Zeh Keli V'Anveihu in the Cheftza or the Maaseh??

The first mishna in arvei pesachim 99b says that near mincha time a person shouldn't eat anything on erev pesach. The Rashbam explains that the idea behind this prohibition is that we want the matza that night to be eaten b'teavon - with appetite. The Rashbam adds that this is "mishum hiddur mitvah". I once heard someone point out the following interesting point on this Rashbam. Generally speaking, hiddur mitzvah (learnt from the pasuk of zeh keli v'anvehu) is reserved for cheftza shel mitzvah. For example, a person should have tallis naeh (a nice tallis), tefillin naeh (nice tefillin) etc. This is the way the din is brought in the gemara. Would we say that this din of hiddur mitzvah applies even to the maaseh mitzvah? Is there a din of hiddur mitzvah even in the performance of the mitzvah?

From this Rashbam it seems that, yes, the din of hiddur mitzvah applies even to the performance of a mitzvah. An even further chiddush you see from this Rashbam is that the chachamim have the power to make a gezairah that "forces" people to do hiddur mitzvah. This is certainly a strange idea that requires explanation. Anybody?

Chatzi Hallel

There are basically 4 shitos on the issue of whether you make a bracha on chatzi hallel or not (for example - on Rosh Chodesh or the latter days of Pesach):

Shitas HaRambam: No bracha at all on chatzi hallel.

Shitas Rabbeinu Tam: One does make a bracha on chatzi hallel.

Shitas HaRaavad: On Rosh Chodesh you make a bracha and not on the latter days of Pesach.

Shitas HaRamban: On Rosh Chodesh you don't make a bracha and on the latter days of Pesach you do.

The Brisker Rav in Brachos 16:11 discusses this issue. Briefly, his basic premise is that one only makes a bracha on a cheftza shel mitzvah and the real machlokes is how exactly we define what is a cheftza shel mitzvah. Perhaps we will return to this issue in more depth another time.

The Machzor Vitri (page 192/siman 226) brings Rabbeinu Tam's shitah as well as some opposing views. Also, the Kol Bo in his halachos of Rosh Chodesh brings some shittos.

As far as why we say chatzi hallel on Rosh Chodesh, this comes from a gemara in Erchin 10b that no shira is needed if it isn't mekudash lechag. There is also a gemara in Taanis 28b that mentions that reciting hallel on Rosh Chodesh is a minhag. The gemara there relates this to the fact that the hallel is said bidilug.

Al Hanissim in Al Hamichya Part 4

I hate posting on the same thing over and over again... but I finally found the Brisker Rav's answer inside (see this earlier post). The Griz is, in fact, found in the back of the Griz Al HaTorah (as a commenter pointed out to me). Here is a rough translation of what the Griz has to say:

It needs investigation why we do not mention on Chanuka and Purim Al HaNissim in the Bracha Me'ein Shalosh. And it seems, because Al HaNissim has no "din bracha" on it, and it is only a mere hodaah, and in the bracha me'ein shalosh there is only room for a bracha, and for that reason we don't mention in it Al HaNissim. And that which we mention Retzai and Rosh Chodesh in the Me'ein Shalosh, we need to say that there is, in fact, a "din bracha" [on them]. And the proof of this is from that which we say in the gemara that if one forgets and doesn't say Retzai etc. he says after Bonei Yerushalayim and ends with a bracha, so you see that there is a din bracha, and it's not merely a hazkarah. And according to this it is also explained, that because the only reason that we mention Retzai in the bracha me'ein shalosh is only because it is a bracha, and since the whole din bracha of retzai is only after bonei yerushalayim, and that is when you forget to say it on shabbos in its right place, so therefore its place in the me'ein shalosh is after bonei yerushalayim, since the whole din bracha that it has is only after bonei yerushalayim. - Grach

I think that the answer given in that weekly torah publication that I posted here was taken from this Griz but written in an abbreviated fashion.

Eidi Mesirah/Chasima Karti 2

ז] כיצד בשטר: כתב לו על הנייר או על החרס או על העלה שדי נתונה לך, שדי מכורה לך--כיון שהגיע השטר לידו, קנה: ואף על פי שאין שם עדים כלל, ואף על פי שאין השטר שווה כלום

This Rambam is based on a baraisa in Kiddushin 26a. However, offhand the Rambam's lashon is strange. It sounds like if one uses a shtar to acquire land, the shtar works with no eidim whatsoever! We know there is a machlokes between R' Eliezer and R' Meir as to whether a shtar needs eidi chasimah or eidi mesirah (see this post), but nobody says a shtar works with no eidim at all?!

