Friday, December 30, 2016

Bava Metzia 93: Mostly dead

Three thoughts on this daf:


אפילו תימא ר' יאשיה לחלק הכא לא צריך מ"ט סברא הוא מה לי קטלה כולה מה לי קטלה פלגא

What is this half-killing and whole killing? The standard explanation is as Rashi writes.

סברא הוא - דנשבר בלא מת נמי מחייב דהוה ליה קטלה פלגא:

That is, that a break in the animal, which is considered half-killed, he should also be liable for, for half-killed is like whole-killed.

My issue with this is that a broken leg is not half-killed. It is damaged. It is so obvious that there should be no distinction between (what we are really saying) full and half damage?

I would suggest that whole killed is the broken + died. That animal is really really dead. And half-killed is where it died without first sustaining an injury which broke it. The sevara is then this: are you truly going to say that it needs to be both broken and dead for him to pay, but simply dead with no break, he would be exempt? That would be ridiculous. And once we have dead alone for liability, if broken is mentioned, it is also a separate case for liability. Therefore, we don't need an או to divide, since even with a ו, we would know that we are dealing with separate cases.

2) The sometimes forced-seeming derashot aside, how can we read the pesukim on a peshat-like level to arrive at this conclusion, that even by other shomrim, if the owner is hired/borrowed with the onset of the animal, he is exempt?

The two pesukim were:
וְכִי יִשְׁאַל אִישׁ מֵעִם רֵעֵהוּ וְנִשְׁבַּר אוֹ מֵת בְּעָלָיו אֵין עִמּוֹ שַׁלֵּם יְשַׁלֵּם.
אִם בְּעָלָיו עִמּוֹ לֹא יְשַׁלֵּם אִם שָׂכִיר הוּא בָּא בִּשְׂכָרוֹ.

The first pasuk speaks of the borrower, and comes to teach that unlike the watchmen of previous pesukim, he is liable for ones. So long as there is not this overriding be'alav imo, which would exempt him.

The second pasuk does not explicitly say he is a borrower. It lays out an exemption if the owner is there with the animal. So the question is how far this exemption of be'alav imo applies. Is it a mere exemption to the higher liability for ones? Or is it a trump card for everything, which was finally brought in here, because it is the (generally applying) exemption exception that sustains even now that we have made him liable for ones.

ת"ש שאלה ושאל בעליה עמה שכרה ושכר בעליה עמה שאלה ושכר בעליה עמה שכרה ושאל בעליה עמה אף על פי שהבעלים עושין מלאכה במקום אחר ומתה פטור

Renting the animal / owner isn't just an random example. I think there is a hidden derasha operating, about אִם שָׂכִיר הוּא בָּא בִּשְׂכָרוֹ

Thursday, December 29, 2016

Bava Metzia 94: Equivalence classes and Samaritan verses

מתני' מתנה שומר חנם להיות פטור משבועה והשואל להיות פטור מלשלם נושא שכר והשוכר להיות פטורין משבועה ומלשלם כל המתנה על מה שכתוב בתורה תנאו בטל וכל תנאי שיש מעשה בתחילתו תנאו בטל וכל שאפשר לו לקיימו בסופו והתנה עמו מתחילתו תנאו קיים:

In terms of the authorship of the Mishna at the top of 94a, the gemara was doing so well with attributing it to Rabbi Yehuda, only to veer off at the end and attribute it to Rabbi Meir (with a possibly far-reaching exception within the position of Rabbi Meir.) While the final objection, from the sefa of the sefa, is something that we need to come up with an answer for, it is much more convincing to say that this is Rabbi Yehuda. See also the Yerushalmi which concludes as a matter of course so, citing a brayta that allows masna al ma shekasuv baTorah for monetary stipulations, in general.

ושאני הכא דמעיקרא לא שעבד נפשיה
Indeed, this is a difference in kind. Marriage is marriage as defined by the Torah, carrying along all its benefits and obligations, monetarily or otherwise. If you want to buy into Biblical marriage, this is what it entails. But there are all sorts of monetary transactions or watchman obligations one could set up, and so one can set up a non-Biblical set of obligations…

פרק שמיני - השואל את הפרה
מתני' השואל ה"ג השואל את הפרה
An interesting Rashi establishing the correct girsa of the Mishna.

אם גנוב יגנב מעמו ישלם לבעליו
Throughout, the pasuk is quoted without the leading vav. So im instead of ve’im. This corresponds to the Samaritan text, rather that to the Masoretic text.

אם גנוב יגנב מעמו ישלם לבעליו

Derashos aside, the structure of the halachos makes logical sense and can be read, in peshat manner, into the pesuk. Afterwards, we can bring the midos shehaTorah nidreshes bahen to come to those conclusions within the framework of midrash halacha.

