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
When a person’s property causes damage, obviously there is a need to pay restitution. Nevertheless, the Torah teaches that we distinguish between a shor mu’ad – an ox that has gored in the past – for which one pays full damages (nezek shalem), and a shor tam – an ox with no violent history – for which one pays for only half of the damage (hatzi nezek) that he caused.
Our Gemara explains that Rav Papa and Rav Huna brei d’Rav Yehoshua offer different approaches to the law of hatzi nezek. According to Rav Papa, every ox is potentially dangerous and the owner really should pay full damages. Since this is a “first offense,” however, the Torah is lenient with him, and only obligates him to pay half of what he owes. Rav Huna believes that an ox that never showed any indication of violence does not need to be watched carefully, and because its behavior was unusual, its owner should not be obligated to pay any damages, at all. Nevertheless, the Torah imposed a penalty – a kenas – on the individual so that he should make sure to be more careful in the future.
The Gemara concludes that we follow Rav Huna’s opinion, and rule that hatzi nezek is a kenas. This leads to an interesting ruling. Unlike standard monetary rulings which are entrusted to all Jewish courts, penalties can only be applied by properly ordained judges. Since ordination was only given in the Land of Israel, cases involving kenas were not heard in Babylon. Thus the Gemara concludes that unusual cases of damage – like a dog eating a lamb or a cat eating a large chicken – would not be tried in Bavel.
From stories that appear in the Talmud it would seem that during those times cats were not fully domesticated. Although people did keep cats in their homes to protect the inhabitants from rats and snakes, it was fairly common to hear of a cat that attacked domesticated birds and even babies in the house. Similarly, dogs were not kept as pets, rather they were guard dogs or used for shepherding. The cases mentioned in our Gemara are unusual specifically because the animals that were attacked were larger than normal.
We have already learned that in the event that a young woman is raped, the perpetrator will have to pay a monetary penalty to her father (see Devarim 22:28-29).
Obviously, once the money is paid to the father it belongs to him, and in the event of his death it will be part of the inheritance received by his sons. What if he dies before receiving the money? Will his sons inherit the unpaid penalty, or will the money be paid to the daughter? Although the Gemara quotes a baraita in which Rabbi Shimon rules that the money will be paid to the daughter, the Gemara is unable to find a source for this rule. Rava says that this was a question that both Rabbah and Rav Yosef could not answer until Rav Yosef was appointed to head the academy, and he taught that it was derived from the passage in Sefer Devarim (22:29) that emphasizes that the perpetrator must give the money to the father – that is, the money does not belong to the father until he actually receives it.
Rav Yosef’s appointment to head the yeshiva in Pumbedita is described in Masechet Horayot and Masechet Berakhot. When Rav Yehudah passed away, the two obvious candidates to replace him were Rabbah and Rav Yosef. Rabbah, who was the younger of the two, was known for his sharp, insightful analysis, while Rav Yosef was known for his wide ranging knowledge. In an attempt to decide who should be chosen, the following question was sent to the Sages of the Land of Israel: “which is better? Sinai (i.e. knowledge) or oker harim (literally ‘one who uproots mountains,’ i.e. sharp insight)?”
Although the response from Israel was that “Sinai” was more essential, still Rav Yosef declined the position, and for the 22 years that Rabbah was in the position of Rosh Yeshiva, Rav Yosef declined all honors. Only after Rabbah’s passing did Rav Yosef accept the position.
According to Jewish law, when a young woman is living at home and is supported by her father, any money that she earns belongs to her father. What is the halacha when the father has passed away and she is being supported by her brothers? Do they also deserve to receive her earnings? Our Gemara brings a teaching that clearly states that in such a case she keeps her earnings. The Gemara offers two possibilities on the author of this statement. It is either:
- Rav Zeira quoting Rav Matanah
- Rabbi Zeira quoting Rav Matanah.
What is the difference between these two traditions?
Generally speaking, the difference between the title “Rav” and “Rabbi” is whether or not the Sage in question has received semicha – formal ordination. Biblically, only those sages who receive formal ordination from their teachers can act as judges for all Torah laws, for they belong to a chain of tradition stretching back to the court of Moses. Towards the end of the second Temple period, this formal ordination was recognized by bestowing the title “Rabbi” on its recipients. The Gemara in Masechet Sanhedrin teaches that semicha was only given in Israel, which meant that even great Sages who lived in Babylon were not properly ordained, and did not receive this title. They were simply called “Rav.”
Some Babylonian sages moved to Israel and retained the title “Rav,” while others did receive semicha in Israel. Of these, some arrived in Israel at a young age and their teachings are always quoted with the title “Rabbi” before their name; others had already made a name for themselves before receiving semicha, and while we find that some of their teachings are quoted in their name with the title “Rabbi,” others are still transmitted with the title “Rav.” Rabbi Zeira was one of these sages, and we find here an example of the Gemara trying to establish whether this particular teaching dated from his younger years as a Babylonian scholar, or his later years after he had already received semicha in Israel.
One would imagine that when selling a field, the seller can choose whichever buyer he wants. In fact, the Sages rule that there is one person who gets preference over any other buyer – a neighbor. The Gemara has a concept that it calls dina d’bar mitzra – the rule of the neighbor. According to dina d’bar mitzra, if a person sells his field, the person who owns the neighboring field has first rights to purchase it, and in the event that it was sold to another, he has the right to remove the purchaser from the field (obviously he will have to compensate the purchaser for the money that he put out in his attempt to obtain rights to the field).
