Hearos (Insights) on Daf Yomi

The gemara says that the punishment for faulty weights and measures is worse than the punishment for arayos because teshuva is not a possibility since there is no way to actually return to all the people who were ripped off. R' Elchonon asks, why is this considered a "chumrah" of middos u'mishkalos? Since technically teshuva should work, just that there is a technicality that he doesn't know who to return to, it isn't a "chumrah" of middos u'mishkalos. Furthermore, he is an o'nes in the ability to do teshuva so why is the punishment so severe? Perhaps the gemara is saying that by other aveiros where teshuva is usually a possibility, even if in one particular situation he is an o'nes from being able to do teshuva, the aveira isn't inherently more severe since at the time it was violated, teshuva was assumed to be a possibility. But, when it comes to bad weights and measures, he knows from the start that it will be impossible to return the money to the customers, yet he decides to do the aveira anyway. The fact that he is an o'nes from being able to do teshuva doesn't lighten the issur since he knew from the beginning that he wouldn't have the ability to do teshuva. Based on this approach, the question of tosafos is answered. Tosafos asks, how is this worse that arayos where a mamzer is born which is a מעוות לא יוכל לתקון and teshuva is not a possibility? Even if we assume like the assumption of Tosafos that when a mamzer is born, teshuva isn't a possibility, it still isn't as severe as bad weights and measures because at the time of the ma'aseh aveirah they didn't know for sure that a mamzer would be conceived. Whereas, by selling with bad weights and measures it is obvious from the start that teshuva wouldn't be a possibility, yet he chooses to do it anyway.

The gemara learns out from a pasuk that Beis Din is obligated to hire people who observe and scrutinize the business practices to ensure that people aren't being cheated. The Shiltei Giborim launches into a whole discussion about the requirement of beis din to make takanos over the tzibur, and all the transactions that will be done will be based on those takanos. Even Gittin and Kiddushin will be based on these takanos. Therefore, in a place where the minhag is to follow a particular posek regarding gittin, one cannot reject that minhag because the entire kiddushin is אדעתא דרבנן מקדש, and the takana of that place is to be mevatel the kiddushin only through a gett that is done in a particular way. He goes so far to say that any deviation in a gett against the minhag ha'makom my invalidate the entire gett since the original kiddushin was meant to only be annulled through the type of gett that is accepted in that place. He goes so far to say that since the entire kiddushin is based on the minhagim of the place where the kiddushin took place, the gett must also be done in accordance with the minhagim of the place of kiddushin. If the gett would be written in accordance with the minhagim of another place, it would not be valid. Furthermore, if there is a takana in a particular location regarding how the kiddushin should be done i.e. to require a minyan, or require the presence of her parents, the language of the takana will determine whether the kiddushin is binding bidi'eved.

Tosafos quotes the mishnah in bikurim that says that a ger doesn't read the parsha of arami oveid...when he brings bikurim, because he can't declare "שהנחלת לאבותינו". Based on this, there is a discussion even when a ger davens whether he should say אלקי אבותיכם. The R"I holds that a ger can daven the same nusach of אלקי אבותינו because we pasken like R' Yehuda who holds in the yerushalmi that a ger can read the parsha of bikurim since avrohom was אב המון גוים. The Rambam also paskens like the R"I and holds that a ger can read the parsha by bikurim basedon the fact that avrohom was the father of the whole world since he brought them under the wings of the shechina (bikurim 4:3).

The Mishneh L'melech asks that even if goyim are able to consider avrohom their father and say שהנחלת לאבותינו, but practically speaking they don't have a portion in EY, so they shouldn't be able to read the parsha, just as women cannot read since they have no portion in the land and cannot say פרי האדמה אשר נתת לי? Why is a ger more able to say האדמה אשר נתת לי than a woman?

The Nemukei Yosef asks a similar question. Why is a Ger able to be motzi a born jew in birchas hamazon (which implies that he is chayev m'doraysa), he shouldn't be any better than a woman whereby the gemara has a tzad in Brachos that she is only be obligated in bentching m'drabonon since she doesn't have a chelek in EY? The Nimukei Yosef answers that a Ger is fit to receive an inheritance, just that he wasn't around at the time of yetzi'as mitzrayim when it was actually divided. Since a ger qualifies as a בן נחלה, he is obligated m'doraysa in bentching, unlike a woman who is not a bas nachala at all. This can also explain why he can declare האדמה אשר נתת לי, because he is fit to receive a portion, just that he wasn't present at the time it was distributed.

