The Coming Week’s Daf Yomi by Rabbi Adin Steinsaltz
This essay is based upon the insights and chidushim (original ideas) of Talmudic scholar Rabbi Adin Steinsaltz, as published in the Hebrew version of the Steinsaltz Edition of the Talmud.
This month’s Steinsaltz Daf Yomi is sponsored by Dr. and Mrs. Alan Harris, The Lewy Family Foundation, and Marilyn and Edward Kaplan
According to Jewish law, in order for business transactions to be valid, we must be certain that both parties understand the ramifications of their actions. Thus, someone who is in the halakhic category of a shoteh – a fool – cannot engage in buying and selling, and any transactions in which he participates will be nullified by the bet din.
In our Gemara, Rav Nachman introduces us to the case of a bar shatya. Here, bar does not mean “the son of,” but rather it is like bar mitzvah, which means someone who is defined by a certain attribute – “a person obligated in mitzvot.” Similarly, a bar shatya is a person who is known to be mad. This bar shatya entered into a business agreement to sell his land. What happens in a case where two witnesses testify that he sold the land while he was in full control of his faculties, while two other witnesses say that at the time of the sale he was crazy? The conclusion is that when such a person has a long-standing claim on the land that was sold, we see the conflicting testimonies as canceling each other out, and we determine that the land must be left status quo – in the possession of the bar shatya.
Various psychological maladies – particularly manic-depression – are oftentimes cyclical in nature, where the patient is fully rational for a length of time, yet at other times his ability to function in a cogent manner or make intelligent judgments and decisions is totally lacking. In such cases, the change from one state to another is sometimes gradual, which can lead to situations where it is difficult to determine whether he acted during one of his lucid moments or during his confused periods.
The Ritva explains that this discussion works with the assumption that as far as the halakhah is concerned, such a person is considered to be fully sane when he is healthy and totally incompetent when he is stricken. The obligation of the court is to determine – to the best of its ability – what the situation was at the time of the transaction.
One of the central discussions in our perek is how the witnesses whose names are signed in a shtar – a contract or other legal document – can be authenticated. Our Gemara quotes Rav as distinguishing between different types of testimony, arguing that kiyyum shtarot – authenticating the signatures on a shtar – is rabbinic in nature, while Kiddush ha-hodesh – establishing the Jewish calendar based on testimony regarding the New Moon – is essential on a biblical level.
With regard to the shtar, the approach of most commentaries is that on a biblical level the signatures that appear in the document are sufficient for us to accept it as legitimate testimony, and there is no need to confirm its authenticity. If at some point we discover a forgery or error, it will be presented to the court, which will then review the case and rule based on the new information. Based on this, Rav Hai Gaon and others rule that if one of the judges on the court that was convened to authenticate the signatures turns out to be disqualified, we do not need to begin the process anew, since on a biblical level the shtar did not really need to be examined in this way.
Furthermore, the Rama in the Shulchan Arukh (Choshen Mishpat 41:4) rules that since the need for authentication is only Rabbinic, we do not really need a bet din; even a yachid mumcheh – a single expert – would suffice in such a case.
The Rambam‘s approach is exactly the opposite. He believes that on a biblical level, the signatures in the shtar are worthless, since the only testimony that is really acceptable to prove the existence of the loan, sale, etc. would be a personal statement by reliable witnesses. Nevertheless, the Sages established a process whereby the court can rely on written testimony, i.e. the signatures of the witnesses on the shtar, on the condition that those signatures are properly examined and authenticated.
The Mishnah on our daf introduces us to the halakhic argument ha-peh she-asar hu ha-peh she-hitir – literally, the voice that forbade is the voice that permitted. In other words, when we are only aware of a potentially problematic situation because of someone’s admission, we trust that person to explain why the situation is, in fact, not a problem at all. Thus, if a woman walks into court and says “I was married, but have received a divorce,” we will accept her story and allow her to marry with no need for her to prove that she is now single. If, however, we knew that she was married based on other evidence, we cannot accept her word that she is divorced without some proof to that effect.
The Gemara quotes a baraita that goes one step further. The baraita teaches that a woman who says “I am married” can come to court afterwards and say “I am single” and will be believed if she gives an amatla – a convincing explanation of why she originally said what she did. In response to a query from Shmuel, Rav ruled that a married woman will also be believed if she says that she is permitted to her husband, even though the previous night she said that she was forbidden (i.e. that she was a niddah), as long as she gives a convincing explanation of her statement the previous night. The Gemara records that Shmuel accepted the ruling, although he did not apply it when it came up in a personal case.
