Shiur 9/10/14

Makos 7a. (2)

1- The opinion of Rabbi Akiva and Rabbi Tarfon is that “were we present in the times of the Sanhedrin, we would have surely invalidated any sentence for execution”.

They would propose that ‘perhaps the murder victim was for all practical purposes already technically “dead” due to a wound (such as a hole in his throat)’.  By bringing up this ‘possibility’ in Beis Din, a verdict to execute a murderer would never occur.

We mentioned the famous question by Rabbeinu Tam based on Meseches Chulin where there is a discussion as to the source that ‘the Torah instructs to rule based on “majority”’.

Obviously the simple source is the fact that the Torah states that in a case of different opinions within the Sanhedrin it needs to follow the majority of votes.

But the Gemara is looking for a source on “statistical majority”, e.g. “most cars are purchased to drive and not for scrap”.

Many suggestions of proof are offered. One is a case similar to Rabbi Akiva’s and Rabbi Tarfon’s reasoning to invalidate all capital punishments.

Namely – how can the Torah state that a murderer is to be put to death when there is a (slight) chance that his victim was about to die anyway due to a hole in his throat? One must conclude that the Torah is of the opinion that we must follow statistics and can assume (even if it leads to putting someone to death) that most people do not have holes in their throats!

Therefore asks Rabbeinu Tam, how could this suggestion (that perhaps the victim was a treifa prior to being killed) invalidate the verdict?

See Tosfos for his answer.

2- The Gemara in Chulin continues that perhaps we can perform an autopsy to determine if indeed the victim was healthy prior to his murder. The Gemara asks that autopsies are prohibited and replies that to perform a needless autopsy is indeed prohibited but this may save the alleged murderer’s life!

Saving a life outweighs everything.

We discussed the 18th century story where doctors performed an autopsy on a Jewish patient to determine the cause of his death. Despite the specific Halachik prohibition on autopsies, this particular Rabbi allowed it basing himself on this Gemara- that ‘savings lives’ (pikuach nefesh)  overrules everything- even autopsies.

He then wrote to the famous Rabbi of Prague, Reb Yechezkel Landau asking his opinion. The response in the letter penned by Reb Yechezkel and published in his famous magnum opus “Noda BiYehuda”, is the basis for all the resulting discussions to date pertaining to autopsies.

He writes that, true, even a ‘sofek’ pikuach nefesh  stands above all (but 3 Mitzvos) and if there was indeed a ‘patient right in front of us’ that would benefit from this particular autopsy then not only would it be permitted – it would me mandatory to go ahead and do it.

The problem, Reb Yechezkel writes, is that there was/is no ‘patient right in front of us’. Autopsies for the study of science are not considered a ‘sofek’ pikuach nefesh.

We spoke about the situation today where one can travel across the globe within hours.

 

Are all sick people technically a ‘patient right in front of us’?

Should autopsies to be permitted today?

There is a lot more to this.

Stay healthy. Say Lechaim.

 

3- We spoke about Reb Yakov Weil, known as the Mahariv. He writes about a tragic case of a person that sent his messengers on an errand and unfortunately the messenger was killed on the way. The sender asked Reb Yaakov if he needs to go to ‘golus’. Surely it does not mean “orei miklot’ which do not exist today. The question was about going into ‘golus’ as a penitence/teshuva – kapora.

His opinion was that the sender does indeed need kapora and he should go to ‘golus’.

This is brought down in the Mogen Avrohom end of Laws of Rosh Hashanah, http://beta.hebrewbooks.org/tursa.aspx?a=oc_x2965

Many others argue on his ruling, including the ‘original’ Tzemach Tzedek.  (Not the 3rd Rebbe.)

Who is the original and who is the latter Tzemach Tzedek?

See here. http://he.wikipedia.org/wiki/%D7%9E%D7%A0%D7%97%D7%9D_%D7%9E%D7%A0%D7%93%D7%9C_%D7%A7%D7%A8%D7%95%D7%9B%D7%9E%D7%9C

In English http://en.wikipedia.org/wiki/Menachem_Mendel_Krochmal

His name was also Reb Menachem Mendel.  Family name was Krochmal. He named his Sefer Tzemach Tzedek since the numerical value of his name is the same as Tzemach Tzedek.