The setup is that “stolen or lost” form an equivalence class. What happens to one happens to the other. We first encounter this by the unpaid watchman (first paragraph), who swears and is exempt. Stolen is most explicit there, but in the intervening verse (al kol devar pesha), if we don’t take this as an out-of-context interjection (eruv parshiyos), mentions any loss (al kol aveida asher yomar ki hu zeh). So “stolen or lost” is an equivalence class.

When we reach the next tier, the paid watchman (second paragraph), we see that he pays for “stolen”, but only swears for the next level up, in the category of ones. So “lost” would come along as part of the equivalence class.

Meanwhile, the paid watchman swears and is exempt for a different equivalence class - dies of normal causes, broken, captured. So when we reach the next tier of borrower, and are told that he must pay for two members of that equivalence class, we understand that as a shorthand for every member of the class. The gemara sort of suggests this as a derivation, but it is pushed off, and we seek another derasha. Regardless, the structure of the halacha is as described above, even if the particular way of arriving at it via midrash halacha is different.
6) Dibra Torah
Tosafot note:
אלא למאן דאמר דברה תורה כלשון בני אדם כו'. אע"ג דלדידיה דרשינן בכל מקום לבד מהיכא דלא מיסתבר כדפי' בפ"ב (לעיל דף לא: ד"ה דברה) ה"נ לא מסתבר לרבות אבידה כיון דכתיב בלשון גניבה ואית לן למימר דברה תורה כלשון בני אדם:

That is, elsewhere, earlier in the masechta, we saw that even the one who says dibra Torah such that we don’t make a derasha will still make the derasha if needed and it is mistabar. So Tosafot explains how here it must not be mistaber, because the language of geneiva is not the same as loss. I would say it is mistaber since it was part of the same group for an oath to exempt by shomer chinam.

In truth, it is that other gemara earlier in Bava Metzia which is somewhat questionable, in attributing a bunch of duplicate language derashot to the side that says dibra Torah. Our local gemara does not strike me as problematic. It indeed may serve as a counterexample to the claims in that other gemara.

Wednesday, December 28, 2016

Thoughts on Bava Metzia 93b

1) The Mishna has listim, with a yud mem sofit. Rashi writes to fix the girsa as without the yud, because it speaks of a single robber:

הלסטם - גרסינן וחד לסטם קאמר:

After all, the gemara speaks of one (watchman) opposing the one listim. One need not change the girsa to say this, because whether malei or chaser, it can mean a single robber. Here is Jastrow, discussing it as the Greek listes  (see more here), with the mem sofit coming mistakenly in place of the samech.

2) There is an interesting pattern in the Mishna of a general rule about one, about two, and then a Tanna dividing even further between the two. Not exactly like a machria, but it feels similar in tone.

 זאב אחד אינו אונס שני זאבים אונס רבי יהודה אומר בשעת משלחת זאבים אף זאב אחד אונס
One wolf vs. two wolves. With Rabbi Yehuda elaborating (arguing? or while coming from the side, in a way even the Tanna Kamma would agree?). At a side wolves are common, they are emboldened.

שני כלבים אינו אונס ידוע הבבלי אומר משום רבי מאיר מרוח אחת אינו אונס משתי רוחות אונס
Two mere dogs. Strip out any opposing named Tanna, and the setup here is two mere dogs as opposed to two the wolves of the reisha. Rabbi Meir argues or elaborates that there are times, in a coordinated attack, that the shepherd cannot fend them off.

הלסטים הרי זה אונס
If we look at the Tosefta, we see an elaboration. Firstly, that Tosefta uses ganav rather than listes. But it contrasts one ganav vs. two ganavim. With one, he can stand and oppose him. This is precisely the gemara's initial objection. It also clearly supports Rashi in claiming the Mishna speaks about only one.

In the Tosefta, it is Rabbi Yehuda again who elaborates / argues, and says that if it is an armed robber, even one.

This is exactly Rav's answer, in explaining the case of our Mishna. So the stam Mishna here is like Rabbi Yehuda, and endorsed by Rav.

מי אמרינן אוקי גברא להדי גברא או דלמא האי מסר נפשיה והאי לא מסר נפשיה 
מסתברא דהאי מסר נפשיה והאי לא מסר נפשיה 

Some kitvei yad, and also in some Rabbinic writings quoting the gemara, have a teku in place of  מסתברא דהאי מסר נפשיה והאי לא מסר נפשיה .

