2 Types Of Oness - Ki Seitzei 5768

22:26  כו  וְלַנַּעֲרָ לֹא-תַעֲשֶׂה דָבָר, אֵין לַנַּעֲרָ חֵטְא מָוֶת:  כִּי כַּאֲשֶׁר יָקוּם אִישׁ עַל-רֵעֵהוּ, וּרְצָחוֹ נֶפֶשׁ--כֵּן, הַדָּבָר הַזֶּה  That someone who does an Aveira B’ones is Patur. There is an interesting Stiras Harambam. In Hilchos Avoda Zorah, the Rambam writes that if someone is forced to be Oved Avodah Zora B’ones, of course the Halacha is Yeihareig V’al Ya’avor (to get killed and not perform the sin of idol worship). However, the Din is if someone didn’t withstand the test and did perform idol worship that he is not Michuyav Misah. Ones Rachman Patrei applies even in a case of Avodah Zorah that you are Patur from an Onesh. He failed to be Mekayeim the Mitzvah of Kiddush Hashem for which he was Mechuyav, however, Ones Rachman Patrei applies even in a case of Avodah Zorah and he has the Heter of Ones.

There is another Rambam in the 5^th Perek of Hilchos Yesoidei Hatorah. The Rambam there says that if a person is ill and the only way to be healed is to eat from the fruit of an Asheira tree, which is Abaz’rai’hu of Avoida Zorah, that you must be killed and not to eat the fruit. The Rambam says if that person were to eat the fruit from that tree than he gets Malkus. This contradicts the person who bowed down to Avoida Zorah and didn’t receive a punishment. The Ohr Sameach asks this question on the Rambam and gives the same Teretz as Rav Elchanan.

Rav Elchonon is Mechaleik between 2 types of Oines. There is one type of Oines that a person is forced physically, meaning someone points a gun at him and forces him to do something. There the act is not really his act. If someone would take a person and physically bend his body in front of an Avoida Zorah, we wouldn’t say that the person is bowing. The other person is using this person’s body to bow. So too if someone points a gun at someone and asks him to bow to an Avoida Zorah, the Rambam considers it the man with the gun who is doing the Mai’se. So it is an Oines and he is Patur.

This is not so with eating from the Asheira tree. This is not the same type of Oines. In the case of the Avoida Zorah, this person would be delighted if the Avoida Zorah would just disappear. Not so the person who is ill and needs the food of the tree for his Hatzolah. If someone would take that fruit away, the person would be distraught. So someone who does a Hatzolah because of Pikuach Nefashois does not have the same rules of Oines and he is punished.

This is the Pshat with Esther. All along when Esther was married to Achashveiroish when she was physically forced to live with Achashveiroish, and we know that since Isha Karka Oilam Hi that she is not required to let herself be killed instead of Znus, and therefore since it was an Oines, she didn’t become Assur to her husband.

Not so when she went to Achashveiroish as a means of Hatzolah for Klal Yisrael.This would be comparable to eating from the Asheira tree. She did it and she is still Assur to her husband Mordechai.

This Pshat actually helps us appreciate the Gadlus of the Chofetz Chaim. This Rav Elchonon and Ohr Sameach, the Mishna Berura says in half a line. In the Halacha of Brocha Rishonah of Birchas Hapeirus in Siman (204) Raish Daled, the Taz asks a Stira between two Se’ifim. In 240:8 the Rama says if someone forces you to eat something, you don’t make a Brocha. In 240:9 it says, if someone eats Treif because of a Sakana, you do make a Brocha. The Taz asks that it is a Stira because both are Oines and yet by someone forcing you to eat you don’t make a Brocha and when you are an Oines to eat Treif for a Refua you do make a Brocha? The Mishna Berura says when you are forced to eat something you are an Oines in the Mai’se itself, which is like Esther all the years living with Achashveiroish. On the other hand when someone is ill and takes something to eat that is Hatzalah through an Issur and you do make a Brocha because it is not called an Oines Gamur.

Beis Meir siman 204 succinctly explain the distinction.

Beis Din, Gilgulim, And Compromise -Yisro 5771

This week’s Parsha begins with the visit from Yisro and his advice to Moshe Rabbeinu on how to run the Batei Dinim. At the end of that advice we find Yisro saying the following, 18:23 (אִם אֶת-הַדָּבָר הַזֶּה, תַּעֲשֶׂה, וְצִוְּךָ אֱלֹ קִ ים, וְיָכָלְתָּ עֲמֹד; וְגַם כָּל-הָעָם הַזֶּה, עַל-מְקֹמוֹ יָבֹא בְשָׁלוֹם) If you do the following then you will be able to persevere and also all of Klal Yisrael will be able to come in peace.