But in truth, this answer doesn't work for reading bikurim. The gemara says that one who doesn't own property cannot read the parsha of bikurim, even though he is a born jew and fit to own property. Clearly, the gemara holds that he must have actual ownership and control over property to make the declaration and it isn't sufficient to have a theoretical chelek in EY. Therefore, a ger who doesn't have any actual ownership over property should still not be able to read the parsha of bikurim. Furthermore, the Rambam is still difficult because the rambam himself writes that a ger cannot say viduy ma'aser since he doesn't have a chelek in EY, so why can he read the parsha of bikurim?

The Mishneh L'melech quotes an answer from the sefer kapos temarim (3rd perek of succah) that in the context of bikurim the pasuk says אשר נשבעת לאבותינו לתת לנו which speaks of the future. In the future a ger will have a portion in EY. Even though the geirim in the midbar didn't receive a chelek, that is because their conversion wasn't לשם שמים, but geirim who converted nowadays will receive a portion in EY in the future. But, by viduy ma'aser where the pasuk says אשר נתת לנו ה' כאשר נשבעת לאבותינו which is in the past, implies that he must already have a chelek, therefore a ger cannot say viduy ma'aser.

1. Tosafos asks why we need a pasuk to exclude chutz la'aretz, since anyway bikurim is a mitzvah on fruits which are dependent on the land such as the mitzvah of teruma and ma'aser, which by default only applies in EY? Tosafos answers that the definition of mitzva that is te'luya ba'aretz, is when the mitzvah is on the produce rather than on the "gavra". The litmus test is whether the actual fruits are forbidden to eat prior to performing the mitzvah. Since the fruits are assur prior to teruma and ma'aser, we consider it a mitzva that is dependent on the land and by default only applies in EY. But by bikurim where there is no restriction on eating the fruits, we view it as a mitzvah that is not dependent on the land, rather on the person himself. Tosafos then points out that when we call bikurim a "cho'vas ha'guf", we don't mean that it is an actual obligation, because one need not purchase land from which to bring bikurim. Rather we consider bikurim like the mitzvah of tzitzis, so that if one finds themself in the situation of having a 4 cornered garment, or having first fruits, they are obligated to do the mitzvah.

Regarding the mitzvah of tzitzis we find in the gemara in menachos that the angel rebuked R' Katina for avoiding the mitzvah of tzitzis. Therefore, it is proper to go out of one's way to do the mitzvah even though they aren't obligated. Would we apply the same concept to bikurim and recommend going out of one's way to perform the mitzvah?

2. The gemara says that really the mitzvah of bringing bikurim and the reading go hand in hand, however when one purchases 2 trees (according to rabbonon) it is a safeik whether they acquire property with it. Therefore, the safeik will require the bikurim to be brought because safeik d'oraysa l'chumra, but not do read since it is a safeik issur since he will be declaring that he has property when he in truth doesn't. Whether he brings bikurim or not, he will passively be violating a mitzvah. If he brings bikurim, he will be violating the mitzvah of reading the parsha. If he doesn't bring it he will be violating the mitzvah to bring bikurim (but not the mitzvah to read the parsha, since the mecha'yev presumably will only be when he actually brings it). So, why would we require him to bring it, since either way he will be mevatel a mitzvah? Two possible answers: A. When he fails to bring bikurim he is me'vatel the mitzvah b'meizid, but when he doesn't read he is only mevatel the mitzvah b'ones (since reading would be sheker). It is better to be mevatel the mitzvah b'ones, rather then b'meizid. B. At the moment his chiyuv is to bring bikurim mi'safeik d'oraysa. The fact that he will in the end be mevatel the mitzvah of reading would not exempt him from fulfilling the mitzvah that is incumbent upon him right now.