In Halocho seforim he is referred to as “the old Tzemach Tzedek”. As opposed to the Rebbe the Tzemach Tzedek who is referred to as the “new Tzemach Tzedek”.

 

Thanks to Eli Chitrik

Makos 7a

1. In regard to the discussion of whether or not a guarantor on a loan can be a witness on the loan which he guaranteed – if he is considered to have a conflict of interest or not; we mentioned a famous argument ​among the Rishonim. Namely the Ra’vad, the Raza”h and the Ramban.

​ ​The Ri”f (See here in English Hebrew) was considered the foremost Posek of his generation and it was inconceivable for a time anyone to argue with his way of learning.

That all changed until the Raza”h, R Zerachiah halevi, (See here in English Hebrew) wrote his book The Maor

(Maor Hakotton on Berachos and Seder Moed, and Maor Hagodal on Seder Nashim and Nizikin. He is commonly known as the Baal Hamoer) which is basically a book of objections, consistently raising issues to the way the Rif decides Halocho.

This book cause a major uproar in the Jewish world, some even say that he was forced to leave the city of which he was a Rav at the time.

In order to defend the Rif, the Ramba”n wrote a Sefer called Milcahmos Hashem “The war of Hashem” in which he defends the Rif from the objections of the Rza”h. Just a quick read through the Mlichamos and you will notice one of the sharpest use of language in Rabbinic literature.

2. The Misnah mentioned that R Akiva and R’ Tarfon say “If we were in the time of the Sanhedrin we would have never put anyone to death” this is because they would ask so many questions (more of this next week) that it would be impossible to conclude with a conviction.

R’ Shimon Ben Gamliel objected to this logic saying that it negates the deterrent factor.

We mentioned that  R’ Akiva and R’ Tarfon were indeed in the times and members of the Sanhedrin. What they meant was if they were in the times that the Sanhedrin were still applying the death penalty. As we learned in Sanhedrin they stopped putting people to death 40 years before the Churban Bayis.

On a more humorous note we mentioned that  R’ Akiva and R Tarfon were academics and perhaps had more of a ‘liberal’ view. Therefore they were of the opinion that the death penalty was unnecessary.

R’ Shimon Ben Gamliel, is of the opinion that if we were to follow R Akiva and R’ Tarfon’s of not applying the death sentence it would increase the murder rate.  Why?  Being the Nasie Hador (the president) he was the one who was responsible for ‘keeping the order in town’. Society needs rules and regulation. He thus had more of a conservative view. The death penalty, even if rarely used, was needed for the purpose of maintaining a cohesive and law abiding society.

3. The Gemara states that there is a difference between the commandment for setting up courts in E”Y and in all other places. In E”Y you establish courts in every single province and in every city. However outside of E”Y  you only need to establish courts in every province but not in every city.

Reb Yaakov Emdin (The Yavetz)

 

notes something very funny. From this Gemara comes out that the ​Jews living outside of  E”Y are worse than Goyim which need to set in every city and the Jews need to set up only in every province. Comes out the Goyim have more Chiyuvim?!

(He does note that the Ramaba”m had a different Girsa which would explain this distinction)

​ Conversely this can also be seen as a Ma’le that the Jews need less courts because there is less crime in their areas

. More on this next week.

 

Thanks to Eli Chitrik

Makos 6b

1. We mentioned that if two groups of witnesses who are able to see each other, than they are considered one group, and therefore cannot become “Muzum” unless you are “Mazim” all of them.

The Rishonim ask, for one of these groups to have been found Zomemin, it means that witnesses must have come forward and testified that they saw them elsewhere at the time the crime was committed. But this presents a problem. For in our case, the members of the second group – whose testimony was not discredited – say that they saw the members of the first group standing at a window overlooking the scene of the crime!

There is thus a “Hakchoshah” contradiction, between the Hazamah witnesses and the second group of witnesses whether the members of the first group were, or were not, at the scene of the crime. Since the Hazamah testimony itself has been contradicted, we cannot know whether to believe it. Hence, the members of the first group could not be punished as Zomemmin regardless of whether we considered the two groups one set of witnesses or two! How then can the Mishnah make their punishment dependent on this issue?

