Mitzvah Manslaughter Excluded? PT III

Ravina's קושיא on Rava is answered!
Recall that Ravina asked: If you are correct, Rava
--that if it is not a mitzvah to re-cut wood if you have found pre-cut wood for a Succah or the altar,
--then even if you do not find pre-cut wood, cutting the wood yourself would not be an inherent mitzvah,

then it should follow that ........
-- if a child is learning there is no mitzvah to administer physical force to him
-- therefore, even when a child is not learning/behaving well, it is not a mitzvah to administer physical force

However, we see from our mishna that the administering of physical force in the case of a father, rebbe etc - is considered a mitzvah, and thereby exempts the rebbe, father, from Galut!

Rava's answer:
Your equation is incorrect, because it presumes that there is no mitzvah to adminster force when the child is "in line".  Quoting a pasuk in משלי, Rava establishes that there is an ongoing mitzvah for a parent/rebbe to be "on guard" and to provide pre-emptive physical force if need be to child and student.  We can therefore say that the mitzvah to discipline a child is an inherent mitzvah, unlike the woodchopping case.

Rava then says לאו מילתא היא דאמרי.  Although Rava seems to be retracting his previous proof given to the talmid, Rashi explains that Rava merely means that he has an "even better proof" from the pasuk itself.  It hinges on the expression ואשר יבא את רעהו ביער - where the word אשר implies, for Rava - a voluntary activity.  He entered the forest voluntarily, and not out of a mitzvah obligation.  That's how we know that the חטבת עצים is a רשות - and only in that kind of case is there Galut, to exclude a case of mitzvah...

The latest stage in the Gemara is the problem raised with that from a pasuk dealing with entering the Bet Hamikdash in a state of טומאה.  Before tonight's shiur, if possible - please review the latest step in the Gemara so that we can begin the shiur with it.
See you tonight for our second last shiur of the season!

Sunday Matinee Shiur in a Nutshell

The new sugyah at the bottom of ח., that we began in our Sunday Matinee shiur - deals with the din of Abba Shaul in the mishna: Abba Shaul states the following: Just as יער is רשות, so too, all רשות, to exclude a case of a father who hits a son (and G-d forbid, kills him) a rebbe who hits a student, and a שליח ב"ד (Rashi: while delivering 40 lashes required by the halacha).  These three scenarios are cases in which the force is being exerted in the context of a mitzvah (father and rebbe - education; Shaliach B"D - halachic punishment in court) and the Torah never intended to legislate the laws of עיר מקלט in such cases.

The ההוא מרבנן - a student in the yeshiva asked Rava: how do we (ie how does Abba Shaul) know that the Torah is speaking about a non-mitzvah woodchopper case? Maybe the Torah is speaking about the cutting of trees for the מזבח or for a Succah - and still the Torah says that one who does so and, in that context, unintentionally kills, should go to Galut?

We explained that the effect of this קושיא, were it to be successful, would be to torpedo the three exceptions of Abba Shaul - thus sending a father, rebbe, and Shaliach Bet Din to the Galut of an עיר מקלט!


Rava's answer back to the student is:
If you found trees already cut, there would be no mitzvah to cut them again to prepare them for the מזבח or for a Succah.  Unlike other areas of halacha, where a component of a mitzvah (matzah, tefillin etc) is to form the object לשמה - for the sake of the mitzvah - in order for it to be kosher, there is no such precondition with the wood of the altar or a Succah.
If so, Rava reasons, there is no intrinsic mitzvah to cut the wood even if you had to do so from scratch. 


How does this answer the student's question?
We explained: All wood cutting - including Succah and altar woodcutting is in the halachic realm of רשות ie non-mitzvah.  The יער case of the Torah is the paradigm for non-mitzvah activities resulting in death - triggering Galut.  This therefore explains Abba Shaul's drasha - that the rebbe, parent, or Shaliach BD, would be exempt from Galut since they are involved in mitzvot.

Tonight, we will deal with the איתיביה of Ravina on Rava - in which Ravina introduces our mishna to disprove Rava's response to the talmid.  Should Ravina's contradiction stand, Rava's answer would fall, the talmid's קושיא would be reinstated, and Abba Shaul's drasha would be in question.

See you in shiur!

סותר את כותלו - sugyah summary!

The Gemara's objection to the "wall destruction" scenario is that such a person should have checked (who was in the public domain) prior to breaking the wall down.  Not doing so is grossly negligent, קרוב למזיד, and therefore dissimilar to the woodchopper case.  We proposed that the distinction here lies in the probability of people frequenting the forest vs. the public domain; although the woodchopper goes to an עיר מקלט, the likelihood of  hitting someone is low, but still present.  A Woodchopper's failure to take the precautions therefore remains on the level of שוגג and therefore חייב גלות.  The same lack of care of  a person demolishing a wall next to the רשות הרבים will likely produce an injury/death.  This level of liability cannot be atoned for in an עיר מקלט.

The Gemara then proposes an additional אוקימתא: that this all happened at night; by establishing this new fact, the Gemara hoped to bring it "closer" to the שוגג case of the Torah.  This was rejected by the Gemara's insistence that one at night, one would still have the same standard of care!  We gave two possible explanations as to what the Gemara could have been thinking in its הוא אמינא (assumption) and its מסקנא (conclusion):

a) In the הוא אמינא, the Gemara felt that the fewer people who frequent the רשות הרבים at night takes away the status of רשות הרבים and thereby equates it to the forest case of the Chumash.  The מסקנא holds that in the average public domain, nighttime does not reduce the amount of the passersby enough to justify the change of halachic status of the domain; it therefore remains קרוב למזיד
b) In the הוא אמינא, the Gemara felt that the fewer people who frequent the רשות הרבים at night takes away the status of רשות הרבים and thereby equates it to the forest case of the Chumash.
The מסקנא holds that once a public domain, always a public domain.  In other words - and as Carlos suggested in a move that won him the title of honorary Litvak - the sidewalk/street holds on to the "din" of רשות הרבים, and that halachic status simply does not fluctuate depending on the time of day.

This left us with the original problem in the mishna - what is הזורק את האבן לרה"ר גולה mean?  The Gemara re-couches the רשות הרבים as an אשפה - or a dump.  This is questioned: What's the scenario - היכי דמי? If many people pass through this dump, then the person is a פושע - grossly negligent - and the person would not go to an עיר מקלט; if people don't pass through, then the person is an אנוס, and therefore, blameless for the death!

Rav Pappa explains that it is a dump that people use as a bathroom at night, and not in the day.  The event happened during the daytime: Since it is not the typical time people come to use the bathroom, the case is not קרוב למזיד/פושע; since, however, they sometimes come to use it during the day - it is שוגג and not אנוס.  Therefore, the mishna's case is similar to the case of the Torah, ie the forest....

Galut - What is Considered a Woodchopper Case?

Last night we began a new mishna on Makkot 8a.

Before starting the mishna, we gave a brief introduction to the different categories of action and what the Torah's response/consequences are for each action:

אונס - totally uncontrollable situation - unforeseen circumstances, no גלות, no death penalty
שוגג - "accident" - of the type in the Chumash in the Woodchopper situation - גלות
קרוב למזיד - negligence, more severe, higher standard of care than woodchopper case - no גלות, no death penalty
מזיד - deliberate murder - with התראה - death penalty

The mishna says that one who throws a rock into the public domain goes to an עיר מקלט ie galut.  This is troubling to the Gemara - which instantly exclaims - מזיד הוא! We explained that the Gemara doesn't literally mean that the person has committed a level 4 offense for which the action would be punishable by death.  Rather, the Gemara is saying this is an action which is קרוב למזיד which גלות does not redress.  Why, then, does the mishna say that he goes to galut?

The Gemara's answer is that the case of our mishna is that he was destroying his wall (and a rock flew off into the Reshut Harabim and killed someone) Apparently, this is meant to reduce the קרוב למזיד aspect, and to align it with the woodchopper case of the Torah. The question is how? One explanation is that, like the woodchopper case,it is not inevitably going to cause a death; it is a productive activity that entails risk, as does the case of the Torah.  Therefore, when the accident does happen, it is considered שוגג and the person is sent to Galut. 

