See:

Nedarim 28a (see also our Insights to the Daf there, included for your convenience)

Gitin 10b (see also our Insights to the Daf there, included for your

convenience)

Bava Kama 113a

Bava Basra 54b

Y. Shaw

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From INSIGHTS TO THE DAF, Nedarim 28a

2) "DINA D'MALCHUSA DINA" IN ERETZ YISRAEL QUESTION: Shmuel asks how can the Mishnah say that it is permitted to evade a tax collector if a Jew is obligated to abide by the law of the land ("Dina d'Malchusa Dina"). The Gemara answers that the tax collector mentioned in the Mishnah is one who is operating illegally, not in accordance with the law of the land (either he levies unlimited taxes, or he took the position by force and was not appointed by the king).

The RAN writes in the name of TOSFOS that the principle of "Dina d'Malchusa Dina" applies only to laws made by non-Jewish kings in their kingdoms. "Dina d'Malchusa Dina" does not apply to laws made by a Jewish king, though, who rules over Eretz Yisrael (and follows the Torah). The logic of Tosfos, as the Ran quotes, is that one must follow the laws made by the sovereign of a foreign country because that sovereign is entitled to demand any payment that he wants as compensation for allowing people to live in the land under his jurisdiction (as he has the legal right to expel from his land anyone he wants). In contrast, no Jewish king has that right in Eretz Yisrael, because every Jew is entitled by the Torah to live in Eretz Yisrael, and the king cannot legally deny any Jew that right. Consequently, a Jewish king may not demand payment from the people for permission to live in Eretz Yisrael, because it is not the king who is granting them permission to live there.

How could it be that a Jewish king does not have right to demand tax from his constituents? In Shmuel I (ch. 8), we read in the "Parshas ha'Melech" that the Navi tells the Jewish people that the king that they will appoint will take away their property for himself, and he will take away their children for the army. If he can take away property and people, then certainly the Jewish king also has the right to demand a tax! In fact, the RAMBAM (Hilchos Melachim 4:1) writes that a Jewish king has the right to levy any tax he wants for this reason -- since he is permitted to take away property, the same authority of eminent domain permits him to levy a tax. How, then, can the Ran say that a Jewish king does not have the right to levy a tax?

ANSWERS: (a) The Gemara in Sanhedrin (20b) records a Machlokes Tana'im whether or not the Navi meant what he said literally, that the king may take away the property of the Jews. Rebbi Yosi maintains that it is indeed permitted for the king to take away property, while Rebbi Yehudah says that the Navi did not mean his words literally, but he was merely saying them in order to arouse fear of the king among the people.

It is possible that the Ran writes that "Dina d'Malchusa Dina" does not apply to Jewish kings only according to Rebbi Yehudah's opinion, that the king is not permitted to take whatever he wants from the people.

However, we find that the source for the Ran's words are the words of the RASHBA. The Rashba cites proof that "Dina d'Malchusa Dina" does not apply to Jewish kings from the opinion that says that the "Parshas ha'Melech" in Shmuel was only said to scare the people. He says that if "Dina d'Malchusa Dina" applies to a Jewish king, then why should the king not be able to take whatever land he wants? It seems from the Rashba that the statement of Tosfos quoted by the Ran that "Dina d'Malchusa Dina" does not apply to a Jewish king was made according to both opinions in the Gemara in Sanhedrin, and the Rashba is merely bringing a proof from one of the opinions.

(b) Perhaps Tosfos maintains that a king is only allowed to take things from the people, but he cannot obligate them to give things to him willingly (that is, if they want to hide it from him, they are not obligated to give it to him because of "Parshas ha'Melech"). The Rambam, though, does not agree, as we mentioned above, for he rules that the Jewish king is allowed to levy a tax because of "Parshas ha'Melech."

(c) Perhaps our question is not a question at all, but is actually the source and logic behind the opinion of Tosfos! Tosfos was bothered by a question: why did the Navi have to expressly give permission to a Jewish king to take whatever things he wants merely because of a special Divine grant ("Parshas ha'Melech")? The same law applies to all kings because of "Dina d'Malchusa Dina!" ("Dina d'Malchusa Dina" is a logical Halachah that applies with the force of a Din d'Oraisa.) We might have answered that "Parshas ha'Melech" allows a king to take objects even when he has no valid excuse for taking them, whereas "Dina d'Malchusa Dina" does not allow a king to take objects without a valid excuse (see the Girsa of Tosfos as recorded in Chesronos ha'Shas, included in the margins of some printings of the Gemara).

However, it could be that Tosfos did not accept this answer, because even "Parshas ha'Melech" only permits a king to take advatnage of the property of his subjects when it is beneficial to the country or to the kingship. Otherwise, why was Achav punished for taking the orchard of Navos (Melachim I 21)? (See Tosfos in Sanhedrin 20b.) This is also implied by the Rambam.