The Ritva answers that the Mishnah must therefore speak of a case in which only one member of each group saw someone in the other group. In such a case, there is only a single witness contradicting the testimony of Hazamah witnesses and the Hazamah witnesses would therefore be believed.

2. We spoke about “Eidus M’yuchedes” or isolated witnesses:

What is an “Eidus M’yuchedes”?

 

 

A set composed of two witnesses, one of whom watched from one window and the other from another window, without them seeing each other.

Are such witnesses valid?

The Gemara clarifies that in cases of Dinei Nefoshos – Life and Death – they are not considered valid witnesses, however regarding monetary cases ‘isolated witnesses’ are indeed valid.

What is the logical explanation for this?

3- We spoke about the two Rabbonim of Dvinsk. (Formerly Dinaburg דענעבורג  – and now Daugavpils). One,  R’ Meir Simcha Hakohen was the Misnagdisher Rov. (See here in English Hebrew)

The other, the Ragatchover was the Chasidisher Rov.

The Ohr Sameach, written by R’ Meir Simcha Hakohen present some logic to the above ruling:

He first asks: monetary cases and life and death cases are always compared to each another.

The Torah says “Mishpat Echod Yeeyeh Lahem”. Why in this case of ‘isolated witnesses’ should their laws be different?

(see original here, perek 4, halacha 1, ) ohr samayach eidus makos 6

He explains, that when someone kills someone and there are no witnesses Torah says that this man may not be put to death. When does he get the death penalty, when there are two witnesses who saw him in action.

If no valid witnesses witnessed the murder then even if he comes on his own to Beis Din and admits to the crime, he is considered a murderer and forfeits his place in Mizrach…… but he cannot be put to death.

In other words, what makes a person “Chayav Misah” is not only the fact that two people saw the action of him killing. They need to come to Beis Din and testify that he is chayev miso because he killed someone and that two witnesses (themselves) saw the crime and therefore they are testifying against him.

Therefore you need proper witnesses and not isolated ones. If one saw the crime without knowing and seeing the other witness then he cannot come and testify that “two witnesses saw the act and therefore his is chayov miso”!

In simpler words: Two witnesses that see an act together create the chiyuv.

 

However, regarding monetary cases, when someone borrows money from someone whether he has witnesses or not he will always be obligated to pay back, it is just that if he does not have witnesses, Beis Din cannot force the other person to pay back.

In other words, Torah did not say; “only when you have witnesses then a person has to pay back”.  Absolutely not!  A person always has to pay back, but if he does not have witnesses, than Beis Din cannot enforce it. Therefore in this case, monetary – witnesses are not as essential and therefore isolated witnesses work.

Here you can read it from his most famous book on the Ramaba”m ‘Ohr Sameach’.

 

 

Makos 6a

Shiur 8/19/2014 With Thanks to Eli Chitrik

1.  We continued to discuss the question of last week of the Rov of Vilna, Reb Chaim Oizer Grodzinsky regarding the concept of ‘toch ke’dai dibur’.

Either it takes effect immediately (at the beginning of the three second period) but it can reversed within three second .Or – it only takes effect at the conclusion of the three seconds. Before the end of the three second period nothing has been affected.

Reb Chaim Oizer brings a simple proof that it is the latter. Case of the fellow that tore ‘kriah’ before his relative actually passed away. But within 3 seconds of him tearing ‘kriah’ the relative did actually pass on. The Gemora states clearly that he is ‘yotze’ the chiyuv of ‘kriah’.

Now if we were to say that it takes effect right when he did it, then he tore ‘kriah’ prior to the chiyuv!

On the other hand, if we say that it only takes effect at the conclusion of the 3 second period, so at the time it actually took effect his relative has already passed on and he was obligated to do tear ‘kriah’ and therefore he is yotze.

There is more to it but that’s enough for today.

2. The Mishnah/Gemora discusses the Gezeiras Hakosuv that if a group of witnesses ‘join together’ they form one entity. Therefore if even a single member of this group is found to be a relative (to the plaintiff or defendant) or unqualified to be a witness (e.g. a gambler) the entire group is disqualified.

The Gemora initially thought that anyone witnessing the act becomes part of the ‘witnessing group’.