Tosafos in Gittin 22b (d"h Aval) understands the baraisa in Kiddushin as referring to a shtar with eidi mesirah, following the opinion of R' Eliezer. However, this runs into problems because the gemara in Gittin there says explicitly that one cannot write a shtar on a davar sheyachol l'hizdayef (i.e. on paper that can be erased and one can change the contents of the shtar) by other shtaros besides gittin, and rely on eidi mesirah to remember what the shtar said. This is learnt from a pasuk in Yirmiyah of "lmaan yaamdu yamim rabim", a general shtar has to be able to last "many years", even beyond the memories of the eidi mesirah. Tosafos therefore makes a distinction between shtaros that are made for raaya purposes and shtaros made for kinyan. Only shtaros specifically made for raayah purposes need to be able to last "many years". Shtaros made for kinyan, however, can even be written on davar sh'yachol l'hizdayef and one can rely on the eidi mesirah to remember.

[ By the way, the implication of Tosafos is that eidi mesirah work on shtarei raayah. This gets into the issue we mentioned here about R' Soloveitchik's yesod that eidi mesirah don't work on shtarei raayah. ]

Rabbi Schachter in Eretz HaTzvi (page 164) seems to learn the Rambam as dealing with a shtar with eidi chasimah. This really seems to run into a problem because the gemara in Gittin specifically does not allow eidi chasimah on davar sheyachol l'hizdayef. It's only by eidi mesirah that the possibility exists.

The Birchas Shmuel in Gittin 14:6 deals with this issue. He says that eidi chasimah in general create an anan sahadi that there was a proper mesirah. This anan sahadi works to create a shtar even in the face of the problem of yachol l'hizdayef. However, the anan sahadi cannot also create a gerushin in such a scenario. (The idea is that by gerushin the anan sahadi is needed both to create a shtar and to effect the gerushin because of the rule of ein davar shebervah pachos mishnayim. The second issue cannot be resolved by the anan sahadi in this case. Why should the first issue be resolvable and not the second? I don't see the answer to that in my notes. Check the Birchas Shmuel I guess.) See the Ktzos HaChoshen 42:1 regarding this issue as well.

Another problem arising with this approach in the Rambam is that the Rambam really paskens eidi mesirah karti. Why go with eidi chasimah here? One option would be to say that the Rambam only held eidi mesirah karti by gerushin to effect the divorce, but not to create the shtar. One needs to examine Gittin 86b and 22b to determine if this approach can work. There are other possible ways to get out of this question (again see this same post which opens the door to some of them).

The Uniqueness of Shtarei Erusin

The Gemara in Gittin 9a discusses a case where one frees an eved but "leaves over" something for himself within the shtar. For example, the shtar might say, "all my property is yours except...". In the hava amina of the gemara the issue is dependent upon the concept of palginan diburah (see the sugya itself for details). However, in the maskana, Rav Ashi comes up with an alternative reason why such shtaros are no good. Rav Ashi says, "here the reason why it is no good is because it's not a get that totally cuts off". The Rif (2b) explains that since in the shtar there exists some zchuyos to the adon the shtar isn't totally the property of the eved. The shtar used to free the eved has to contain 100% entitlement to the eved (see Rashi also for his explanation of krus gita).

R' Akiva Eiger asks on this idea of the Rif from a sugya in Gittin 40a where the case is that one frees a shifcha. The gemara says that one may give the shifcha a shtar that says "go free with this and marry me." In other words, the same shtar is functioning both to free the woman and marry her to the adon. The question is apparent. Doesn't this shtar contain an entitlement to the adon? How does the Rif understand this gemara?

R' Akiva Eiger answers by pointing out the uniqueness of shtarei erusin. All other shtaros are given from the makneh to the koneh. For example, if I give a field to someone by means of a shtar, I am supposed to give the shtar to the koneh. Shtar erusin is different. There the shtar goes from the koneh, the husband, to the makneh, the wife. Therefore, R' Akiva Eiger explains, the shtar is completely being given to the woman.

In a case where a person frees an eved and the shtar says that some land remains with the adon, so then the very shtar the eved is receiving contains zchuyos of the adon that require the adon's possesion of a shtar. Only then does the Rif say the shtar is bad. This follows the concept in the gemara called "agida gabay". If the shtar is given in such a way that the shtar itself remains somewhat by the adon, that isn't a proper "giving" of a shtar. Essentially, the Rif is saying that lav krus gita is a halachic "agida gabay". However, because the nature of shtarei erusin is that the makneh receives the shtar, there is no agida gabay and no problem with such a shtar.

