KIDUSHIN 42 (14 Nisan) - dedicated by Mr. D. Kornfeld l'Iluy Nishmas his grandmother, Chayah bas Aryeh Leib Shpira (nee Sole), on the day of her Yahrzeit.

[a - 41 lines; b - 45 lines]

1)[line 5]מיניהMINEI- from [this very derivation] itself [it is apparent that one person may slaughter a Pesach that belongs to others as well]

2)[line 6]אית ליה שותפות בגוייהוIS LEI SHUTFUS B'GAVAIHU- [the one on whose behalf the Pesach is slaughtered] has a share in it

3)[line 7]"... וְיִקְחוּ לָהֶם, אִישׁ, שֶׂה לְבֵית-אָבֹת, שֶׂה לַבָּיִת.""... V'YIKCHU LAHEM, ISH, SEH L'VEIS AVOS, SEH LA'BAYIS."- "They shall take for themselves, each man, a lamb for each family, a lamb for each household" (Shemos 12:3). Our Gemara suggests that the seemingly extraneous word "Ish" in this verse implies that a single individual may slaughter the Pesach on behalf of his entire family.

4)[line 10]אם אינו ענין להיכא דשייך, תניהו ענין להיכא דלא שייךIM EINO INYAN L'HEICHA D'SHAYACH, TENEIHU INYAN L'HEICHA D'LO SHAYACH- if it is unnecessary [for a derivation] regarding where it is written, utilize it [for a derivation] regarding where it is not written

5)[line 11]האיHAI- this [word "Ish"]

6)[line 12]זוכהZOCHEH (ZACHIN L'ADAM SHE'LO B'FANAV - One may Benefit Another Without his Knowledge)

(a)If the acquisition of an item is unquestionably beneficial for a certain person, another may acquire it on his behalf even if the beneficiary is unaware of the acquisition. This ability is referred to as "Zachin l'Adam she'Lo b'Fanav".

(b)Rishonim are in disagreement as to the method through which "Zachin" is effective. Some understand that an "Anan Sahadei" (lit. "we are witnesses") exists. This means that we are so certain that the beneficiary would have appointed this person as his Shali'ach (agent; see Background to 41:6) to acquire the item on his behalf that it is as if he had done so (RASHI to Gitin 9b DH Yachzor, TOSFOS to Kesuvos 11a DH Matbilin). Other Rishonim maintain that "Zachin" cannot be a form of Shelichus, as it is effective even for minors who are Halachically unable to appoint Shelichim. Rather, the concept of "Zachin" is a novel law instituted by the Torah that is unrelated to any other law (RAN to Kidushin 42a, RASHBA and RITVA to Kidushin 23b; see Insights ibid. See also the Machlokes Tana'im on Bava Basra 156b).

7)[line 13]"... אִישׁ לְפִי אָכְלוֹ [תָּכֹסּוּ עַל-הַשֶּׂה.]""... ISH LEFI OCHLO [TACHOSU AL HA'SEH.]"- "Each man [shall be appointed to a sheep] according to [how much] he [is expected to] eat" (Shemos 12:4). From that which the word "Ish" is mentioned in this verse we derive that a minor is unable to acquire an object (such as a share in a Korban Pesach) for another.

8)[line 14]שוחטין את הפסח על היחידSHOCHTIM ES HA'PESACH AL HA'YACHID- a Korban Pesach may be slaughtered for an individual [who is not part of a Chaburah]. This is the subject of a Machlokes (Pesachim 91a).

9)[line 17]"וְנָשִׂיא אֶחָד נָשִׂיא אֶחָד מִמַּטֶּה [תִּקְחוּ לִנְחֹל אֶת-הָאָרֶץ.]""V'NASI ECHAD NASI ECHAD MI'MATEH [TIKCHU LIN'CHOL ES HA'ARETZ.]"- "And a single leader from each tribe [take for yourselves to bequeath the land]" (Bamidbar 34:17). The portion of each Shevet in Eretz Yisrael was decided upon by the leader of that Shevet, who functioned as a Shali'ach for each individual.

10)[line 18]ותיסבראV'TISBERA ...?- and is it logical ...?