So it asks a simple (funny) question: A group of people witness a murder. The poor victim who was murdered also saw himself being murdered. He thus belongs to the ‘group’ of witnesses. And he is obviously disqualified to testify for himself (see further as to why).  If this logic holds true then we can never convict a murder since the ‘group of witnesses’ is disqualified because of the victim who by witnessing is part of the group!

Can you please tell us who murdered you?

The Gemorah answers that this Torah rule applies only to the people seeing/witnessing the act, but not to actual players, such as the murderer or murdered.

Back to the original question: The Gemora assumed that the victim is disqualified to testify against his murderer. Rashi explains that since a person is his own relative and relatives are disqualified to testify (for their relatives). Tosfos adds another answer: The victim is obviously not a friend of his killer. He therefore is disqualified because of the rule that a hater or enemy cannot testify against his enemy.

We mentioned the opinion of the famous Rishon, Reb Mordechai ben Hillel 1250–1298. (See here in English Hebrew)  Known simply as the Mordechai his writings served as one of the basic Halocho seforim which the Bais Yosef wrote his Shulchan Oruch. He had a tragic life, dying as a martyr when he and his entire family were killed in a pogrom.

 

See more information about the series of massacres here and here. Ed.

His original Pesak is that the relatives of someone who was murdered are not considered “Kerovim” relatives and they are permitted to give testimony against the murderer.

If a murder victim is not considered his own relative then why did the Gemorah want to disqualify the entire group of witnesses due to the murdered seeing his own execution?

The Mordechai answers (and it is indeed fascinating) that the Gemora was talking in a case where the victim was killed….but didn’t die yet…. He is a ‘treifa…and he comes to Beis Din to testify against his killer. He is disqualified to testify because a ‘treifa’ cannot be a witness and thereby he disqualifies the entire group!

~

3. Tosfos raises and interesting question: A divorce is not valid unless it takes place before qualified witnesses. Since relatives are often present and therefore witnesses to the proceeding, why do these relatives not invalidate all the other witnesses? By being present they become part of ‘the witness group’. See above #2. This is especially problematic according to R’ Yossi who automatically considers everyone who sees an event part of the set of witnesses. However, it is a problem even according to Rebbi, since it is possible that one of the relatives will unwittingly intend to view the proceedings as witness, which would make part of the set and disqualify all the witnesses.

We discussed the custom in many communities that avoid this issue by announcing at a Chupa that the selected witnesses are “to the exclusion of all others”.

Tosfos answers that a disqualified witness invalidates the rest of the testimony only if he actually testifies in court.  The mere presence of relatives at a divorce would not disqualify the set of witnesses even if the relatives intended to serve as witnesses.

The Ketzos Hachosen (See here in English Hebrew) comes up with a unique explanation. Unlike all other cases where the witnesses are just present for verification, at a wedding or divorce they are not only witnesses but part of the process.

 He writes that at a wedding or divorce due to the importance of the witnesses, the man and woman have in mind particular witnesses to observe the ceremony and become part of the ceremony. It is thus obvious they are designating only people who are permitted to testify. They automatically exclude relatives.

The Ketzos does conclude that it is best to designate specific witnesses so that there be no question about the validity of the divorce or marriage proceeding.

 

Makos 5b (2)

1-      We spoke about the concept that the Torah gives equal validity to a set of two witnesses as much as to  one hundred witnesses.   The source of this idea is from the verse “two or three witnesses”.  Meaning to say that two is equal to three or more. Both are equally valid.

R Chaim Soloveitchik (Brisker)

R Chaim Brisker as a simple question: The above verse talks about ‘zomemim’, where the entire concept of believing the latter set is not logical – ‘gezeiras hakosuv’.  Thus one can say that (the second set of) two are just as powerful as one hundred (of the first set).

Where is the source of  the Rambam extrapolating this idea (that two equals one hundred) also by ‘hakchasha’?

His answer: The rule  the Torah establishes is (not directed at the concept of numbers – that they don’t apply in regard to witnesses, but rather) that the fundamental idea of believing 2 witnesses is that two and one hundred (100) have the same validity.

 

In other words: It’s not that the poskuk is telling us that despite logic telling us that 100 testifiers are to be believed more than two , nevertheless  it is a ‘gezeiras hakosuv’ to believe the latter pair despite their lesser numbers.