3. The gemara says that we apply the concept of ראוי לבילה to the mitzvah of bikurim. Only bikurim that is fit to read the parsha is obligated to be brought, but if it is not fit for the reading then there is an exemption on the bringing. The Rashbam explains that when there is a safeik whether he is chayev in bikurim he is patur from bringing bikurim because on the tzad that he is chayev, he has an obligation to read. Since he can't read the parsha out of concern that he will be saying sheker, it is considered unfit for reading which is me'akev the bringing.

Why is this true - we should say ממה נפשך, on the tzad that he is chayev it is fit for reading, on the tzad that he is patur he has no obligation to bring at all? It seems that the rashbam holds that the concept of being fit for reading is on the "gavra". Meaning, that there is a tzad that the fruits require a kri'ah, and the "gavra" is unfit for a kri'ah since he can't say sheker, so this should exempt him from bringing altogether.

In the gemara, there are 2 different girsa'os in what ameimar says. The Rashbam is go'res that ameimar paskens that debts can be sold by giving them over (which tosafos 76a understands to be a supercharged meshicha, meaning that it requires both meshicah and handing over the contract by a da'as acheres makneh, unlike mesira by large animals which is a lower level kinyan than meshicha [according to R"I, but R"T holds mesira is better than meshicha]). Based on the girsa of the Rashbam, when the gemara offers the logic for ameimar: אותיות מילי נינהו ומילי במילי לא מיקנין, it is a justification for mesira working without writing a separate contract. The Rashbam explains that a contract is just words, "mili", and a contract cannot be used to acquire a contract, therefore the effective kinyan should be mesira alone. Tosafos on the other hand is go'reis in ameimar that mesira is insufficient and that there also must be a second contract written on the first. Tosafos goes lishitasam in explaining the sevara of the gemara that "mili" can't be used to acquire "mili", means that just the mesira of the debt contract is nothing more than mili, therefore another contract must be written on the first.

Tosafos 77b asks that the gemara tries to prove that mili can be acquired with mili from the case where a person acquires a field and automatically acquires the pre-written shtar of the field with it. What is the proof? In that case the buyers name is actually written in the contract, therefore he acquires the contract with the field, but how would this prove that when the buyers name isn't written in the contract he should also acquire the contract with just a mesira? It seems that this question is tosafos li'shitasam who understand that the mesira of the shtar is called mili, therefore they can ask that we can't compare a case where the buyer is named in the contract to a case where he isn't named. But according to the rashbam where the whole issue of mili is that a shtar can only be acquired by mesira, it is fair for the gemara to ask from this case where he is able to acquire the contract without a mesira, which avoids the question of tosafos.

Now, according to those who require kesiva and mesira, what is the rationale? Why is mesira alone not enough, and what does a second shtar add? The Nemukei Yosef quotes the rashba who says that one must first do the mesira of the shtar and only afterward would they write a second shtar. The rationale of the rashba is: משום דשעבוד לבדו אינו נקנה קודם שיזכה בשטר החוב כיון דהשבעוב לא מהניא לגוף הנייר. The Rashba seems to understand that the mesira is a kinyan on the paper of the shtar, and the second contract is a kinyan on the shi'bud to collect from the borrower, therefore the kinyan on the paper must come first because without that you can't transfer the shi'bud. The Rashba seems to hold that the problem with mesira alone is that it is only a kinyan on the paper, the problem with shtar alone is that paper can't be acquired with a shtar (but the shi'bud can), therefore we need both so that the buyer will own the paper and the shi'bud. However, it seems to me that the Rashbam understands differently. The rashbam (bottom 76a) seems to hold that if we only have mesira alone, the borrower can claim that the buyer only purchased the paper and nothing else. Based on his approach, the shtar doesn't act as a ma'aseh kinyan on the shi'bud, rather it is a giluy (reveals) that the ma'aseh kinyan of the mesira was not just for the paper, but rather for the actual shi'bud. In other words, the Rashba and Rashbam argue whether the "kesiva" of the second contract is an independent ma'aseh kinyan to acquire the shi'bud (rashba) or is not a ma'aseh kinyan at all, it is just a giluy that the ma'aseh kinyan of mesira was for the purpose of the shi'bud and not just the paper (rashbam).