There is a Kasha here on the (יָבֹא בְשָׁלוֹם) and that is the Gemara in Maseches Berachos which says that the proper words with which to say goodbye to someone is Leich L’shalom, go to peace. If someone has passed away then the custom is to say Leich B’shalom, go in peace. Leich L’shalom, a living person can go to peace and still have a relationship with someone else and have Shalom. However, a Niftar who does not have a potential to have a disagreement with anyone, so it must be Leich B’shalom. Go to a place that there will be Shalom. So why here does Yisro use an expression of (יָבֹא בְשָׁלוֹם) which is an expression that would be used for a Niftar?

The Kasha is even stronger when we look back in Parshas Shemos and we see that Yisro himself when he gave permission for Moshe Rabbeinu to leave in 4:18 (וַיֵּלֶךְ מֹשֶׁה וַיָּשָׁב אֶל-יֶתֶר חֹתְנוֹ, וַיֹּאמֶר לוֹ אֵלְכָה נָּא וְאָשׁוּבָה אֶל-אַחַי אֲשֶׁר-בְּמִצְרַיִם, וְאֶרְאֶה, הַעוֹדָם חַיִּים; וַיֹּאמֶר יִתְרוֹ לְמֹשֶׁה, לֵךְ לְשָׁלוֹם) where Yisro uses the proper expression of (לֵךְ לְשָׁלוֹם). Why here does Yisro say (וְגַם כָּל-הָעָם הַזֶּה, עַל-מְקֹמוֹ יָבֹא בְשָׁלוֹם)?

I would like to share with you 2 answers on this question. The first is something that Rav Pam often said in the name of the Chofetz Chaim. He said that this Posuk is a Remez to Gilgulim. The idea that a Neshama can be forced to come back to this world for a second or even a third life if he had some unfinished business so to speak in his first life. That we understand is a pain for the Neshamah and the Neshamah does not want to go through the Tzar of coming back.

If someone owes money to someone else then there is a concept that he has to come back to repay that money. Probably not if someone is an Ones, however, if someone has some sort of guilt of owing money to someone else then yes. If the Batei Dinim run properly and people go to them and things are resolved the Neshamah comes upstairs B’shalom. So the Posuk of (וְגַם כָּל-הָעָם הַזֶּה, עַל-מְקֹמוֹ יָבֹא בְשָׁלוֹם) means that Yisro was saying if the Batei Dinim are run properly than the Neshamah will come upstairs with a complete peace in the Olam Ha’emes. However, if the Batei Dinim don’t run properly and people wait on line for many hours and don’t come, then they lack that B’shalom because they are liable to have to come back for another Gilgul because of the financial issues that were not resolved. This is one Pshat. 

I saw a second Pshat in the Netziv’s Hameik Davar. We know that Batei Dinim can rule in 1 of 2 ways. Either Bais Din can try to figure out what the Halacha is and settle a dispute that way or through Peshara which is sort of a compromise. The idea is that the Bais Din can try to make some accommodations between the sides. That is called a Peshara. We know that Peshara is something which is healthy for the litigants because somehow they will both walk out friendly maybe not best friends but at least some sort of civility towards each other. 

Mashe’ainkain, Shuras Hadin where each side typically feels that they are totally right, when the Bais Din Paskens for one side without any Peshara the other side of course feels cheated (unless they are Baalei Madreiga who don’t).  Most people are that way and therefore we advise them to do Peshara.

There is a Halacha in Choshen Mishpat that if a Dayan knows a Halacha he is prohibited from making a Peshara. What I mean to say is, in most Dinei Torah most Dayanim have to sit down and work through the Sugya because things are not usually clear in Shulchan Aruch. Then they can offer a Peshara because they do not know the Halacha. If they know the Halachah, it is prohibited to do a Pesharah and therefore Moshe Rabbeinu never did a Peshara. He always had to do Shuras Hadin. He learned the Torah as a gift from the Ribbono Shel Olam and knew exactly what to do.

Part of Yisro’s advice says the Netziv, was to get 18:21 (שָׂרֵי אֲלָפִים שָׂרֵי מֵאוֹת, שָׂרֵי חֲמִשִּׁים, וְשָׂרֵי עֲשָׂרֹת) people who were not totally clear in the Halacha so that they would be able to offer Peshara. Mashe’ainkain Moshe Rabbeinu when he Paskens it affects the Sholom of the people. Peshara is called Mishpat Sholom it is called a judgment of peace and therefore the Netziv Teitches (עַל-מְקֹמוֹ יָבֹא בְשָׁלוֹם).This doesn’t refer to the normal Sholom that a person says as a greeting or as a departure greeting to a Neshama. Rather it means they will come with the judgment of peace which is ideal in a Bais Din.

