Replacing the Lost Esrog

By: Rabbi Mendel Weinbach
Ohr Sameach

A Jew borrows a very expensive esrog from his neighbor to fulfill the mitzvah of taking the four species on Sukkos. Before he has a chance to return it, it somehow gets lost and he must now compensate the owner with another esrog. But why should he be required to purchase a similarly expensive esrog if he can provide him with a perfectly kosher one that is not of the same quality but much cheaper?

This question was dealt with by two great halachic authorities in connection with our Gemora (Bava Kamma 78) . The Sage Rava rules that if someone set aside an ox for fulfillment of his vow and that ox was stolen, the thief can replace it with a sheep and the victim cannot demand an ox because he wished to bring a sacrifice of greater quality. One opinion is that the case of the esrog is similar to this case and the ruling should be the same. A dissenting opinion is found, however, in the Responsa of Chacham Tzvi (Responsa 102). In the case of our Gemora, he points out, the thief did not cause his victim any loss of money, while he did so in the case of the esrog. That expensive esrog had the potential of being sold for a high price, while an animal set aside for sacrifice is not for sale.

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Traits of the Sages

It was stated (Gittin 67) : Shmuel said in the name of Rebbe that the halachah is in accordance with Rabbi Yosi, who said that verbal instructions cannot be passed on to an agent.

Rabbi Shimon the son of Rebbe said to Rebbe: Seeing that Rabbi Chanina of Ono and Rabbi Meir disagree with Rabbi Yosi, what was Rebbe’s reason for saying that the halachah follows Rabbi Yosi?

He replied: Be quiet, my son, be quiet; you have never seen Rabbi Yosi. Had you seen him, you would know that he always had reasons for his views. For we learned in a braisa: Issi ben Yehudah used to specify the praiseworthy merits of the various Sages. Rabbi Meir was a scholar and a scribe. Rabbi Yehudah was a scholar when he desired to be. Rabbi Tarfon resembled a heap of nuts. [When he was asked a question, he cited proofs from Scripture, Medrash, Mishnah, halachah and aggadah, like a heap of nuts toppling over one another.] Rabbi Yishmael resembled a well-stocked shop. [Whenever someone asked him something, he replied immediately, without keeping him waiting.] Rabbi Akiva was like a storehouse with compartments. [All his learning was organized by subject and each subject was taught separately.] Rabbi Yochanan ben Nuri was like a basket of a spice peddler. [He could answer questions from any subject.] Rabbi Elozar ben Azaryah was like an individual’s basket of spices. [The spice peddler has many varieties of spices.] The teachings of Rabbi Eliezer ben Yaakov were measured but pure. [He did not issue many rulings, but the halachah follows him.] Rabbi Yosi always had reasons for his views. Rabbi Shimon used to grind a lot and let out only a little. It was taught in a braisa that this meant that he used to forget little, and whatever he did forget was only bran (teachings that were not in accordance with halachah). And so too, Rabbi Shimon said to his disciples: My sons, learn my teachings, since my teachings are the cream of the cream of Rabbi Akiva’s.

*** The Peri Megadim asks: It is forbidden to speak the praises of a person, even in his presence!?

He answers: Rebbe spoke these praises to himself.

*** The Maharsha asks: Why is it considered a praise about Rabbi Yehudah that he was a scholar when he desired to be? Isn’t that derogatory?

The Aruch explains that Rabbi Yehudah was the first of the speakers. The Iyun Yaakov explains that he was humble, and although he had permission from the king to speak first, he did not want this honor, and he only used it when it was absolutely necessary.

*** The Kesef Mishnah in Hilchos Beis Habechirah (2:18) states that the halachah follows Rabbi Eliezer ben Yaakov only when he is mentioned in a Mishna, but not when he is mentioned in a braisa.

The Chacham Tzvi challenges this from the fact that Shimon ben Azai found this rule in the Megillas Setarim, which was written before Rebbe arranged the Mishnayos, so obviously, the rule is all encompassing, even the braisos!?