We finished the class with the Gemara's objection to this answer, by noting איבעי ליה לעיוני - he should have paid attention/looked out! The Gemara feels that the "wall" case therefore is dissimilar to the case of the Torah, and the question is what is the distinction to which the Gemara is pointing?

Edut Meyuchedet - Concluding Remarks

Last night, we tried to understand R. Pappa's kashya on Abaye in more depth:
We noted that there was apparently both a strength and a weakness in viewing it - one after another - from the same window.
The weakness: they each seem to have seen "half an act"
The strength: they are seeing it from the same window, and apparently know of one another, so there is more of a connection between them here than in the case of simultaneous viewing from separate windows.

The baraita quoted in the תניא נמי הכי seems to imply that the non-joining - צירוף - of the witnesses in the one window - זה אחר זה case - is a bigger chiddush: In other words, even once we know that the two window case doesn't generate a merger of testimonies, we may still have thought the one window case would generate such a merger.  The baraita comes to tell us that not even the second case works.

Rav Pappa's difficulty with the baraita is that the second case seems to be weaker: Ie that there is more of a reason to veto a merger in case #2 since each side saw only half a מעשה!  Why, then, is it presented in the baraita as a bigger chiddush, more of a surprise?

Abaye responds by saying that the סיפא is dealing with a case of elicit sexual relations, and, as Rashi explains (presumably because the act can extend for longer than a moment) each witness views "an entire act".  Now, the only variable that distinguishes the first case from the baraita and the second is the two-window/one-window distinction.  In the two window case, we are told there is no צירוף because the parties do not see each other.  But we may have thought in a one-window case, since they were presumably aware of each other (they came one after the other) and they each saw a whole act ------that there were would be a merging of the eduyot.  The baraita's chiddush is that despite this, there is not a merger.  They literally must be mutually aware of each other at a SIMULTANEOUS SIGHTING.
Rava then informs us that there is another way we can merge the eduyot: through one ed of each group viewing the מתרה - the guy warning in the middle.  We got into a longer discussion of whether or not the מתרה is functioning as a halachic מתרה, and this was contingent on the machloket between R. Yosi and (possibly) Tanna Kamma.  Perhaps according to R. Yossi, the מתרה in this kind of a case would simply be someone, although not functioning as an ed, is a "merging force" between the two groups.

We finished the shiur with Rav Nachman's assertion that though edut meyuchedet is pasul in dinei nefashot, it works in dinei mammonot/monetary laws.  This is challenged in the form of a מתקיף לה. Tonight's shiur will begin with a review of this קושיא -  see you there!

Edut Meyuchedet

At the end of the mishna, the Tanna cites an alternate interpretation of על פי שנים עדים - namely: that the Sanhedrin should not hear the testimony of the edim via a תורגמן- translator.  The words על פי are now understood as "directly from the mouths of the edim" - to the court.

In summary, we have a number of possible explanations of the expression:
a) At its simplest level, this is an expression indicating that the testimony regarding the case must be uttered to the court by two witnesses.
b) R. Yosi: the פה referred to here is the mouth of the witnesses as those who must warn the accusued of the ramifications of his actions.  According to this view, the expression in relating to a stage PRIOR to testimony in Bet Din, at the event itself.  The edim must utter the warning, and not a third party
c) דבר אחר - last view in the mishna: edim must utter the testimony directly to the court, and not via a translator.

The Gemara begins with a related, but not identical issue as that raised in the body of the mishna: עדות מיוחת: simultaneous, but not joint, viewing of the murder.  Instead of the mishna's case - in which there was a full "כת" of edim in each window, viewing the event, there was only one עד in each window, but neither one saw each other.  Rav Zutrah bar Tuvyah's goal is to prove that such an 'edut' is invalid.  His source is our pasuk על פי שנים עדים; at the very end of the pasuk, the Torah reads לא יומת על פי עד אחד.  Rav Zutrah shows us his logic - by first discounting the simple pshat - ie that the Torah is invalidating the testimony of a single witness in capital cases.  How so? That halacha is already implied in the רישא,  opening of the pasuk: after all, if two edim are required, one is insufficient!  Therefore, the end of the pasuk refers to a total of two witnesses, but who viewed the event independent of one another; the pasuk relates to the number of edim in the context of the viewing of the event, not the actual testimony....Such an edut is invalid.

The gemeara confirms Rav Zutrah's halacha by citing a supporting baraita that ends with the following logic :  not only two simultaneous viewings are not "mitztaref" (joined) to form one edut, but even two people who viewed an event from the same window, one after the other, are not "mitztaref" to form one edut.

Rav Pappa raises an objection to Abaye: This is not a bigger "chiddush" - but it flows as a קל וחומר of the first halacha: In the first case, each witness saw the entire act and the edut was still not formed - how much moreso when each witness each saw half the act.........

Summary of Sunday's shiur

Last night's shiur focused on the new mishna at the top of ו:

The case:
A murder case in which two sets of witnesses each saw a murder take place, with a fifth person, known as the מתרה - the "warner" standing next to the murderer below.  The mishna defines the two groups of witnesses as two separate entities when no one witness in each of the groups sees a witness of the other group.  However, if even one witness of group A sees a witness of group B, they are viewed as one group. 

Ramifications:
According to (a re-worded) Rashi, the נפקא מינה, ramification, bears on the halacha of עדים זוממים.  We know that in a group of witnesses, none are killed כאשר זמם unless all of them are הוזם.  Therefore, if the two sets of witnesses are linked (as explained above) they are deemed to be one group ---and even if two are הוזם, they are 'saved' by virtue of their connection with the two that were not הוזם.  If they do not see each other, then their separate status allows one כת to be executed while the other is saved.  This latter scenario is what is meant by the mishna, when it says הוא והן נהרגין.  He (the accused) is killed because there is still one set of kosher witnesses implicating him; the כת that is הוזם is killed, however, since they were subject to an עמנו הייתם attack edut....

Tosafot adds to the discussion: he points out that if they are deemed to be one group, we also invalidate the edut of all of them based on the presence of one קרוב or פסול. Here, he uses the term נמצא אחד מהם - ie one of the edim was found to be an invalid witness; he then adds what Rashi says, using the term נמצא אחת מהן - one of the groups of edim was found to be זוממת - they are not killed, but rather "saved" by the non-הוזם group.  Tosafot continues to note that if one of the two groups of edim is הוזם ,it also collapses the edut of the other group - explaining that it impacts in a parallel way as does a  קרוב או פסול on an edut of which it is a part.  We inferred from Tosafot, however, that if one of the edim was הוזם, the edut would not collapse.  Why? Whereas a קרוב או פסול is intrinsically problematic (and therefore has the ability to collapse the whole edut) - an עד זומם is irrelevant on his own.   Just as עדים זוממים are punished only when the two of them are הוזם, so, too, a single ed zomem is inconsequential.  Borrowing a concept from ג. - a single ed zomem can still rightfully assert that he is telling the truth and the מזימים are lying - so his presence in an edut of four is innocuous...the accused is killed, none of the edim are executed,and his הוזם status does not collapse the edut!
 

The Two-Three Connection

Wednesday evening we began a new mishna that asks the question, "why did the Torah - in reference to the number of witnesses required to execute an individual - say, 'based on two or three witnesses a person will die..." If two witnesses are sufficient to institute capital punishment, surely three are no worse!  Kal V'chomer they are effective!