Burden Of Proof - Mishpatim 5772

We know that Hamotzi Maichaveiro Alav Haraya. If you and I have a dispute and there is a question and something is unclear (we don’t know all the facts), the question is do I have to pay you. So we say, Hamotzi Maichaveiro Alav Haraya. The one who wants to take money from another person has to bring the proof. So therefore, I am not sure if I owe you money, you are not sure if I owe you money, something happens which throws this into doubt, I don’t have to pay because Hamotzi Maichaveiro Alav Haraya. That is a basic rule in Shas.
The question is, if it is your money then we should apply a different rule, the rule of Safeik D’oraiisa L’chumra. It is a question of Lo Tignov or it is a question of Lo Sashok. It is a question of whether I am stealing money from you. Why don’t we say Safeik D’oraiisa L’chumra. If I am unsure if it is your money or mine I should have to give it to you. Why do we say Hamotzi Maichaveiro Alav Haraya. It is not a Gizairas Hakasuv, it is a Sevara. The Sevara seems to be Mufrach. Now with that Geshmake Kasha I will bid you farewell for this Shabbos.

Old Friends From Bava Kama - Mishpatim 5772

This week’s Parsha Parshas Mishpatim is primarily a Parsha of Mishpitai Hatorah 21:1 (וְאֵלֶּה, הַמִּשְׁפָּטִים). This week’s Parsha has 53 Mitzvos in the Minyan Hamitzvos. Of those 53 not all are Bain Adam L’chaveiro. Not all of the Mitzvos are Mishpatim. It is interesting that the Chasam Sofer writes (וְאֵלֶּה, הַמִּשְׁפָּטִים) of the 53 only 42 are Mishpatim which is Gematria (וְאֵלֶּה).
Many of these Mitzvos are in Maseches Bava Kamma which Yeshiva is learning this year and many of you have learned it in Yeshiva a number of years ago. So today, we will have a special edition of getting ready for Shabbos. I am going to present you with a list of Shailos of Bava Kamma Shailos. These will not be complicated ones. These will be ones that touch on the basic Yedia (a piece of knowledge) that anybody who learned Bava Kamma would know, but as you know we are very very far from being able to apply it as a Halacha L’maiseh unless it is pointed out to us. And so, let me begin the 5 Shailos.
1.      This is a Shaila that took place. A man paid a debt to another man, this was one Yid to another Yid and he paid him cash. The next day, the person who received the money came back to the one who gave it and said that one of the $100 bills that he had received from him was counterfeit. He had gone into a store to change it and he was told that it is counterfeit. He checked in the bank and indeed one of them was counterfeit. Therefore the person who received the payment is demanding payment from the one who paid because he says the $100 that you gave me is no good and therefore, you still owe me a hundred dollars. What is the Halacha, does he have to pay? This is an application of the well-known Sugya in a number of places in Seder Nezikin of Bori V’shema. The person who is claiming the money says that he is certain that the money that is counterfeit is from the money that he received. The one who paid it doesn’t know. Is it true that the $100 that was counterfeit was the one that he gave? He has no way of knowing for certain. We Pasken Bori V’shema Lav Bori Odif. That when there is a Bori and a Shema the Bori can’t be Motzi Mamon (meaning he can’t demand payment from the Shema) because the Shema doesn’t have to pay. Still it says in Shulchan Aruch that Latzeis Yidai Shamayim, It is better to pay if you trust the person who is demanding payment. Therefore, in this case, someone who wants Latzeis Yidai Shamayim should pay. However, Mai’ikur Hadin it is Bori V’shema Lav Bori Odif. A Bori can’t be Motzi Mamon, he can’t demand payment. It is a simple application of a Yesod that we all learned in the Gemara.