11)[line 22]זכין לאדם שלא בפניוZACHIN L'ADAM SHE'LO B'FANAV- see above, entry #5

12)[line 24]איכה דניחא ליה בהר ולא ניחא ליה בבקעהIKA D'NEICHA LEI B'HAR V'LO NEICHA LEI B'VIK'AH- there those who prefer [land] upon a mountain as opposed to that in a valley (i.e., a plain)

13)[line 30]אפוטרופוסAPOTROPOS- a steward [who was appointed to represent the interests of the orphans]

14)[line 30]לחוב ולזכותLA'CHUV UL'ZAKOS- (at this point the Gemara understands this to mean) to act both for and against their interests

15)[line 31]לחוב ע"מ לזכותLA'CHUV AL MENAS L'ZAKOS- to act in a manner that they feel to be in the best interests of the Yesomim even if the end result is against their interests

16)[line 35]אם הגדילו יכולים למחותIM HIGDILU YECHOLIM LI'MCHOS- if they get older [and dislike what was chosen for them] they may protest [and demand a re-apportioning of the inheritance]

17)[line 37]מה כח בית דין יפהMAH KO'ACH BEIS DIN YAFEH?- what power has been vested in Beis Din?

18)[line 38]שום הדייניםSHUM HA'DAYANIN- [land] appraised by Beis Din [in order to use it for the repayment of a debt]

19)[line 39]שפיחתו שתותSHE'PICHASU SHETUS (ONA'AH - A Transaction in which the Purchaser was Undercharged or Overcharged by more than a Sixth of the Value of the Item)

(a)Chazal termed one sixth of the value of an item sold in a given transaction "Kedei Ona'ah" - "the amount of exploitation". If one overcharges or is undercharged up to a sixth of the value of the item, then the sale remains valid. If the amount over- or undercharged is exactly one sixth, then the amount greater or lesser than the true value of the item must be returned although it remains sold. If the amount is greater than a sixth, then the sale is invalid (Mishnah Bava Metzia 49b).

(b)These boundaries do not apply to sales of real estate. Even if the amount paid is greater than one sixth of the value of the land, the sale remains valid and no amount need be returned.

20)[line 39]מכרן בטלMACHRAN BATEL- lit. their sale is invalid; i.e., the land must be returned and reevaluated

42b----------------------------------------42b

21a)[line 1]הא דטעוHA D'TA'U- that [which Rav Nachman does not agree to "Im Ken Mah Koa'ch Beis Din Yafeh"] is in a case in which [Beis Din] erred [and evaluated the land a full sixth more or less than its true value]

b)[line 1]הא דלא טעוHA D'LO TA'U- that [which Rav Nachman rules "Im Ken Mah Koa'ch Beis Din Yafeh"] is in a case in which [Beis Din] did not err [a) and evaluated the land within a sixth of its true value (RASHI); b) at all (see TOSFOS DH Ha)]

22)[line 2]ברוחותBA'RUCHOS- regarding which side [of the inheritance his field is, since he may have subsequently acquired a neighboring field in a different direction]

23)[line 3]הרי הן כלקוחותHAREI HEN K'LEKUCHOS- are similar to purchasers [from each other regarding Ona'ah (see above, entry #18)]

24)[line 5]מחזיר אונאהMACHZIR ONA'AH- he must return the amount greater or lesser than its true value (see above, entry #18)

25)[line 7]לא שויה שליחLO SHAVYEI SHALI'ACH- he did not appoint an agent [to represent him in the division of his father's estate]

26)[line 8]לתקוני שדרתיך ולא לעוותיL'SAKUNI SHEDARTICH V'LO L'AVUSI- I sent you for my benefit and not for my detriment [and you were therefore not acting as my Shali'ach]

27)[line 10]ניפליגן בשומא דבי דינאNIFLIGAN B'SHUMA D'VEI DINA- let us divide based upon the appraisal of Beis Din (see also alternate Girsa'os of RABEINU TAM and RABEINU CHANANEL cited by TOSFOS DH Hachi Garsinan)

28)[line 15]מטלטליMETALTELEI- chattel (movable objects)