Tosafot bring the Talmud Yerushalmi, which explains that Shmuel had turned to Rav with this question because one night his wife had told him that she was forbidden and the next night that she was permitted, explaining that she was simply too tired the night before to engage in relations and had excused herself by claiming that relations were forbidden. The She’iltot presents the story in a different way. According to that version, one of the hints that a wife would give to her husband to indicate that she was a niddah was that she would decline to drink from the cup of wine that her husband offered her. When this happened in Shmuel’s home, his wife later explained that she had declined the wine for another reason – she did not want to embarrass Shmuel’s sister, who was a guest at the table and had not received a cup of wine. It was in that case where Rav ruled that her explanation could be accepted.
Following the principle of ha-peh she-asar hu ha-peh she-hitir that we learned about on yesterday’s daf, the Mishnah (22a) teaches that a Jewish woman who was held captive is believed when she says nishbeti u’tehotah ani – “I was held as a prisoner, but was never sexually molested” (which would make her forbidden from marrying a kohen). However, if we know from another source that she was held captive, we can no longer believe her. The Mishnah further teaches that had she gotten married already, even if witnesses come who say that they knew she was a prisoner, we allow her to remain married.
Our Gemara quotes Shmuel’s father as ruling that this is true not only in a case where she had already married, but even if the bet din ruled that she was permitted, they would not rescind their ruling and would allow her to marry a kohen – even if witnesses who knew that she had been held prisoner arrived before the marriage took place.
The Gemara relates that Shmuel‘s own daughters were taken as prisoners and that their captor took them to Israel, where they hoped to sell them or receive ransom from the community to have them freed. The girls turned to their captors and asked them for permission to enter the bet midrash of Rav Hanina, while the captors waited outside. Thus the girls were able to walk into the court, state nishbeti u’tehotah ani and receive permission to marry whomever they wanted based on ha-peh she-asar hu ha-peh she-hitir, and only afterwards did the captors enter to begin negotiations on their sale. Rav Chanina realized that these girls must have grown up in a home of scholars and ascertained that they were, in fact, Shmuel’s daughter’s, at which point he encouraged Rav Shemen bar Aba – who was a kohen, and was related to Rav’s family – to marry one of them.
Neharda’a, the city where Shmuel lived, was near the border between the Persian and Roman empires. This made it a clear target, and it was attacked and sacked many times. Some say that this story with Shmuel’s daughters took place during the attack by Septimius Odenatus in the year 259 CE. From a compilation of the stories that appear in the Babylonian and Jerusalem Talmuds it appears that Shmuel had at least three daughters, two of whom married Rav Shemen bar Aba (after the first one died, he married her sister). The third married Issur Giyura.
One of the subjects our Gemara addresses is how we can establish a person’s lineage. How can we be certain that someone is a kohen, for example? If he regularly eats terumah, does that prove that he is a kohen? If he does nesi’ut kapayim – blesses the people with birkat kohanim – will that prove that he is a kohen? And what if we have a shtar – a document signed by witnesses – in which an individual is referred to as a kohen? Will that document be accepted as proof that he is a kohen?
According to the Gemara, if we have a document, signed by witnesses, which says “So-and-so the kohen borrowed a sum of money from a certain person” we find a disagreement between Rav Huna and Rav Hisda on the question of whether witnesses focus on the main point of the shtar – i.e. the sum of the loan – or they are attesting to the veracity of the entire document, which includes the statement that the borrower is a kohen.
At least part of the question here is dependent on a more basic issue. Does a Jewish court accept written testimony?
In general, the Gemara follows a rule which states mi-pihem ve-lo mi-pi ketavam – the halacha accepts verbal testimony, but not written testimony. On the other hand, the Gemara has a principle that, with regard to documentation of loans, purchases, and the like, we say edim ha-hatumim al ha-shtar na’aseh ke-mi she-nehkerah edutam be-bet din – that witnesses who have signed a legal document are considered to have had their testimony authenticated in the courtroom. Nevertheless, there is room to distinguish between the central issue for which the shtar was written, where we would say edim ha-hatumim al ha-shtar na’aseh ke-mi she-nehkerah edutam be-bet din, and incidental points mentioned in the shtar, where we would apply the rule mi-pihem ve-lo mi-pi ketavam and would rule that they cannot be viewed as reliable testimony.
In the end, the Gemara distinguishes between such priestly benefits as eating terumah in modern times on a Rabbinic level, where such testimony would be sufficient, and establishing him as a member of the family of kohanim on a Torah level where it would not be (see the Rambam‘s Mishnah Torah, Hilkhot Issurei Bi’ah 20:9).