Monday, December 26, 2016

Miketz and Daf Yomi

Miketz thought:
Yosef asked the butler to make mention of him to Pharoah (end of Vayeshev, Bereishis 40:14):
and indeed, when the opportunity arises, due to Pharaoh's dream the butler does just that, in Mikeitz (41:9 and on):
וַיְדַבֵּר שַׂר הַמַּשְׁקִים, אֶת-פַּרְעֹה לֵאמֹר: אֶת-חֲטָאַי, אֲנִי מַזְכִּיר הַיּוֹם.
וְשָׁם אִתָּנוּ נַעַר עִבְרִי, עֶבֶד לְשַׂר הַטַּבָּחִים, וַנְּסַפֶּר-לוֹ, וַיִּפְתָּר-לָנוּ אֶת-חֲלֹמֹתֵינוּ: אִישׁ כַּחֲלֹמוֹ, פָּתָר.
וַיְהִי כַּאֲשֶׁר פָּתַר-לָנוּ, כֵּן הָיָה: אֹתִי הֵשִׁיב עַל-כַּנִּי, וְאֹתוֹ תָלָה.
The fault was not in forgetting Yosef, but in whatever caused Pharaoh to throw the butler in prison. Mazkir means mentioning his faults, not remembering (and thus is not the opposite of וַיִּשְׁכָּחֵהוּ).
This seems all according to Yosef's plan. The fly in the ointment (or wine cup) is the pasuk immediately preceding Miketz, in Bereishis 40:
וְלֹא-זָכַר שַׂר-הַמַּשְׁקִים אֶת-יוֹסֵף, וַיִּשְׁכָּחֵהוּ.
Cue Rashi's citation of the midrash that this was punishment to Yosef for formulating this plan and putting his trust in humans. (And miketz indicates two years from that time, further showing Divine punishment / the collapse of Yosef's plan.) This makes sense, as the plan does come to fruition, only after two years, and only after a prophetic dream sent by Hashem.
Maybe we aren't forced into this understanding though. Perhaps the plan all along was that the butler would mention him at the first opportune time, which didn't arrive until the end of two years (from when, unclear, either from then or from the time Yosef was first put in prison). He didn't zachar = *mention* Yosef to Pharaoh, and indeed forgot about him as time passed, until the Divine intervention arrived, causing Yosef's good original plan to succeed.

Daf Yomi, Bava Metzia 91a:
רב אחדבוי בר אמי אילו נאמר (ויקרא יט, יט) בהמתך לא תרביע הייתי אומר לא יאחוז אדם הבהמה בשעה שעולה עליה זכר ת"ל כלאים
According to the hava amina, we can explain this based on the Aramaic cognate. The tzadi in Hebrew is sometimes the ayin in Aramaic. Indeed, the trup symbol revia (commonly called revii) is actually Aramaic for the parallel Hebrew word רבץ.
The derasha Rav Achdevoi is making is to read tarbia as if it were an Aramaic word. Thus you are holding down the female animal, causing it to be rovetz.
Gemar chasima tova!

Sunday, December 25, 2016

Bava Metzia 90a: Vetch substitutions...

According to Rashbi, instead of letting an unmuzzled animal eat what it is threshing, you can give it karshinim, that is, vetch, in a feed bag, because that is the best fodder for an animal.
What if the vetch isn't available, but you substitute something that is, in many respects, similar to it? Then the Jewish-owned ox's response will be appropriate: k'vetch.

Bava Metzia 90a-b: How should we pasken?

The gemara reads:

תא שמע דשלחו ליה לאבוה דשמואל הלין תורי דגנבין ארמאי ומגנחין יתהון מהו שלח להו הערמה אתעביד בהו אערימו עלייהו ויזדבנון אמר רב פפא בני מערבא סברי לה כר' חידקא דאמר בני נח מצווין על הסירוס וקא עברי משום (ויקרא יט, יד) ולפני עור לא תתן מכשול סבר רבא למימר ימכרו לשחיטה א"ל אביי דיין שקנסת עליהם מכירה פשיטא בנו גדול כי אחר דמי בנו קטן מאי רב אחי אסר ורב אשי שרי מרימר ומר זוטרא ואמרי לה הנהו תרי חסידי מחלפי אהדדי
1) Tellingly,  the Rif does not cite this gemara lehalacha. The Rosh does, as does the Nimukei Yosef. But I would like to justify the Rif, who I think likely correct here. The most straightforward is that the Rif sees Rav Pappa's statement that this is all based on the rejected unique position of Rav Chidka, and so every Amora who comments on the issue (Abaye, Rava, Rav Ashi, Rav Achi, Mereimar, Mar Zutra) are only going according to this rejected opinion of Rav Chidka.* So none of it is lehalacha.