There are three views in the mishna on this:

a) Tanna Kamma: The Torah is linking three to two - just as edim who are "meizim" two witnesses are believed - so, too are edim who are "meizim" three witnesses.  We discussed the הוא אמינא/assumption that we would have had - had this pasuk not been taught; the bottom line is, however, that that three cannot fend off two עדים מזימים.  Also, 100 are incriminated by two (or even more!)

b) R. Shimon: The Torah is linking three to two- just as if you are not meizim both witnesses in a regular edut, you cannot kill two members of a group of three witnesses, even if those two COULD HAVE constituted a "stand-alone" edut.  Since they came as a group of three, you need to be "meizim" all of them to kill any one of them.  The same applies to 100 - if you incriminated 99 of them, but not the 100th - you cannot kill the 99.

c) R. Akiva: The Torah did not come to be lenient but to be strict - we ended yesterday's shiur with the Rashi on this comment of R. Akiva, and we will return to that Rashi at the start of today's shiur..........

New Sugyah Makkot 5b

As I mentioned at the conclusion of last night's shiur, we will be starting a new sugyah this evening.  The mishna that kicks off the new topic is at the bottom of Makkot 5b, and deals with the intricacies of Edut - testimony, a spinoff of the discussion of עדים זוממים.  Printed below, in digital form, is the mishna (courtesy of the Bar Ilan Responsa Project)  See you in shiur!

תלמוד בבלי מסכת מכות דף ה עמוד ב

מתני'. על פי שנים עדים או שלשה עדים יומת המת - אם מתקיימת העדות בשנים, למה פרט הכתוב בשלשה? אלא להקיש (שלשה לשנים), +מסורת הש"ס: [שנים לשלשה]+ מה שלשה מזימין את השנים, אף השנים יזומו את הג'; ומנין אפי' מאה? ת"ל: עדים. ר' שמעון אומר: מה שנים אינן נהרגין עד שיהיו שניהם זוממין, אף שלשה אינן נהרגין עד שיהיו שלשתן זוממין; ומנין אפי' מאה? ת"ל: עדים. רבי עקיבא אומר: לא בא השלישי להקל אלא להחמיר עליו ולעשות דינו כיוצא באלו; ואם כן ענש הכתוב לנטפל לעוברי עבירה כעוברי עבירה, על אחת כמה וכמה ישלם שכר לנטפל לעושי מצוה כעושי מצוה. ומה שנים, נמצא אחד מהן קרוב או פסול - עדותן בטלה, אף שלשה, נמצא אחד מהן קרוב או פסול - עדותן בטלה; מנין אפי' מאה? ת"ל: עדים. אמר רבי יוסי: במה דברים אמורים - בדיני נפשות, אבל בדיני ממונות - תתקיים העדות בשאר; רבי אומר: אחד דיני ממונות ואחד דיני נפשות. ואימתי? בזמן שהתרו בהן, אבל בזמן שלא התרו בהן, מה יעשו שני אחין שראו באחד שהרג את הנפש?

Homestretch of our Mikvah Sugyah

Last night - Monday night - we did a review of our sugyah to date - after a lengthy break since Tuesday of last week.

Here are how the forces lined up:
R. Yehuda/Rav - hold that even if three lugin of drawn water are intact and then are invaded by a kortov of wine, and then fall into the mikvah, the mikvah is kosher
R. Chiya's baraita - הורידו את ה מקוה - in the exact same case, the baraita invalidates the mikvah
Rava - this is not a contradiction against Rav, but a machloket between the Tannaim, and Rav lined up with the lenient view.

Tanna Kamma: invalidates such a mikvah (like the Tanna of the baraita of R. Chiya)
R. Yochanan Ben Nuri: says such a mikvah is kosher (like Rav)

How do we know that TK of the upcoming mishna rules like the Tanna of R. Chiya's baraita? The TK seems to base his leniency for a mikvah on the fact that there was under 3 lugin of drawn water that fell in....but (inference): were TK to have been dealing with a full 3 lugin to begin with, he would invalidate the mikvah.

The Gemara now questions the basis of linking Rav ONLY to RYBN and linking R. Chiya's baraita to TK.  Couldn't it be, asks the Gemara that Rav EVEN lines up with TK?

The Gemara attempts to show - through R. Pappa's question - how this would occur:
Rav Pappa was uncertain as to whether Rav had the girsa/edition of a "Chaser Kortov" in the wine case (reisha) of the mishna.  One possibility is that the TK DID in fact have the girsa of "less a kortov" as we do in the mishna in front of us...  If so, Rava's linkage between Rav and RYBN - and not TK - was correct.  If, however, Rav did not have TK saying "chaser kortov" in the wine case- rather a full 3 lugin.......then the ruling of TK on the wine case is lenient EVEN IF THE WINE DROPPED INTO A FULL THREE LUGIN.  Put this way, Rav is consistent not only with RYBN, but even with the Tanna Kamma.


Since, the Gemara says, R. Pappa was entertaining such a possibility - and Rava was the rebbe of Rav Pappa, in whose name he often relied before making halachhic pronouncements - how could it be that Rava lined up Rav with RYBN and not Tanna Kamma, when Rava's student, Rav Pappa, still considered Rav as potentially consistent with Tanna Kamma?


The Gemara's answer:
Rava was nevertheless certain of Rav's edition of the reisha of the mishna, while R. Pappa remained uncertain...

Review of Tuesday night - Shiur for Wednesday unfortunately cancelled

As I’ve written, due to difficult travel conditions and a trip to Canada, the shiur I had hoped to give (even early!) this afternoon – will not take place.

To whatever extent I can minimize the lag between Tuesday’s class and next Monday’s shiur, here is a short summary of yesterday’s shiur:

We reviewed the interplay between Rav Yehuda/Rav and R. Chiya – on the one hand – and Tanna Kamma and R. Yochanan Ben Nuri on the other hand.

Here is the chart we saw last night:

Views from bottom of ג:	ג' לוגין מים + קורטוב יין		ג' לוגין מים חסר  קורטוב + קורטוב יין	Tanna of mishna
Rav Yehuda/Rav	Mikvah is Kosher		Everything goes according to the appearance (Rashi: Even if there were 3 full לוגין and then the wine dropped in) He paskens like RY/Rav	R. Yochanan Ben Nuri
Baraita of R. Chiya	Mikvah is Psula הורידו את המקוה		Mikva is Kosher (Rashi: Tanna Kamma of this mishna is only lenient, not invalidating the mikvah, in the case where the 3 lugin of water was not complete prior to the wine dropping in.   Therefore, the mikvah is kosher.)  However, were this same TK to be presented with a case like that of R. Yehuda/Rav/R. Chiyah’s baraita, he would rule like R. Chiya, who said הורידו את המקוה	Tanna Kamma

As I said in shiur, the goal of the Gemara is to validate the view of Rav Yehuda/Rav as being based on a legitimate Tannaitic view.  After all, R. Chiyah quoted a baraita

תני רבי חייא – and if Rav Yehuda/Rav is going to survive the attack questions of R. Kahana, he must provide Tannaitic back-up.

Make sure you know the chart above before you go to the next step.

The Gemara then asks the following question:

הא מיבעיא בעי לה רב פפא

But Rav Pappa had a question (Rashi: the Gemara’s goal is to question the limiting of Rav Yehuda/Rav’s view to that of R. Yochanan Ben Nuri, to the exclusion of Tanna Kamma of that mishna.  The Gemara wants to establish that Rav is also consistent with the view of Tanna Kamma/Rabbanan of that mishna)

דבעי רב פפא:

As R. Pappa asked:

רב תני חסר קורטוב ברישא, אבל שלשה לוגין לתנא קמא פסלי, ואתא ר' יוחנן למימר: הכל הולך אחר המראה, ורב אומר כר' יוחנן בן נורי;

(This first approach is exactly the way we’d explained Rav until now, that he lines up with R. Yochanan Ben Nuri, and R. Chiyah with Tanna Kamma) Did Rav have the text of “less a Kortov” in the opening case of the mishna, ie the wine case, but in the case of a full 3 lugin, Tanna Kamma would say the mikvah is psula – and R. Yochanan comes to say “everything goes according to the appearance” (thereby maintaining that even when there are 3 full lugin, and then the kortov drops in the mikvah is kosher)?  And Rav goes according to this view of RYBN?  (WE’LL CALL THIS APPROACH #1)

או דלמא רב לא תני חסר קורטוב ברישא,

Or perhaps, Rav does not have the edition of “less a Kortov” in the first case of the mishna (instead, it’s a full 3 lugin of water before the wine falls in  - and nevertheless the TK says the mikvah is kosher)

ור' יוחנן בן נורי כי פליג - אסיפא הוא דפליג, ורב דאמר כדברי הכל?

