Monday, 31 July 2017

Sanhedrin 15: Valuations, Judging, Capital Punishment, Punishment for Idolatry

What is the process for valuation of movable property, like utensils?  We know that the valuation of land that would be removed to pay for one's vow would require ten experts.  If movable property were to be removed from that land for the same purposes, three experts would be required to evaluate it.  Redeeming property from consecration requires three judges.  Does elevating property to the status of consecration also require three judges?  At least three judges are required to ensure that valuations are not too low and not too high.  

The Gemara wonders why the valuation of consecrated land is made by nine judges and one priest.  Priests are written in Leviticus, chapter 27, ten times. Also, using the word priest might have been a restrictive expression following a restrictive expression (after the first mentioning of 'priest')to amplify its importance.  This is argued, of course.  It is noted that a person cannot be consecrated -- however, a person can be valuated.  This might be done to understand the value of a slave in the context of a land transaction.  

The conversation turns to the valuation of one's hair when it is attached to one's head and its valuation when it has been cut.  It is evaluated by three or ten judges in both situations?  This is compared to grape vines that are attached to the land.  any item attached to the land is viewed as the land itself.  But does this analogy work?  Hair becomes more valuable as it stays on the head and grows longer.  Grapes can be picked, but they diminish in value when left on the vine.  

What about our Mishna's statement about twenty-three judges judging cases of capital law and animals that copulate with people.  The Gemara wonders about who is doing the action of "lying with".  It discusses who should be killed, the person - woman or man - and/or the animal in question. They note that Exodus 21:29 teaches us that the "ox shall be stoned and also its owner shall be put to death".  Is the ox to be killed by stoning as well?

Our notes in Steinsaltz reminds us that stoning is the harshest punishment of four punishments in the Torah.  It meant that a person was dropped eight cubits (four metres) to the ground.  If he had not died, the injured party would drop a large stone on him.  If he was still alive, others would throw stones at him until he died. It was used as punishment for the following 'crimes':

  • incest with one's mother
  • male intercourse
  • cursing G-d
  • cursing one's parents
  • idol worship
  • desecration of Shabbat
  • adultery with a betrothed young woman
Execution by the sword was used as punishment in the following cases:
  • murder
  • living in an idolatrous city
  • rebelling against the king
Strangulation was done by wrapping a scarf around one's neck and pulling on both ends.  It was used as punishment for:
  • one who strikes his father or mother 
  • kidnapping
  • rebelling as an elder
  • acting as a false prophet
  • most adulterers
  • a man who commits adultery with a priest's daughter

The Gemara discusses capital punishment and the implications of these halachot and verses.  Again, the rabbis note that one who takes it upon himself to kill an animal that is going to be sentenced to death by twenty-three judges has achieved a moral victory.  However, there is no financial reward for his efforts.  This statement leaves me wondering whether there is a need for a court of twenty-three judges if a person can take the law into his own hands.

Our daf ends with a discussion about individuals versus large groups of people when it comes to punishment for idolatry.  How many people make up an idolatrous city?  Rabbi Yoshiya says from ten to one hundred people.  Rabbi Yonatan says from one hundred to a majority of a tribe.  

Sunday, 30 July 2017

Sanhedrin 14: Appointing Judges as Resistance; Where and How Many Judges are Appointed

We are told about how judges were appointed when “the wicked kingdom of Rome issued decrees of religious persecution against the Jewish people”.  The rabbis understood that in an attempt to interrupt the internal justice system of the Jews, it was declared that anyone who ordained a judge, who was ordained, who was in that city would be destroyed; the boundaries of that city would be destroyed.  Rabbi Yehuda ben Bava found a place between Usha and Shefaram – a desolate area – where he ordained Rabbis Meir, Yehuda, Shimon, Yosei and Elazar.  This is used as proof that one rabbi can ordain a judge.

When they were discovered, Rabbi Yehuda ben Bava insisted that his disciples run away.  He said that he would stay, as he would be punished either way as an old man who cannot run.  He was said to be speared three hundred times by Roman soldiers, making him look like a sieve. 

There is an argument stating that Rabbi Akiva ordained Rabbi Meir.  However, the people did not accept the appointment because Rabbi Meir was so young at the time.  Thus Rabbi Yehuda ben Bava’s story of ordaining Rabbi Meir was validated.

Rabbi Yehoshua ben Levi argues that the ordination of judges must take place in HaAretz.  What would this mean about those who were ordained outside?  The rabbis look to a number of cases where people are ordained in and outside of Israel to understand that in fact ordination can be granted only from inside HaAretz. 

It is confirmed that those descended from the house of the high priest Eli are not eligible to be ordained as judges.  This does not refer to just those who are “elderly” but to the true “elders” of that house. 

The ordination of Rabbi Zeira and others are described.  One of the more interesting points is that his grace is described like that of a bride: “No blue eye shadow and no rouge on her face and no hair dye, and yet…[she is beautiful]”.  Both the flexibility of gendered metaphors and the spiritual beauty described are unusual in Talmud text.

From this conversation, the Gemara outlines whether and which judges are required for which processes.  Must all judges be members of the Sanhedrin?  Or could they be ordained judges of lesser stature?  The rabbis use proof texts to examine who is required to be at which events. 

Finally, the rabbis consider valuation of fruits of a fourth-year sapling or second-tithe produce.  Who assesses whether fruit is beginning to decompose, whether wine has developed a film on it, or whether coins have begun to rust?  Are ten people required to evaluate even a small fork of consecrated property?  The rabbis consider where the number ten might have originated and what other number of judges might be more accurate.