This law is based on the passage ki ta’aseh ha-tov ve-ha-yashar (Devarim 12:28) – literally, “you should do what is good and what is straight” when involved in business transactions. Since it makes no difference to the seller who pays him for the field, and it certainly does make a difference to the neighbor who wants to purchase the land (since it is easier to work and guard one large piece of land than two smaller ones that are separate from one another) it would be middat Sodom – a characteristic of the city of Sodom (see Bereshit chapters 18-19) – to refuse to sell it to the individual who needs it more. Still, this rule applies only to the sale of land. If the owner of the land wants to give it as a present to someone, dina d’bar mitzra would not apply, since the owner may derive specific benefit from giving his land to a certain person as a gift.
Although our Gemara appears to suggest that a person can avoid the rule of dina d’bar mitzra by writing a shtar matanah – a document that shows a transaction to be a gift – after the sale is complete, in fact from Rav Hai Ga’on onwards, the majority of the poskim rule that if the neighbor is aware of the fact that the field was sold and can show the contract of sale, the fact that a second contract was written attesting to the transfer of the field as a present will not remove the rule of dina d’bar mitzra from being applied.
One of the common punishments meted out by Jewish courts of law is malkot – lashes. According to the Torah, most sins that are committed by performing a forbidden action will be punished by a public flogging (see Devarim 25:1-3). The Sages interpret the passage to mean that once convicted, the individual receives 39 lashes in sets of three. A physician is on hand throughout the process to ensure that the lashes will not kill the person, and the punishment will be stopped if such a concern exists.
Our Gemara discusses the case of a motzi shem ra – someone who falsely accuses his wife of having committed adultery between their betrothal and marriage (see Devarim 22:13-19). According to the Torah, if the investigation shows that his wife is innocent, he will be punished by malkot, paying a penalty of 100 kesef and will not be allowed to divorce her.
Rabbi Yehuda is quoted in a baraita as saying that under all circumstances the husband gets malkot, a statement that is interpreted by the Gemara to mean that whether or not the husband and wife have had sexual relations, he will get malkot if he is found to be a motzi shem ra; if they had relations they will be biblically mandated malkot, while if they had not had relations they will be makat mardut mi-d’rabbanan – lashes applied by a rabbinic decree.
Rav Hai Gaon defines the term mardut as the Aramaic translation of the term mussar – rebuke (see, for example Onkelos‘ translation to Vayikra 26:28). The geonim explain that this type of malkot do not have the same restrictions as those mandated by the Torah. They are not given in sets of three, they are not necessarily carried out with a double strap, and there is no requirement for constant medical supervision of the situation. Makat mardut mi-d’rabbanan are given without a specific limit. While the Arukh claims that the individual receiving them was often beaten to death, the Ramah teaches that they were always a third of the lashes mandated by the Torah.
According to the Ritva, there were different types of makat mardut mi-d’rabbanan. In cases where a person committed a one time forbidden act, they were limited, although they could be more than the biblically mandated ones. In cases where a person repeatedly committed a crime, they might be given with no limit whatsoever.
The Mishnah on our daf teaches that while a young woman lives in her father’s house he has rights and responsibilities with regard to her, most of which are passed on to her husband when she marries. Among the father’s rights we find:
- He can marry her off
- Money that she earns or finds will belong to him
- Upon hearing that she has made a vow, he can cancel it
- He can receive divorce papers on her behalf
Once she marries, her husband will have the right to derive benefit from property that she owns (which the father cannot do). The husband is obligated to feed her, to redeem her from captivity (should that unfortunate occurrence take place) and, should she die, must arrange her burial. Rabbi Yehudah teaches that even the poorest Jew must minimally arrange for two flutes and a mekonenet – a professional wailer for the funeral.
During the time of the Mishnah, flutes were considered an essential part of the funeral ceremony, to the extent that special dispensation was given to have them brought even in circumstances where there were halakhic problems that had to be overcome. In more recent times this tradition has fallen out of favor, apparently because it was seen as being a non-Jewish custom.
According to the Gemara, the Tanna Kamma agrees with Rabbi Yehuda that the husband is obligated to ensure that all traditions are kept at his wife’s funeral. The difference between them is in a case where the husband and wife come from different social strata. Without question, when the husband comes from a higher class family, during her lifetime he must treat her with all of the honor due to someone of that class – in the language of the Gemara olah imo ve-einah yoredet imo. When she has passed away, however, does this still apply? Rabbi Yehuda rules that it does, and he must hire flutes and a mekonenet, if that is his family’s tradition.
We have learned on the previous daf that a father has rights and responsibilities towards his daughter, and a husband has similar rights and responsibilities towards his wife. On our daf we learn that although many of these rights belong to the father based on interpretations of biblical passages by the Sages, in the relationship between husband and wife, many of the rights and responsibilities are related to each other. Thus, the wife’s earnings belong to her husband in exchange for his feeding her (mezonot), he must redeem her from captivity in exchange for the rights that he receives to derive benefit from her property (peirot), and he is obligated to ensure a proper burial in exchange for the dowry that she brings into the household (ketubah).
Once we understand this relationship, the logical conclusion is that upon agreement between husband and wife it is possible that these relationships can be broken, i.e. since the central concern of the Sages is to ensure that the wife is fed, a woman will be able to say eini nizonet ve-eini osa – I choose not to receive food from my husband, and I will keep my earnings for myself.
With regard to the relationship between peirot and pidyon (deriving benefit from her property and redeeming her from captivity), from the simple reading of the Gemara it would appear that the peirot is the central issue. Nevertheless, most of the rishonim understand that pidyon is the central issue, and rule that a man cannot force his wife to cede her guarantee of redemption in exchange for his concession of the peirot. The Meiri suggests that this is the clear position of the Talmud Yerushalmi on the matter.
This is in clear contrast with the opinion of the Rashbam in Masechet Bava Batra (49b) who believes that the main issue in this case is the peirot.
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.
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