KIDUSHIN 26 (5 Cheshvan) - Dedicated in honor of the fourth Yahrzeit of Reb Naftali ben Reb Menachem Mendel (Tuli Bodner) Z"L, an Ish Chesed and Ish Ma'aseh radiating joy, whose Ahavas Yisrael knew no bounds. Dedicated by his son, Mordechai Bodner of Givat Mordechai, Yerushalayim.

[26a - 46 lines; 26b - 36 lines]

1)[line 1]בחבילי זמורותCHAVILEI ZEMOROS- bundles of vines

2)[line 1]נכסים שיש להם אחריותNECHASIM SHE'YESH LAHEM ACHRAYUS- immobile goods such as land

3)[line 6]וזוקקין את הנכסים שיש להם אחריות לישבע עליהןV'ZOKEKIN ES HA'NECHASIM SHE'YESH LAHEM ACHRAYUS LISHAVA ALEIHEN- and they (mobile property) require immobile property (such as land) to require an oath to be made upon them. Normally, an oath is not made on land when it would otherwise be required (such as in the case of a partial admission to a claim), as derived from verses (see Shevuos 42b). When a Shevu'ah, however, is being made on mobile property (such as when the claim was for both mobile property and land), the obligation to make a Shevu'ah spreads to the land as well.

4)[line 8]"שדות בכסף יקנו [וכתוב בספר וחתום והעד עדים... כי אשיב את שבותם נאם ה']""SADOS BA'KESEF YIKNU, [V'CHASOV BA'SEFER, V'CHASOM, V'HA'ED EDIM... KI ASHIV ES SHEVUSAM, NE'UM HASH-M.]"- "They will acquire fields with money, [and write it in a document, and sign it, and attest witnesses... for I will return their captives, says HaSh-m.]" (Yirmeyahu 32:44)

5)[line 9]"[שדות בכסף יקנו] וכתוב בספר וחתום...""[SADOS BA'KESEF YIKNU,] V'CHASOV BA'SEFER, V'CHASOM..."- "[They will acquire fields with money,] and write it in a document, and sign it...." (Yirmeyahu 32:44)

6)[line 12]במקום שאין כותבין את השטרB'MAKOM SHE'EIN KOSVIN ES HA'SHTAR- in places where it is not the normal custom to write a deed of sale for transactions

7)[line 14]ואי פריש פרישV'IY FARISH, PARISH- but if he specifies (that he wants to retain the right to make the Kinyan with money or with a Shtar), he has specified (and his statement is valid)

8)[line 22]"ואקח את ספר המקנה את החתום המצוה והחקים ואת הגלוי""VA'EKACH ES SEFER HA'MIKNAH; ES HE'CHASUM HA'MITZVAH VEHA'CHUKIM V'ES HA'GALUY"- "So I took the deed of the purchase (the document of acquisition, written by the seller and given to the buyer); both that which was sealed, containing the terms and conditions, and that which was open." (Yirmeyahu 32:11)

9)[line 23]בשטר מתנהSHTAR MATANAH- a document effecting the transfer of property through a gift

10a)[line 26]הניירHA'NEYAR- the paper

b)[line 26]החרסHA'CHERES- the potsherd

11)[line 31]כדי ליפות את כוחוKEDEI L'YAPOS ES KOCHO (ACHRAYUS) - [the giver of the gift gave the recipient a Shtar] in order to enhance his power

A Shtar (she'Yesh Bo Achrayus) is a contract that contains a stipulation that the recipient of the land may extract payment from the seller's (or in this case, the giver's) land, should the land that he received be expropriated by a creditor. (See Background to Kesuvos 51:9.)

12)[line 32]"ושבו בעריכם אשר תפשתם""U'SHEVU B'AREICHEM ASHER TEFASTEM"- "And you will dwell in your cities that you have taken." (Yirmeyahu 40:10)

13)[line 37]"וכי תמכרו ממכר לעמיתך או קנה מיד עמיתך""V'CHI SIMKERU MIMKAR LA'AMISECHA O KANOH MI'YAD AMISECHA"- "And when you transact a purchase to your friend or acquire from the hand of your friend." (Vayikra 25:14)

14)[line 39]דבר תורה מעות קונותDEVAR TORAH, MA'OS KONOS

(a)When a person buys an object, he must make a Ma'aseh Kinyan, a formal Halachically-binding act denoting his acquisition of the object, in order for the sale to be irrevocably binding. Depending on what object one is acquiring, different Kinyanim are used, as follows.