And when R. Yochanan Ben Nuri disagrees, he disagrees with the ruling of TK on the case of the milk. (In the milk case, the situation is “less a kortov” and TK says the mikvah is kosher because there are not 3 full lugin of water, and RYBN disagrees, using his principle of “everything goes according to the appearance”) – and Rav says what he says (regarding the 3 full lugin + wine = kosher mikvah) according to everyone – ie both RYBN and TK! (because both agree with this ruling)

It is this last point that completes the flow of this stage of the Gemara: Rav Pappa entertained the possibility that Rav could be ruling like both TK and RYBN – so why was he artificially linked only to RYBN??

Review of Monday - Tonight's shiur back on Webyeshiva site

Tonight, due to log in problems for some students, we will be back on Webex, ie Webyeshiva.org's website

On Monday night, we delved more into the mishna cited by Rava as the basis for the machloket between Rav and R. Chiya.

To review: 
In the case of 3 לוגין of water into which a קורטוב of wine dropped,
Rav Yehuda/Rav paskens that the mikvah is kosher - reasoning? It has a status of "diluted wine"
R. Chiya, however, cites a baraita that says - in the same fact situation -  הורידו את המקוה - which Rashi explains to mean: "Invalidate the mikva"

Rava explains that Rav is not contradicting R. Chiyah's baraita.  Rather, Rav has taken one side of a known Tannaitic debate, in a mishna in Masechet Mikva'aot.

The דתנן at the bottom of the page is the presentation of the issue as a machloket Tannaim.
The case - as we explained yesterday - is slightly different than ours - but we can infer from it halachic positions that match the views of Rav and the baraita of R. Chiya, respectively

The mishna deals with a case of 3 לוגין of drawn water MINUS a קורטוב, and the wine fills in the last קורטוב of the 3 לוגין - or a similar case in which milk dropped in.  In both cases, the mikva is kosher. 

Rashi helps us understand that the Tanna Kamma would invalidate the mikva were it to have had the full 3 לוגין of water before the wine dropped in.  Were it to have had the full amount, it would already have had the status of a "3 לוגין of מים שאובין" and could not have been transformed.  Tanna Kamma therefore lines up with R. Chiya's baraita.
However, R. Yochanan ben Nuri, who says הכל הולך אחר המראה - everything goes after the appearance, rules that even if 3 לוגין were present before the wine dropped in, such a mixture would not invalidate the mikvah.  This lines up with Rav!

Maintaining the Mikvah

Our new mini-sugyah deals with the status of a mikveh impacted by three לוגים of מים שאובין - or 'drawn water'; מים שאובין invalidates a mikvah מדרבנן.  The rule of Rav Yehuda is that 3 לוגים of such water that had one קרטוב of wine drop into it - and then the mixture dropped into the mikvah - do NOT invalidate the mikvah.  

Rav Kahana, who has been attacking R. Yehuda's halachot since the top of our amud, questions why this case - in which the mikvah is kosher - is different than the case of colored water of the same measure -that invalidates a mikvah according to R. Yosi in a mishna.

Rava's answer: the latter case has the status of colored water- and therefore, of מים שאויבים - whereas the former is called "diluted wine".  Diluted wine is not water and therefore does not invalidate the mikvah...

The Gemara does not accept this distinction, since R. Chiyah recounted a baraita that says that both the cases of wine and colored water both invalidate a mikvah.  So we are back to the question as to how R. Yehuda can say that the wine case still does not invlalidate a mikvah.  Rava answers in the Gemara - this issue of the debate between R. Yehuda and R.Chiya represents a long-standing machloket Tannaim.....and each one of these Amoraim 'sides' with his own Tanna....

Sunday Chazara, Nov 21st

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מתנה על מה שכתוב בתורה

The Gemara made an initial assumption when it saw Shmuel's ruling regarding the Shemitta year; in the case, a lender made a תנאי with the borrower - to the effect that the Shemitta would not cancel a loan.  Shmuel rules that this תנאי  is בטל - or invalid. The Gemara assumes that this is called מתנה על מה שכתוב בתורה and that when one is מתנה, the תנאי is בטל or invalid.

The Gemara raises a parallel case in אונאה - which is cheating another person in a business deal. There, Rav rules that a תנאי that makes it not subject to אונאה doesn't work, while Shmuel rules that is does work.

This seems to be an internal contradiction in Shmuel; here - he seems to hold מתנה ע"מ שכתוב בתורה תנאו קיים !

Rav Anan reports that Shmuel once made the following distinction for him:
If the language of the request is to have a particular monetary right waived, then the תנאי works; if the language of the deal tries to make a תנאי that either Shemitta does not cancel loans or אונאה does not exist in a case of overcharging - then such a clause is not a halachic תנאי - and is invalid.

Coming out of this: Although Shmuel rules that מתנה works, the earlier case is NOT ONE OF מתנה - and that's why it doesn't work!!!

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Prozbul - from Rabbinical Council of America Posting

"The rationale behind the historic takkanah (or decree) should be very familiar to us, faced as we are with the current credit crisis that has confounded contemporary financial markets. In the run up to the Sabbatical year of that time, Hillel saw that credit was drying up because potential creditors saw little means of collecting on their loans after the Sabbatical year had come and gone. The result would be a catastrophe for the poor, if not a meltdown of the entire economy. So Hillel found a legitimate way (actually it was implicit in the Torah's own formulation of the Sabbatical laws, but he made the provision explicit) to have the rabbinic courts of his day act as guarantors of outstanding loans (or more precisely to take over the loans, so as to collect them on behalf of the creditors when they came due.) '

Rav Yehuda and Our Mishna

On Sunday evening, we reviewed what we had done to date in the new sugyah:

The mishna rules that the edim zomimin pay the differential and not the full amount of the purported loan, since he was going to have to pay the full loan back eventually.

Rav Yehuda/Shmuel rule that a ten year loan is cancelled by Shemitta and that the reading of the pasuk is "don't claim the  money (even at the end of the ten year period" - because a שמיטה occurred prior to that .

Rav Kahana raises an objection to this ruling based on our mishna: If ten year loans were canceled by Shemitta, then the edim would have had to have paid the entire amount; by testifying that the loan is due within 30 days, they are effectively making Reuven part with 1000 zuz he would not otherwise have parted with!  It must be, therefore, that such a loan is not canceled  - and Rav Yehuda/Shmuel are wrong

Rava answers on behalf of Rav Yehuda/Shmuel by limiting the case of the mishna to either a case of 
מוסר שטרותיו לב"ד
cמלוה על המשכון

Both of these scenarios, Rashi explains, prevent the cancellation of the loan - because neither is a loan in which we can say לא יגוש.  Why? Rashi: In both scenarios, the lender would not legally be deemed to be demanding anything back; in the case of lending with collateral, the loan is - so to speak - already "collected" in the form of the collateral.  Therefore, there cannot be any legal "demand fo repayment" of that loan; in the case of מוסר שטרותיו - Rashi explains that it is not the actual giving over of the שטרות to the Beit Din, but rather the making of a declaration before Beit Din, that's considered as if I'd already given my שטרות to them - this is the Prozbul that Hillel initiated.  Here the loan is not cancelled, because (new explanation) it is not a private individual claiming the loan, but a public body/court.

Therefore, in principle, we stick with Rav Yehuda/Shmuel, and limit the mishna's non-cancellation rule to specific cases.

We began seeing the flip-side version of this mini=sugyah at the end of yesterday's session - and we will review that tonight.......

30 DAY vs. 1O YR LOANS

Last night we began the newest mishna, at the bottom of דף ג - in which edim zomimin testify that a person took out a loan to be repaid in 30 days, they were huzam, and the accused claims that it was a loan for ten years....