The Gemara tells of someone who approached Reish Lakish, telling him that he was certain that a specific person was a kohen. He knew this because he saw that he had been called up first to the Torah reading. Reish Lakish responded by asking him whether he had also seen this man receiving terumah when it was being divided up at the granary. Rabbi Elazar overheard this and responded, “and if there is no granary in the town, can we not establish who is a kohen?” That is to say, the testimony based on the Torah reading should be sufficient. On another occasion, Reish Lakish was sitting with Rabbi Yochanan and a similar conversation ensued. When Rabbi Yochanan said “and if there is no granary in the town, can we not establish who is a kohen?” it became clear to Reish Lakish that Rabbi Elazar had learned this from Rabbi Yochanan. The next time he saw Rabbi Elazar he said to him “you learned that from bar napaha (Rabbi Yochanan)! Why didn’t you quote it is his name!?”
Most of the commentaries accept Rashi‘s approach to Reish Lakish’s complaint – had he known that the argument Rabbi Elazar had raised was the opinion of Rabbi Yochanan, he would have accepted it the first time he heard it. Rabbeinu Chananel suggests that even if he would not have accepted it, in Rabbi Yochanan’s presence he would not have stated a position to which he knew Rabbi Yochanan objected. The Ritva explains that the reason Rabbi Elazar did not quote Rabbi Yochanan is because the relationship between the two was so close that he believed that it should have been clear to everyone that the statements he made were those he learned from his teacher, Rabbi Yochanan.
On several occasions in the Talmud – most often in the Talmud Yerushalmi – Rabbi Yochanan is referred to as bar napaha – “son of a blacksmith.” Some suggest that this is simply because that was his father’s occupation. Others suggest that it was an ironic nickname given to Rabbi Yochanan specifically because of his good looks, while another approach suggests that it refers to his strength and proficiency in Torah.
Still in the midst of discussing how we can establish the lineage of different families, our Gemara quotes a baraita where Rabbi Shimon ben Elazar teaches that receiving either terumah gedolah or ma’aser rishon can be considered a reliable indicator that the recipient is a kohen. In response to the objection that ma’aser rishon is the levi‘s portion, the Gemara responds that Rabbi Shimon ben Elazar is following the opinion of Rabbi Elazar ben Azarya.
As we have learned, a portion of the annual produce is set aside for the kohanim and is called terumah. Aside from the terumah, ten percent of the harvest is set aside for the levi’im, as ma’aser. Our Gemara quotes a baraita in which we learn that this is only the opinion of Rabbi Akiva. Rabbi Elazar ben Azariah rules that ma’aser need not be given only to a Levi, as it can also be given to a kohen, since the priestly families are all from the tribe of Levi (as we learned in Masechet Yevamot – see daf 86). Rabbi Elazar ben Azariah was a kohen who had a personal interest in this ruling. As our Gemara explains, following the penalty imposed on the Levi’im by Ezra ha-Sofer, the rights of Levi’im to ma’aser were severely curtailed, and it was ordinarily given only to kohanim and not to Levi’im.
Tosafot on our daf search for a textual source for this penalty of Ezra. Although it is clear that Ezra was very disturbed by the fact that the levi’im did not choose to join him on his return to the Land of Israel (see Ezra 8:15-17), there is nevertheless no clear indication that he made a formal decision to penalize them by depriving them of ma’aser. One passage that they bring (Nehemiah 10:38) at best seems to indicate that the kohanim were given equal rights in the ma’aser, but not that it was taken from the levi’im. Still, the Meiri interprets that pasuk to mean that the kohanim were encouraged to receive the ma’aser directly from the farmer, although they were generous in sharing it with the levi’im.
The Bet Yosef interprets the Rambam (see Mishnah Torah, Hilkhot Ma’aser 1:4) as limiting Ezra’s ruling to his own time only – after all, there is little reason to punish the levi’im who did choose to move to Israel – but that after the second Temple the rules of terumah and ma’aser reverted back to their original state.
In addition to his monumental translation and commentary on the Talmud, Rabbi Steinsaltz has authored dozens of books and hundreds of articles on a variety of topics, both Jewish and secular. For more information about Rabbi Steinsaltz’s groundbreaking work in Jewish education, visit www.steinsaltz.org or contact the Aleph Society at 212-840-1166.
The words of this author reflect his/her own opinions and do not necessarily represent the official position of the Orthodox Union.