Saturday, 29 July 2017

Sanhedrin 13: Intercalation, Smicha of Judges

The Gemara looks into intercalation in great detail.  By which date must it be decided that the calendar will be adjusted?  Considering the months of Tamuz and Tishrei, how far into Tishrei is "the majority" of the month?  16 days or 21 days?  The rabbis walk through numerous calculations and considerations as they work with the math and the implications of moving the new tefuka.  And when does the tefuka end and then begin?  How much should the Festival dates be considered a critical part of this discussion?  Their conversation is long, detailed, somewhat difficult to follow, and very thoughtful.

The rabbis then consider how many judges are required to grant smicha to other judges.  It was understood that three judges were needed, but the rabbis cannot find a proper proof text for this custom.  In their search for the origin of this practice, the rabbis find proofs for other possible numbers of judges.  

At the end of today's daf, the Gemara considers how smicha is performed.  We learned that there was a "laying of hands".  Was that actually a required part of the practice?  After debating this custom, Rav Ashi answers that laying of hands is not required.  Instead, the new judge is offered the title of "Rebbi" and he is given permission to judge regarding fines.

Thursday, 27 July 2017

Sanhedrin 11: Anything to Prevent One From Feeling Shame; Intercalation of the Year

The Gemara shares a number of stories that demonstrates the rabbis' dealings with shame.  One of these involves excluding a person who had not been invited to examine the intercalation of the year.  One rabbi said that he was the one who had not been invited just to share the other rabbi from shame. 

Another example tells of Rebbi asking a person to leave when he smelled garlic during his lecture.  First Rabbi Chiyya left, and then all others followed him.  In the end, Rabbi Chiyya was also leaving simply to save others from shame.  A barista tells of a woman who says that one of the men in Rabbi Meir's Bet Midrash had engaged her.  After Rabbi Meir wrote her a get, every other man present wrote her a get as well.  A number of other stories also demonstrate the great importance that the rabbis place on honouring and respecting all people.

When is it permitted for us to intercalate the year?  A number of restrictions are suggested:

  • when the nasi wants it
  • when it is required for repairs (ex. roads, drying ovens, etc.) in time for Pesach
  • we do not do this for exiled people who are late, for weather-related delays, or to bring excess (sacrifices, etc.)
  • in one circumstance and extra 29 or 30 days may have been added to the year because the animals were not well enough for the ceremonies
A story is shared about Rabbi Gamliel.  He asked Yochanan the scribe to write three letters.  The first wished shalom to those in the upper and lower Galil and reminded them that it was time to tithe the olives.  The second repeated the wishes of the first but this time to those in the south of HaAretz, reminding them to tithe the sheaves.  

The third letter wished shalom to those chutz laAretz and explained that because the animals and the spring had not yet come, there would be a 30 day delay before Pesach.  He noted that he and his colleagues agreed on this.   The rabbis discuss why he added his colleagues to the picture.  It is suggested that the year is intercalated for three reasons: a delayed spring, delayed fruits of the trees, and for the tefuka, cycle, of the year.

Our daf ends with a discussion about further limitations on intercalating the year.  Must this be agreed upon in HaAretz?  Or in the Galil?  Must all investigations be in Jerusalem?  What about time of day - is daytime required, or is a nighttime decision considered to be reasonable?  The rabbis discuss different holidays and whether we should learn from them about what must be present for a decision to be ratified.

Wednesday, 26 July 2017

Sanhedrin 10: Split Testimony, Lashes, Intercalation

Today's daf covers three discussions.  The first is a continuation of yesterday's conversation regarding split testimony.  The rabbis offer a number of examples where testimony might be split.  These include a prohibition against a person killing his own wife after knowing that she has had an affair (thought it is permitted to join with another witness to kill the man involved).  Is this man related to his wife and thus not allowed to be a legal witness?  Another rabbis suggests that one is not punished by paying money if he has intercourse with an engaged girl; he is put to death.  If her name is mentioned, then he also pays money for he owes damages to her father.  Other examples demonstrate where a line must be drawn between oneself and one's relatives - or possessions - regarding testimony as a witness.

The rabbis consider cases where lashes are administered.  The Gemara notes that three judges are required for such a ruling, as described in our mishna.  The rabbis look to proof texts to determine why three and not two or four or seven judges might be required.  

Turning to those who give false testimony, the rabbis also search for proof texts.  False witnesses would be punished with lashes. As part of their discussion, the rabbis consider how many lashes should be administered in different circumstances.  Often we hear about "20 lashes", yet lashes should be in groups of three, it is argued, where two are on the back and one is on the front.  Thus after a doctor determines that a person will not die from 20 lashes, 18 lashes are administered to keep the lashes in groups of 3.  If one more lash were given and the person were to die, any further lashes would be applied to a dead body.  This would go against Torah law.

Finally, the Gemara turns to the intercalation of the month.  The rabbis discuss the timing of the decision-making around determining the new month.  Why isn't the month determined earlier in the year?  If we assume that the days of the month will change, what should we do?  Do we wait for the last minute to change the days of the month?  Or not?  The rabbis recognize that the intercalation of the month has implications on each community.

Tuesday, 25 July 2017

Sanhedrin 9: Disqualifying Witnesses; Capital Punishment and Bi'ah

The rabbis continue their discussion of a case where a woman has transgressed. What is the issue?  Perhaps she was warned that her transgression would result in lashes, but not that it would result in capital punishment.  The rabbis go on to discuss whether three or twenty-three judged would be required to punish this crime with lashes.  

Perhaps this case was difficult because one of her witnesses was either a relative or another invalid witness.  We are reminded that Rabbi Akiva sates that two witnesses are always enough.  A third is used only to be stringent.  If two witnesses were disqualified, all would be punished like the first, even if the third's testimony was irrelevant/unnecessary.  Does this only apply to capital cases, the rabbis wonder?   And would it apply to 100 judges? We are reminded that the testimony is disqualified only if the invalid witness warned the transgressor.