2.      Somebody was sitting in a Shul Davening and there was a nail sticking out of the bench on which he was sitting. He ripped his suit. He went to the Rav who owned the Shul, it was a Shul in someone’s house and demanded payment. He said that it is a Bor Birshus Harabim. After all, a Shul is a public area because people come and go and it is a Bor Birshus Harabim and he ruined his suit because of the Rav’s negligence of having a bench with a nail sticking out. What is the Halacha? As you all know Bor is Pattur on Kailim because of the Drasha of the Posuk 21:33 (וְכִי-יִפְתַּח אִישׁ בּוֹר, אוֹ כִּי-יִכְרֶה אִישׁ בֹּר--וְלֹא יְכַסֶּנּוּ; וְנָפַל-שָׁמָּה שּׁוֹר, אוֹ חֲמוֹר) is Shor V’lo Adam and Chamor V’lo Keilim. The Gemara that Darshuns this Posuk is found on 53b (6 lines from the bottom) (נפל לתוכו שור וכליו ונשתברו כו': מתניתין דלא כר'יהודה דתניא ר"י מחייב על נזקי כלים בבור מאי טעמא דרבנן דאמר קרא ונפל שמה שור או חמור שור ולא אדם חמור ולא כלים). So even if it true that the bench is a Bor Birshus Harabim, however, ripping the suit which is an object is excluded from the payments of Bor. If you remember when we learned Maseches Bava Kamma in Yeshiva I pointed out that if someone were to go to Ocean Parkway and dig a huge whole in middle of the street with a jackhammer and stand at the side giggling and waiting for a car to come through, fall right into the hole and the car would be totaled, Al Pi Din the person who dug the Bor is Pattur because of the Miut in Dinai Bor of Shor V’lo Adam and Chamor V’lo Keilim. Even though it is a Chok and we don’t understand the reason why it should be so, but Bor is Patur on Keilim.
3.      This Shaila happened to someone in the class when we learned Bava Kamma 2 cycles ago.  He was a tenant in an apartment in a lower floor of a 2 family or 3 family house. One day when he was in Yeshiva, a water pipe that was in the ceiling burst. No one was home. The water came cascading out soaking and ruining the couch and the carpeting. The landlord was settling with him to pay him for his losses and they had a dispute over how much to pay for the couch. The landlord said it was a used couch and I only have to pay a partial value. The tenant said what do you mean, I can’t buy a partial couch. I have to buy a new couch so pay for the amount of a new couch. They decided that they would ask me. This young man in Yeshiva asked me the Shaila. I responded that we had just learned a Gemara on Daf 6b in Bava Kamma (3rd line from the top) (רבינא אמר לאתויי הא דתנן הכותל והאילן שנפלו לרה"ר והזיקו פטור מלשלם נתנו לו זמן לקוץ את האילן ולסתור את הכותל ונפלו בתוך הזמן והזיקו פטור לאחר הזמן חייב) that Kosel V’ilan Shenafla L’rishus Harabim the Bailim are Pattur. The Halacha is that even though Adam is a Muad L’olam (if a person does damage he is responsible for those actions), however, if his Mamon (objects) does damage, if someone is an Ones (guiltless) he is Pattur. If somebody has a perfectly good wall and over the years it gets old and one day it collapses and ruins somebody’s car or damages somebody’s animal he is Pattur. This is because an Ones is Pattur (הכותל והאילן שנפלו לרה"ר והזיקו פטור מלשלם).Unless there was a prior history. Meaning there was a warning that there was a water leak. But here where there was no such warning the person asking the Shaila doesn’t get a full couch or even a partial couch. The Bal is Patur L’gamri. I might add that this third Shaila would apply to the second as well in the case of the bench in Shul. If the owner of the bench was guiltless and it just so happened that a good bench over time had a nail that started to protrude, then he too is Pattur for this reason. We learned 3 Klallim in a few minutes. The rule of Bori V’shema Lav Bori Odif, the idea of P’tur Keilim Min Habor, and now the idea of Kosel V’ilan Shenafla L’rishus Harabim that even though Adam Hamazik we say Adam Muad L’olam, however, when it comes to Mamon Hamazik, someone’s property, then there is no such rule.
4.      This one will most probably be the most confusing to everybody. Somebody takes a torch and goes over to someone else’s house and lights his curtains and carpeting and the whole house was burned down. In the house there was money that was hidden in a very unlikely place. Maybe in the tank of a toilet or some other unlikely place that a person would think of hiding money. Does the arsonist have to pay? The Gemara says that Aish is Patur on Tamun. Something hidden in a house that is burned and a person would be Chayuv for Aish, Tamun is Pattur. Many of you are thinking that this is a trick question because you all know that Tamun is Pattur. Well, I have to explain something to you. If you remember in the second Perek there is a Sugya of Aisho Mishum Chitzav. This can be found on 22a (6 lines from the top) (אתמר ר' יוחנן אמר אשו משום חציו וריש לקיש אמר אשו משום ממונו). Today, Yeshiva Bachurim learn Bava Kamma the whole year for much time in the morning and Chazeir the Shiur in the evening but they don’t know what Aish actually is. We Pasken that (אשו משום חציו) Aisho Mishum Chitzov which means that just like when a person takes a hammer and breaks someone’s window that is called Adom Hamazik and not hammer Hamazik.  