I think that there is, even among many of those who are stringent in the sense of even seeing any problem at all, a desire to cleverly do away with the problem. The Jews of Eretz Yisrael saw a potential problem and asked Shmuel's father. When he say

הערמה אתעביד בהו אערימו עלייהו ויזדבנון

he is not saying that that we will employ trickery with them to punish their haaramah (trickery) and therefore punish them by making them sell it. He is, rather, suggesting a haarama to permit. Rather than outlawing the use of these geldings entirely, he says to sell them. They thereby don't suffer much. In fact, they have profited from castration, as another Jew or else a gentile will have use for the animal for plowing.

Rav Pappa then explains that the whole concern was for a rejected opinion.

Rava thought to say that this sale should be to be slaughtered, but Abaya corrects him that the sale is enough of a fine. And Rava submits to this interpretation of Abaye**. This is all within the father of Shmuel's opinion, so we understand that this sale is indeed a haarama.

Indeed, it is obvious, says the gemara, that the sale can be to his grown son. Is that not a haarama? But then, according to Rav Ashi, the haarama extends to the fact that he can sell to his minor son, who is still dependent upon his table.

Mereimar and Mar Zutra, who we see e.g. in the beginning of Taanis (12b) go out of their way to be stringent for positions of Eretz Yisrael (switching their shoes though it was not required), similarly we chassidim regarding this, even though it is not really a halachic requirement. And how far were they stringent? They would switch castrated bulls with one another.

It is a fair assumption, then, that this is not required halacha, but a stringency for a rejected opinion, in which even those who are stringent employ all sorts of haarama to almost eliminate it.

If a Rishon decides that it is not binding halacha, like Rav Papa, given that we are not choshesh for Rav Chidka's opinion, it is well within his rights.

* Others, who argue with Rif, say that it couldn't be that all these Amoraim are going according to Rav Chidka, and therefore they have a different reason to forbid, which is then lehalacha. See e.g. Nimukei Yosef.

** See Rosh. This is fascinating in its own right. He says, presumably based on the words סבר למימר, that when Abaye argued with Rava, Rava accepted Abaye's argument. This is something we could conceivably apply across Shas.

Bava Metzia 90: Robbers who castrate?

Bava Metzia 90a-b has


It is strange that the gentiles would steal the bulls and castrate them. So Rashi explains that they are performing this theft and castration as a favor - they return them to their owners afterwards, and this is the haarama:

ומנגחין יתהון - ומסרסין אותם ואח"כ מחזירין לבעלים ומאהבת בעליו ישראל גונבו הנכרי שהוא מכירו ומסרסו כדי שיהא יפה לחרישה:

Meanwhile Tosafot explain that there was more action on the part of the Jews. Citing Rav Achai Gaon, they would tie a dinar to the testicles of the bull, such that when the gentile thieves would come to steal it, they would end up castrating the bull:

דגנבין להו ארמאי. בשאלתות דרב אחאי מפרש שהיו קושרין דינר בכיס של בהמה בחזקה והנכרי גונב הדינר ותולש הכיס 
ומסרסו ולשון גנבין להו לא משמע הכי שלא באין לגנוב רק הדינר:

To me, it seems there is some likelihood that there is a taut sofer in play. Change the bet of דגנבין to a chet and you get deganchin aramaei. The next phrase though would be repetitive. Take out the spurious vav and get:

הלין תורי דגנחין ארמאי מגנחין יתהון מהו

"Those bulls who are castrated by gentile castrators, what is their law?"

This works out better, perhaps, with the surrounding gemara that deals with an explicit amira le'akum.

This rereading might upend halacha based on the assumption that we are dealing here (according to Rashi) with a mere understanding, rather than explicit amira. Or with a clever action on the part of the Jews causing an unwitting action by the gentile, which would be either more or less direct than an explicit request.

Friday, December 23, 2016

A few points regarding yesterday's daf

A few points:
1) Towards the end, the discussion is about gezel Cuti, which Artscroll renders as Cuthean. See though Rashi, who refers us to a gemara in Bava Kama 113. That gemara discusses the gezel of a Canaani. And Tosafot directs us instead to later in Bava Metzia, 112, which discusses the gezel of an Amaleiki. It seems pretty clear that Cuti here was the work of the censor. We should check manuscripts to confirm, but it is pretty clear. I would guess that Artscroll here is being sensitive to its open audience. Still, the typical Daf Yomi learning is left in the dark.
2) A chiddush how the midrash knew that the cakes were render impure once Sarah resumed her Orach Kanashim. It is really based on
אַחֲרֵי בְלֹתִי הָיְתָה-לִּי עֶדְנָה
Bila also means mixing in oil. And eden means veset. So she is saying, after I mixed the oil in the cakes, my orach kanashim occured. Yet my master is old.…/there-is-interesting-post-over…
3) Instead of saying that Hashem changed from va'adoni zaken to va'ani zakanti, let us engage in some Lower Criticism and take out the daled from va'adoni.
4) Here is how the derasha of Avraham introducing old age really works.
ואברהם זקן בא בימים
And regarding Avraham, zaken came in those days.
5) On the previous daf, I am left confounded why the gemara believes that the story of Rabban Yochanan ben Masya is a maaseh listor, such that it is compelled to say chasurei mechsera. The point of bringing the story is Rabban Shimon ben Gamliel's response. He dismisses Rabban Yochanan ben Masya's concern and pronounces that all is in accordance with the minhag hamedina.