(b)The forms of Kinyan that may be used for the acquisition of Metaltelin (mobile items) are:

1.Hagbahah, i.e. lifting the item;

2.Meshichah, i.e. pulling the item or causing it to move;

3.Mesirah, i.e. handing over the reigns of an animal the tie lines of a boat or a bill of debt (Shtar Chov);

4.Chatzer, i.e. bringing the item into one's private domain;

5.Chalipin (exchange or barter), i.e. taking another object to demonstrate one's consent for the Kinyan (or for an agreement).

6.Agav, i.e. acquiring the movable object automatically upon the acquisition of land.

(b)Rebbi Yochanan and Reish Lakish argue as to what consummates a purchase of Metaltelin according to Torah law: Ma'os (paying money) or Meshichah (lit. pulling, i.e. causing an object to move). Rebbi Yochanan rules that by Torah law Ma'os Konos. However, the Chachamim enacted that Ma'os are not Koneh until Meshichah is done so that the seller will be responsible for the object that he sold until it is removed from his possession. Reish Lakish rules that Meshichah consummates a purchase even by Torah law.

(c)Both Rebbi Yochanan and Reish Lakish agree that in practice, Ma'os do not consummate a purchase until Meshichah is done (either because that is the Torah law - Reish Lakish, or due to Rabbinic enactment - Rebbi Yochanan).

15)[line 42]"ויתן להם אביהם מתנות... עם ערי מצרות ביהודה""VA'YITEN LAHEM AVIHEM MATANOS... IM AREI METZUROS BI'YEHUDAH"- "And their father gave them gifts... with fortified cities in Judah." (Divrei ha'Yamim II 21:3)

16)[line 44]בעינן צבורים?BE'INAN TZEVURIM?- Do we require that they (mobile property) be piled [on the land through which the mobile property is being acquired with Kinyan Agav]?

17)[last line]בפאהP E'AH

The corner, or end, of the harvest must be left in the field for the poor, as it states "Lo Sechaleh Pe'as Sadecha Liktzor... le'Ani vela'Ger Ta'azov Osam" - "Do not completely harvest the corner of your field... you shall leave them (the gifts of Pe'ah, Leket, Olelos, and Peret) for the poor and the stranger." (Vayikra 19:9-10)

18)[last line]ובבכוריםBIKURIM

(a)The Mitzvah of Bikurim consists of bringing the first fruits to emerge in one's field every year to the Beis ha'Mikdash. While the basket is on his shoulder, the owner recites the Mikra Bikurim, specific verses from Devarim (26:3, 5-10) thanking HaSh-m for taking us out of Egypt and giving us the land of Yisrael. He then places the basket of fruit at the base of the southwestern corner of the Mizbe'ach (RAMBAM Hilchos Bikurim 3:12) and bows down before HaSh-m. Afterwards, he gives the Bikurim to a Kohen (Mishnah Bikurim 3:8, RAMBAM ibid. 3:1).

(b)The Mitzvah of Bikurim applies only to the seven species with which the land of Eretz Yisrael was blessed (Devarim 8:8) - wheat, barley, grapes, figs, pomegranates, olives, and dates (Bikurim 1:3, RAMBAM ibid. 2:2). (Although many other types of produce now grow in Eretz Yisrael, these are the only species of produce truly indigenous to Yisrael. Other, "immigrant," species can be destroyed by drought or harsh weather, but these seven species will always be part of the land. -As heard from a leading botanist, -MK.)

(c)In certain instances, the owner only brings the fruit, without reciting the declaration (Mevi v'Eino Korei). For example, if he brings them between Sukos and Chanukah, he does not recite the verses (see Gemara Pesachim 36b and Rashi there).