But what if a person was murdered in front of two brothers who could not testify against the murderer?  Again, the rabbis turn to whether or not the transgressor was warned before committing the crime.  We are told that the testimony right be eliminated anyhow due to conflicting stories.

The Gemara opens up questions of monetary liability accompanying death penalties.  Witnesses might be filled, too.  Punishment follows attempts to kill witnesses.  They also pay, because they tried to cause a loss to someone else.

Rav Yosef teaches that if Shimon says that he was "forcibly raped" by Levi, he is permitted to team up with another witness to kill his violator.  if Shimon says that the act was consensual, then Shimon is considered to be a rasha, a bad person, and he cannot testify.  Rava rejects this, suggesting that a person cannot disqualify himself from testifying.   Instead, the testimony is 'split': It is as if he said that Levi had bi'ah, sexual relations (literally 'entrance'), with another man; I consented to have bi'ah with a man.  His admission is ignored, and he joins with the second witness to kill Levi.

Clearly the concept of bi'ah, entering, is reserved for very specific relationships.  It is interesting that this particular example seems to suggest that it would be reasonable to kill a man who has bi'ah with another man.  The taboo around this particular human behaviour runs so deeply that it is difficult to imagine a 'reframing' of this act in an ancient context.

Monday, 24 July 2017

Sanhedrin 8: Reasons for 23 Judges

Even if there is a hint of a threat that a judge might be influenced by his relationship with someone who knows one of the litigants, the judge should excuse himself.   A judge must be equally stringent with someone who has very little as with someone who is very rich.  The rabbis say that an evil judge will both punish the wrong people and make G-d work toward rectifying the situation.

The Gemara discusses some of the qualities of a good judge.  These include learning and answering appropriately as well as asking for help when one does not know and accepting the the answer.  We learn about proper halachic practice through meritorious people.  The congregation is supposed to fear judges and judges are supposed to fear the congregation.  Judges are asked to bear the complaints of others and their own anger.  

The Gemara moves on to discuss double payments.  For fines, it is required to have more than one judge?  Three judges might be needed for double payment and fines of four or five times the payment.    The rabbis consider how experience a judge must have before ruling on such cases.  

We learned earlier that 23 judges are required to hear capital cases.  The rabbis wonder why other cases would require this many judges.   They are concerned about the rabbis being disrespected publicly; that fewer judges were not qualified to judge on their own.  In fact, the honour of the judges might be at stake, and thus more judges are required.

Our daf ends with more specifics regarding claims and judges.  We learn that a husband who has a monetary issue with his ex-wife, he requires twenty-three judges.  Students of the Torah always require the same number.  If one party brings in a number of witnesses which bolster his claim, for example regarding a get, the large number of judges is helpful.  Plus, the husband might be encouraged by that number of witnesses not make make big mistakes.  

If a woman is a chaverah, a friend - meaning that she understands Torah law, she is also liable without warnings.  She would know if she had transgressed the law.  Thus she is held to a higher standard when judges, as well.

Sunday, 23 July 2017

Sanhedrin 7: Advice to Judges on Moving Quickly Toward Peace; Judging Fairly

The rabbis continue to argue about whether or not mediation, or compromise, is an optimal goal for judges.  It is debated when it is best to suggest compromise within the judging process.  Rabbis suggest a number of phrases that serve as analogies regarding disputes.  Of note is the rabbis desire to end disputes as early as possible, for conflict escalates when left unattended.

A number of phrases are listed in the Gemara's effort to point out the benefits of working toward peace.  Most of these phrases are supported by biblical and other texts:

  • "because I hear people gossip about me and I do not respond, I will be saved from other misfortunes"
  • one who begins a conflict begins one hundred judgements
  • "it is common that people are not punished right away for two or three transgressions, but the fourth will not be pardoned"
  • "a person who seeks peace will behaved from seven pits, and a bad person will fall into the first pit"
  • "if a bet din took a person's garment, he should rejoice because he was saved from sin"
  • "when a weaver naps, her basket drops from her head and she will not be recognized for her trade"
  • "the one I relied on raised his hand (or his weapon) against me"
  • "when I was close with my wife, we could both fit on the blade of a sword.  Now that our love has waned, a bed 60 amos wide is not enough"
Similar words of wisdom are shared regarding judgement:
  • a judge who gives the true verdict cases the Divine Presence to rest in Yisrael
  • a judge who gives a false verdict causes the Divine Presence to leave Yisrael
  • If a judge takes from one and gives to another incorrectly, G-d will take his soul
  • A judge should imagine that a sword is between his thighs and that Gehenna is waiting to swallow him if he swerves toward the left or the right
  • The daytime is proper for a verdict
  • A verdict should not be made until it is as clear as morning
  • If 10 judges judge together and they all err, all are punished*
  • a student who watches his teacher err and stays silent is punished
  • If a judge is financially independent, like a king who relies on no-one else, he will establish order in the land
  • if a judge is like a kohen who goes to the granaries to get terumah, he will destroy the land
After describing a judge who was not learned enough to do his job, more wisdom is shared regarding the damage that is done by an unlearned judge.  The rabbis stress the importance of judges who are not swayed by taking bribes of gold or silver to be appointed.  Some rabbis believe that judges should not place themselves 'higher' than others.  Other rabbis discuss the importance of judges setting themselves apart from others.  Sometimes this includes judges carrying straps with them to remind people that those judges have the power to inflict lashes as punishment.  

Our daf ends with instructions to judges: do not favour your friends.  Further, do not put yourself in a position where you are obliged to help others, for you may be influenced to judge a case in their favour.