Wednesday, December 21, 2016

Of Course the Brothers Sold Yosef

The correct interpretation, as peshat, is that the brothers sold Yosef. Yosef says so explicitly in parashas Vayigash (Bereishis 45:4):

וַיֹּאמֶר, אֲנִי יוֹסֵף אֲחִיכֶם, אֲשֶׁר-מְכַרְתֶּם אֹתִי, מִצְרָיְמָה

Yet all sorts of explanations abound, that the brothers didn't actually sell him.

It is all Rashi's fault. Rashi gives the correct peshat explanation local to our parasha, Vayeshev. But he includes just enough midrash, and people then take that midrash as peshat, and use the facts thereby established to make trouble.

Here are the pesukim (Bereishis 37:25-28):
לְכוּ וְנִמְכְּרֶנּוּ לַיִּשְׁמְעֵאלִים, וְיָדֵנוּ אַל-תְּהִי-בוֹ, כִּי-אָחִינוּ בְשָׂרֵנוּ, הוּא; וַיִּשְׁמְעוּ, אֶחָיו.

In the first pasuk, the Ishmaelite caravan passes by. In the second and third, Yehudah suggests selling Yosef to the Ishmaelites rather than killing him. In the fourth, those Ishmaelite traders -- now called Midianite merchantmen -- pass by, and THEY, that is, the brothers, draw him out and sell him to the very same Ishmaelite caraven / Midianite merchantman. And those traders bring Yosef to Egypt.

That is the simple peshat. Rashi says the first part**, that it was the brothers who drew him out. This is not midrash. It is peshat. What makes it non-obvious is that it is a grammatical point, namely an "ambiguous antecedent". In English, consider this sentence: "Although the pizza was cold, it tasted good." It, as a pronoun, clearly refers to the pizza, so the pronoun "it" unambiguously refers to the antecedent "pizza". But consider the English sentence "Tim told his brother he was working too hard." The pronoun "he" can refer to either the antecedent "Tim" or to the antecedent "brother". So too, in the Hebrew:
וַיִּמְשְׁכוּ וַיַּעֲלוּ אֶת-יוֹסֵף מִן-הַבּוֹר
the "they" who pulled Yosef out of the pit could refer to the Midianites earlier in the pasuk or to the brothers who hearkened to Yehuda's words at the close of the previous pasuk.

This grammatical point and ambiguity is one that isn't obvious to the casual reader, and they are then persuaded by the assertion that the pasuk in Vayeshev **literally** says that the Midianites pulled Yosef out. The pasuk says no such thing. It says "they" pulled him out, and alas, "they" is an ambiguous antecedent.

Then, Rashi messes us up by incorporating midrash. He writes***, based on Midrash Tanchuma, that the Midianites were a different caravan than the Ishmaelites. (See also the full text of the earlier Rashi.) Others make the Midanim of pasuk 31 into another group, such that the progression is brothers to Midianites to Ishmaelites to Midanites to Egypt.

By putting this forth, Rashi established in people's mind two ideas. (1) That the Midianites and the Ishmaelites are different groups. (2) They they, that is the Midianites, sold Yosef to the Ishmaelites. And then people say that if the Midianites sold him to the separate group the Ishmaelites, then they were also the ones who drew him from the pit. The same pronoun to the same antecedent.

But peshat involves being dismissive of irrelevant distinctions. It is midrash that makes a big deal of minor differences in wording. In truth, the Midiates are the same as the Ishmaelites. And the brothers drew Yosef from the pit and sold him to the Midianites, who were the Ishmaelites. That is, the brothers hearkened to Yehudah's plan (as the pasuk takes great pains to tell us), and so (in the next pasuk), they carry out Yehudah's plan. Ishmaelite is used (say, at the time of matan Torah) to refer to Arab traders who frequent the desert, while Midianite is national origin.