Tosfos Yom Hakippurim asks that the Kesef Mishnah contradicts himself, for he explains the Rambam in Hilchos Teshuvah (2:8) that the Rambam holds like Rabbi Eliezer ben Yaakov because his teachings were measured but pure, and this halachah was mentioned in a braisa!?

He explains that whenever he is mentioned in a Mishna, the halachah follows him. However, when he is mentioned in a braisa, it depends upon the logic of his argument.

The Yad Malachei writes that in truth, the Kesef Mishnah holds that the Rambam always rules like Rabbi Eliezer ben Yaakov, even when he is mentioned in a braisa. The Kesef Mishnah that was cited above was in fact a gloss from one of his students, and it erroneously got inserted into the text of the Kesef Mishnah.

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BLACKMAILING FATHER TESTIFIES THAT HE MARRIED OFF HIS MINOR DAUGHTER

The Gemora (Kesuvos 17b – 18a) states: If two witnesses said that they were coerced to testify falsely on account of a threat to their finances, they are not believed.

The Gemora asks: What is the reason for this?

The Gemora answers: It is because that a person is not believed to establish himself as an evil person. (Rashi explains that every witness is assumed to be reliable; by issuing a self-incriminating statement, he will be disqualifying himself from further testimony. Just as a person cannot testify regarding his relative, he may not testify about himself because he is related to himself.)

The following question was raised to the poskim years ago: A man testified in Beis Din that he married off his minor daughter, but he refused to state the identity of this man. His intention was to put pressure on his wife for her to accept a divorce without receiving any alimony payments and to have equal visitation rights for the children. Do we accept his testimony and consider the girl as a married woman?

Rav Eliyahu Pesach Ramnik, Rosh Yeshiva of Ohavei torah in Far Rockaway applied the principle of ‘a person is not believed to establish himself as an evil person’ as the basis for his ruling. He explained: The father, who is testifying that he married off his minor daughter is establishing himself as a wicked person for several different reasons. Firstly, if in truth, he has married her off in order to extort money from his wife, using a mechanism of the Torah in this manner causes a tremendous desecration of Hashem’s name, and if the wife does not concede to his demands, the child will remain an agunah her entire life. This will result in an even bigger chilul Hashem. Secondly, he is transgressing the prohibition of paining another fellow Jew. The pain and the embarrassment that he is causing his wife and daughter to endure is indescribable. Thirdly, the Gemora in Sanhedrin (76a) states that one who marries his daughter to an elderly man transgresses a Biblical prohibition of causing his daughter to sin, since she will not be satisfied in that marriage; certainly in this case, the father will be violating this prohibition, for the daughter does not even know the identity of her true husband. Based on these above reasons, it emerges that by accepting the father’s testimony, he would be rendered a rasha, and therefore, his testimony should not be accepted and his daughter would not be regarded as a married woman.

Rav Yitzchak Zilberstein, in his sefer Chashukei Chemed questions the above conclusion. He cites several Acharonim who rule that when a man has already been established as a rasha regarding other matters, his testimony can still be valid (provided that he is not disqualified from offering testimony) even though it also renders him a rasha. The Chacham Tzvi (responsa 3) rules that if someone has violated a light transgression in our presence, he would still be believed that he has violated an even stricter prohibition. This is because his testimony is not rendering him a rasha, he already has established himself a rahsa. It is for this reason that we will be compelled to accept the father’s testimony that he married off his daughter, for this man has already been established as a rasha. He is desecrating the name of Hashem by using the Torah’s mechanisms for evil purposes and by causing pain and grief to his wife and to his daughter.

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ELDERLY YAVAM AND YEVAMAH AND OTHER CASES - Yevamos 40 - Daf Yomi

What is the halacha if the yavam and the yevamah do not want to perform a chalitzah? If she is agreeing to remain an agunah her entire life, do we compel the yavam to perform a chalitzah?

Chacham Tzvi (1) writes regarding a woman who is a katlanis, she was married a few times previously and her husband’s died; she will not be able to get married anyway. He rules that since she is not going to get married anyway, we do not force the yavam to perform a chalitzah. The only reason that we normally force him to perform a chalitzah is for the benefit of the yevamah that she should be able to get married; if it will make no difference to her, we do not get involved.