*Rav Huna would always judge with a group so that he would not have to bear being punished on his own if he made a mistake

Saturday, 22 July 2017

Sanhedrin 6: Compromise, Mediation, Judgement

Sanhedrin 5 described cases where one rabbi might be considered an adequate judge and another would not.  The rabbis explored the notion of "qualifications" and the needs of different communities.

Today's daf begins with questioning how only two judges could be appropriate to judge in monetary matters.  How can we know what to do when two men hold different opinions?  We learn that the ruling of one judge is acceptable, and that judge will be responsible for any damages from his personal funds if his judgement is incorrect.  However, the rabbis debate about which part of his judgement is incorrect.  Was it his knowledge of the Mishna?  Or was it his process of deliberation?  

The rabbis then discuss differences between judgement, compromise, and mediation.  We learn that some rabbis deem one judge sufficient to compromise rather than to judge, whereas three judges are required for mediation rather than judgement.  Some rabbis state that two judges are helpful with compromise, for there are witnesses to ensure that the terms of the compromise are met.  One argument suggests that compromise requires no act of acquisition and thus judges are not required at all.

Some rabbis assert that it is not permitted to mediate a dispute.  Certainly it is forbidden to mediate a conflict after a judgement has been decreed.  The notion that mediation is a sin and that blessing a mediator is a sin is justified by verses in Psalms.  Instead, human judgement should be similar to the judgement of G-d.  But how then do we justify the methods of Aaron, our first High Priest, who was said to be a lover of peace and one who mediated through peaceful means (Malachi 2:6).  The rabbis look to other instances of misusing a blessing.  In these cases one is said to be blessing oneself and cursing G-d.  It is considered to be covetous behaviour to bless a mediator.  

Some rabbis believe that mediation is preferable to judgement.  Quotations from Zechariah (8:16) and II Samuel (8:15) state that mediation was used by King David and others to bring about peace.  Peace and charity are both encouraged when we avoid firm judgements.  The rabbis discuss "justice and charity", using examples of King David offering justice to an injured party while providing benefit to the poor at his own expense.  

Reish Lakish states that a judge is permitted to remove himself from the case if at the start of the case he hears that one party is flexible and the other is rigid in his perspective.  The rabbis seem to attempt to convince judges to continue their work, though.  We are told that it is righteous to be true to one's judgement of a person regardless of their riches or poverty.  They are judging for G-d, not for people.  Judges might say that the work is very hard and they might wonder why they are doing it at all.  The Gemara reminds us that judges judge based only on what they see.  All that judges can do is make the best judgement possible given the information presented to them.

Finally, the rabbis ask how to know when a case has been completed.  One suggestion is that the case ends when a judge states that one person is liable and another has been exonerated.  We are then told about Rav Huna, who would ask both parties if they would like a strict judgement or a compromise at the start of each case.  This practice is considered to be a mitzvah by some rabbis.  

Thursday, 20 July 2017

Sanhedrin 4: When Words Have Two Meanings or are Otherwise Ambivalent

At times the written words of the Torah can be interpreted in different ways.  Some of the more obvious examples would include words that might be written in one way but spoken differently, leading to different possible interpretations.  Other examples could be words that are spelled the same but mean different things depending on how they are pronounced aloud (using different vowels).  The Gemara focuses on how to determine whether we take the words of the Torah or the vocalization of the Torah as authoritative in such cases.

Some of the situations discussed in today's daf include 

  • the sixty-six days of tumah observed by a woman following the birth of a baby girl
  • how and where blood is sprinkled on the altar when different animals are sacrificed
  • how many walls are required in a sukka
  • whether we consider one or two people when discussing the loss of a quarter-log of blood
  • whether we fill four or three compartments of the tefillin
  • why blindness allows a person to be free from the obligation of appearing on the Festivals
  • whether an animal cannot be cooked in its mother's milk, chalev, or a mother's fat, chelev

The first example, a woman's ritual impurity after labour, is particularly fascinating to me.  The Gemara teaches us that she is tamei for shivuayim, two weeks, rather than shivim, seventy days, thought it seems to be written as 'shivuayim' in the Torah.  Part of the rabbis' reasoning is contextual, based on the calculation of a tamei after a woman gives birth to a boy.  But part of their reasoning is purely interpretative, based on their social context, what seems to make sense, what is efficacious, etc.

Sanhedrin 3: Prooftexts and Opinions Regarding Numbers of Judges

Yesterday's daf taught us when three, five, nine, twenty-three, and seventy-one judges should hear a case.  The rabbis argue about why all cases are not investigated and tried in the same way when we are told in Leviticus (24:22) that we should have only one manner of law.  We learn that there is a concern about the qualifications of a judge.  People would have to be compensated for their losses after a ruling that was deemed to be incorrect.  

The Gemara then debates more broadly about the number of judges required to hear cases.  Why not only one judge?  Why three?  Why do we believe that there must be an odd number of judges?  Perhaps there are other reasons to call on a third or a fifth judge.  The rabbis consider the biblical instructions that are interpreted to mean that we need certain numbers of judges.  

While these explanations seem to be logical to the rabbis, I find them challenging.  For example, when considering a case requiring four judges, we are told that the first two are assigned because "they" put their hands on... the second two are chosen because it was "the Elders" who did this.  To me, this sounds like two judges, not four.  And the fifth judge is placed to ensure that there is an odd number of judges.

Wednesday, 19 July 2017

Sanhedrin 2: How Many Judges Should Hear Each Case?

Our first Mishna in this new masechet explains how many judges are required for different proceedings.  The number increases with the severity of the punishment possible.  Three judges are required to hear most transgressions.  Twenty-three judges are required for more serious crimes or for crimes committed in centres without enough people to merit a Sanhedrin.  A full court, or a Sanhedrin of 71 judges is required to hear any case involving capital punishment.  The Gemara then explores why three judges would be required in some cases and not in others.