Why does the Torah switch between these two descriptors? I don't care why. You can work it out. It is trying to teach us some deep lesson about these characters. To give us more information about them. To keep the text from being repetitive. Because E and J have different traditions as to their identity. I don't care about the why, just about the what.

The other point people raise is why Reuven is so shocked and runs to tell his brothers, if the brothers including Reuven has sold him. Though it isn't explicit in the pesukim that Reuven had gone away after they hearkened to HIS idea, that is why pasuk 25 takes pains to say that sat to eat bread, וַיֵּשְׁבוּ לֶאֱכָל לֶחֶם

Some of the brothers stayed, while some went on to take care of the sheep. And so they were conveniently there to come up with this other plan, when the Ishmaelites passed.

There are other, peshat-oriented ways of reinterpreting the pesukim. This, to my mind, is the best peshat interpretation. It doesn't require a dismissal of an explicit pasuk in Vayigash. It doesn't work with a misunderstanding of the nature of peshat, in making much ado about irrelevant distinctions.

* See Rashi here:
וימשכו: בני יעקב את יוסף מן הבור וימכרוהו לישמעאלים, והישמעאלים למדינים, והמדינים למצרים:

** See here for ambiguous antecedent:

*** See Rashi in same pasuk:
ויעברו אנשים מדינים: זו היא שיירא אחרת, והודיעך הכתוב שנמכר פעמים הרבה:
Then Midianite men, merchants, passed by: This is another caravan, and Scripture informs you that he was sold many times. [From Tanchuma Buber, Vayeshev 13]

Sunday, December 18, 2016

Bava Metzia 83a: Protecting workers' rights by removing the ability to negotiate

The Mishnah we encounter in today’s daf Yomi (Bava Metzia 83a) is remarkable. It reads:

מתני' השוכר את הפועלים ואמר להם להשכים ולהעריב מקום שנהגו שלא להשכים ושלא להעריב אינו רשאי לכופן

Or, in English:


That is, an employer may not insist, against the local practice, that workers work long hours, say, from dawn to nightfall.

The way that the gemara interprets this, it seems that it is only when he hired the workers without stipulation. Thus, the setama de-gemara (on the same amud) asks that this is obvious, and answers that even if he hired them (presumably without stipulating) and gave them extra money, the workers can reply that that extra money was only to work better, rather than for longer hours. And later (on the next amud), the setama de-gemara asks similarly on a statement by Resh Lakish, and resolves it (maybe just Resh Lakish’s statement, though) in a way that a person can stipulate that it be in accordance with Biblical law, rather than as is the local custom

Tosafot make this explicit. They write:

מתני' השוכר את הפועלי' ואמר להם להשכים ולהעריב. פי' ר"י בששכרן סתמא ואמר להם אחר שהשכירן כבר להשכים ולהעריב אבל אם התנה מעיקרא הכל לפי תנאו:

“The Ri exlpains that this is where he hired them without stipulation, and only after he had already hired them, tells them to get up early and work late. But if he stipulated at the start, all will be in accordance with his stipulation.”

I agree that, based on the give and take of the setama degemara, this is a very sensible reading of the gemara.

However, two thoughts. First, when the gemara asks that this is obvious, that all unstipulated hiring would be in accordance with local standards, it could be that it is only obvious because the gemara has already internalized the legal structure and principle upon which the Mishna was trying to expound. That is, one might have thought that one who hires a worker effectively has bought their labor for the day, and so whatever the local culture, he has bought the labor and can instruct them as he sees fit. Therefore it is teaching us that the local culture defines the expectations by which they have hired themselves out, and so such is legally binding, even if he didn’t give them extra money.

Second, I suspect that the Mishna is teaching us an even more remarkable ruling, against Tosafot. That is, even if the owner explicitly stipulates with them at the outset that they work longer hours, against local custom, as a takanat chachamim, such a stipulation has no force. And such a law would not be peshita, obvious.

Why make such a law, to protect the worker? Why shouldn’t we take a libertarian, anti-union position, that the worker and employer are free to enter into any binding contract they choose to enter? That if the worker wants to work these longer hours, either because he will get more money, or because he will thereby be the worker who finds employment, he may do so?

Because there is an imbalance of power. There is plenty of labor available, and the employer has leverage to demand all sorts of wages or all sorts of working hours. If this laborer doesn’t agree, he could just hire another laborer. The laborer wants to eat, and if he is allowed to enter into negotiation for such quality-of-life-affecting conditions, he and all other laborers will end up with miserable lives. This is what happened during the Industrial Revolution, with horrible working conditions, low pay, child labor, and so on.