(d)Kohanim eat the Bikurim within the walls of Yerushalayim. If a person eats them outside of Yerushalayim after the Bikurim have entered Yerushalayim (according to the Rambam, or after the Bikurim have entered the Azarah according to Rashi in Makos 18b), he receives Malkos. They must be brought back into Yerushalayim and eaten there.

26b----------------------------------------26b

19)[line 1]פרוסבולPRUSBUL - A document allowing the collections of loans after Shemitah

(a)The Torah requires that all loans shall be canceled every seventh year, as it states in Devarim 15:2, "Shamot Kol Ba'al Masheh Yado" - "Every creditor who lends anything to his neighbor shall release it." To demand payment of a loan after the Shemitah year is a violation of the prohibition of "Lo Yigos Es Re'ehu v'Es Achiv" - "he shall not exact it of his neighbor or of his brother" (ibid.). Most Rishonim rule that the Shemitah year cancels loans at the end of the year, on the last day of the month of Elul. (RAMBAM Hilchos Shemitah v'Yovel 9:1-4).

(b)Hashmatas Kesafim applies mid'Oraisa only when the Yovel year is in practice. Mid'Rabanan it applies today, whether inside or outside of Eretz Yisrael.

(c)Hillel the Elder saw that people stopped giving loans when the Shemitah year was approaching out of fear that that they would not get their money back because the debt would be annulled by the Shemitah year. By doing so, they were transgressing an express command of the Torah not to refuse to lend money prior to Shemitah (Devarim 15:9). Hillel therefore instituted the "Pruzbul" (from the Greek "Pruz" = benefit; "Buli" = [for] the rich), effectively creating a way to avoid having Shemitah annul one's debts, as long as the borrower owns some land (Shevi'is 10:3, 6).

(d)In a Pruzbul document, one files a contract with Beis Din, before the end of the Shemitah year, stating that he is placing all debts owed to him into the hands of the Beis Din to collect them for him (Shevi'is 10:4). By doing this, the creditor will not transgress the prohibition of "Lo Yigos" when he collects the loan after Shemitah, since he will not have to approach the borrower to collect the loan; Beis Din will take care of the collection and he will approach Beis Din. Beis Din, too, does not have to approach the borrower to collect the loan, since Beis Din can simply collect it themselves using their power of "Hefker Beis Din Hefker" (RASHI to Kesuvos 89a DH Pruzbul, to Gitin 32b DH Mosrani and to Bava Basra 27a DH Pruzbul). A Pruzbul only allows a person to collect the loan after Shemitah if the borrower has land. It is unusual for a person to lend money to a person without land, and the Rabanan did not institute the use of Pruzbul for unusual loans (RASHI to Gitin 37a DH Ela and to Bava Basra 27a DH Pruzbul). Alternatively, Pruzbul permits a person to collect a loan after Shemitah because the moment one allows Beis Din to collect his loans, it is as if they are already collected, and in his possession, immediately (since nothing can stop Beis Din from collecting the loan). This is also the reason the borrower must own land in order for Pruzbul to permit the collection of the loan. It is only if he has land that Beis Din can easily collect the loan. If the borrower only has movable possessions, it is possible for him to prevent Beis Din from collecting them by hiding them from Beis Din. Therefore they are not considered to have entered the creditor's possession until they are actually collected as payment. (RASHI to Bava Kama 12a DH Chal)

20)[line 4]שנעץ בה מחטSHE'NA'ATZ BAH MACHAT- that he stuck into it (into the land) a needle

21)[line 5]קבסתןKEVASTAN- (a) you have caused me anguish (RASHI here and to Sanhedrin 55a); (b) you have committed Geneivas Da'as (lit. robbing of the mind) by tricking me with beguiling words (RABEINU CHANANEL); (c) you have caused my intestines to churn, causing me to feel that I must vomit (ARUCH Erech Kevastan and RIF, as cited by the marginal note in Vilna Shas), exactly as if you had shown me a disgusting and repulsive object. The word "Kivsa" refers to a person who has eaten an Achilah Gasah (an inordinate amount of food) and suffers distress until he is assailed by both diarrhea and vomiting (ARUCH ibid.)