Three judges are required to hear cases regarding:

  • monetary law
  • property damage
  • half the damage (where an ox gored twice but the owner did not warn and then the ox gored another animal again)
  • payment of double the principal (a their caught stealing)
  • payment of four or five times the principal (a their who slaughtered or sold a stolen ox or lamb)
  • one who rapes/seduces a virgin girl and pays her father 50 shekels
  • Rabbi Meir: one who defames (falsely claims that his wife was not a virgin, bringing false witnesses, and then pays her father 100 silver shekels and receives lashes)*
  • cases rendering one to receive lashes**
  • determining the intercalation of the month and the year***
  • laying of the hands by Sages****
  • breaking the heifer's neck when one is found murdered without a suspect****
  • chalitza (where a widow without children marries her brother-in-law)
  • the refusal (of a girl to marry the man her mother/brother forced her to be with as a child)
  • Valuation for redemption of a fourth-year sapling or second tithe produce*****
  • Valuation of consecrated property*****
  • Valuations of movable property*****
Two acts are judged by nine judges and one priest.  These are the valuation of land and the valuation of a person for the sake of making a vow.

The following cases are judges by twenty-three judges.  This is based on biblical requirements of a 10 person court (Numbers 35:24-25), at least 10 people in a congregation, and two more to ensure that "you shall not follow a multitude to convict (Ex 23:2), which adds two people, and a third to ensure that there is an odd number:
  • an animal that copulated with a person
  • an animal that was the object of bestiality
  • an ox that is stoned because it killed a person, for the ox and its owner should be put to death (Exodus 21:29)
  • a wolf, lion, bear, leopard, cheetah or snake that killed a person******
Finally, a number of cases are judged by 71 judges, just as Moshe and his 70 chosen elders were the original Sanhedrin (Numbers 11:16):
  • when an entire tribe has sinned
  • when a false prophet is declared
  • when a high priest transgresses a prohibition that is punishable by death
  • when a King brings the nation to war when that war was not mandated by Torah nor was it in self-defence
  • when the people wish to extend Jerusalem or the Temple courtyards
  • when a city is determined to be idolatrous and must be destroyed*******

* the Rabbis say that a defamer is judged by twenty three judges because it could become capital law as he accused her of adultery and she could have received the death penalty.  The same argument holds with his false witnesses

** Rabbi Yishmael asserts that twenty-three judges are required to hear these cases

*** Some rabbis say that we begin with three judges who consult with five judges, concluding with seven judges

**** Rabbi Yehuda says that five judges are required

*****Rabbi Yehuda states that one of the three judges must be a priest

****** in such a case, the person who puts the animal to death has done a mitzvah, and the animal is declared dead by 23 judges

******* only if everyone is idolatrous and it is not close to Eretz Israel and three adjoining cities are not idolatrous together

Tuesday, 18 July 2017

Bava Batra 176: Ketubot and Contracts of Sale; The Guarantor

In this final daf of Masechet Bava Batra, the rabbis first conclude their conversation regarding the validity of a borrower's handwriting on a document that is without witnesses.  The rabbis compare a incomplete get with this contract.  With a get, when a husband wrote it himself but it had no witnesses, when it was missing a date, and when one witness signed, the woman can remarry and her children will not be considered mamzerim.  Further, the ketubah could then be collected from sold property.  The rabbis then distinguish a get from a document of sale in practical terms.

In the larger picture, it is important to continue to distinguish ketubot from other documents.  Is the agreement to marry a person simply like any other transfer of property?  The details of the documents are different - ketubot walk through their value should the marriage dissolve. But in the end, documents are documents.  And in the case of a ketubah, that particular contract demonstrates the transfer of a person from her father's care to her husband's care.  Is that more similar to a document of sale, or a contact of obligation?

Our last Mishna asserts a lender collects from different places if the guarantor signs below or above the signatures of witnesses.  It makes a difference if the guarantor is named specifically in the contract.  The rabbis continue to discuss how the situation of a case might change the guidelines around how to repay a lender.

Our masechet ends with a discussion about whether or not a kinyan, a statement of obligation between two parties, is necessary when a guarantor is appointed to a beit din.  The rabbis decide that a guarantor does not require a minyan, for he is trusted and has decided to obligate himself without an external contract.

Monday, 17 July 2017

Bava Batra 175: Details on Contracts with Liens, Guarantors, Witnesses, Creditors, Debtors, and Unsold Property

The rabbis continue their conversation about when we believe the claims of orphans regarding payment of their fathers' debts.  At the conclusion of this debate, Rav asserts that one on his/her deathbed does not joke or otherwise obscure what they wish to be known.  We are to believe what we - or orphans - hear from a person or a parent on his/her deathbed.

A new Mishna will be discussed until the end of Masechet Bava Batra.  It states that:

  • when a person lends money with a promissory note, that person can collect that debt from liened property that the borrower had sold to others even before the lien
  • when a person produces a document to a debtor in the debtor's handwriting that states that he owes money, but there are no witnesses on the document, the money can be collected only from unsold property.
  • when a guarantor signs a promissory note after the note was written, the creditor can collect the money only from the unsold property of the guarantor.
A case is shared where the wisdom of Shimon ben Nannas is lauded.  The case allows ben Nannas to create an analogy between these laws and a case of one person rescuing another from strangling in the marketplace.  Rabbi Yishmael uses this opportunity to suggest that one who wishes to become wise should study monetary law, as there is no greater discipline in the Torah, and it is like a flowing spring.