29a)[line 17]פלוג בעילויאPALUG B'ILUYA- they divided it based upon monetary value

b)[line 18]פלוג במשחתאPALUG B'MASHCHASA- they divided it based upon measurements

30a)[line 19]שבמדהSHEB'MIDAH- [that is sold] based upon measure

b)[line 19]שבמשקלSHEB'MISHKAL- [that is sold] based upon weight

c)[line 19]שבמניןSHEB'MINYAN- [that is sold] based upon count

31)[line 21]הבעירהHA'BE'EIRAH- a fire [to damage the property of another]

32a)[line 21]חרשCHERESH- a deaf mute

b)[line 21]שוטהSHOTEH- lit. a fool; one who is deranged (see Background to Gitin 70:66 for more specific parameters)

33)[line 22]פטור מדיני אדם וחייב בדיני שמיםPATUR B'DINEI ADAM V'CHAYAV B'DINEI SHAMAYIM- he is exempt [from making restitution] according to the laws of man (i.e., in Beis Din) but he is liable according to the laws of Heaven [and will be held accountable there]

34)[line 23]פיקחPIKE'ACH- one who is in full control of his faculties

35)[line 25]דברי הרב ודברי תלמיד דברי מי שומעיםDIVREI HA'RAV V'DIVREI SALMID, DIVREI MI SHOM'IM?- [if one is faced with conflicting] words of the master and words of a disciple, whose words does one heed? (See Insights)

36)[line 26]שליח שלא עשה שליחותוSHALI'ACH SHE'LO ASAH SHELICHUSO- [in the case of] an agent [who was mistakenly instructed to purchase a specific item with sanctified money belonging to Hekdesh] who did not carry out his assigned task [but rather purchased a different item]

37)[line 27]מעלMA'AL (ME'ILAH - The Prohibition against Deriving Benefit from that which is Consecrated for Use in the Beis ha'Mikdash)

(a)One may not derive any personal benefit from Hekdesh (that which is consecrated for use in the Beis ha'Mikdash) (Devarim 12:17). The minimum benefit one must derive in order to transgress this prohibition is that equal to the value of a Perutah (the smallest coin in circulation at the time of the Gemara).

(b)One who transgresses this prohibition intentionally receives Malkus (lashes). (This is the majority opinion; according to Rebbi, he is liable to receive Misah b'Yedei Shamayim (see Background to Yevamos 8:31)). In addition, he must reimburse Hekdesh for the benefit which he received. The object itself remains Hekdesh.

(c)If one benefited from Hekdesh unintentionally, he must offer a ram worth a minimum of two Sela'im as an Asham Me'ilah (see Background to 55:23). He must then reimburse Hekdesh for the value of his benefit and add an additional fifth (of the ensuing total, equal to a quarter of the original value). The object then loses its Kedushah. This is true only of an object that has the status of Kedushas Damim (it itself is not useable by Hekdesh, but rather its value is consecrated to Hekdesh). An object with the status of Kedushas ha'Guf (an object with intrinsic Kedushah, such as the utensils used in the Beis ha'Mikdash or live animals pledged to be offered as certain Korbanos) does not lose its Kedushah under any circumstances (Rosh Hashanah 28a).

38)[line 30]ילפא "חטא" "חטא"YALFA "CHET" "CHET" (GEZEIRAH SHAVAH - A Derivation Equating Two Subjects Utilizing a Common Word or Phrase)

(a)In a Beraisa found in the introduction to the Sifra (the Halachic Midrash on Vayikra), Rebbi Yishmael lists the thirteen methodologies employed by Chazal when determining Halachah from the verses of the Torah. One of these is Gezeirah Shavah, in which two identical words (or two words that share the same root) that appear in two different sections of the Torah reveal that the Halachos applicable to one section apply to the other and vice versa.

(b)One may apply a Gezeirah Shavah only if he has received a tradition from his teachers that such a connection between the two words exists. Once the connection is established, however, then one may derive Halachos that were not specified in the tradition.

(c)A Gezeirah Shavah is unlimited; one may not pick and choose which Halachos he would like to apply. This facet of a Gezeirah Shavah is termed "Ein Gezeirah Shavah l'Mechetzah". This rule is waived in the case of an explicit teaching that precludes the application of a specific Halachah.