The (Adam) human being who did damage used the tool. We Pasken the same thing regarding a fire. If someone takes a fire and torches someone’s building that is Adam Hamazik and not Aish and is Chayuv on Tamun. The Gemara explains the case of Aish is really rare. We need a case of (כלו ליה חציו) Kalu Lo Chitzav which the Gemara explains as follows. The Gemara on 23a (2 lines from the top) says (אמר רבא קשיא ליה לאביי למ"ד אשו משום חציו טמון באש דפטר רחמנא היכי משכחת לה וניחא ליה כגון שנפלה דליקה לאותו חצר ונפלה גדר שלא מחמת דליקה והלכה והדליקה והזיקה בחצר אחרת דהתם כלו ליה חציו אי הכי לענין גלוי נמי כלו ליה חציו אלא למאן דאית ליה משום חציו אית ליה נמי משום ממונו וכגון שהיה לו לגודרה ולא גדרה דהתם שורו הוא ולא טפח באפיה וכי מאחר דמאן דאית ליה משום חציו אית ליה נמי משום ממונו מאי בינייהו איכא בינייהו לחייבו בארבעה דברים) when someone torches someone’s house wherever the fire travels it is like his arrow and it is Adam Hamazik. However, if at the time he torched it there was a wall that would have prevented the fire from spreading and subsequently that wall fell down, Kalu Lei Chitzav (the person’s arrows have ceased) it is a place where his arrow could not go at the time he lit the fire. If he was negligent in not preventing the fire from travelling further, only there does it have a Din of Aish. So again, a very basic idea but something not well known that Aisho Mishum Chitzav (arrows). I have reminded you as of now of 4 Sugyos that hopefully sound familiar from your years in Yeshiva.
5.      A person stepped into a car service in the neighborhood and as he was riding to his destination he noticed on the floor an envelope which he picked up and it contained a large amount of cash which he quietly slipped in to his pocket. Then he called me. His question was the following. We learn out of this week’s Parsha  22:3 (אִם-הִמָּצֵא תִמָּצֵא בְיָדוֹ), the Gemara on 64b (bottom line to top of 65a) (והאי אם המצא להכי הוא דאתא הא מיבעי ליה לכדתניא ידו אין לי אלא ידו גגו חצירו וקרפיפו מנין ת"ל אם המצא תמצא מ"מ א"כ לימא קרא או המצא המצא או תמצא תמצא מדשני קרא ש"מ תרתי) learns from here Kinyan Chatzeir that a person can acquire something without his knowledge if the Hefker item is in his Chatzeir (in his property). It doesn’t have to a courtyard or a house it can even be in a car or in a Keili, anything that a person owns. The question is, is this car service owner or perhaps the owner of the car that was driving perhaps be the owner of that cash. Why? That cash was in his Chatzeir, it was in his car and it had become Hefker when the owner realized he lost it and was Miyaeish. Therefore, it should be his. Or if it is a type of Aveida that you don’t have to return such as that of a non Jew then it should transfer to the ownership of the driver of the car or the owner or the car with Kinyan Chotzeir. Is he Kone with Kinyan Chotzeir or not? Well my time is very limited for today but I will introduce you to a beautiful and Geshmake Teshuva in the Igros Moshe, Choshen Mishpat Cheilek Bais Teshuva 44. This is a great Teshuva to learn especially for this week’s Parsha. There we find a Shaila that came to Rav Moshe of someone who found an envelope of cash in a bank vault. It is the same Shaila, was the bank Kone or is it his? Rav Moshe makes the unlikely argument that a bank vault is a Chotzeir She’aino Mishtameres. The only time that a Chatzeir is Kone is a Chotzeir HaMishtameres, a Chotzeir which is safe and which is guarded for its owner. A Chotzeir that people come and go is called a Chotzeir She’aino Mishtameres and is not Kone. That is the short answer of the Shaila here regarding the cab. Although Rav Moshe has a very interesting insight into this whole discussion.
And so with these few minutes I hope we have Chazered 5 old friends: 1) Bori V’shema Lav Bori Odif, 2) the idea of P’tur Keilim Min Habor, 3) the idea of Kosel V’ilan Shenafla L’rishus Harabim that even though Adam Hamazik we say Adam Muad L’olam, however, when it comes to Mamon Hamazik, someone’s property, then there is no such rule and Ones is Pattur by Mamon Hamazik, 4) The case of Tammun, Aisho Mishum Chitzov, and now 5) the idea that a Chatzeir needs to be a Chotzeir HaMishtameres and you can look it up in the Igros Moshe for a more in depth analysis of Chotzeir HaMishtameres