The Gemara explores this Mishna in some detail.  It considers how these guidelines protect buyers, and how they might be interpreted to protect buyers even more effectively.  They wonder whether a person who misses part of a contract might be responsible for his or her own losses.  Each conversation in the Gemara highlights the rabbis' concerns about the rights of all parties.  The rabbis consider oral contracts, for example, and their importance in a number of situations.

Sunday, 16 July 2017

Bava Batra 174: The Arev, The Kablan, and Ketuba Scenarios

Rav Chuna states that a person can become an arev, a guarantor, or a kablan, a third-party payer if he contracts himself to be in these roles.  The rabbis attempt to differentiate between a loan guarantor and a third-party payer.  A case is presented to illustrate further.  A father dies and an arev pays the father's debt before consulting the father's orphaned children.  Then the arev insists that his payment be reimbursed by the inheritance.  Rav Papa believes that the arev did a mitzvah, but the orphans are not obligated to perform mitzvot until they are adults.  They should pay the arev.  Rav Huna brei d'Rav Yehoshua argues that the orphans do not pay back the arev, for their father might have paid another friend to not ask the arev to pay his debt.  We do not know the father's intentions, and so the orphans do not owe money to the arev.

The Gemara walks through approximately a dozen "what if" scenarios.  Each of these scenarios adds context to the situation above.  For example, perhaps the father admitted just before he died that he owed this money.  Taking into account this admission, the orphans are obliged to pay back the arev for it was publicly known that their father owed this money.  Interestingly, each scenario is very unique and nuanced.  This would suggest that the rabbis expect future cases to be complex.

A new Mishna teaches that Rabbi Shimon ben Gamlield says that if Yehudah was an arev for a ketuba, Moshe bar Atari was an arev for his daughter-in-law's ketubah.  His son, Rav Chuna, was an impoverished Talmud scholar.  Abaye says that someone should have suggested that he divorce her so that she will collect her ketuba and then he can remarry her.  He could divorce her without the help of the beit din.  The father-in-law might pay without asking for a vow.  Because Rav Chuna was a kohen, he was not permitted to remarry his ex-wife (for kohanim can only marry women who have not been married before).  

Abaye admits that "poverty clings to the poor".  The rabbis wonder how Abaye could suggest such a scheme in the first place.  Abaye admits that he was crafty in advising that the person who receives a gift on a condition that it will pass to someone after him - like and arev or a kablan for a ketuba - should sell that gift to benefit the receiver.  Further, this case was one where a father's money would go to his son, as it should.  As well, the son was a Talmudic scholar.  

The rabbis argue about whether or not the father-in-law was a kablan or perhaps an arev.  They debate whether as an arev or a kablan they were obligated for a ketuba.  The Gemara debates who benefits from such a transaction and whether anyone, including the wife, is disadvantaged by this situation.  They determine that the transaction would benefit everyone and it is permitted in this case.

Rav Chuna asks whether or not we should believe a person who believes he is on his deathbed when he consecrates all of his property and later says that 100 zuz really belongs to someone else.  We know that one's statements on their deathbeds are not schemes.  We do not believe that people will ever scheme to cheat their children.  Instead, we assume that a person is suggesting that he is lying and saying his children are wealthy to impress others while on his deathbed.  As well, Rav and Shmuel note that the person must say "give that 100 zuz to that person"; a direction.  Finally, when he consecrated all of his belongings he might have not mentioned his debt because he wanted people to believe that he himself was wealthy.

Bava Batra 173: Transfer of Documents, Third Party Obligations

The rabbis consider when people can use a document to claim money from a third party.  This moves them into a conversation about mesirah, the transfer of a document from one person to another.  If one acquires a document in its retrieval, then how could a third party claim ownership to the items referred to in the document?   Does one who holds a document always have to prove the way in which he acquired it?

A baraita teaches that a document can be used to claim money.  Can it also be used to collect money? to determine this, we need to know if the document was created in the presence of both the borrower and the lender.  The rabbis argue this question.  What might have happened to manipulate the scribe or one of the parties?  Many possibilities are suggested.  The rabbis even question what to do if there were two possible signatures on the document, and both were grandfathers who had the same name and were both either Kohanim or otherwise interchangeable names.   The response is that we should continue searching for independent relatives for as long as it takes. 

A new Mishna teaches that a person states that a man told his son that one of his many documents was paid, but he could not remember which.  If both are for the same person, should collect only the smaller amount?  In the end, the person who holds a document in his hand has the lower hand when claiming rights.

A second new Mishna teaches that if one lends to another and a third person is the guarantor, the lender is not permitted to collect his debt from the guarantor.  However, if third party collection is mentioned specifically in their contract, then it is permitted to collect from him.  The Mishna then questions this using the example of a poor groom who colludes with his wife to divorce so that she can collect her ketubah via her father-in-law (who is in fact the guarantor) and then the couple will remarry.  In the Gemara, the rabbis compare these situations to those of Persian law.

The Gemara discusses these points in great detail, demonstrating both the specificity of Jewish law and the differences between Jewish law and Persian law.  Much of their discussion questions whether or not the guarantor has an obligation to accept the responsibility of his charges.

Thursday, 13 July 2017

Bava Batra 171: Postdated and Predated Documents

The rabbis question whether a scribe can rewrite a document for sale or only for gifts.  The Gemara tells of a situation where one pays half of what he owes.  What happens next is up for debate: is a new document written from the original date?  Or does the lender keep the old document while a receipt is written for the borrower?  Would a receipt encourage the borrower to pay more quickly, for he would be fearful of losing that receipt and owing the entire amount?  Is the date written as the current date?  It could be postdated (which we would know if it were dated as Yom Kippur or Shabbat).  Or would documents postdated for a Shabbat be invalid unless they explicitly state that they are postdated?