The Chasam Sofer (E”H II, 85) rules in the same manner regarding an elderly yavam and yevamah that do not intend on marrying anyone else anyway; we do not compel the yavam to perform a chalitzah.

Reb Yitzchak Elchonon (E”H 17) explains that chalitzah is not a mitzvah by itself; rather, it is an action that allows her to get married. If there is no need to permit her to marry anyone else, Beis Din does not get involved, and a chalitzah is not necessary.

The Oneg Yom Tov (176) disagrees and maintains that chalitzah is a mitzvah, and even if both parties are not interested, we force the yavam to perform a chalitzah.

The Maharshal in Yam shel Shlomo (4:18) concludes: We compel the yevamah to partake in the chalitzah because chalitzah is a Biblical obligation, and we would even use bodily force to ensure that this mitzvah will be fulfilled. Even if she wants a yibum, and the yavam wants to do a chalitzah, we force her to accept the chalitzah.

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WHICH MITZVAH TAKES PRECEDENCE? - Yevamos 39 - Daf Yomi

The Gemora states that although it might be preferable for the older brother to perform a yibum, we do not wait for him. This is based on the principle that we do not delay the performance of a mitzvah in expectation of some future, better performance.

The Terumas Hadeshen (35) comments that the only time you do delay the performance of the mitzvah is we are concerned that by delaying, the mitzvah will not be fulfilled.

Similarly, the Gr”a (O”C 426) rules that this halacha is only applicable if the brother is overseas, but otherwise, we would be required to wait for him.

Sheorim Mitzuyanim B’halacha brings a proof from here to the Rama’s ruling regarding Kiddush Levanah. One should wait to recite the blessing for the moon for Motzei Shabbos if it will occur prior to the tenth of the month, but if it is afterwards, one should not wait for Motzei Shabbos, and he should recite the blessing in middle of the week. This is because there might be a few consecutive cloudy days and he will have missed the opportunity for the mitzvah this month.

There is an argument between the Radvaz (187) and the Chacham Tzvi (106) regarding a person who was in jail and he did not have the ability to perform any mitzvos and his captors gave him one day that he can choose to be released and perform the mitzvos of that day, which day should he choose. The Radvaz says he should choose the first opportunity that he has and the Chacham Tzvi disagrees and holds that one should wait until there is a mitzva of great prominence.

The Gemora in Yoma (34a) discusses the obligation of nesachim - the wine libations by the two temidin which were brought every day. There is an argument there if we derive the morning tamid from the afternoon or vice-versa. Tosfos comments that there would be a difference l'halacha if they would have only enough nesachim for one korban; which tamid should have the nesachim. Is the primary tamid the morning or the afternoon? Rabeinu Chananel says that there is no difference l'halacha; it's just a matter as to how we expound the pesukim. The Sfas Emes asks on Tosfos that the din should be clearly that whichever mitzva one is holding by, that is the one he should perform and if one is ready to bring the morning tamid, he should bring the nesachim with that one, even if the afternoon tamid is the primary one.

The Biur Halacha (109) has a shaila if one davens normally a long Shemoneh Esrei and he will certainly miss kedusha, should he daven with the tzibur and fulfill the mitzva of tefila b'tzibur or should he wait and fulfill the mitzva of reciting kedusha.

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Daf Yomi - Moed Katan 26 - RENDING BECAUSE OF AN ACCIDENT

Rav Yehudah told me in the name of Shmuel: There is only a requirement to rend your garments if the Torah or tefillin was destroyed forcibly, however, if it happens through an accident, there is no requirement.

Rashi states that if one can prevent the destruction and he doesn’t, there is no requirement to rend his garments. Rashi would seem to indicate that if the sefer Torah was burned by accident, there is a requirement to rend one’s garments.

The other Rishonim (Ran, Meiri, Nimukei Yosef) disagree with this. They maintain that there is only a requirement to rend your garments when the destruction of the sefer Torah was with the intent to incite the Ribbono shel Olam, however, if the Torah was destroyed by accident (through a fire or a bird), there is no requirement.