 

That is not what the Torah is trying to tell us:

Rather the posuk is telling us this: When it comes to the idea of witnesses two and one hundred have the same ‘ne’emonus’ or credibility; larger numbers add nothing to the witness verification process. Thus two is as powerful as 100.

Therefore, once this concept is established, we can apply it to hakchosho as well.

 

2- We touched upon an interesting logical and mind twisting trivia.

This question is discussed (among others) by the last great Rov of Vilna, Reb Chaim Oizer Grodzinky.

It is his book called Achiezer. See attached PDF.

seferid_14671_page_272

First a few fundamental points:

a-      In most Halachos that involve talking, one can utter something and then change his mind, retract or change provided he does so within 3 seconds (approximately).

 

For example- when on Rosh Chodesh while saying Ya’le Veyovo one mistakenly says “Byom Chag Ha’matzos, he can correct himself within 3 seconds and say “Byom Rosh Chodesh Ha’ze”.

 

Another example: You pledge at an appeal $360 but then immediately change it to $180.  $180 is all you need to give.

b-      There are  a few  exceptions  to this rule of retraction. Such as if a Choson immediately after putting on the ring and saying “Ha’rei At Mekudeshes Li”   will say “I changed my mind” ….. this rule does not apply.

 

the happy Chosson and Kallah under the Chuppah with Rabbi Shaul Dovid Borstein

There is no reverse on Kidushin. There is a logic to this exception but we will leave this for another time.

Berel  Malachovsky can explain this better….. a pogrom is a …..

c-       Once witnesses utter their testimony they can change their minds within three seconds. it cannot  be retracted after 3 seconds. This is based on the Halocho of  “kivan shehigid, shuv eino choizer umaggid” .  Once recorded in Beis Din a testimony  can’t be retracted or even changed.

Testimony cannot be retracted.

d-      Now here comes the twist: When does the testimony take effect? One can say that it takes effect immediately (at the beginning of the three second period) but they can reverse within three second.
Or – it only takes effect at the conclusion of the three seconds. Before the end of the three second period nothing has been affected.

e-      Trivia? Or is there a practical difference, albeit in rare cases.

f-       Here is one: two witnesses come and testify on Shabbos that they witnessed a loan from Mr. A to Mr. B.  Within three seconds of their testimony they (C”V) light up a cigarette! Chilul Shabbos. They become “posul le’edus”.

g-      If we assume that their testimony takes effect immediately (they can reverse within three second- which they didn’t) then we can accept their testimony because the disqualification (due to the Chilul Shabbos)  came after the fact.

h-      On the other hand, if it does not take effect until after the three second period then the testimony is invalid since at that time they were disqualified!

i-        There are other cases where this puzzle would come into play. Next week bl”n.

Stay tuned…

 

 

The Aleppo Codex

Thanks to Eli Chitrik.

The topic of the Shiur is truly intriguing. We just touched the surface, Bli neder we will continue discussing it at a future date.

As you can see from the recent (June 2014) Tablet article (link below) it is a ongoing saga, right here in Brooklyn, on Ocean Parkway!

See the Rambam discussing the Sefer edited by Ben Asher.

http://beta.hebrewbooks.org/rambam.aspx?sefer=2&hilchos=8&perek=8&halocha=4

 Here is some reading material.

1. A synopsis.

http://en.wikipedia.org/wiki/Aleppo_Codex

2. The Aleppo Codex introduction page from the Aleppo Codex org.:

http://www.aleppocodex.org/links/6.html

3. A great NY Times article, full of interesting facts, including Ben-Asher, Ben-Tzvi (who traveled to Aleppo first in 1935 attempting to being the Codex to Israel), Friedman’s book and more:

http://www.nytimes.com/2012/07/29/magazine/the-aleppo-codex-mystery.html?pagewanted=all&_r=0

Even Edmund Safra a”h got dragged into it…

July 29, 2012
The Route the Codex took. Copyright 2012 The New York Times Company

Go to the NY Times article to see the above map in interactive format.

http://www.nytimes.com/imagepages/2012/07/29/magazine/29aleppo_map.html?ref=magazine

4. Matti Friedman’s book:

http://www.amazon.com/The-Aleppo-Codex-Obsession-Friedman/dp/B00CAYNZYC/ref=sr_1_2?ie=UTF8&qid=1407334966&sr=8-2&keywords=aleppo+codex

President of Israel, Yitzchak Ben-Zvi  (Yitzchak Shimshelevitch from Poltava) 

A fragment…

5. Latest article from Friedman in Tablet:http://www.tabletmag.com/jewish-arts-and-culture/books/176903/aleppo-codex

Where in the world is the rest of it?