Would a borrower be forced to accept a receipt?  The rabbis go into some detail debating this point.  In the end, it is suggested that a borrower who pays some of his debt and then loses the receipt for his payment must pay off the full loan.

At the end of our daf, we learn that predated loan documents are not valid.  The rabbis are concerned that people could use their receipts to 'prove' that their claims are true when in fact they are seeking improper financial gain.

Wednesday, 12 July 2017

Bava Batra 170: Standardizing the Process: Documents and Chazaka/ Partially Paid Debts

Amud (a) of today's daf focuses on an argument between Rebbi and Rabbi Shimon ben Gamliel.  Rabbi states that a person who has a document and chazakah, preexisting rights to ownership of his land, he must produce the document.  Rabbi Shimon ben Gamliel says that he needs to bring people who were witness to the chazakah.  The rabbis wonder about the nature of their argument.

Rav Dimi believes that their argument is based on whether or not otiyot, written letters, are required when one person challenges another outside of the beit din.  Abaye counters his application of this argument.  Perhaps, instead, one of the witnesses is found to be a relative or is otherwise invalid as a witness?  Other rabbis suggest that there could be invalid witnesses on the document, as well.  The rabbis argue extensively about whether or not the document should be validated.

Clearly the rabbis are acutely aware of the possibility that people might use these types of situations to benefit themselves, going against halacha.

In amud (b), the rabbis return to our last Mishna.  Rabbi Yehudah said that if one person payed part of his debt to another, he should tear the old document and write out a new document for the remaining amount owed.  Rabbi Yosi says that a receipt is give for what was paid, and Rabbi Yeudah adds that the receipt should be guarded in case mice eat it and the entire debt is demanded.  The Gemara quotes Rav Huna, citing Rav, who says that the Beit Din tears the old document and writes a new document from the original date.  A baraita counters this, suggesting that witnesses tear the old document and write the new document.  The Gemara presents an argument: witnesses are not qualified to rip a document and order a new document written!

It seems that this is likely a good example of different communities practicing in different ways.  In some communities, witnesses of documents are checked.  In other communities, witnesses of chazakah are consulted.  In some communities, writing is considered to be most important.  In others, witness reports are most valued.  Receipts, who tears a document - every details is defined by the specific communities customs.  The rabbis were attempting to create a standard practice that would apply to all communities.  In some ways that is a wonderful advancement.  In others, it erases the importance of flexibility; the value of listen to peoples' needs.

Tuesday, 11 July 2017

Bava Batra 169: Lost Documents and Returned Gifts

The Gemara walks us through a baraita that illustrates what happens when a document has been lost.  When witnesses affirm that they wrote, signed and gave back the document, a loan document is not rewritten.  Similarly a document of sale is not rewritten, and a gift is returned to the giver.   The rabbis do not wish to write two documents for one transaction because the creditor or the buyer might use the document to sell land that is not actually theirs.  The Gemara focuses on schemes that might put such contracts into question.

To answer the problems in one of these cases, a baraita suggests that the rabbis create a new document of sale without a statement of responsibility.  In fact, all documents should include statements of responsibility.  

Our daf ends with a conversation about gifts.  The rabbis argue about whether or not a gift must be returned when its accompanying document is not returned.  

Monday, 10 July 2017

Bava Batra 168: Payments, Fairness and Parchment

Why did our last Mishna say that husbands should pay the scribe?  The person who writes the get should give the get.  But the Sages note that women now pays the scribe for the get.  This was enacted because husbands might delay paying for the divorce.  The fact that the halacha was changed suggests that husbands were in fact doing just that - another tradition that has been a humiliation of the Jewish community for thousands of years.  

Our last Mishna shared a number of guidelines regarding other documents. The Gemara walks through he reasoning behind each of these other halachot.  In each of these cases, the rabbis point out that the party who benefits from the arrangement does not need added protections.  These halachot were created to balance the power dynamic between the two parties with their documents.  The rabbis also consider whether parties can be forced to share the cost of the scribe.  In my reading, the most heartening of all of this commentary is the discussion of writing two documents so that neither party would be upset viewing the claims of the other party over and over again.

The Gemara also discusses the asmachta, the exaggerated promise, which may or may not be binding.  

A new Mishna states that if a document has faded, one finds witnesses who know what was written and brings them to the beit din.  The Beit Din then writes that the document has faded, that it was written on a particular day, and the names of its witnesses.

The Gemara discusses possible cases to illustrate this Mishna.  When is further proof required?  We learn that a torn document is invalid, and that an erased or smudged document that is still legible is valid.  The rabbis teach us that a torn document is one torn by a person and that a document "torn by itself" is torn in any other way.  When a beit din destroys a document, is it torn where the critical information is written?  Or is it torn both lengthwise and widthwise?

A story is told of people who took people's land forcefully and then asked Abaye to reflect this new ownership in official contracts.  Abaye refused.  After being pressured, Abaye instructed the scribe to create new documents but on erased parchment where the witnesses would sign on new parchment.  These documents would be invalid.  The rabbis argued that the new writing could be erased and the original writing on the old parchment could be used illegally.  Abaye responded that the scribe himself would write the aleph-beit on new parchment and then erase it to create these documents on erased parchment.  

Bava Batra 167: Forgeries on Documents and Forgeries of Identity

The first part of today's daf focuses on forgery.  The rabbis are concerned that a signature at the bottom of a document might be used by a forger or another person trying to take advantage of the situation.  This could be used for tax evasion, for example.  Abaye suggests that one should not spell out numbers between three and ten at the end of a document because a person could add to it. When we write cheques in modern western society (which is rarely done any longer due to our use of the internet), we write a line after writing out numbers to ensure that forgers do not add to our intended number.  Letters could be erased from the top or the bottom; a vow could be added to a word to change the meaning of the contract.  A person could write with a wobbly style and thus forge the signature of a rabbi with a wobbly hand.