The Chacham Tzvi (17) questions Rashi’s logic. It would emerge according to Rashi that if a fire would erupt suddenly and destroy the entire city in a manner where it was impossible to prevent the destruction of the sifrei Torah, one would be required to rend his garments; however, if a small fire would burn a sefer Torah, and one was capable of preventing its destruction, one would not be required to rend his garments. Why would that be?

The sefer Matzeves Moshe explains this according to the Maggid MiDubna. When there is a possibility according to natural law of preventing destruction, Hashem does not involve Himself and create a miracle, however, in a scenario where there is no possibility according to natural law of preventing destruction, Hashem does get involved, if He sees fit, and will produce a miracle to prevent the destruction.

Accordingly, when a preventable fire destroys a sefer Torah, it does not appear as if this was a Heaven-sent sign, and the fact that Hashem did not procure a miracle is not regarded as a desecration of His name for there was ample opportunity for the people themselves to prevent this occurrence; there is no requirement to rend one’s garment. However, when there is an enormous fire, one that is unpreventable and the only manner in which the sifrei Torah can be saved is through a miracle from Above; the lack of a miracle demonstrates that we were not deserving of one, thus resulting in a desecration of Hashem’s name and therefore there is a requirement to rend one’s garments.

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Daf Yomi - Moed Katan 9 - Intermingling Joyous Occasions, Procrastinating the Completion of a Mitzva (Nine Days Siyum)

The Gemora seeks to find a Scriptural source that one should not intermingle one joyous occasion with another. The Gemora cites a verse in Melachim I [8:65]: At that time, Shlomo instituted the celebration, and all Israel was with him, a huge congregation, from the approach to Chamas until the Brook of Egypt, before Hashem our G-d, for seven days and seven more days, fourteen days. They celebrated the completion and dedication of the Beis Hamikdosh for seven days before Sukkos and then they celebrated the festival of Sukkos for seven days. The Gemora posits: If we would be permitted to intermingle one joyous occasion with another, they should have waited and combined the seven day celebration for the dedication of the Beis Hamikdosh together with the seven days of Sukkos. By the fact that they didn’t combine the two, it can be proven that we cannot intermingle two joyous occasions.

The Gemora rejects the proof: Perhaps we can intermingle two joyous occasions, but we cannot intentionally delay the celebration once the Beis Hamikdosh was complete.

The Gemora answers: Shlomo could have left out a small portion of the building and finish it immediately prior to Sukkos. By the fact that he didn’t leave over any part, this indicates that we cannot intermingle two joyous occasions.

The Avnei Neizer (O”C 459:9) asks: How could they have delayed the building of the Beis Hamikdosh? Isn’t there a principle that one cannot push off the performance of a mitzva?

He answers by citing the Chacham Tzvi (106), who maintains that it is permitted to delay the performance of a mitzva when the mitzva can be performed with a greater degree of sanctity later, and since here, the mitzva of completing the Beis Hamikdosh on Sukkos would be of greater sanctity and it would enhance the mitzva, there would be no concern for the procrastination of the mitzva.

The Shach (Y”D 246:27) rules that when one is close to finishing a Mesechta, he may leave a little left at the conclusion of the Mesechta in order to make the siyum on a day that is fit to have a siyum feast. It is brought in some seforim that the source for this halacha is our Gemora, which stated that they could have left over a small portion of the building of the Beis Hamikdosh in order to celebrate the dedication on Sukkos. (They didn’t do this by the Beis Hamikdosh because we cannot intermingle two joyous occasions or because it would be disgraceful to leave over a portion of the Beis Hamikdosh.)

The Elya Rabbah (551:27) states: While it is permitted to eat meat during the Nine Days at a siyum feast, one should not hurry or delay the finishing of a Mesechta in order to conclude it during the Nine Days.

The question is asked: Why not? Our Gemora prohibits this only by the building of the Beis Hamikdosh; it can be inferred that this would be permitted by all other mitzvos.

Rabbi Ezriel Hildesheimer (O”C 90) answers: Regarding the building of the Beis Hamikdosh, if we can intermingle two joyous occasions, there would be no prohibition at all to dedicate the Beis Hamikdosh on Sukkos. However, to hurry or delay the finishing of a Mesechta in order to conclude it during the Nine Days and make a siyum then would be inconsistent with the custom of not eating meat during the Nine Days. It is on account of this that the Elya Rabbah rules that this is forbidden to do.