The mishna rules that the "ka'asher zamam" of the edim zomimin is: the amount that a person would be willing to pay to have a loan extended from 30 days to 10 years....It's not the total value of the purported loan that they owe, but the value above....

The Gemara starts with the statement of R. Yehuda/ Shmuel - who says that a loan issued for 10 years is cancelled by the Shemitta.  Even though, says R. Yehuda, we don't call it לא יגוש now, it will in the end be לא יגוש.  Most of our discussion centered on this statement and the accompanying Rashi.

The pasuk referred to says that one should not claim money of a loan from a fellow Jew, because a Shemitta/cancellation has been declared by Hashem...R. Yehuda in the end holds that the loan is cancelled...but there was a "hava amina" that such a loan would not be cancelled since you could read the pasuk that the only loans that would be canceled are loans regarding which the Torah, because of Shemittah, would have to tell you not to approach the borrower for repayment..however, a loan due only after 10 years would not be included, since your arrangement with the borrower would itself dictate that you cannot approach him for repayment!!!

In the end, the loan is cancelled because the pasuk is read, "Don't approach him after the 10 years are up - because a Shemitta was called earlier."  This reading of the pasuk means that loans issued for 10 years are indeed cancelled....

Our question tonight: How is our mishna going to be contradicting Rav Yehuda's statement?

The Last Steps of Rav Yehuda Amar Rav

Tosafot's final pshat in עדות שקר העדתי is that the admission by one witness of the false testimony was followed by a hazama of them both.  According to this pshat, the obligation to pay devolves on the other ed -- the ed left holding the bag, as one student put it.   Why? They were both huzam, but the ed that admitted his guilt prior to the hazama is relieved of the payment, which is a special penalty of the Torah, ka'asher zamam...We explained that there was perhaps a policy reason for the Torah to relieve the person of his penalty if he "comes clean" and does teshuva...

This new pshat is followed by the Gemara's kashya/difficulty: "Does he have the ability to do this? Once he has testified, he cannot withdraw his testimony" in Hebrew כיון שהגיד שוב אינו חוזר ומגיד; I tried to argue last night that there was a serious "hava amina" - or assumption in the Gemara that - despite the fact that one cannot withdraw testimony - and the ramifications of the false testimony do impact on the initial accused - the penalty of "ka'asher zamam" functions differently - and is mitigated by an admission...the Gemara's retort is that the two are intertwined: You cannot possibly separate the irreversible nature of the edut/testimony from the penalty of the ka'asher zamam - one flows from the other!  So since the testimony cannot be withdrawn, neither can the "ka'asher zamam" be cancelled...

This leaves us in a real difficulty - because we don't yet have a pshat in Rav Yehuda/Rav - all of our efforts have been in vain!

The Gemara's response: the case is that one ed came to a second Beit Din and admitted that he and his friend (who doesn't admit this) were huzam in a first Beit Din.  He, the contrite ed, has to pay.  That's what Rav Yehuda/Rav was referring to!

The Gemara's response? This approach is unlike that of R. Akiva, who holds that admission of Hazama = admission of a Knas, and R. Akiva holds that מודה בקנס פטור.  We explained that although Rav could in fact disagree with R. Akiva....but the Gemara was searching for a consensus - a way of saying that Rav agreed with all of Tannaim...

New Pshat?  The ed adds a detail: we were also מחוייב ממון - obligated to pay - this transforms it into a pure monetary obligation, and takes it out of the realm of Knas, such that R. Akiva could even agree that the admission generates an obligation to pay.

The chiddush? Even though the basis of the admission is that only one ed reported the event, and he cannot obligate his friend, his admission was enough to obligate him (the admitting ed) to pay!

Monday's Shiur

First of all, thank you to all of you for participating in the ground-breaking "Microsoft Live Meeting" Chazara last night.  Thank you, too, for your feedback on the quality of the interaction.  I especially appreciated the video feature of having anyone who was talking at a particular point in time - featured in the "guest video box".

As I said, we are working towards moving over to MLM as our main shiur framework.  As of last night, three regular attendees did not have this tool working yet for them.  In the next few days, I hope that our technician will be able to help them solve the issue.  In the meantime, tonight's shiur will take place in the regular Webyeshiva format, on Webex, until we bring this issue to closure.  Please log on as usual tonight through the WY site.

Tonight, I hope to finish with you the piece on אמר רב יהודה אמר רב at the top of דף ג - there's a surprise twist in our understanding of the pshat - coming up - so fasten your Talmudic seatbelts!

Gemara Matimidim on Live Meeting

I am pleased to say that our Matmidim Focused Track is going to be the first shiur to experiment with the much easier-to-use (hopefully?) and 'cleaner' Microsoft Live Meeting.  My hope is that with Live Meeting, we will all be able to participate more easily, without having a SKYPE videoconference alongside our video.  I am hoping to have the session set up for this evening's Chazara.  
Stay tuned to your email inbox and our blog

www.webmakkot.blogspot.com for further details in the course of the day!
Once again, it is most advisable to have a headset of your own with a mike attached.  Better ones  - that will last a long time - can be purchased for $30 + at your local Walmart or Computer store!

I will be in touch in the course of the day.

Chodesh tov

Ron-Ami Meyers

The Mystery of Rav's Halacha

After reviewing the two possibilities which the Gemara has presented to date - as to what Rav Yehuda/Rav meant when he said עד זומם משלם לפי חלקו - we continued to the new approach of Rava  באומר עדות שקר העדתי - Rav was speaking of a case in which the witness said/admitted that he had testified falsely.

Explaining Rava hinges on two factors:
a) understanding Rava's scenario
b) once that is clear, answering the question as to how this new scenario generates an obligation for the witness to pay

We went "back and forth" with numerous creative suggestions; some suggested that he had gone to a different Bet Din and admitted this; we noted that admission of his lie should exempt, not obligate him, at least - according to Rabbi Akiva....One student responded that maybe Rava paskens like Rabanan of the earlier Baraita, for whom admission of hazama does not generate an exemption, but an obligation........

Then we saw the ב"ח - commentary of the "Bayit Chadash" - R. Yoel Sirkes  - on the Gemara.  He explains that the obligation to pay is based on a principle called דינא דגרמי and that the term עד זומם is לאו דוקא ie not literally an עד זומם but rather an עד שקר - a false witness.

We explained: 
The scenario, according to the Bach, is not a case of עדים זוממים at all! Rather, it's a case where edim, for eg, testified that Reuven owes $1000 and he actually ends up paying the thousand dollars.  Later, one of the edim admits that he lied.  Rava/Rav Yehuda-Rav are holding that this witness is חייב based on a principle of דינא דגרמי, the details of which can be found in the most recent post.  It is a halacha in the dinim of indirect causation that triggers the payment, not a special "chiddush" of כאשר זמם ....He is paying independently, as a מזיק - one who caused damage...

Now this seemingly requires a bit of a logical jump - since Rav used the term עד זומם -while this explanation takes him less than literally...But, we explained, this may be the point of the Gemara: that the original statement of Rav, which the Gemara had cited ASSUMING that the din quoted relates to "classic ed zomem" rules - is really totally unrelated to the din of edim zomimin.  After two suggestions that failed:
a) because one principle was already in a mishna
b) because the second explanation contradicts the known rule (baraita) that no classic ed zomem will pay unless both are "huzam"

...the Gemara is forced to explain Rav as making a statement unrelated to edim zomimin. And we explained that this pshat is okay.  Why? Rav was not speaking in the context of our sugyah: our Gemara cited this statement of Rav, assuming that he was. Analysis proved otherwise...

We ended the discussion with the first words of Tosafot, who says, after quoting Rav, ושוב הוזם - meaning - after the witness said עדות שקר העדתי - he was הוזם ! This comment shows that Tosafot does NOT go in Bach's direction at all - but tries to make sense of Rava by sticking to the format of classic עדים זוממים...Tonight's shiur will be dedicated to figuring out how Tosafot learns our sugyah!