(d)There are three possible configurations of a Gezeirah Shavah:

1.MUFNEH MI'SHNEI TZEDADIM - If both words are seemingly unnecessary and are not used in the derivation of any other teaching, then all of the rules described above apply.

2.MUFNEH MI'TZAD ECHAD - If the word in only one of the sections is available, some maintain that Halachos may be derived from such a Gezeirah Shavah only if there is no argument against comparing the two sections. This status is known as "Lemedin u'Meshivin". Others rule that such a Gezeirah Shavah is no more limited than one that is Mufneh mi'Shnei Tzedadim.

3.EINO MUFNEH KOL IKAR - If neither word is free, then those who maintain that a Gezeirah Shavah that is Mufneh mi'Tzad Echad is unlimited grant such a Gezeirah Shavah the status of Lemedin u'Meshivin. Those who applied the status of Lemedin u'Meshivin to a Gezeirah Shavah that is Mufneh mi'Shnei Tzedadim rule that this one may not be used to determine any Halachos whatsoever.

(e)A Gezeirah Shavah links the subject of Me'ilah to that of Terumah. The Torah refers to one who unintentionally "sinned" regarding Me'ilah (Vayikra 5:15), and to a non-Kohen who makes restitution for unintentionally consuming Terumah as one who will not bear a "sin" (Vayikra 22:9).

39)[line 32]ונילף מינה?V'NEILAF MINAH?- and why do not we not learn from [Me'ilah that one can act as a Shali'ach for an Aveirah]?

40)[line 33]שליחות ידSHELICHUS YAD - A Custodian who Utilizes the Item he is Guarding Without Permission

(a)One who agrees to guard the item of another, regardless of whether or not he receives compensation, may not utilize the item unless he has received express permission to do so. Utilizing the item without permission results in his assuming full responsibility for it from that point onward. He must make full restitution to the owner even if an unavoidable accident befalls it (Shemos 22:6-8).

41)[line 34]כל שני כתובים הבאים כאחד אין מלמדיןKOL SHNEI KESUVIM HA'BA'IM K'ECHAD EIN MELAMDIM - We may Not Derive Halachos from Two Verses that Teach the Same Halachah

(a)In a Beraisa found in the introduction to the Sifra (the Halachic Midrash on Vayikra), Rebbi Yishmael lists the thirteen methodologies employed by Chazal when determining Halachah from the verses of the Torah. One of them is "Binyan Av". A Binyan Av - literally "building through a father" - refers to the establishment of a certain law in one area of the Torah, and then applying it to other comparable circumstances.

(b)If the Torah goes out of its way to establish an identical law in two different area of Halachah, however, then this law may not be applied in other areas. If we were meant to do so, then the Torah would have established the law once, leaving us to apply it as applicable through a Binyan Av. That which the Torah specified the law twice implies that it is meant to apply only in the instances where the Torah specifies it.

(c)Some Tana'im maintain that the same Halachah expressed twice does not imply that we should not learn from them that it should not apply elsewhere. Such reasoning is appropriate only when the same Halachah is stated in a minimum of three places (Sheloshah Kesuvim ha'Ba'im k'Echad Ein Melamdin).

42)[line 36]עַל-כָּל-דְּבַר-פֶּשַׁע ..." ""AL KOL DEVAR PESHA ..."- "Upon every case item for which he is liable ... (Shemos 22:8). This verse goes on to describe the oath of a custodian who maintains that he did not utilize the item that he was guarding. The word "Kol" is seemingly extraneous.

43)[line 36]לחייב על המחשבה כמעשהL'CHAYEV AL HA'MACHSHAVAH K'MAISEH- [the word "Kol" is written] to obligate one in a thought [or statement that he intends to utilize the item he is guarding] as if he actually did so

44)[line 38]"... אִם-לֹא שָׁלַח יָדוֹ בִּמְלֶאכֶת רֵעֵהוּ.""... IM LO SHALACH YADO BIM'LECHES RE'EHU."- "... that he did not stretch his hand upon the property of his fellow" (Shemos 22:7). This verse, which describes the nature of the oath taken by the custodian, appears to clearly state that he is liable only if he actually utilized the item that he was meant to guard.

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