For tikkun olam, Chazal took such a negotiation out of the hands of the employer and laborer. Even if they explicitly stipulated against it, the local custom, which ensures quality of life, prevails. Minhag is oker halacha. אמר רב הושעיה זאת אומרת המנהג מבטל את ההלכה

For slight support for this, the position of Resh Lakish, that working come to work on their employer’s time and come home on their own time, seems to be understood by the Bavli as Biblical law, able to be stipulated against, or only in force when there is no existing custom. The parallel Yerushalmi has a statement by Rabbi Ami that casts it as a tenei bet din, in order to accomplish a specific social goal:

רבי אמי רב יהודה תניי בית דין הוא שתהא השכמה של פועלין והערבה של בעל הבית ומאי טעמא תשת חשך ויהי לילה הכפירים שואגים לטרף תתן להם ילקוטון תזרח השמש יאספון יצא אדם לפעלו ערבית בין השכמה בין הערבה משל בעל הבית עד איכן עד כדי למלאות לו חבית מים ולצלות לו דגה ולהדליק לו נר

Friday, December 16, 2016

Vayishlach thoughts

Yaakov's Gift of Camels
Yaakov sends many different species as a gift to Esav (Bereishis 32:15-16), and for each of them, sends males and females. The exception is camels, where he sends nursing camels and their young.
גְּמַלִּים מֵינִיקוֹת וּבְנֵיהֶם שְׁלשִׁים פָּרוֹת אַרְבָּעִים וּפָרִים עֲשָׂרָה אֲתֹנֹת עֶשְׂרִים וַעְיָרִם עֲשָׂרָה:
It is unclear why camels are the exception. Rashi explains the peshat, that it means the camel calves with them, but also brings a midrashic understanding* (from Bereishis Rabba 76:7) that it refers to the male counterparts of the female camels. The Torah is discreet specifically by camels and not by any of the other species listed because the camel's modesty in intercourse. Thus, Rashi writes:
גמלים מיניקות שלשים: ובניהם עמהם. ומדרש אגדה ובניהם בנאיהם, זכר כנגד נקבה, ולפי שצנוע בתשמיש לא פרסמו הכתוב:
I would say that the camel calves are deliberate. That camels were used, at this early point in their domestication**, primarily to give milk. Thus female nursing camels were the gift. But a nursing camel has to suckle her young, or else it will stop producing milk***. That is why the female nursing camels, specifically, needed to be accompanied by their young.
When Yitzchak is weaned, we read (Bereishis 21:8):
וַיִּגְדַּל הַיֶּלֶד וַיִּגָּמַל
I say that vayigmal is the word used for "weaned" because that is the time he transfers from drinking human milk to drinking camel milk. Or simply because of the association of camels with milk. Camel milk is the popular milk choice for nomads in the wilderness.
* Also see Rashi on pasuk 15, when talking about male : female ratio, in which a 1:1 ration for camels is given. This Rashi, citing the same siman of midrash, as well, assumes that the "וּבְנֵיהֶם " are rather בַּנָאֵיהֶם.
** Many modern scholars say the Torah is anachronistic when it comes to camels, since they hadn't been widely domesticated yet. This claim can be questioned, based on various findings, and how one interprets the evidence. But, for instance, "In a Sumerian text from Nippur (19th Century B.C.), we find reference to camels’ milk, which seems to allude to some domestication of the animal."…/5-things-you-need-to-kno…/


Daf Yomi question, based on the Mishna in today's daf (Bava Metzia 80a, towards the bottom):
If one rented a donkey to transport wheat, and instead he transported buckwheat, and an injury results, is he liable?
Do we say that it is kasha ke-masuy?


The small bottles
That Yaakov went back for small bottles, and was therefore alone to grapple with the angel, is not explicit in the pesukim. It is Rashi citing the midrash found in Bereishit Rabba 77:2 and Chullin 91a.
What the pesukim themselves say is:
כד וַיִּקָּחֵם וַיַּעֲבִרֵם אֶת הַנָּחַל וַיַּעֲבֵר אֶת אֲשֶׁר לוֹ:
כה וַיִּוָּתֵר יַעֲקֹב לְבַדּוֹ וַיֵּאָבֵק אִישׁ עִמּוֹ עַד עֲלוֹת הַשָּׁחַר:
"And he took them [namely, his family] and brought them across the stream, and he took across what was his.
ויותר יעקב לבדו אמר רבי אלעזר שנשתייר על פכין קטנים מכאן לצדיקים שחביב עליהם ממונם יותר מגופם וכל כך למה לפי שאין פושטין ידיהן בגזל
"And Yaakov was left alone - Rabbi Eleazar said: that he remained because of the small vessels. From here that the money of the righteous is dearer to them than their bodies. And to such an extent, why? Because they don't stretch their hands forth in theft."
What is the derivation? The derasha seems to sit on the words:
וַיִּוָּתֵר יַעֲקֹב לְבַדּוֹ
in which case it could be (re-)interpreted as something was left over to Yaakov alone. The prior pasuk had said that he had brought over his family and all his possessions. So this is something which was left over, but only from the perspective of a tzaddik like Yaakov. This then works well with the midrashic talk about possessions specifically of the righteous.
That strikes me as the most likely derash. Alternatively, we can go back a bit and try to darshen the "et" in:
וַיַּעֲבֵר אֶת אֲשֶׁר לוֹ
as something extraneous, additional, to all that he had. And these would be the pachim ketanim.
Chanukkah tie-in: The pachim ketanim and the pach shemen.