6. Here is a very concise and interesting history of the Tosfos era / and Crusades 1-3, by Rabbi Wein, covering the exact period in Jewish History presented at the Shiur, and the story how they almost crucified Rabbeinu Tam:

http://www.jewishhistory.org/the-age-of-rabbeinu-tam/

Makos 5b

1. “Kasher Zamam vlo Kasher Asah”

We mentioned the question of the Ohr Hachaim Hakadosh (See here in English Hebrew) that maybe the fact that the Torah mentions “Kasher Zamam” is coming to teach you that even if they did not carry out the verdict then you punish the eidim zomemin, how much more so more so if they carried it out.

 

The Ohr Hachaim Hakodosh answers the fact that the Torah mentions a new word “Zamam” we learn from there that it is only if they did not carry out the verdict (Some mentioned that the question is definitely better then the answer) Attached please find the PDF.

 

2. In continuation to the question of the Rambam’s opinion that Gemara only uses this rule of “Kasher Zamam”  regarding death and it does not pertain to Malkus or money. We brought the famous answer of R’ Chaim Soloveitchik of Brisk (English  Hebrew) that Malkus (as opposed to death) can only be done in front of Beis Din, if it is not done in front of Beis Din it is considered a lynching. Hence, once it was revealed  that these witnesses were liars, retroactively the alleged accused never received “Malkus” what he got was an unwarranted beating, therefore there was never a “Kasher Asah”. Attached please find the PDF from Reb Chaim’s  famous book on the Ramabam.

 

3.An interesting explanation of the Rebbe.

 

The Alter Rebbe writes in Tanya (Igh”k 25) that Chazal say that being angry when someone harms you is tantamount to idol worship.

 

Why? asks the A”R

 

He explains that the individual that is being harmed, physically or monetarily,  is getting what he deserves as it us ordained by G-D. He has no way out. His anger shows his lack of faith in the idea that all is preordained.

 

Now surely the one that causes the harm will be punished accordingly. His action is NOT preordained because humans were granted free choice. He willingly chose to harm his victim. If he would have contained himself and not harm the  (deserving) victim  G-D would send someone else.

 

In 1965 the Rebbe posed a simple question. Based on the above, why then does a thief need to pay back to his victim? The question is not that he should be allowed to keep what he stole of course.

 

The question is that since it was ordained that the victim should lose the amount stolen, it would make sense that the robber should be forced to give back the loot to charity!!! Returning it to the victim runs contrary, it seems, to the master plan of a thief robbing him of his money as it was preordained.

 

The Rebbe’s answer is quite simple – the fact that the thief was caught  and is in possession of the stolen property is proof that the victim was not destined to lose his money permanently! It was only to be taken away from him (and him to suffer the anguish) for a predestined period of time. Thus, when the thief is caught the money needs to be returned to the victim as was preordained.

 

See this explanation at length here.

 

4. Regarding the Story of R’ Yehuda Ben Tabai. Two witnesses testified about a murder they witnessed. The Beis Din reached a verdict but did not yet carry it out.

 

Another set came along and were mazim only one of the first set. R’ Yehudah ruled that the single witness should be put to death despite the fact that he was only one of the two Eidim Zomemin.

 

We mentioned that R’ Yehuda’s statement seems to indicates that he too was aware that the witness was not liable for execution under the rules of the law, but that he executed him anyway in order to counter the heretical views of the Tzdukim that say he only gets punished if the sentence is actually carried out on the victim. This seemingly weird Halocho is based upon the Gemore in Sanhedrin concerning the power of a Beis Din.

 

We asked, if he was aware of all this why was he so upset when Shimon Ben Shatach told him he made a mistake, since he was fully aware of what he was doing?