22)[line 5]איכפל תנא לאשמועינן מחטICHPAL TANA L'ASHMU'INAN MACHAT- did the Tana trouble himself to teach us a law about a needle?!

23)[line 7]מרגניתאMARGENISA- a gem, jewel, pearl

24)[line 8]במדוניMADONI- a person from the city of Madon (see Yehoshua 12:19)

25)[line 11]בית סלעBEIS SELA- (a) land the size of a Sela coin (according to the Gemara's initial assumption); (b) land as hard as a Sela, a rock (according to the Gemara's conclusion)

26)[line 12]צפוני זהTZEFONI ZEH- this northern part (of this land)

27)[line 18]שחלהSHE'CHALAH- who became mortally ill

28)[line 18]כרבי (אליעזר) [אליעזר]K'REBBI (ELIEZER) [ELAZAR] (DIVREI SHECHIV MERA K'CHESUVIN U'MESURIN DAMU)

(a)A Shechiv Mera is a person lying on his deathbed. Normally, in order to transfer one's possessions to someone else, a proper Kinyan must be executed (such as Hagbahah, or Chazakah), which will later be written in a Shtar. The Chachamim instituted that a Shechiv Mera may effect a Kinyan and transfer his property by simply requesting verbally that the transfer take place. If he recovers, the Kinyan is not valid, because it is clear that he executed the Kinyan only because he thought that he was going to die.

(b)Rebbi Elazar maintains that the verbal Kinyan of a Shechiv Mera is valid only when made on Shabbos, when it is not possible to write a Shtar and when the Shechiv Mera's condition might worsen if he is worried that he will not be able to make the Kinyan before he dies.

29)[line 22]בית רובעBEIS ROVA- a parcel of land that is large enough to plant a quarter (Rova) of a Kav of grain (approximately 0.3, 0.345 or 0.6 liter, depending upon the differing Halachic opinions)

30)[line 26]לדמיLI'DEMEI- for the value (of the items)

31)[line 29]דליתיה למקבל מתנהD'LEISEI LA'MEKABEL MATANAH- that the recipient of the gift was not present

32)[line 30]וניזכינהו ניהליה אגב אחרV'NIZKINHU NIHALEI AGAV ACHER- but we should transfer them (the gift) to him through another person (by having that other person do Meshichah on his behalf)!

33a)[line 31]לא סמכה דעתיהLO SAMCHAH DA'ATEI- he (the giver of the gift) did not trust [giving the gift to anyone else to acquire it on behalf of the recipient]

b)[line 31]שמיט ואכיל להוSHAMIT V'ACHIL LEHU- [for the giver feared that perhaps the third party will] slip away and eat them himself (the sheep and barrels of wine)

34)[last line]עישור שאני עתיד למודISUR SHE'ANI ASID LAMUD (MA'ASER RISHON / MA'ASER ANI) - the ten per cent (of the fruits) that I will, in the future, measure out

(a)After a crop that is grown in Eretz Yisrael is harvested and brought to the owner's house or yard, he must separate Terumah Gedolah from the crop and give it to a Kohen. Although the Torah does not specify the amount to be given, the Rabanan set the requirement at one fiftieth of the total crop. After Terumah is removed from the produce, one tenth of the produce that remains must be designated "Ma'aser Rishon," and given to a Levi. The Levi, in turn, must separate one tenth of his Ma'aser Rishon as Terumas Ma'aser, to be given to a Kohen, as it states in Bamidbar 18:26.

(b)The produce may not be eaten until both Terumos have been removed, and it is known as Tevel. The punishment for eating Tevel is Misah b'Yedei Shamayim.

(c)A second tithe is given every year after Ma'aser Rishon has been separated. The tithe that is separated in the third and sixth years of the 7-year Shemitah cycle is called Ma'aser Ani and is given to the poor.

(d)The tithe that is separated during the first, second, fourth and fifth years is called Ma'aser Sheni. The Torah requires that Ma'aser Sheni be brought and eaten by its owner in Yerushalayim.

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