Hence, why was it necessary to expressly give the king rights to take his subjects' property through "Parshas ha'Melech?" His rights should come through "Dina d'Malchusa Dina!"

Tosfos is answering that it must be that the Jewish king does not have rights of "Dina d'Malchusa Dina" in Eretz Yisrael, because "Dina d'Malchusa Dina" only gives the king rights when the king is able to expel people from his land.

It seems that a practical difference between the Jewish king's rights coming from "Dina d'Malchusa Dina" or from "Parshas ha'Melech" applies when the ruler of Eretz Yisrael is not a king, but rather some sort of governor who has rights over the land. If the rights of a Jewish king come only from "Parshas ha'Melech," then those rights would not apply to a governor, or anyone who is not an absolute monarch (see Tosfos in Sanhedrin, ibid.).

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From INSIGHTS TO THE DAF, Gitin 10b

4) "ARKA'OS" OF "NOCHRIM" QUESTION: The Beraisa says that a Get Ishah or Get Shichrur signed by Nochrim in a court of law of Nochrim ("Arka'os") is Pasul, while other types of Shtaros are valid. RASHI explains first that other Shtaros are valid because of the rule, "Dina d'Malchusa Dina," which states that the laws of non-Jewish kingdoms are binding on all of their Jewish inhabitants. It seems from Rashi that although Nochrim are not valid witnesses, they are accepted as witnesses on a Shtar that involves a monetary transaction because of the rule that whatever the governing body says about monetary law is binding. Accordingly, a Nochri is not a valid witness for a Get Ishah or Get Shichrur, because they do not involve monetary transactions, and therefore "Dina d'Malchusa Dina" does not apply to them.

However, in the following comment of Rashi (DH Chutz), Rashi says that Nochrim are not valid witnesses for a Get because they are not "Bnei Kerisus" -- they have no involvement with Gitin and Kidushin, for those concepts have no pertinence or applicability to them at all. In contrast, Nochrim do have involvement with matters of monetary law, which is pertinent to them because of their Torah obligation to set up courts of law ("Dinim"). With regard to the Shichrur of slaves, the testimony of Nochrim is not accepted because of the Gezeirah Shavah of "Lah, Lah" from Get Ishah. (Rashi repeats later (DH Pesula d'Rabanan, and 10b, DH Kerisa) that Nochrim are not valid witnesses for a Get because they are not "B'nei Kerisus.")

Rashi's words are difficult to understand for a number of reasons.

(a) If Rashi already explains in his first comment that Nochrim are valid witnesses for Shtaros involving monetary transactions because of "Dina d'Malchusa Dina," then why does he write in the following comment that they are accepted as witnesses because they are obligated to fulfill the Mitzvah of "Dinim," implying that they are valid witnesses mid'Oraisa because the Torah commands them to set up courts of law? Why does Rashi have to explain that they are not valid witnesses for a Get Ishah because they are not "B'nei Kerisus?" They are not valid witnesses because there is no "Dina d'Malchusa Dina" for a Get! On the other hand, if Rashi holds that Nochrim are valid witnesses for monetary matters, as he implies in his second comment, then why, in his first comment, does he have to give the reason of "Dina d'Malchusa Dina" to justify why Nochrim are valid witnesses?

(b) Rashi's second approach, in which he implies that Nochrim are valid witnesses, mid'Oraisa, for Shtaros of monetary matters, seems to contradict a number of Sugyos, as Tosfos points out (here and in Bava Kama 88a). The Gemara in Bava Kama (88a) says that an Eved is a valid witness only because he is commanded in Mitzvos, implying that a Nochri is not a valid witness.

The Gemara later (10b) questions the Mishnah which repeats the Halachah of this Beraisa, asking why a Nochri should be accepted as a witness on a Shtar Matanah (a Shtar which effects a transaction of a gift), to make the Shtar able to create a Kinyan. Since the Shtar is signed by a Nochri, even if he is telling the truth, the Shtar is like a "Chaspa b'Alma," a blank piece of earthenware of no value (implying that the Shtar does not have valid witnesses signed on it). The Gemara answers that the Shtar is valid because of "Dina d'Malchusa Dina." (In its second answer, the Gemara suggests that a Shtar Matanah is indeed not valid when signed by Nochrim, but our Sugya seems to be following the logic of the first answer (see Tosfos, DH Milsa).) The Gemara (10b) seems to be saying clearly like Rashi's first comment here, that Nochrim are valid witnesses only because of "Dina d'Malchusa Dina."