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Daf Yomi - Rosh Hashana 24 - The Permissibility of Photographing People

(The Meoros Daf Hayomi from the Kollel Sochitshov issued words of Torah on the Daf. This was taken from their kuntrus on Bava Kamma 5762. It can be found here.)

The Gemora in Bava Kamma describes how already in ancient times it was the custom to honor great people by engraving their likeness on coins. So it was with Dovid and Shlomo, and before them with Avrohom and Yitzchok. Tosfos (S.V. Matbeya Shel Avrohom) contends that it was not their image on the coins, as it is forbidden to forge a human image; rather it was their names that were inscribed.

The source of the prohibition to create a human likeness even for decoration is found in the posuk (Shemos 20:20), “Do not make with me gods of silver and gods of gold” (Rosh Hashana 24b, Rambam Hilchos Acum 3:10, Chinuch Mitzva 39). The Rambam explains the reason for this prohibition is so that a casual observer should not mistakenly reach the conclusion that these images were meant to be avoda zora.

There is a debate amongst the Rishonim as to what comes under the prohibition. According to the Ravad (ibid) and the Ramban (see Tur Y.D.141) included are engraving, embossing, or painting of a human image. However, they do express a lenient ruling as to the ownership of engraved or painted images if they are found; but not an embossed (protruding) image. The Rambam differs and maintains that there is no prohibition to make an image by engraving or painting; the Torah forbade exclusively embossing. Though the Shulchan Oruch (141:4) rules in favor of the Rambam, the Taz insists that in the matter of making human images one should not adopt any leniencies.

When the Gaon R’ Eliezer of Brod was installed as Chief Rabbi of Amsterdam, one of the local Jews decided to mark the festive occasion in a unique manner. He issued a commemorative medallion which bore the likeness of the new Rav. The Yavetz writes (responsa Sheilos Yavetz, I:170) that upon seeing this he was shocked to his very core. Though the Shulchan Oruch (ibid 7) forbids only an image of a full human, whereas the image of just a face is permitted, the Yavetz takes the more stringent view of the Smag, the Taz (ibid S.K. 15) and some Rishonim who forbid this as well. The Yavetz further points out that even according to the more lenient poskim it is only a featureless face that is allowed. (See the responsa for how the Yavetz derives this from the Tosafos in our sugya.) In the end, declares the Yavetz triumphantly, the medallion was banned by the Dutch king who viewed the matter as an impingement of his royal status.

The Painting of the Chacham Tzvi: The Yavetz’s father, the Chacham Tzvi, was extremely strict for himself and would not even allow his face to be drawn. We know this from his son who describes with great emotion how, “The true saint, my father and Rebbe, our great master, may Hashem be with him forever… went to visit the Sephardic Kehilla in London. He was greeted with great respect the like of which is unheard of. He was escorted into town in a royal floatilla amidst great jubilation.” The kehilla, relying on the majority of poskim had commissioned an artist to draw his countenance. The Chacham Tzvi due to his “great saintliness and holiness” refused to permit this. The hosts were unable to restrain themselves and the artist managed with great speed and unusual talent to paint an extraordinary painting. So true was his rendition that the Yavet”z declares, “All that is missing is the breath of life.”

What is the halacha regarding taking a snapshot? The Taz’s opinion that even a flat image is forbidden has led Poskim to question the legitimacy of photographing people. A reason to be lenient is explained by R’ Moshe Sternbuch, Shlit”a (Teshuvos V’Hanhagos Vol. III, 263). The prohibition includes only image making formed by direct action. The process of photography and film development does not fit into this category, since the reactions of chemical to light rays cause the picture to appear. He concludes that customarily photography is permitted.

It is interesting to note that many Gedolim for Kabbalistic reasons insisted not to be photographed.Someone drew a picture of the Steipler Gaon,zt’l, during his army service in Russia. The Steipler paid an entire day’s ration for the picture and immediately destroyed it (Toldos Yaakov, p. 30).