 

A Rosh Yeshiva of the previous generation, Reb Yechzkel Abramsky author of ‘Chazon Yechezkael’ answers this question.

 

[Parenthetically, Reb Yechezkel granddaughter Jenny directed the audio and music division at the …. (anti-Semitic) BBC in London]

 

In addition to their opinion on “Kasher Zamam and also Kasher Asah” the Tzdukim are also of the opinion that even if only one of the Eidim Zomomin are Muzam he still gets punished (since need the Hazomo of both witnesses is a Torah Shel Bal Peh ruling).

 

Therefore, by putting this single witness to death he refuted their opinion (about punishing the witness even before the verdict was carried out) but on the other hand he confirmed their opinion on the other issue! (of designating a single witness as an eid ziomem). That is the issue Shimon Be Shotach had with Reb Yehuda’s ruling and subsequent regret by the latter.

 

5. The Rishonim ask how such a terrible error could have befallen on R’ Yehudah Ben Tabbai when the Gemara says that G-D does not allow an error to occur even to the animals of the righteous!

 

(We mentioned the story of Reb Sender Menkin the Parisian who did not want to take the small donation, and bringing proof from the donkey of Reb Pinchas Ben Yair).

 

Ramban and Ritva answer that though the witness had not deserved to die for giving false testimony, he had been guilty of other capital crimes (for which he had not been prosecuted). Thus, his execution was not in fact a miscarriage of justice.

 

Tosfos answers that the special Divine Providence bestowed upon the righteous to protect them from inadvertent violations of the law is granted only in regard to food consumption, as in the cases cited by the Gemara.

Ohr Hachaim Kasher Zamam

Reb Chaim Eidim Zomemin

Makos 5a.

1. We continued discussing the point which we spoke about last week. The Gemara says that if two Eidim claim that they witnessed a person, in Los Angles for example, doing something and another two Eidim come and say that these witnesses were with them in Tokyo, we calculate if it was possible to travel the distance and be in both places on the same day. If it is not possible, the first pair is guilty of being Eidim Zomemin.

We mentioned that the Rishonim ask: There is a phenomenal story about Shmuel’s father who was out of town and he traveled back to his wife (Shmuel’s mother) using the power of a “Shem“.

Thus we clearly see that one can claim that he traveled a long distance in a short span of time- even in Halocho!!!

Read the details of this story here:

http://beta.hebrewbooks.org/pdfpager.aspx?req=46819&st=&pgnum=5

Note that the fortuneteller who tempted Samuel’s father was a gilgul of Potifar’s wife- the woman who tempted Yosef in Mitzrayim!

Attached please see attachment PDF of the Shulchan Oruch.

2. The Mishnah states the following “Witnesses do not become Zomemin, until they discredit themselves“.

When we learned the Gemore we translated it the way Rash”i explains it, that in order for them to become Eidim Zomemin the second pair of Eidim have contradict something about the first pair of Eidim’s credibility, for example they were out of town. If they only contradict the facts of the story’s  they do not become EidimZomimn. 

At the Shiur we mentioned the fascinating point which is mentioned in the Rabeinu Chananel in the name of Reb Hai Gaon (His bio in English or Hebrew) that what the Mishnah means to say by “Witnesses do not become Zomemin, until they discredit themselves” is that they can only become Zomemin if they admit they they were lying or remain silent and don’t contradict the second pair.

 

That is a huge Chiddush and something which is not mentioned in most Rishonim! We mentioned in the Shiur that the Chasam Sofer uses this Peshat toanswers many questions of Tosfos. Attached please find the PDF.  Attached also find the original source from R’ Hai Gaon’s classic book.

3. We mentioned the Chasam Sofer regarding the reasoning of the Ramaban why you believe the second pair of Eidim.  Basically- when testifying against a pair of witnesses by saying that they were elsewhere at the time of the alleged act of the defendant is like saying that the first pair are mecha’lelei Shabbos. Thus in turn they become defendents themselves and therefore cannot refute the second pair!

4. The story with the murder, snake, golus and the shomer.

Story with Shmuel’s Father

Chasam Sofer Eidim Zomemin

Rav Hai Gaon

Makos 4b.

