Category Archives: Daf yomi

The Role of Witnesses and the Court – Making a New Reality

In today’s daf (Sotah 31b) appears a well known rule: every time that the Torah believes a single witness, his words is accepted as though it were the testimony of two witnesses. The line as it appears in the gemara is:

תלמוד בבלי מסכת סוטה דף לא עמוד ב
אמר עולא: כל מקום שהאמינה תורה עד אחד הרי כאן שנים, ואין דבריו של אחד במקום שנים!

Rashi comments on this:

רש”י מסכת סוטה דף לא עמוד ב 

כאן בבת אחת – מתני’ כשהעידו שניהם בתוך כדי דיבור דבטלו דבריו מיד דלא נתקיימה עדותן בב”ד והיכא האמינהו תורה כשנים כגון אם העיד עדותו ויצא דתו לא מצי חד לאכחושיה.

The simple implication (as Tosafos point out here) is that the testimony is viewed as true immediately. The problem is that in Yevamos there is a Gemara which implies that when it comes to a witness giving testimony that a woman’s husband died we only believe the witness absolutely after an official decision has been taken on the part of the beis din to allow her to remarry. Based on this, Tosafos give a different opinion:

 תוספות מסכת סוטה דף לא עמוד ב

נראה לפרש הכא בזה אחר זה שקיבלו עדות הראשון והורו ע”פ עדותו מיהו תימה עולא גופיה דאמר הכי אליביה תני לא היתה שותה מה דוחקיה למימר הכי והא מתניתין לא משמע ששהה השני אחר הראשון עד שהורו ואסרוה עליו ואמרו אינה שותה וי”ל דמתניתין בסתם קתני אי נמי רבי יצחק ועולא הוה מתרצי לההיא דהאשה זוטא כדמתרצי אליבא דר’ יוחנן בפ’ שני דכתובות

Essentially, they state that the halachah dictates that we would only believe a single witness absolutely after a decision has been taken based on his testimony.

Tosafos and Rashi here argued about a very fundamental issue; do we view the witnesses as clarifying the events which took place to us, and we believe them to any extent the Torah tells us to (Rav Asher Weiss has an essay on this topic on Parashas Mishpatim)? Alternatively, do we see the court as creating a new reality based on their testimony? This debate is current both in batei din and in modern secular courts. Do the courts create legal realities, such as a marriage, or ownership, or do they merely respond to events and clarify the things which have anyway happened?

Me’Inyana de’Yomah in the Daf Today

Today in the daf (in the Mishna) there is a disagreement between two Rabbi Akiva and Rabbi Eliezer the son of Rabbi Yossi HaGlili. The Mishna relates their different opinions about the cities given over to the Leviim:

משנה מסכת סוטה פרק ה משנה ג
בו ביום דרש רבי עקיבא (במדבר ל”ה) ומדותם מחוץ לעיר את פאת קדמה אלפים באמה וגו’ ומקרא אחר אומר (שם) מקיר העיר וחוצה אלף אמה סביב אי אפשר לומר אלף אמה שכבר נאמר אלפים אמה ואי אפשר לומר אלפים אמה שכבר נאמר אלף אמה הא כיצד אלף אמה מגרש ואלפים אמה תחום שבת רבי אליעזר בנו של רבי יוסי הגלילי אומר אלף אמה מגרש ואלפים אמה שדות וכרמים:

If we look in Rashi on this Mishna:

רש”י מסכת סוטה דף כז עמוד ב 

מגרש – רחבה פנויה מזריעה ומבתים ומאילנות לנוי העיר להיות לה לאויר ואלפים לא הוזכרו לתתן ללוים ולא נאמרו אלא ליציאת תחום שבת.

Rashi is saying that according to Rabbi Akiva the Leviim would not have been required to perform any agriculture themselves. Instead, they would rely on what others would give them (presumably maasros). Presumably he understood this from the famous passuk in Parashas Korach:

במדבר פרק יח 

(כא) וְלִבְנֵ֣י לֵוִ֔י הִנֵּ֥ה נָתַ֛תִּי כָּל־מַֽעֲשֵׂ֥ר בְּיִשְׂרָאֵ֖ל לְנַחֲלָ֑ה חֵ֤לֶף עֲבֹֽדָתָם֩ אֲשֶׁר־הֵ֣ם עֹֽבְדִ֔ים אֶת־ עֲבֹדַ֖ת אֹ֥הֶל מוֹעֵֽד:

It would seem that the point for him is that the Jews will supply Leviim with their food and therefore there will be no need for agriculture. After all, if most of the Jews are farmers and they each give one tenth to the Leviim (and there are presumably less Leviim than any other tribe), then they should have more than enough food. There was no planning for a time when this might not happen (alhough I think it’s interesting to wonder how this would have worked in the Northern Kingdom).

On the flip side, Rabbi Eliezer here is saying the opposite – of course there was a plan for a rainy day. Even if the Jews were meant to support the Leviim, the Leviim were not left helpless.

I think the relevance of this issue to the modern concern with Haredim is obvious. Should we support the bnei Torah among us and let them just sit and learn and serve Hashem for all of us and thus raise the spiritual lives of us all to greater spiritual heights, or should we assume that it is important (either morally, see the Rambam, or practically) that everyone take responsibility both for their spiritual life and their physical survival. We learnt (again in daf yomi) not long ago about a Yisachar Zevulun relationship. At what level is it a desirable institution? I don’t know how to apply all this (especially as it seems to be a disagreement), and I acknowledge the difference between Talmud Torah and Avodah in the Mikdash (though it can go either way), but I think it should be a part of the discussion.