GERAMA AND GARME

from http://www.jewishvirtuallibrary.org/jsource/judaica/ejud_0002_0007_0_07190.html

(Aram. גְּרָמָא, גְּרָמֵי), terms variously used in the Talmud to describe tortious damage caused indirectly by the tortfeasor's person. The following acts are examples cited of garme damage: a judge delivering an erroneous decision resulting in damage to another; burning another's bond – thus preventing him from recovering his debt; a banker giving an erroneous valuation of coins – causing them to be acquired at a loss; damaging mortgaged property held by a creditor – thus reducing the value of his security; informing on another's property to bandits – thus causing them to take it away. Opinion is divided in the Talmud over the question of liability for this kind of tort (BK 98b; 100a; 117b); some of the sages maintain that liability does exist, while others exclude it. In other cases – similar to those cited above – the damage is termed gerama (BK 48b; 60a; BB 22b), but here liability is excluded. Examples of gerama damage are placing a ladder by a pigeon loft, enabling a weasel to climb up and eat the pigeons; setting a fire by means of the wind resulting in a conflagration; allowing an animal to trespass onto another's land, where it falls into a well so that its corpse pollutes the water. Other cases which were later interpreted as gerama are bending the stalks of grain in another's field toward an approaching fire so that they catch fire; placing poison in the path of another's animal, causing it to eat this and die; sending a burning object through a minor or an idiot, who is irresponsible and thus causes damage; inciting another's dog to bite a third person; frightening another to the extent that he suffers injury or damage from such fright; leaving a broken vessel on public ground so that the pieces cause injury (BK 24b; 55b–56a). Even the earliest of the post-talmudic commentators found difficulty in explaining the difference between gerama damage, for which the Talmud does not impose any liability, and garme damage, for which talmudic opinion differs as to whether there is liability or not. According to Rashi (to BB 22b, S.V. gerama; see Sh. Ar., ḤM 386:4), there is no difference between the two concepts – and that those sages who exclude liability for garme damage also exclude it in cases of gerama damage, and vice versa. Some of the tosafists maintain (BB 22b, S.V. zot omeret) that, indeed, in strict law there is no distinction and that there is no liability in either case – save that the more common injuries are called garme and that those sages who impose liability for garme damage do so in the sense of fining the tortfeasor for the sake of public order. However, according to the majority of the tosafists, all indirect damage that is an immediate result of the tortfeasor is termed garme, whereas all other acts of indirect damage are called gerama – in respect of which the sages are unanimous in excluding liability. There are also further distinctions between gerama and garme damage, which all present difficulties and which are all less acceptable. It appears that the two categories can be distinguished by using gerama to refer to indirect damage that is too remote to have been foreseeable, and garme to refer to indirect damage that should have been foreseeable – but which was caused solely by the independent act of a second person who acted negligently following the first person's act, while he could have refrained from doing that which resulted in the damage. In the latter situation, some sages maintain that the first person is exempt from liability, even though he could have foreseen that his act would result in the negligent act of the second person – who is held to be solely responsible. On the other hand, others hold the first person liable, just because he should have foreseen that his own act would result in the negligent act of the second person. According to this distinction, therefore, the loss sustained by someone acting on the advice of an expert is garme damage – because he should have realized that other experts should be consulted before he acted on one expert's advice and he was himself negligent in failing to take such second opinions. If, however, the matter is such that only one suitable expert is available and there is no choice but to rely exclusively on his advice, it is not a case of garme damage, and it is the unanimous opinion that the expert is liable for the consequences of his negligent advice. The halakhah is that a person is liable for garme damage, although it is disputed in the codes whether such liability stems from the strict law or is in the nature of a fine for the sake of public order, as mentioned above. The law applicable in the State of Israel is the Civil Wrongs Ordinance, 1947, which makes a person liable for the natural consequences of his conduct – but not if the decisive cause of the damage is the fault of another. An expert is held liable for giving negligent declarations and opinions.

[Shalom Albeck]

BIBLIOGRAPHY:

Gulak, Yesodei, 1 (1922), 157; 2 (1922), 24, 182, 206–9; 4 (1922), 162f.; Herzog, Institutions, 2 (1939), 311 (index), S.V.; ET, 6 (1954), 461–97; 7 (1956), 382–96; S. Albeck, Pesher Dinei ha-Nezikin ba-Talmud (1965), 43–61; B. Cohen, Jewish and Roman Law, 2 (1966), 578–609, addenda 788–92. ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:195, 330; ibid., Jewish Law (1994), 1:219f, 396; M. Elon and B. Lifshitz, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Sefarad u-Zefon Afrikah (legal digest), 2 (1986), 295–96; B. Lifshitz and E. Shochetman, Mafte'ah ha-She'elot ve-ha-Teshuvot shel Hakhmei Ashkenaz, Zarefat ve-Italyah (legal digest) (1997), 205; A. Lichtenstein, Dina de-Garme (2000); M. Drori, "Causality in Jewish Tort Law: Implementation of Principles in Israeli Public Law," in: Tehumin, 26 (2005).

---

Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.

What did Rav Yehuda Mean?

On Tuesday evening, we began the new piece on Makkot 3a -

אמר רב יהודה אמר רב  : עד זומם משלם לפי חלקו - which literally means that an ed zomem (singular) pays according to his portion.'

So far, we have seen two possible explanations for this halacha, and both are rejected.  The first came in the form of the plain pshat of the statement - namely, in a regular hazama case, when two edim are implicated for having tried to cause the loss of money to Reuven (for eg, they testify that Reuven owes $1000 loan) they each must pay $500 to their intended victim - and not each $1000.  Because apparently, we may have thought that to implement what each was independently intending to do was to cause a loss of $1000 to Reuven - so maybe each pays 1000? According to this explanation Rav Yehuda/Rav were coming to teach that the in the case of money, the payment is divided according to each of their roles in the edut: 500 a piece.

The Gemara, however, rejects this pshat, not because the halacha is not correct, but because this was taught in a mishna later on in the first perek of Makkkot: משלשין בממון - to which Rashi gives two explanations - both of which explain that the responsibility of witnesses in a zomimin case is equally divided amongst them, as a function of their number.  (four edim divide payment four ways, etc)

So the next suggestion by the Gemara is that Rav Yehuda/Rav meant that if only one is "huzam" - then he pays 'his portion' ie his contribution to the incrimination. But the Gemara rejects this possibility because it's simply not true - there is a baraita that says that no ed zomem pays anything unless all the edim who testified are 'huzam' - therefore, there cannot be a scenario in which only one guy is huzam and pays.  If not all are huzam, nobody is huzam!

Today's session will continue the quest for the pshat in Rav Yehuda/Rav

See you in shiur!

Review Session Tonight

Dear Talmidim,
All of you who have been in shiur in the course of last week are encouraged to participate in tonight's review session, at our regular time To pre-empt sound issues, please email me at ravronami@gmail.com with your SKYPE addresses so we can have a skype conference call in which everyone can participate.  The way we are going to run tonight's session - given the previous sound issues - is that everyone logs into the shiur as usual, but DOES NOT DO AUDIO SET UP WIZARD.  The audio for tonight's session instead will be the SKYPE conference call.
Please email me as soon as you see this message!

What Motivates the Gemara - and Edim Zomimin Not Sold as Slaves

We covered two main issues in last night's shiur:

a) What motivated the Gemara to offer an unlikely explanation of the Tanna Kamma - R. Yishmael Machloket as it relates to the payment of כופר based on value of Nizak vs. Mazik
b) The suggestion of Rav Hamnunah #1 as to why Edim Zomimin are not sold as slaves
----------------------------------
a) What motivated the Gemara to offer an unlikely explanation of the Tanna Kamma - R. Yishmael Machloket 
 

If you recall, the Gemara initially suggests that the basis of the TK/RY machloket regarding value of nizak / mazik was a function of whether כופרא is כפרה or ממונא.  According to TK, the value of nizak is paid since kufra is compensatory to the nizak's family; according to RY, the ox owner pays the value of the mazik since kufra is an atonement, and one is paying for the "value" of his OWN soul. 