P'sak From The Mon & Eliyahu Hanavi - Beshalach 5769

The following Yesod is something Rav Pam used to say over in his Schmuzzin. Chazal say the Man was able to be Mevarer a Mitziyos. Let’s say there was a child and it was a Sofeik if it was a seven month child from the second husband or a nine month child from the first husband, or an Eved Canani, where there was a dispute between 2 families as to who owned him. What would happen is, in the morning the Man would fall, and in whichever person’s Rishus the extra portion of Man would fall for the child or the Eved, that would be Mevarer the S’feika of whose child it was or who’s Eved it was. The Kasha is, Torah Lav Bashomayim Hu so how can it be that the Man was Mevarer a Halachah?

There is a Gemara in Maseches Yoma 75a (in the 9^th wide line) (( והמן) כזרע גד לבן (וטעמו) אמר ר' אסי עגול כגידא ולבן כמרגלית (תניא נמי הכי) גד שדומה לזרע פשתן בגבעולין אחרים אומרים גד שדומה להגדה שמושכת לבו של אדם כמים תניא אידך גד שמגיד להם לישראל אי בן תשעה לראשון ואי בן שבעה לאחרון לבן שמלבין עונותיהן של ישראל תניא ר' יוסי אומר כשם שהנביא היה מגיד להם לישראל מה שבחורין ומה שבסדקין כך המן מגיד להם לישראל מה שבחורין ומה שבסדקין כיצד שנים שבאו לפני משה לדין זה אומר עבדי גנבת וזה אומר אתה מכרתו לי אמר להם משה לבוקר משפט למחר אם נמצא עומרו בבית רבו ראשון בידוע שזה גנבו אם נמצא עומרו בבית רבו שני בידוע שזה מכרו לו וכן איש ואשה שבאו לפני משה לדין זה אומר היא סרחה עלי והיא אומרת הוא סרח עלי אמר להם משה לבקר משפט למחר אם נמצא עומרה בבית בעלה בידוע שהיא סרחה עליו נמצא עומרה בבית אביה בידוע שהוא סרח עליה), that says that the Man was Mevarer these S’feikos. The Tosafois Yoim Kippurim (a sefer on Yoma) asks this Kasha.

He answers what appears to be a Doichek Teretz, that the P’sak Din came from Moishe’s Bais Din. If people would have Taynois, Moishe would show them the Man as a Raya to his P’sak. The Maratz Chiyois has a more Yesoidoisdika Teretz. Rav Elchonon in the second Cheileik of the Koivetz Shiurim says this Teretz as well. Rav Pam would also say it over in the name of the Chidah. Toirah Lav Bashamayim Hi means Shamayim can’t be Mevarer a Halachah, a Din can’t be Mevarer Bashamayim. However, a Shaila in a physical fact (a Mitziyois) of course Shamayim can be Mevarer that, and therefore, the Man can be Mevarer it because it was a Shaila in fact (whose child or Eved is it).

The Ponovitche Rav in Sefer Moshchas Shemen, Cheilek Bais says, the Gemara many times says Teiku, which Pashut P’shat means let it stand. The Toisafois Yom Tov brings that Teiku means Tishbi Yetareitz Kushyois V’abayois. Meaning Eliyahu Hanavi will Pasken the Halacha. The Gemara says in Eilu Mitziyois, and also in the first Perek by Manah Shlishi that Yhei Munach Ad Sheyavaoi Eliyahu. Why is it that in one place we say Teiku and in the other place we say Ad Sheyavoi Eliyahu? Why do we change it? Why do we call him Tishbi there and Eliyahu here?

The answer is based on the Chasam Soifer in Cheilek Vav Siman Tzadik Ches. The Chasam Soifer says, is Eliyahu Hanavi who never died Michuyav in Mitzvois? The Gemara says that when he comes to tell us that Moshiach is coming, he will not come on Shabbos because he can’t travel, meaning he is Michuyav in Techumin. The Chasam Soifer asks, what happens when there are 2 Brisim on Shabbos, how does he travel then?

The Chasam Soifer answers, when Eliyahu comes down as a Guf, he is Michuyav in Mitzvois. By a Bris, Eliyahu comes down as a Malach, and therefore, is not Michuyav in Mitzvois. If so, then when Eliyahu comes to Pasken Halachos, if he comes in a Guf he can Pasken Halachos, however, if he comes as a Malach then Toirah Lav Bashamayim Hu and he wouldn’t be able to Pasken Halachois.

When Eliyahu comes to be Mevarer a Mitziyois, Eliyahu will just say who dropped it. So then we say, Ad Sheyavoi Eliyahu. Even a Malach could be Mevarer. However, to be Mevarer a Halacha as is implied by the word Tishbi meaning that he lives in the town of Tishbi, he must come in a Guf to Pasken a Halacha.