(c) In Rashi's second comment, in which Rashi explains that Nochrim are not valid witnesses for a Get because they are not "B'nei Kerisus," he adds that they are not valid witnesses for a Get Shichrur because of the Gezeirah Shavah ("Lah, Lah"). (In order to justify the Gezeirah Shavah, Rashi adds that since Kidushin and Gerushin have no applicability to Nochrim, they become unfit for anything that involves Kerisus, in order to explain why we can learn the laws of Get Shichrur from Get Ishah with regard to the validity of Nochrim as witnesses. If they simply have nothing to do with Kidushin and Gerushin, that would not invalidate them for testifying on a Get Shichrur, since the concept of Get Shichrur does have applicability to them. Once they become unfit for the Kerisus of a Get Ishah, then we can learn the laws of Get Shichrur from Get Ishah, and learn that they cannot be witnesses for a Get Shichrur.)

Why does Rashi take this approach? He should explain simply that a Nochri cannot own an Eved the same way as a Yisrael owns an Eved (like the Gemara says later (38a) that a Nochri cannot own the body of another Nochri ("Gufo") but can only own him with regard to receiving the income from his labor, whereas a Yisrael has a Kinyan on the Guf of an Eved)! Rashi could have said that a Nochri is unfit to be a witness for a Get Shichrur since the ownership of an Eved has no pertinence to him! (PORAS YOSEF, DIBROS MOSHE)

Although it is possible to argue that since a Nochri can own a slave to some measure, and therefore he is considered to have some involvement with the concept of Shichrur (Dibros Moshe), nevertheless, what is forcing Rashi to make that assumption? It would have been more straightforward to explain that a Nochri has nothing to do with the Shichrur of an Eved Kena'ani whose Guf is owned by his master, and that is why a Nochri is not a valid witness!

ANSWER: TOSFOS (DH Af Al Pi) explains that Nochrim are only valid witnesses, mid'Rabanan, for normal Shtaros of monetary matters. Rashi is explaining, though, that they are valid mid'Oraisa . His source is probably from the Gemara later on this Daf which asks why the Beraisa does not mention that Get Ishah and Shichrur Eved are similar with regard to many other laws, such as the requirement of "Lishmah" and the invalidity of a Get written on something "Mechubar." The Gemara answers that the Beraisa is not listing any Pesulim d'Oraisa, but only Pesulim which are mid'Rabanan. The Gemara challenges this assumption by asking that the Halachah of having signatories who are Nochrim is mid'Oraisa, and yet the Beraisa still includes it in its list! The Gemara answers that the Beraisa follows the opinion of Rebbi Elazar who says that "Edei Mesirah Karti" and thus the Pesul of such signatories is only mid'Rabanan.

It is clear from the Gemara that according to Rebbi Meir, the law of signatories who are Nochrim is mid'Oraisa. That is why Rashi explains that Nochrim are valid witnesses for Shtaros of monetary matters mid'Oraisa (either because of "Dina d'Malchusa Dina," or because monetary matters have pertinence to them).

We can expand on this by explaining, first, what the logic of the Gemara is to suggest that the Beraisa is only interested in listing Pesulim that are mid'Rabanan. What reasoning could the Beraisa have had for deeming it unnecessary to mention Pesulim d'Oraisa (since all of the Pesulim d'Oraisa are learned from Derashos and are not explicitly mentioned in the Torah, they are not any more obvious than the Pesulim d'Rabanan)? The Beraisa should find it necessary to provide us with a complete list of all of the similarities between Get Ishah and Shichrur Eved! In addition, the Gemara rejects the answer that the Beraisa is not listing Pesulei d'Oraisa from the fact that the Beraisa itself mentions the similarity between Get Ishah and Shichrur Eved regarding the Halachah of "Chazarah" -- a person who sends a Get to his Eved or to his wife and changes his mind. According to Rebbi Meir, he may retract the Get, since both a Shichrur Eved and a Get Ishah are a "Chov" (liability) to the recipients. Because of this, the Gemara rejects the answer that the Beraisa is limiting itself to Pesulim d'Rabanan.

This question of the Gemara, though, is obvious! What did the Gemara think when it initially suggested that the Beraisa is not listing Pesulim d'Oraisa? The Beraisa explicitly mentions a Pesul d'Oraisa (that of Chazarah)!

Rashi himself (DH Chutz) provides the answer to these questions. Rashi writes that regarding every Pesul d'Oraisa, Shichrur Eved is similar to Get Ishah because of the Gezeirah Shavah of "Lah, Lah." Rashi means that there is no Chidush that any Pesul d'Oraisa that applies to Get Ishah also applies to Shichrur Eved, because the Gezeirah Shavah teaches us that any Halachah in the Torah that applies to Get Ishah applies to Shichrur as well. This is why the Beraisa does not have to list Pesulim d'Oraisa -- because it is obvious that with regard to Pesulim d'Oraisa, Shichrur is similar to Get Ishah, due to the Gezeirah Shavah. The Chidush is only that Shichrur is similar to Get Ishah with regard to Dinim d'Rabanan, since, with regard to Dinim d'Rabanan, we do not apply the Gezeirah Shavah of "Lah, Lah." Rather, we only apply the Dinim d'Rabanan of Get Ishah to Shichrur when the Halachah is logically applicable to Shichrur as well.