Hataras Nedarim Lomdus and Rosh HaShanah

In today’s daf (21) of Nazir the Gemara discusses the statement in the Mishna that if a wife makes a neder to be a nazir and afterwards her husband says “ve’ani” to mean that he too would like to be a nazir, he can no longer release her from that vow. The Tosafos on 21b s.v. “ela” discuss why. They record two opinions:
1) He cannot release her from her vow because the manner in which he took his vow made his own nazirate vow dependent upon hers, therefore, by releasing her from the vow he would release himself also. This violates the rule that one may not release oneself from any vow (only someone else can release a person from a vow he took) in Chagigah 10a; or,

2) The Tosafos quotes the opinion of Rabeinu Elyakim that it is permitted to release oneself from a vow in this fashion but in this particular case by agreeing to take a vow contingent upon his wife’s vow, the husband effectively agreed that her vow should be binding. After doing so, he can no longer release her from its authority.

The opinion of Rabbeinu Elyakim makes a lot of sense. He’s not really releasing himself from his own vow. By releasing his wife, he indirectly causes the effect that his own vow would no longer maintain its force because it was contingent upon her vow, but that is something which is not relevant to the question of whether he can release her from her vow. It would be including in common parlance under the “law of unintended (or, in this case, intended) consequences”. However, how are we to understand the first opinion? We can understand it by assuming that the rule preventing a person from releasing himself from his own vow is not merely a detail in the complex laws of nedarim. It lies at the very heart of that system. If you could release yourself from a neder you took., then there would be no reason for the rules of nedarim to exist at all. The Torah dictated that if you make a vow, you must keep it. By making that vow you incurred a moral obligation to see it through. If you don’t, then you literally “profaned your speech” (see Rashi on Bamidbar 30, 3). Furthermore, I heard once from Rav Lichtenstein hk”m that the reason for laws which protect the sanctity of speech, ranging from this prohibition to that on lying, is Onkelos defines humans as possessing “רוח ממללא” or “the spirit of speech.” In other words, it is our very ability to communicate in words which defines us. As such, it simply cannot be that a person would so violate his responsibility to respect the sanctity of his own speech by releasing himself from a vow, even indirectly. If an action of his would automatically have that consequence, it must be that the Torah would not allow that action to take effect.

Tomorrow morning we will all release ourselves from any vows we might have taken over the last year. This ceremony seems incidental to the observances of the yamim noraim, and yet it lies at their very heart. By going before a panel to release ourselves from any vows we may have taken over the past year (even if we haven’t kept them through lack of knowledge), we are affirming the sanctity of our speech and our responsibility to respect that sanctity. May that awareness travel with us through the coming year and help us maintain the requisite level of holiness in all our words, not just when we make a vow.

An Interesting Definition of a Day in Today’s Daf

Anyone who has been learning for a while will have realized that for different halachos there are different definitions of the word “day”. In general in the Torah the word “day” means either the daylight hours, or a period from one nightfall to the next. In kodshim, the word day means a night following a day as opposed to preceding a day. Furthermore, the Rav zt”l pointed out (what was really an explicit Riva at the beginning of the fifth perk of Yoma) that the time between sunset and the appearance of three stars might not be a sofek in the sense of us being unable to clarify whether it is day or night. It might really be both and the sofek is which Halacha, that of day or that of night, should we apply. However, the perception of a day in the Tosafos on the daf today is a little different (although perhaps more commonsense).

The Gemara at the end of the second perek of Nazir discusses the opinion of Rabbi Yossi that if a zav or zavah is about to become tahor on the night of Peach (as in they are on the final day of the count and they are within the cases that do not require the bringing of a korban and they have already gone to mikveh) then a Korban Pesach can be slaughtered for them and it’s blood sprayed on the Mizbeach. If they then see either more blood or another seminal emission causing them to become impure again and preventing them from eating the Korban Pesach they need not bring the Korban Pesach again during Pesach Sheini even though they did not eat the korban (which we assume is the primary obligation). Accordingly, the Gemara assumes that Rabbi Yossi must hold that the fact that they saw more blood or another emission does not render them retroactively impure for the previous portion of the day succeeding when they went to the mikveh. The Gemara then asks that if they are capable of becoming definitively pure between the times that they see either blood or a seminal emission, how is it that they can have three successive emissions such that they would become impure for a full seven days or be required to bring a korban. The Gemara answers that it must be that Rabbi Yossi will only apply this law if a woman either saw blood continuously for three days or either a man had seminal emissions or a woman saw blood immediately before sunset for three days successively preventing the beginning of a day with the possibility of going to the mikveh. Even if they were to go to the mikveh that day it would not be a “clean” day because they had already seen something so even post mikveh the count could not continue. Rashi in Pesachim 81a ruled based on this that if the night started without seeing either blood or a seminal emission, it would be permitted to count the following day as one of the clean days (as long as nothing was seen for the rest of the day). Tosafos here disagree. They state that the beginning of the night cannot allow us to count the following day, although they seem to imply that it counts (where it is relevant) to allow us to count the previous day as a clean day if we do not need the entire day to be clean. Accordingly, it seems that Tosafos are defining a day as the period we think of as a day – from when we wake up until a bit into nighttime for the purposes of this halacha. For this halacha what matters more is not the formal definition of a day but the experience of a day.

If so, the problem the Gemara had with Rabbi Yossi’s opinion was not that you could count the start of a day as pure and thus prevent the later sighting from being added to the previous sighting . The problem the Gemara had was that the successive part of the day after a sighting and after a person went to mikveh could allow that day to be counted as a clean day (except in cases where you need a full clean day such as zavah gedolah) and accordingly, the answer the Gemara gave was that the sighting must have happened at the end of the day so there would be no time before nightfall in which to consider the day clean, not that the sighting happened the previous day right before nightfall so that the beginning of the night was not clean.