Shmura Matzah, Mezuzas, and Lungs - Bo 5772

In this week’s Parsha we have Yetzias Mitzrayim and the Mitzvos that have to do with Pesach evening. I would like to start with a Dvar Halacha and then a Dvar Machshava both relating to the Mitzvos that the Torah gives us regarding the eating of Matzah on Pesach. The Meshech Chochmoh (which is not found in his writings on this week’s Parsha) says that it says in the Posuk 12:17 (וּשְׁמַרְתֶּם, אֶת-הַמַּצּוֹת), that it is a special Mitzvah to have Shmura Matzos. As you know it is a Mitzvah to have Matzah that is Shomer (watched) L’sheim Mitzvah which applies only to the Matzah that is being eaten on the first night of Pesach at the Seder. The rest of Pesach however, it is enough that it is not Chometz, it doesn’t have to be Matza that is Shomer (Shmura Matzah).

The question is (וּשְׁמַרְתֶּם, אֶת-הַמַּצּוֹת) what type of a Shemira is the Torah obligating? Rashi says (ושמרתם את המצות: שלא יבאו לידי חמוץ) It is an obligation to be careful in guarding the dough to not turn into Chometz. The prohibition of not eating Chometz is the same the first night of Pesach as it is on the entire Yom Tov of Pesach. The question then is why should the Torah give a different level of obligation in Shemira on the first night of Pesach then on the rest of the days of Pesach? Besides for the prohibition of eating Chometz they are identical.

The Meshech Chochmoh answers with a Yesod. We know that when it comes to Mitzvos we are allowed to rely on Rov. The Torah allows us to rely on Rov. What would happen if someone were to rely on Rov, for example you Shecht an animal properly and eat the meat. Unbeknownst to him, there is a hole in the heart thus rendering the animal a Treifah. The Halacha is that Ones K’man D’lo Ovid Dami. If someone does something B’ones he is not guilty at all and then K’man D’lo Ovid, it is as if he did not eat Nivaila. There is no Aveira at all. A person should be perfectly comfortable relying on Rov in that the animal is not a Treifah and indeed we never check for any Treifos outside of the lungs where finding them to be Treif is more common.

When it comes to a Mitzvas Asei however, the same thing is not true. Let’s say someone would buy an Esrog in a manner in that he was relying on Rov that it is a Koshera Esrog and it would turn out that it is not a Koshera Esrog. Well he wouldn’t be punished for failing to take an Esrog because he was an Ones but he would not get Schar for taking an Esrog because in fact he did not actually take an Esrog. Which means to say, when you have a good excuse it helps for a Lo Sasei. Somebody violates a prohibition then Unsa K’man D’lo Ovid, if someone does something B’ones he is not guilty at all because he did not do the Lo Sasei. However, when it comes to a Mitzvas Asei even if one is guiltless in failing to do it, he still doesn’t benefit from having done the Mitzvah.

With this Yesod the Meschech Chochmoh explains beautifully. All Pesach we don’t have to guard the flour that it not turn into Chometz. We are permitted to rely on Rov. Normally, kernels which are ground into flour make flour that is not Chometzdik. Normally if you make dough by mixing flour and water and bake it within 18 minutes it will not turn into Chometz. There is no special need to watch it although occasionally things may happen, but in a typical case the Torah allows us to rely on Rov. Therefore, all of Pesach we are perfectly comfortable relying on that Rov. The reason is even if it would turn into Chometz Unsa K’man D’lo Ovid and there is no violation. The first night of Pesach is different because it is a Mitzvas Asei so if we would eat something that we think is Matzah and B’ones it really is not Matzah you wouldn’t be punished for failing to eat Matzah on the first night of Pesach but you would be missing the benefit of eating Matzah as the MItzvas Asei. Therefore, the Torah is teaching us that when you come to a Mitzvas Asei (a Mitzvah that one does actively) a person should be extra careful (וּשְׁמַרְתֶּם, אֶת-הַמַּצּוֹת).

This is a beautiful explanation and with this the Meshech Chochmo goes on to explain that the Halacha is that a person is obligated to check his Mezuzas twice every seven years. The Bedika is an obligation despite the fact that as we know most of the time the Mezuzas are Kosher. They were Kosher originally and they stay Kosher. When it comes however, to checking Treifos, checking the lungs, a Treifa that is common, there is no biblical obligation to check, we rely on Rov. Checking the lungs is a Chumrah which we do Mid’rabban. Why is checking Mezuzas different than checking the lungs?