This linkage is then broken by the Gemara, the suggestion being that both Tannaim hold that kufra is indeed kapara, but that the machloket between them hinges on whether or not to learn the Gezeira Shava from the case of the aborted fetuses.  According to the TK, we do learn such a Gezeira Shava and therefore the case למטה - below - is also based on דמי ניזק; according to RY, we do not learn such a Gezeira Shava, and therefore the ונתן פדיון נפשו reflects both the agenda of the payment (כפרה) and the basis of the payment (דמי מזיק)

What prompted the Gemara to go in this direction? What advantage does the Gemara see in promoting this latter approach?

We explained last night that it is an attempt to understand the opening baraita - ד דברים נאמרו בעדים זוממים as truly reflective of a consensus of opinion:
According to the first approach on the machloket TK and RY - that it's only RY who holds that כופרה  is כפרה, then we have to say that the original baraita, though it seemed to be a consensus view, is really only the view of one Tanna.  This is difficult to say!
According to the new proposal, though, in which both TK and RY hold that כופרה is כפרה - we can maintain that the opening baraita is indeed לדברי הכל - everyone's view - and that's why it is represented as such!'
----------------------------
b) The suggestion of Rav Hamnunah #1 as to why Edim Zomimin are not sold as slaves

We spent a lot of time on the structure of this piece and noted two sections, both of which said סבר רב המנונא למימר הני מילי etc; we firstly pointed out that הני מילי are words of limitation -namely, narrowing the case of the baraita.  As opposed to understanding the baraita as a blanket statement that edim are NEVER sold as slaves, R. Hamnunah seems to limit this to a narrow situation, contrary to the plain pshat of the baraita.

Secondly, we noted that the Gemara seems to be rephrasing Rav Hamnunah a few lines later.  This is because there is an apparent kashya/difficulty with what he seems to have said.  The difficulty is so great that the Gemara concludes that he never really made the first statement.  What was the kashya in between that prompted the Gemara to rephrase Rav Hamnunah?

We spent the last part of the class going back over the הני מילי of Rav Hamnunah: He maintains that the only time the edim are not sold is when the accused has money; with this as the cas, they are not deemed to be conspiring to sell him; therefore, they are not sold.  However, notes RH, if they accused does not have money, then they are deemed to have conspired to sell him and they themselves are sold.

Although this is logical, it definitely "turns the baraita on its head" because the previous three cases of the baraita are all examples of halachot that, in a blanket fashion, do not apply to Edim Zomimin.  Rav Hamnunah seems to be saying that the fourth case is different because it's only not applicable to edim due to specific circumstances, not in principle.

The kashya of the Gemara on this version of RH will preoccupy us tonight!

Rethinking the Machloket between Rabanan and R. Yishmael

Last night, we saw how the Gemara rejected the initial suggestion that the machloket between the two views in the baraita hinges on כופרא כפרה or כופרא ממונא.  The latest suggestion is that כופרא כפרה according to both views in the baraita; the only machloket between them is whether
בדניזק שיימינן  or בדמזיק שיימינן - ie whether we measure the payment based on the value of the damager ie owner of the ox that gored, or the value of the ניזק - the value of the person killed.  We noted that this was not simply a restatement of the original baraita - but was stressing that the argument between TK and R. Yishmael is not an argument in principle, but rather, an argument based on more of a detail/technicality, if you will...

The Gemara goes on to ask what the טעמא of the Rabanan is - ie Tanna Kamma - because, as we explained, the view of R. Yishmael is clear: since כופרא is כפרה, the payment is measured on the basis of the person needing the atonement.  But the Gemara needs to elaborate the basis of the TK's view, which is less clear. 

The answer is a drasha - specifically, a Gezeira Shava from the earlier case of the aborted fetus due to the wrestling match between two men - to our case. In both cases the word השתה - or a variant of it, is used to describe the imposition of payment.  Above, it is clear that the payment is a type of compensation, and therefore goes according to the דמי ניזק; similarly, TK argues, the payment in our case is for the דמי ניזק - even though the goal of the payment is כפרה.  We explained that the Gezeira Shava is not a logical connection between the two topics, but a language connection: The common word in both contexts links the din irrespective of the different nature of the cases.  A Gezeira Shava can only be accepted if the Tanna/Tannaim speaking have an oral tradition to that effect....At the end of the shiur, we saw TK's retort, which we'll review at the start of today's shiur.

See you in shiur!

Kufra - Kapara or not?

Last night's shiur focused on certain key terms that continue to reappear throughout Shas, and we highlight them as a matter of course before tackling a sugyah.  Feel free to review the archive of last night's shiur to see the process; we will do it as much as possible in our upcoming sugyot.

The topic of the Gemara at this point is the the din that Edim Zomimin do not pay Kofer.  This is the payment for having one's ox (mu'ad) gore a person.  The ox owner has to make a payment that the Chumash calls "Kofer".  The Gemara raises the question : Whose view (amongst the Tannaim) is it that is represented by the baraita which exempts the Edim Zomimin from Kofer?

The answer provided is that it is R. Yishmael the son of R. Yochanan Ben Broka is the Tanna - because he holds, contrary to Tanna Kamma, that the basis of the payment is the value of the Mazik (owner of the killing ox), as opposed to the Nizak (one killed); this fits in with the view that the "Pidyon Nafsho" is the redemption/atonement for the owner's "nefesh".   He needs atonement.  As we discussed, the Gemara is about to reject this view and explain the machloket in the baraita differently.......that's tonight's learning!

No Kofer, Slaves or Knas Payment

ת"ר, ד' דברים נאמרו בעדים זוממין: אין נעשין בן גרושה ובן חלוצה, ואין גולין לערי מקלט, ואין משלמין את הכופר, ואין נמכרין בעבד עברי; משום ר"ע אמרו: אף אין משלמין ע"פ עצמן.

אין נעשין בן גרושה ובן חלוצה, כדאמרן. ואין גולין לערי מקלט, כדאמרן. ואין משלמין את הכופר, קסברי: כופרא כפרה, והני לאו בני כפרה נינהו.

מאן תנא כופרא כפרה? אמר רב חסדא: ר' ישמעאל בנו של ר' יוחנן בן ברוקה היא; דתניא: +שמות כ"א+ ונתן פדיון נפשו - דמי ניזק, רבי ישמעאל בנו של ר' יוחנן בן ברוקה אומר: דמי מזיק; מאי לאו בהא קא מיפלגי, דמר סבר: כופרא ממונא, ומר סבר: כופרא כפרה!

What does the Gemara wish to know with the question highlighted

in dark print (above)?

What does the following term mean - and how does it function whever it appears in a Gemara?

מאי לאו בהא קא מיפלגי 

אמר רב פפא: לא, דכולי עלמא כופרא כפרה, והכא בהא קא מיפלגי, מר סבר: בדניזק שיימינן, ומר סבר: בדמזיק שיימינן.

How does the above highlighted term always function in a sugyah?

What is it literal - and operative - translation?

מאי טעמייהו דרבנן? נאמר השתה למטה ונאמר השתה למעלה, מה להלן בדניזק, אף כאן בדניזק. ורבי ישמעאל? ונתן פדיון נפשו כתיב. ורבנן? אין, פדיון נפשו כתיב, מיהו כי שיימינן - בדניזק שיימינן.

Finally, what is the translation of the term highlighted above - and how is it used in the Gemara in general?

Sunday Night Chazara Slots

6pm/8/9 - Yehuda Trestman and Justin Land

6:20/8:20/9:20 Dov Ber Polisky + ?

6:40/8:40/9:40 Boaz and Carlos

Completing Ula's drasha, Lo Ta'aneh

We reviewed Ula's drasha last night (Wednesday night) and put extra effort into understanding the question that prompted the drasha.