Rav Chaim in Ishus 3:18 also points out this uniqueness of shtarei erusin. Based on this, he explains that shtaros, in general, are not created by the "daas hamischayev" (i.e. the makneh is usually being mechayev himself by giving away his property). The existence of shtarei erusin prove that the daas of the one who makes the shtar is what creates the shtar. Although, most would assume the daas hamischayev creates shtaros, this is not the case.

In Hilchos Ishus 3:3 the Rambam writes as follows:

ג וְאִם קִדַּשׁ בִּשְׁטָר--כּוֹתֵב עַל הַנְּיָר אוֹ עַל הַחֶרֶס אוֹ עַל הָעַלֶּה וְעַל כָּל דָּבָר שֶׁיִּרְצֶה, הֲרֵי אַתְּ מְקֻדֶּשֶׁת לִי, אוֹ הֲרֵי אַתְּ מְאֹרֶסֶת לִי, וְכָל כַּיּוֹצֶא בִּדְבָרִים אֵלּוּ; וְנוֹתְנוֹ לָהּ, בִּפְנֵי עֵדִים

The Rambam here is paskening that in order to create a shtar erusin one needs to use eidi mesirah - eidim who witness the giving over of the shtar. The question is that in Gerushin 1:16 the Rambam says that by Gittin one may use eidi chasimah b'dieved. Why does the Rambam not say the same thing by shtar eirusin?

Some acharonim answer this question by pointing to the fact that gerushin can be done against the will of the woman. By kiddushin, however, since the daas of the woman is needed, eidi chasimah are no good. The idea is that there must be witnesses present not only to assess the daas of the man, but the woman as well. (See Avi Ezri Ishus 3:3 and Birchas Shmuel Kiddushin Siman 2.)

Others answer using the same yesod that we have been dealing with. The idea is that by gerushin, since the woman is the koneh, so the tefisas hashtar of the koneh can create an anan sahadi as though the eidi chasimah witnessed the giving of the shtar. However, by kiddushin the woman is the makneh. By shtaros we don't say that the tefisas hashtar of the makneh can create such an anan sahadi. Therefore, eidi chasimah are no good by shtar erusin. (See Chazon Ish Even HaEzer 101:11 and Birchas Shmuel Gittin 14.)

The Maharit Alguzi by Get Mekushar in Siman 13 asks a different question on the Rif we started with. He asks from a gemara in Kiddushin 69a where it says that one can free a shifchah and not ubar. Here too, isn't the adon "holding back" the baby for himself? The Shaarei Chaim in Gittin 28 says that this is not a shiyur in the shichrur. The adon is not holding back. Rather, the adon is merely clarifying who he is freeing and who he is not. In such a case it's not a problem of krus gita.

Palginan Diburah

Chaim B. just put up a nice post on Palginan Diburah so I thought it was a good opportunity to write up what I had on the subject.

The Sugyos:

Gittin 8b: A guy writes a shtar to his eved that says "All my property belongs to you". Rava there says that we say palginan diburah. The eved goes free, but gets no property. [The reason he isn't believed on the property has to do with kiyum shtaros. On going free he is believed to say B'fanei Nichtav - like by get isha.]

Gittin 9a: A shchiv m'ra writes over all his property to his eved and then gets healed. On the property the kinyan is chozer, but on the freedom the eved still goes free (because he already has a "shem ben chorin"). This too is a halacha of palginan diburah.

Yevamos 25a/Sanhedrin 9b: Again, the shitah of Rava in two cases. If a guy testifies Ploni ravani lirtzoni or ploni rava ishti l'rtzonah. So on himself or his wife we say he is not believed. For himself he isn't believed because ein adam masim atzmo rasha. On his wife he is a karov. Nevertheless, due to palginan diburah we say he is believed on ploni.

It would seem that Rava in this last sugya is l'shitaso to Gittin where he holds palginan diburah.

Psak Halacha:

The Rambam in Avadim 7:2 and in Eidus 12:2 brings these sugyos l'halacha and seems to pasken palginan diburah.