A new Mishna teaches that a get can be written for a husband without the presence of his wife.  A receipt can be given to the wife noting that she received her ketubah without her ex-husband present. The husband pays the scribe.  Next, the Mishna teaches that a loan document can be written for a borrower even if the lender is not present.  We do not write the document for the lender without the borrower present.  The borrower pays the scribe.  Similarly, we may write a document of sale for a seller without the buyer present, but not the other ways around.  The buyer pays for the scribe in this case.  Documents of betrothal or marriage are only written with the consent of both bride and groom, though the groom pays the scribe.  Finally, documents of birurin and the actions of the beit din with the consent of both parties and both share the scribe's fees.  Rabbi Shimon ben Gamliel says that one copy of the document is written for each party.

The Gemara discusses what it means when the Mishna specifies that we must "recognize them".  A husband and ex-wife must be visibly recognizable.  The rabbis are concerned that one of these people might use their half of the receipt/get to benefit them or another person in a different relationship.   If a person is new to a city, there are concerns that he might not be who he says he is and his get might not be written in his actual name.  The rabbis actually suggest that such a person should answer immediately to the name that he calls himself.  Just to be careful, they will not grant a get for the first 30 days that he is in a new town.

The rabbis share a story about a woman who claimed her ketubah but was told that there was already a ketubah given to her.  Witnesses suggested that she had changed - she grew older and her voice changed.  Sages might not recognize women, for it is not proper for them to look intently at women's faces.  In this case, that reality works in women's favour.

Saturday, 8 July 2017

Bava Batra 166 I Do Not Think That Word Means What You Think It Means

The rabbis continue to discuss interpretations of ambiguous statements that are written in documents.  How should that lack of specificity be understood?  Examples include one who says that they have a vague amount of money and whether that amount refers to gold, silver, or other coins.  

One of these interpretations uses the proof text of Leah who did not know which offering she should bring after five miscarriage.  If she only brings a korban, which is two birds, she is permitted to partake of terumah. She is told to bring the rest of her offering.  A second part of this example tells of two birds for sale for "dinari of gold" in Jerusalem.  The price of those birds is artificially dropped to dinari.  It was determined that Leah should bring one korban only.  The price of the birds dropped further to a quarter of a silver dinar.

The Gemara turns to discrepancies within a document.  What if the top of a document says chanani and the bottom says chanan?  Should we learn from this; consider the discrepancy to be intentional?  Or do we assume that the document is void because the intended meaning could be completely different from our interpretation?  The rabbis use the examples of words and letters which can be easily changed and misinterpreted?

And what about an expression in a document that is ambiguous?  The example is a document that states "600 and a zuz".  Does this mean 600 sela'im and a zuz or perhaps 600 perutot and a zuz?  The rabbis consider the reasons that each of these interpretations might be faulty.   At the end of their deliberations, the rabbis decide that in these cases the document's owner receives the lowest possible amount.

Thursday, 6 July 2017

Bava Batra 164: Transgressions Related to Documents

The rabbis discuss documents that are written on parchment that has been written on and erased.  If the parchment is completely written on and then erased, written on again and witnessed/signed, is that document valid?  What if part of the document is clear and another part is erased?  Does that invalidate the document?  What if that parchment is compared to another piece of parchment that has been erased/written upon?  The rabbis note that every sheet of parchment is unique.   Parchment will look different when it has been erased twice.  In fact, parchment will look different when it has been left out for a day.  

The rabbis move on to the topic of gittin, annulled marriage documents, and the signatures of witnesses on the inside of a tied get compared to standard gittin.   We learn that a standard get is dated according to the year of the king's reign.  A tied get is written one year longer than the beginning of the king's reign.  The rabbis suggest a circumstance where people might take advantage of that difference to misrepresent himself and not deliver a get.  Or perhaps this would be impossible, because we cannot write receipts for gittin; only the document itself is provided as a receipt of payment.

The Gemara wonders if Rebbi understood tied gittin, for he said that one was "postdated".  Is this how we know about the custom to date a tied get a year beyond the king's actual reign?  A standard get is dated in the year of the King in the first year of his reign.  The rabbis wonder what should be done in different cases that might confuse that year with the year before.  Perhaps the king was deposed and then reinstated - with or without the knowledge of the people.  How is the year of his reign described? 

The rabbis then veer into a conversation about numbers.  The first year of a king's reign is called "archan" and the second year is called "digun".  If a person takes on the vows of nazirut, s/he is first called "heina".  After that, her/his times as a nazirite are known as "digun", and then "trigun", and then "tetrigun" and then "pentigun".   The rabbis then consider the number of walls on a house that can and cannot become ritually impure due to tza'ara.  A house that has three or five sides - or is round - will not contract tza'ara.  

A story is shared about a date that is so concealed in the folds of a get that Rebbi could not see it.  When Rabbi Shimon jumps in to say that he did not write it; Rav Yehuda did, he is scolded fro speaking lashon ha'ra.  A second story is told - the same, except that the document was Tehilim, Psalms.  The rabbis turn their attention to lashon ha'ra.  A person should not speak badly of another, of course.  But is it lashon ha'ra to speak approvingly of another?  Perhaps others will use that against the person and speak badly of him.

Rav Amran suggests that almost all people transgress in three ways every day: thoughts of sexual transgression, feeling that he is worthy to have his prayers answered while he is in prayer or lack of concentration in prayer, and lashon ha'ra.  The rabbis suggest that people might not speak lashon ha'ra every day, but people make comments that could be taken as positive or negative every day.  Rav Yehudah says that most people also transgress the halachot regarding buying and selling, and some people transgress other halachot as well.