1. We spoke about Reb Elchonon’s answer to a famous question. The definition in Sha”s of a ‘kenas’ (as opposed to – ‘momon’ regular payment of a guilty party) is when one is obligated to pay more than the actual damage incurred. Such as “kay’fel’ – a punishment to pay double the amount of the theft.

So the question is how can one say that Eidim Zomemin is not a kenas? They pay more than the intended damage (the Halocho is that they pay only when the falsely accused defendant didn’t pay). “Ka’sher zomam ve’lo ka’sher oso”.

Reb Elchonon explains that what creates the Eidim Zomemin’s obligation to pay is the Beis Din’s verdict that they are obligated to pay. Therefore, since it is only as a result of a Beis Din ruling/verdict, the required payment by the Eidim Zomemin has the category of money and not kenas.

Furthermore, even if the Eidim wanted to cause the defendant to pay a kenas, for example “Motize Shem Ra” nevertheless the money that the Eidim Zomemin are obligated to pay, becuase it is going through Beis Din,  has the category of money and not Kenas.

We heard some valid arguments to the contrary. Nu, that’s the idea of the shiur.

2-    לאו שאין בו מעשה.

We spoke about what the definition of ‘doing nothing’ is. Gornisht, Gor gornisht (a groiser Gornisht….HV)

3- We mentioned the Aruch – the first Hebrew encyclopedia/dictionary written by Reb Noson of Rome, Italy, a contemporary of Rashi. Actually this sefer is much more than just definitions of Aramaic words in Chaza”l. The author incorporates many Halachik opinions in various topics. Many Rishonim, including Rashi and Tosfos quote him and discuss his rulings.

Interestingly the Aruch was one of the first Jewish books to be printed. See here and below for the Venice edition of 1531.

Reb Noson had an interesting life. Read more:  English, or Hebrew.

4-    The prohibition of Kilaim is the planting of a grape seed with a wheat seed. Rabbi Akiva adds that also when one is ‘Makayem’ Kilaim one is chayev Malkus.

What is the definition of  the word ‘Makayem’ ?

The Aruch’s definition of being “Mikyem” Kilaim is that he did nothing at all, he didn’t plant the seeds, the wind blew them in and he just let remain there.

Tosfos does not like this interpretation because according to Rabbi Akiva’s opinion that one needs to perform an action to receive Malkus, if one really did nothing (such letting it remain in the ground) how can one receive Malkus for doing nothing

Therefore Tosfos has his own definition of the word ‘Makayem’  Kilaim. It means that he built a fence around the Kilaim. Tosfos considers that an action in the prohibition of Kilaim.

We mentioned that Tosfos’s answer is hard to understand because one still did not do an action with the actual Kilaim which would warrant him to receive Maulks!

5-             For Gimmel Tamuz we semi-joked about the definition of a “meshichist”…..that it is an easily moveable and adjustable definition…….

6-             We mentioned the Ohr Hatorha about the definitions of death according to Kabala and Chassidus. The Rebbe Rashab also expounds on this topic. See attached.

At issue is an age old question of the Zohar and others. How can the Torah state that the cause of death in the human race is a result of Adam’s eating from the Tree of Life when the Torah (which preceded the creation of the world) states many laws of impurity which comes as a result of touching a dead body. It seems that death was programmed in the human race even prior to Adam’s failure in Gan Eiden.

The Zohar (as explained by the Rebbe the Tzemach Tzedek) responds that true, death was part of the original plan. But that ‘death’ would be a mere ‘transfer’ from one world to another. (Story of Reb Leivik).

In these ‘lighter forms of death’ the body either:

a-     ascends with the soul (Eliyohu and Chanoch) or,

b-     the body ceases to function and is actually buried. But the soul “transfers to another world just like one changes from weekday clothes to Shabbos clothes”.

In either case, had not Adam sinned,  one would not feel what is called ‘the pain of death’. This was the original idea of death! Painless.

The sin of Adam caused humans to go thru ‘ta’am miso’. A more ‘gross’ form of death.

Has any human experienced this (b- body ceases to function but soul is transferred) ‘lighter form of death’?

The Tzemach Tzedek says that that is the meaning of ‘Ya’akov ovinu lo mes’.

 

Ohr Hatorah

Atres Chukas