The Issues:

The Ramban in Makkos 7a asks on Rava's shitah of palginan diburah from the sugya of Ilya v'Tuvia. Ilya and Tuvia were relatives of a guarantor of a loan. The gemara says that this means they are relatives of an involved party and they cannot be witnesses to the loan. The idea is that even though the guarantor is not the actual borrower, since he stands to lose money if the borrower defaults, he too becomes a baal davar. The Ramban asks, what about palginan diburah. Let us say that Ilya and Tuvia are believed as far as the loveh (the borrower) and not as far as the arev (the guarantor).

The Ramban brings the answer of the Raavad. He sets down the following principle. The concept of palginan diburah only applies when the person is testifying about himself. In such a case we say that the eidus is not eidus at all. Thus, we can nullify that part of the testimony and accept the rest. However, by relatives, the eidus on the guarantor is eidus, albeit eidus pasul. If so then we apply a different rule of eidus shebatlah miktsasa batlah kulah. So, according to the Raavad the thrust of the din of palginan diburah is really to say that part of the eidus has no shem eidus. Only then can we say the rest of the eidus is valid, through palginan diburah.


One issue to resolve in the Raavad is the case of Ploni Rava es Ishti. In that case the testimony is about a relative, the guy's wife. For this issue, the concept of Ishto K'gufo is employed so the testimony is, in fact, about the guy himself. Thus, we can still apply palginan dibburah. This is the Raavad's approach to palginan dibburah.


The next step is to address the Rambam's approach to the issue. We will start off by proving that the Rambam does not agree with the Raavad's distinctions. The easiest way to demonstrate this is from eidus 13:13 where the Rambam brings the psul of testifying for one's wife as being a regular psul of karov, like any other relative. Clearly, the Rambam isn't employing ishto k'gufo and thus cannot go with the Raavad's approach.


Also, there is a Raavad found in Mishne Torah Eidus 12:2 that seems l'shitaso, working with the same principle that palginan diburah applies only when someone is testifying about themselves. The Rambam there lists the various cases of palginan diburah and then adds:

וכן כל כיוצא בזה

On this line the Raavad argues that this is not the case. For example, if the case would be ploni rava es shori (my ox), we would not say palginan diburah, but rather eidus shebatlah miktzasa batla kulah. The Ravad is following the same principle that we only say palginan diburah by the baal davar. The implication of the Raavad is that the Rambam makes no such chiluk. In general, the fact that the Rambam never draws this distinction implies he doesn't hold of it. Rav Chaim in eidus 14:4 makes this point in the Rambam.


The Rambam never actually brings the sugya of Ilya and Tuvia l'halacha. The possibility exists that he doesn't bring it for this very reason. The story contradicts the principle of palginan diburah. (See the Grach in Eidus 14:7 discussing these points.)

However, the Rambam does bring some cases that are problematic with the psak of palginan diburah. In Eidus 14:7 the Rambam paskens that if someone writes of shtar giving his property to two people and the eidim are related to one and not the other we say the shtar is no good. The question is why not say palginan and let the eidus work for the party that is not a karov? The Ramban in Makkos actually says that we don't pasken this case l'halacha because we hold palginan dibburah. Obviously, the Rambam has some distinction that we need to discover. Even stranger is that the Yerushalmi (Gittin 1:1) ties this case to the case in Gittin of giving one's property to his eved. This case is based on palginan diburah. So how could the Rambam pasken palginan over there and not here?

These are some of the issues to deal with in palginan diburah. Perhaps in a future post we will address them. Here are some maareh mekomos that deal with the topics we just detailed:

Grach on Rambam 14:7
Ginzei HaGrach 29
Kobetz HeAros Yevamos 21: 1, 12, 13
Grach Stencils 208 (see also Minchas Chinuch Mitzvah 37)
Kobetz Shiurim Gittin 7
Mishnas Rav Aharon Gittin, Biinyan Palginan

Al Hanissim in Al Hamichya Part 3

In a local weekly Torah publication I found the following:

Why is there no mention of Chanukah in Meayn Shalosh? The nature of Meayn Shalosh is that it incorporates the essential parts of benching. The Gemorah regards the Al Hanisim as an askorah, not a part of bentching, therefore it is not included in the Meayn Shalosh.

I already discussed this topic in two previous posts. We brought the Brisker Rav's answer and Rav Soloveitchik's answer. Both were a bit more involved answers than this. I'm not even sure what the answer being given here is, because I don't know to which gemara the writer is referring. The main gemara dealing with the recitation of al hanissim is in Shabbos 24a. I don't see anything there that reflects this answer though. What am I missing?