Rashi is a little bit cryptic in his comments in Makkot.  After noting that the whole expression והצדיקו etc is extraneous - itself enough to raise a few eyebrows and prompt a drasha - Rashi also seems to say that the pasuk, as is, is misleading:

וכי כל מקום שהצדיקו ב"ד את הזכאי וחייבו את החייב יש מלקות דאתא קרא למיתלי מלקות בוהצדיקו והרשיעו

Rashi seems to say that the problem lies in the implication that every time the Beit din finds someone innocent and another liable, there will be lashes - and this is not true!  Lashes are not always the outcome of a judgement....

Ramban in Sefer Devarim de-emphasizes the Gemara's overt קושיא and instead focuses on the incongruity between the setting of the pasuk, which is a ריב בין אנשים - and the resultant lashes, which seem to imply a trangression between man and G-d.  The incongruity prompted the drasha.

Carlos asked how, according to Ula's drasha, we are to understand the new view of והרשיעו את הרשע - said in the singular...if, after all, there are two edim involved? I pointed out a commentary called the Aruch L'Ner who notes that the original pasuk ועשיתם לו כאשר זמם refers to the edim zomimin in the singular, as well - perhaps because they are conspiring together to incriminate someone else....and so the drasha of Ula is consistent with that style, of referring to this team of zomimin as one...

The Gemara then raises the question as to why it is that Ula had to find such a רמז - hint, if there's a more simple way to prove that the edim of our mishna get lashes - and that is that minimally, once incriminated, they are said to have transgressed the prohibition of issuing false edut.  This, like any other "lo ta'aseh" should mandate lashes in the absence of a specific din - ie the vacuum left by the drashot and lack of ka'asher zamam....the Gemara's answer is that Lo Ta'aneh is a Lo Ta'seh that has no deed (mere dibbur) and therefore is not subject to makkot.  I will review tonight for a couple of minutes what I thought the assumption of the Gemara may have been when it asked the question..

We concluded the shiur with a review of the "give and take"of the Gemara in digital form, back to the start of the sugyah.  I highly recommend doing this in order to map out the sugyahs we encounter, and you encounter, in your learning...

Final shiur of the week tonight, with Chazara on Sunday!

Ula's Creative Drasha

On Tuesday evening, we learned the middle of ב:  -  dealing with the drasha of Ula.  He asks,

"Where do we see a hint of Edim zomimin from the Torah?"

The Gemara had thought that he meant where do we see a hint for the main halacha/ punishment for classic e.z. from the Torah? Understanding the question this way, the Gemara retorts that this is not an issue - no need for a רמז - their punishment is explicit in the Torah!

The Gemara explains that Ula's question is: where do we see a hint in the Torah that in the cases of our mishna, we give the edim makkot instead of כאשר זמם?

The Gemara proceeds to cite a pasuk in Devarim 25:

א כִּי־יִֽהְיֶ֥ה רִיב֙ בֵּ֣ין אֲנָשִׁ֔ים וְנִגְּשׁ֥וּ אֶל־הַמִּשְׁפָּ֖ט וּשְׁפָט֑וּם וְהִצְדִּ֨יקוּ֙ אֶת־הַצַּדִּ֔יק וְהִרְשִׁ֖יעוּ אֶת־הָֽרָשָֽׁע: ב וְהָיָ֛ה אִם־בִּ֥ן הַכּ֖וֹת הָֽרָשָׁ֑ע וְהִפִּיל֤וֹ הַשֹּׁפֵט֙ וְהִכָּ֣הוּ לְפָנָ֔יו כְּדֵ֥י רִשְׁעָת֖וֹ בְּמִסְפָּֽר: ג אַרְבָּעִ֥ים יַכֶּ֖נּוּ לֹ֣א יֹסִ֑יף פֶּן־יֹסִ֨יף לְהַכֹּת֤וֹ עַל־אֵ֨לֶּה֙ מַכָּ֣ה רַבָּ֔ה וְנִקְלָ֥ה אָחִ֖יךָ לְעֵינֶֽיךָ

We noted in our session that the plain pshat of the pasuk is speaking about two people who are quarreling, go to court, one gets convicted while the other exonerated.  The one who is found guilty, if lashes are due to him, is lashed.  However, the pasuk is problematic, because a quarrel between two parties indicates a civil matter is at issue, while the words, to convict, to exonerate, etc, connote some sort of criminal or capital matter!

We noted that Ula's reinterpretation of the pasuk asserts that instead of the judges being מרשיע and מצדיק, it's the עדים מזימים - the second set of edim that exonerate the accused, Reuven, and make liable the original edim, who've they declared zomimin.  This is fundamentally different from the way the pasuk read earlier.  Now that the pasuk is read as referring to edim zomimin, the lashes in the verse that edim zomimin sometimes get lashes. Presumably, it's for the kinds of cases of our mishna.

Ula arrives at his conclusion via a rhetorical question that we did not fully complete in shiur and will complete on Wed night, bli neder!

 

No Literal כאשר זמם for Witnesses

On Monday evening, we continued the Gemara's inquiry as to why the characters in the mishna do not receive the classic כאשר זמם penalty.  

The first view expressed, that of Reish Lakish, argues that one of the pesukim regarding the עיר מקלט precludes this possibility. 

ה וַֽאֲשֶׁר֩ יָבֹ֨א אֶת־רֵעֵ֥הוּ בַיַּ֘עַר֘ לַחְטֹ֣ב עֵצִים֒ וְנִדְּחָ֨ה יָד֤וֹ בַגַּרְזֶן֙ לִכְרֹ֣ת הָעֵ֔ץ וְנָשַׁ֤ל הַבַּרְזֶל֙ מִן־הָעֵ֔ץ וּמָצָ֥א אֶת־רֵעֵ֖הוּ וָמֵ֑ת ה֗וּא יָנ֛וּס אֶל־אַחַ֥ת הֶעָֽרִים־הָאֵ֖לֶּה וָחָֽי

On the phrase הוא ינוס - RL derives - he - and not zomimin!

In other words, we can infer from the passage dealing with ערי מקלט that the Torah intended to say that only the actual accidental murderer will flee to such a city, but not עדים זוממים who tried to "frame" a person and send him, through their false accusations, to an עיר מקלט.  

We noted that there is no automatic license to make such inferences, or "diyukim" simply because the Torah is describing a specific incident and halacha - in this case: the laws of cities of refuge for manslaughterers.  There has to be something compelling in the language of the pasuk that mandates a drasha of this sort!  Here, we noted that the pasuk began with the phrase ואשר יבוא - with no specific reference to the third person male הוא; in Hebrew grammar, there is no necessity to mention the person who is performing the action if the conjugation indicates that it's third person male....Therefore, at the end of the pasuk, the word הוא , in the prhase הוא ינוס - is unnecessary.  This prompted the drasha - HIM - and not zomimin!

R. Yochanan, like his counterpart Bar Padah in the previous part of the sugyah, says that a Kal va'Chomer teaches this: A murderer, who did an action, is not exiled if he was Mezid (even if he is not killed). Edim Zomemim did not do an action. (all they did was utter a דיבור בעלמא - mere words) Therefore, we must conclude that all the more so they are not exiled even though they were Mezidim!   As we noted in class,  the premise of this proof is that cities of refuge are essentially punitive in their function.  The logic states that if the more severe behavior is not punished by exile to an עיר מקלט, how much more so should a less severe behavior, which is only in the category of dibbur, and not ma'aseh - speech and not deed. 

The Gemara responds by saying היא הנותנת - and Rashi explains that this is a קושיא on R. Yochanan - with the following pshat: This middah/quality that you just mentioned - namely, that the edim simply spoke but did not do an action - is the aspect that actually should give them a  חובת גלות - exile - even though actual murderers do not go to the עיר.  Since there is a כפרה /atonement component to the cities of refuge - only the more minor offense of dibbur and not ma'aseh warrants cities of refuge for the edim.

Because of this, the kal v'chomer cannot be the source of exemption for edim zomimin going to galut and receiving a different consequence instead.

This is why the Kal V'chomer does not work to exempt the edim from Galut - and the Gemara concludes that we must return to the original drasha of הוא ינוס of Reish Lakish.