upon Me'ein Shalosh by mentioning the nes of Chanukah or Purim is not appropriate.

I heard that there is also a Brisker Rav that addresses this issue. Does anyone know where it can be found?

Shlichus by Mitzvos

The Ktzos HaChoshen in Siman 182 discusses why it is that shlichus doesn't work by mitzvos. For example, I can't tell my friend to put on tefillin for me as a shliach. Why not? The Ktzos explains that mitzvos are specifically instructed to be b'gufo, I must put the tefillin on my arm. One question on the Ktzos is from the psak of the Rema in Siman 322, that a father cannot appoint a shliach to do the mitzvas milah on his son for him. Why not? Here the mitzvah is not b'gufo?
Rav Chaim (stencils hosafa 5) suggested a different approach. He suggested that shlichus only works on areas of halacha where the mishaleach is a baalim on the dvar hashlichus. As we know, the sources for shlichus come from gittin, kiddushin, and terumah. In all these cases the mishaleach has baalus. For example, if a man appoints a shliach to carry out a kiddushin for him. This is an area of halacha that involves baalus & kinyanim. Because the man is a baalim on his kiddushin, he can appoint a shliach to do the maaseh kiddushin for him.
Evidence to this can be found in the gemara in Kesuvos 74a where it says that only in areas of halacha where one can appoint a shliach, can one make a tnai. The idea according to Rav Chaim is that in both situations, tnai and shlichus, one is demonstrating baalus over the action taking place. (See sefer Eretz HaTzvi by Rav Schachter who brings further proof from Tosafos in that gemara.)
From this logic stems a number of chiddushim regarding a shliach l'kabbalah by a get. We know that by divorce the husband may appoint a shliach to deliver the get on his behalf. This is called a shliach l'holacha. Then, there is another halacha that a woman can appoint a shliach to accept the get on her behalf. This is a shliach l'kabbalah. The Tosafos HaRosh in the beginning of the second perek of Kiddushin asks, why do we need a separate pasuk for shliach l'kabbalah? The answer given is that we know that a woman can be divorced against her will. This is evidence of the fact that a woman cannot exercise any daas when it comes to divorce. If the woman has no daas in this area, it would seem that she lacks baalus, in which case she should not be able to appoint a shliach. This is why a special pasuk is needed to include shliach l'kabbalah. Otherwise such an idea would have been impossible, due to the lack of baalus.
Another famous area of halacha that daas comes up in, is within the issue of eidus l'kiyum hadavar. In normal situations, witnesses are used l'vrurei milsah, to clarify the matter. We use eidim to determine what precisely happened. However, when it comes to gittin and kiddushin, there is another type of eidus, eidus l'kyumei milsah. Witnesses must be present at a marriage and divorce not just to confirm that there was a marriage and divorce, but even to allow the marriage or divorce to take place. Without the eidim, the kiddushin/gerushin cannot even be chal. Rav Chaim in Yibbum V'Chalitza 4:16 points out that by chalitza, eidim are not needed l'kyumei milsah (at least not min hatorah). Why not? He explains that eidim l'kyumei milsah are only needed for davar shebervah that involves daas. Kiddushin and Gerushin involve daas. This is not the case by chalitza. We also find that specifically by shliach l'kabbalah, and not shliach l'holacha, eidim l'kiyum hadavar are needed. It seems that specifically when appointing shliach l'kabbalah, there is "daas davar shebervah" that doesn't exist by shliach l'holacha. This, Rav Chaim discusses in Gerushin 6:9.

Zimun of 10 people

By a zimun of 10 people it is well known that we add "elokenu" to the birchas hazimun. I once heard over in the name of Rav Soloveitchik (maybe from Rav Chaim) that the idea of adding elokenu is to make the zimun into a davar shebikdusha (which of course requires 10 people). The reason why some people stand (by the word elokeinu) is because according to some minhagim, the minhag is to stand during davar shebikdusha (like kaddish or kedusha). This minhag is not universal, however. (For example, I believe some sefardim have the minhag only to stand by a kaddish that leads into another prayer which requires standing.) I also heard that R' Soloveitchik was opposed to people who "half-stand" up by the word elokeinu. Either sit or stand... but half-standing is neither here nor there.
In general, I have heard some interesting shittos from R' Chaim on davar shebikdusha. For example, I heard that Rav Chaim held that davar shebikdusha by definition is responsive davening, chazzan then tzibbur. For this reason he was more in favor of the tzibbur davening in a responsive fashion than all singing together.
I also heard that it was Rav Chaim's minhag to stand even during the kedusha of birchos krias shema (and I think Uva L'tzion as well) due to davar shebikdusha.