When it comes to Treifos we come to relying on Rov, and therefore, we can eat without checking. Unsa K’man D’lo Ovid, the Torah allows us to rely on Rov. If we accidently eat something that was Treif there is no consequence. However, when it comes to Mezuza which is a Mitzvas Asei, if we relied on Rov and in fact the Mezuza was Posel indeed we wouldn’t be punished for failing to do the Mitzvah but still we would be failing from having benefit of a Kosher Mezuza. This is a beautiful Vort based on a very basic Yesod.

How The Jews Carried On Pesach - Bo 5770

12:16 וּבַיּוֹם הָרִאשׁוֹן, מִקְרָא-קֹדֶשׁ, וּבַיּוֹם הַשְּׁבִיעִי, מִקְרָא-קֹדֶשׁ יִהְיֶה לָכֶם:  כָּל-מְלָאכָה, לֹא-יֵעָשֶׂה בָהֶם--אַךְ אֲשֶׁר יֵאָכֵל לְכָל-נֶפֶשׁ, הוּא לְבַדּוֹ יֵעָשֶׂה לָכֶם Rebbi started the Shiur with a Dvar Halacha. We know that when Klal Yisrael left Mitzrayim they took everything with them, including everything they owned and everything they borrowed. In addition, they also had Ugois Matzos with them. The problem is that Klal Yisrael had already been commanded to keep the first day of Pesach, Koidesh. At this point Klal Yisrael had not yet received the Torah, however, they were given some Mitzvois including Tefillin and Pidyoin Haben. In addition, they also received the Mitzvah of Chag Hapesach which included eating Matzah for seven days and that the first and seven days is Koidesh in that no Melacha could be done.  The only Melacha that was permitted was for Oichel Nefesh. So I can understand why they carried out with them from Mitzrayim the Matzos as that was for Oichel Nefesh, however, what was the Heter for them to take everything else that they took with them which included the wealth of Mitzrayim and their personal belongings?

The Chasam Soifer says that is why the Posuk says that they carried the Matzos in their hands whereas everything else was on the Behaimos. The reason is they only carried in their hands what was for Oichel Nefesh while everything else had to be carried by the Behaimos. This really wasn’t enough because there is an Issur D’oiraissa of Mechamer which applies to a Behaimah doing a Melacha for you. The Chasam Soifer brings a Gemara in Maseches Shabbos 153b (24 lines from the top) where it discusses if a person who is stuck on Friday late afternoon with a Hefsed Meruba, should have the animal carry and when it stops you lift the package off the animal and when it starts walking again you put the package back onto the animal. So in this way there is never an Akira or a Hanacha. אמר מר אין עמו נכרי מניחו על החמור והלא מחמר ורחמנא אמר (שמות כ) לא תעשה כל מלאכה א"ר אדא בר אהבה מניחו עליה כשהיא מהלכת והא אי אפשר דלא קיימא להשתין מים ולהטיל גללים ואיכא עקירה והנחה כשהיא מהלכת מניחו עליה כשהיא עומדת נוטלו הימנה The Chasam Soifer suggests that this is what Klal Yisrael did when they left Mitzrayim, by taking everything off and putting everything back on the animals. It seems a bit humorous that each person with 90 Chamoirim full of stuff would be picking up and putting down the packages as they went and stopped. The Kasha still remains what was the Heter?

A Teretz was offered. The Biur Halacha brings that Melacha is permitted for Tzorchei Mitzvah as we know you can carry a Lulav on Sukkos. Even though there is a Din of Lachem V’loi L’gavoi’a, however, a Mitzvois Hayoim you can carry for. Mimeila, it is very good, because the Ribboinoi Shel Oilam was Mechayeiv them to take out the wealth of Mitzrayim. Whatever they took out was the Dvar Mitzvah of the day. So there was a Heter for carrying.

This is good for the first day that it was Koidesh. What about the seventh day that was also Koidesh, they should have also not been permitted to carry? You can’t say that they parked and sat still, because we have a Kabbala that Kriyas Yam Suf was on the seventh day. So they obviously traveled?

When the Yidden walked through the Yam Suf there was water on either side of them so that there were walls of water on the side of them. You are permitted to carry if there are walls surrounding you. However, if there are walls only on 2 sides you are not permitted to carry?  The Gemara in Maseches Arachin 15a says that Klal Yisrael crossed the Yam Suf in a U shape crossing. They went into the Yam Suf and came out on the same southern bank as where they started however; it was at a different point as is shown in the diagram in the Artscroll Gemara 15a4. The question that remains is, why didn’t Klal Yisrael go directly across the Yam Suf? Had they gone directly across there would be the Issur of carrying. To go in a U shaped area where the water was in effect a wall on either side of them, the northern, eastern, and western side of them which in turn makes it permitted to carry M’doiraissa. This is why they came out the same side that they went in, in order that there were 3 walls surrounding them.