This is why the Gemara was not bothered by the fact that the Beraisa lists the Halachah that one who sends a Get to his wife or Eved may retract the Get. The reason that one may retract his decision after he sends a Get to his wife is because it is a Chov for a woman to be divorced, and we rule that "Ein Chavin l'Adam she'Lo b'Fanav." Since this Halachah of Chazarah is based on the reality of whether it is a Zechus or a Chov for the woman (or the Eved) to receive the Get, it cannot be derived through the Gezeirah Shavah of "Lah, Lah!" This is why the Chachamim, who argue with Rebbi Meir, say that one cannot retract a Get Shichrur that he has sent to his Eved (unlike the Halachah in the case of a Get Ishah), for they maintain that a Get Shichrur is a Zechus for the Eved. Therefore, if Rebbi Meir argues with the Rabanan and maintains that Shichrur is also a Chov, it would be important for the Beraisa to tell us that Shichrur is similar to a Get in this regard, even though it is a Halachah d'Oraisa, since it is not derived from the Gezeirah Shavah and, therefore, is not self-evident. (Concerning why the Gemara does reject the answer of "Pesulim d'Oraisa Lo Ketani," see Insights to 10a).

What we have said explains why Rashi finds it necessary to explain that a Nochri is not a valid signatory for a Get Shichrur because of the Gezeirah Shavah of of "Lah, Lah" and not because he has no relevance to Shichrur. Since the Gemara says that the Halachah of "Arka'os" is a Pesul d'Oraisa (which, therefore, should not be listed in the Beraisa), it is evident that it applies to Shichrur as learned from Get Ishah through the Gezeirah Shavah of "Lah, Lah." This answers our third question.

The other two questions answer each other. As we wrote, Rashi finds it necessary to explain that a Nochri would have been a valid witness for a Get Shichrur, if not for the Gezeirah Shavah of "Lah, Lah." Consequently, Rashi must find a way to explain how a Nochri could be a valid witness mid'Oraisa, when the Gemara later (10b) says clearly that his testimony is worthless even for a Shtar Matanah (and certainly for a Get Shichrur)! Rashi therefore explains that the Nochri is a valid witness for Shtaros of monetary matters because of "Dina d'Malchusa Dina." The Gemara later (10b) that says that a Nochri is not valid for Shtarei Matanah is referring to a place in which there is no "Dina d'Malchusa Dina" for testimony on a Shtar Matanah. Where there is "Dina d'Malchusa Dina," though, the Nochri is valid. Indeed, this is what the Gemara says in its answer to its question there concerning why a Nochri can be a valid witness for a Shtar Matanah.

Still, however, why should that make a Nochri a valid witness, mid'Oraisa, for a Shtar Shichrur (if not for the Gezeirah Shavah of "Lah, Lah")? "Dina d'Malchusa Dina" applies only with regard to monetary law!

In order to answer this, Rashi proposes that the source for the laws of "Dina d'Malchusa Dina" is the Torah's obligation for B'nei No'ach to set up a system of courts and law. Rashi is explaining that this commandment not only obligates the Nochrim to see to it that justice is administered for criminals, but it also grants them the power to set up a system of laws which establishes guidelines regarding monetary matters, such as what constitutes an acquisition. This is what the Chachamim refer to when they say "Dina d'Malchusa Dina" -- the system of the courts of Nochrim that establishes legal guidelines in monetary matters which is binding on all of the residents of that country, mid'Oraisa. (See Dibros Moshe.)

If this is the source for the right of the Nochrim to establish laws, then this source gives them the right to enact any mandate or statute pertaining to anything that affects the constituents of the country in any way. They cannot set up guidelines regarding what is considered Kidushin and Gerushin, since Kidushin cannot be effected by Nochrim; since Kidushin has no applicability to Nochrim, the Torah does not command them -- nor give them the right -- to establish guidelines for it. However, a Nochri does have the ability to acquire an Eved (at least with regard to receiving his income), and therefore "Dina d'Malchusa Dina" applies and grants the Nochri court system the right to enact laws which are binding with regard to the purchase of slaves. Because of these laws, the signature of a Nochri witness should be valid even for a Get Shichrur of an Eved of a Jew. Therefore, the Gezeirah Shavah of "Lah, Lah" is required in order to teach us that the Shichrur of an Eved of a Jew is not in the same category as the Shichrur of an Eved of a Nochri. Rather, it is a contract which involves Kerisus, and Nochrim are not "B'nei Kerisus."