Mamash Malachim
In pashas Vayishlach, Yaakov sends Malachim. Are these malachim angels or human messengers? This is actually a question about a good many instances of "malach" throughout Tanach. (Indeed, even where Malach Elokim is used, as Ralbag will interpret that as human prophetic messenger.)
A famous Rashi at the start of our parsha cites one of two opinions in Bereishis Rabba (75:4), that these are actual angels. The other position in the midrash is that these are human messengers (1). Onkelos is fairly clear that these are humans, as he translates malachim as izgadin, while two pesukim back, at the end of parshas Vayeitzei, he translated the malachei Elokim as malachaya.
We get very different pictures about Yaakov power in the situation. Does he operate like other humans, subject to derech hateva, and is thus clearly vulnerable? Does he have actual heavenly angels at his command, which take not only God's instruction but his own? (Thus, midrash having the various groups of angels beating up Esav.)
Aside from our own inclinations as to how to answer the above question, as we try to assess the peshat of the pasuk, we have to decide how much context weighs in. In the preceding pesukim, Yaakov encountered two camps of malachei Elokim which, Ralbag aside, is easy to see as actual angels. And these may be the same angels he saw ascending and descending in his dream. If peshat places angels there, and we are not going to divide between narrative threads, then should we NOT be inclined to interpret the malachim as the malachim which Yaakov has just encountered and are, in some way (as per the dream), at his disposal. And in the same parsha, Yaakov grapples with an angel. On the flip side of this, and putting midrashic expectations aside, Esav isn't shocked to recieve these angels, and who says that the angels would follow Yaakov's instructions as if they are his servants? We would expect him to send humans, and malachim literally means messengers. Perhaps we shouldn't be overly swayed by the context, and also shouldn't take the global popular interpretation (since that is how we most often will encounter it) of malach as angel.
(1) מלאכים
אלו שלוחי בשר ודם.
רבנן אמרי:
מלאכים ממש.

Friday, December 09, 2016

Rashba BM 74: Minhag uproots halacha

In today’s daf (Bava Metzia 74a), we read about the situmta:

אמר רב פפי משמיה דרבא האי סיטומתא קניא למאי הלכתא רב חביבא אמר למקניא ממש רבנן אמרי לקבולי עליה מי שפרע והלכתא לקבולי עליה מי שפרע ובאתרא דנהיגו למקני ממש קנו:

In English:

R. Papi said in Raba's name: The mark [on the wine-barrels]3  gives possession. In respect of what [does it effect a title]? — R. Habiba said: In respect of actual possession.4  The Rabbis said: For the acceptance of the curse.5  And the law is that [it gives possession only] in respect of submission to the curse. But where it is the usage that this gives actual possession, it does so [with full legal recognition].6

Rashi renders situmta as in the translation above, a mark on wine barrels.

סיטומתא - חותם שרושמין החנונים על החביות של יין שלוקחין הרבה ביחד ומניחין אותו באוצר הבעלים ומוליכין אותן אחת אחת למכור לחנות ורושמין אותם לדעת שכל הרשומות נמכרות:

The Rosh cites Rashi and also adds the explanation from Rabbenu Chananel:

“Rashi explains (d”h situmta) that it is a mark the wine-sellers make on the barrels they purchase from the householders. And Rabbenu Chananel explains (see Tosafot haRosh d”h Situmta) that this is the manner in which merchants conduct themselves at the end of a sale, they shake one another’s hand, and with this the sale is finalized. And anything like this [as well works], meaning in whatever manner they are accustomed to finalize the purchase. Such as in a place where the purchaser gives a single coin to the seller, and in this way they finalize the purchase.”

Nimukei Yosef only gives Rasi’s explanation, but also cites an interesting Rashba:

“The Rashba za’l wrote that we deduce from here that minhag overrides the halacha in anything like this. For in any monetary matters, based on the minhag we acquire and have things acquired. Therefore, via any device by which the merchants are accustomed to purchase, we [validly] acquire.”


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