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Daf Yomi - Beitza 23 - Fragrance on the Hands of the Kohanim

Rabbah and Rav Yosef both state that it is prohibited to turn over a cup with fragrance on top of silk garments since it will produce a new fragrance in the clothing and this forbidden because it's creating something new. Rashi explains that this is Rabinically forbidden since it is regarded as if he is doing a new melocha. Rashi in Shabbos (51b) states the same thing regarding transforming snow into water. It is noteworthy that creating something new which is molid and when something achieves its present useful state on Yom Tov which is nolad are two separate things and have two different sets of halachos. something that is nolad is considered muktza and one is prohibited from handling on Yom Tov; however molid which resembles a melocha is permitted on yom Tov if it will involve a preparation for food.

The Taz (O"C 511) writes that there are those that place a smelling fragrance of oil into the water that the kohanim wash their hands with on Yom Tov. This, he rules, is forbidden because it creates a smell in the water on Yom Tov and it is even forbidden to place the oil into the water prior to Yom Tov for it will be producing a smell on their hands on Yom Tov.

Chacham Tzvi (92) disagrees and maintains that there is never an issur of molid in foods or drinks in the same manner as there is no prohibition of dying foods or drinks. There is also no prohibition on the the flesh of a person and therefore it would be permitted to place the oil into the water on Yom Tov.

Rav Yaakov Emden (42) writes that if it is the custom in the city to prohibit this action, it is preferable not to do it. The Chida rules stringently as well.

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Daf Yomi - Sukkah 16 - Jail and the Sefer Torah

Rav Tzvi Pesach Frank asks on our Gemora that permitted them to bring the Sefer Torah from the house to the shul when the halacha is explicit (135:14) that we do not bring a Sefer torah for people in jail? Some answer that bringing it from a house to a shul is an honor and therefore it is allowed. Others answer based on the Biur Halacha that it is only prohibited if there are only individuals in the jail and they do not have an obligation of krias haTorah, however if there is a congregation that requires it, it is permitted.

There is a question regarding people in jail that we posted before, but is always interesting. There is an argument between the Radvaz (187) and the Chacham Tzvi (106) regarding a person who was in jail and he did not have the ability to perform any mitzvos and his captors gave him one day that he can choose to be released and perform the mitzvos of that day, which day should he choose. The Radvaz says he should choose the first opportunity that he has and the Chacham Tzvi disagrees and holds that one should wait until there is a mitzva of great prominence.

The Biur Halacha (109) has a shaila if one davens normally a long shemone esrei and he will certainly miss kedusha, should he daven with the tzibur and fulfill the mitzva of tefila b'tzibur or should he wait and fulfill the mitzva of reciting kedusha.

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Which Mitzva takes Precedence? - Yoma 34 - Daf yomi

The Gemora on Daf 34a learns out the obligation of nesachim - the wine libations by the two temidin which were brought every day. There is an argument there if we learn the morning tamid from the afternoon or vice-versa. Tosfos comments that there would be a difference l'halacha if they would have only enough nesachim for one korban, Which tamid should have the nesachim. Is the primary tamid the morning or the afternoon. Rabeinu Chananel says that there is no difference l'halacha, it's just a matter as to how we expound the pesukim. The Sfas Emes asks on Tosfos that the din should be clearly that whichever mitzva one is holding by, that is the one he should perform and if one is ready to bring the morning tamid, he should bring the nesachim with that one, even if the afternoon tamid is the primary one.

This actually is an argument between the Radvaz (187) and the Chacham Tzvi (106) regarding a person who was in jail and he did not have the ability to perform any mitzvos and his captors gave him one day that he can choose to be released and perform the mitzvos of that day, which day should he choose. The Radvaz says he should choose the first opportunity that he has and the Chacham Tzvi disagrees and holds that one should wait until there is a mitzva of great prominence.

The Biur Halacha (109) has a shaila if one davens normally a long shemone esrei and he will certainly miss kedusha, should he daven with the tzibur and fulfill the mitzva of tefila b'tzibur or should he wait and fulfill the mitzva of reciting kedusha.

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