Masechet (tractate), lirefuah shelemah (for a complete recovery): Shimon ben Simchah, Ester bat Sarah Simchah, zar'a chaya vekayama (living and enduring offspring), and lirefuah shelemah for Moshe ben Sarah Simchah; hatzlachah (success), sechel tov veyashar (good and upright intellect), yirat Shamayim (fear of Heaven), and vezivug besha'ah tovah (a suitable match at a good time).
We begin today's daf (page) on mem-vav amud bet (46b). We're going to start with the Amalek siman (mnemonic), five lines from the bottom, and we'll see exactly what it stands for. DeRabbanan (of the Rabbis): arev (guarantor) me'id (testifies) leloveh (borrower). The first ayin stands for arev. So a guarantor is somebody who guarantees a loan. He's allowed to testify to the loveh, to his benefit. Let's say certain properties are in question, and he could be an ed (witness) to say that the borrower actually owns the land. Seemingly, that's to the borrower's advantage. The guarantor doesn't want the lender to come to him. If the loveh has land, the malveh (lender) will go to the loveh. So lich'orah (apparently), the guarantor is biased. Why, then, could he testify?
Vehu de'it lei ar'a achiriti (and that is when he has other land). That's the answer: as long as the loveh has other karka (land). Therefore, it's not so probable that the claim will get to the guarantor anyway. First there's another property, and if that property is not worth enough, then they go to the second property. So it's a little remote, and we don't consider that a bias.
If you look at the Rashbam, he says: “Sheyuchal hamalveh ligbot heimenu et chovo veyipater ha'arev, venimtza she'ein ha'arev marvi'ach kelum bemah shema'amid sadeh zeh beyad loveh” (the lender collects, the guarantor is exempt, and it turns out the guarantor gains nothing by having this field placed in the borrower's hand). The guarantor is obviously getting an advantage. “Veleika lemeimar dehacha mitkaven ha'arev” (the guarantor does not intend that here). I mean, I guess he'd rather the borrower have two fields because it's safer. “Denicha lei sheyihyu sadot harbeh beyad haloveh” (he prefers the borrower to have many fields). If the borrower is still liable to another ba'al chov (creditor), it's always beneficial to the arev for the loveh to have a lot of property so it'll never come to him. The creditor collects one field, and the arev collects a second field. That's too remote to say that he's nogea be'eduto (person with an interest in his testimony).
Maybe the borrower won't pay on time, and there's another debt outstanding, so the guarantor would rather the borrower have two fields. And afterward, even if you say the borrower won't pay, maybe another lender will come and collect, and then this lender will come afterward. The whole thing is remote. Anyway, we're not going to be concerned.
Next case: that's the ayin. Now what do we have? The mem: “Umalveh me'id leloveh.” The malveh (lender) could testify to the loveh's benefit. The question is whether the karka they have belongs to the loveh, even though the malveh has an advantage. The lender is the creditor; he wants to get paid. “Vehu de'it lei ar'a achiriti”—same story. As long as the borrower has other property, the lender is covered; he'll get paid from that other property.
“Just a second property. Why not the loke'ach (purchaser)?” “He could get it back. What does he care?” “I'm saying, like you said, because he has another one. But let's say he doesn't have other properties; he can ask the loke'ach.” I guess that's not so easy for him. Or let's read the Rashbam.
The Rashbam says maybe those are only his two properties; maybe he didn't sell anything. Someone who sells afterward—what does that mean? You assume that he sold properties to somebody else. “Yeah, that's what we're saying. He's me'id that—” “No, he's me'id that the property belongs to the loveh.” So we're saying that even though he has an advantage for the borrower, as long as there's another property, he isn't considered biased. Maybe the borrower only has two properties and didn't sell anything. “He sells to another guy.” “Correct, he has it. The other guy wants to take it, right, because it was never—” “Correct, correct.” If he has two, he has a lien on the property, so he's not considered biased anymore. He already has a property; he could get paid from that anyway. The second property just makes it better, but the odds of the claim reaching him are remote.
Then he says loke'ach (purchaser). That's the lamed: “Loke'ach rishon me'id leloke'ach sheni, vehu de'it lei ar'a achiriti.” Let's give this case over here. Let's read the Rashbam. It's an interesting case.
For example, Re'uven sold one field to Levi, and afterward he sold a second field to Yehudah. Basically, Reuven sold two fields. Yehudah is the second purchaser. Then inash me'alma (some guy came from who knows where) complains about Yehudah's field: “Hey, that second field you sold to Yehudah? You stole it. It's mine.” In other words, the claimant is saying, “Reuven stole it from me.” So now the question is whether the first person who got the property can testify in Yehudah's favor. He wants Yehudah to keep the field.
The Rashbam says that Levi can testify for Yehudah. Levi is the person who got the first field from Reuven. He can testify on Yehudah's behalf. “Dehainu, loke'ach rishon le-loke'ach sheni” (the first purchaser for the second purchaser). What does he want to testify? “Ume'id lo shehu shelo ve-lo shel me'ar'er” (he testifies that it is his, not the claimant's). This is as long as Yehudah has another piece of land, so that Yehudah is liable to Reuven and Reuven's creditor can collect the debt from Yehudah, as a creditor collects from a later purchaser.
We learned that the creditor always goes to the last property that was sold. Let's say Reuven owes money and doesn't have any money, so the creditor goes after the property. He goes after the last property that was sold. Who bought the last property? Yehudah. Seemingly, Reuven is biased here because he wants Yehudah to get that property, so the creditor won't come after Reuven's property, because Levi was the first purchaser. But as long as Yehudah has another property that he bought, there's already another step between them.
“But there are probably records showing that he sold—” “Yes, yes, right, exactly.” As long as Yehudah bought another property from Reuven, he's holding two properties. Then that is the property that comes before Reuven's property—oh, sorry, before Levi's property. So Levi isn't so biased, because he'll get paid from Yehudah's property itself.
“Ve'im ein lo goveh mishelfanav” (if he has nothing, the creditor collects from before him). Here, since Yehudah has another piece of land, the creditor of Reuven can collect from it. Or Reuven himself might have another piece of land, in which case the creditor goes directly to Reuven; there's no need to worry about the purchasers. He can collect from unencumbered property, and afterward the creditor can come after him. Levi can testify for Yehudah, because he has no interest in his testimony. “Da'afilu mapik lei me'ar'er miYehudah” (even if the claimant takes it from Yehudah), “lo atei ba'al chov de-Re'uven vetarif mi-Levi” (Reuven's creditor will not collect from Levi). The creditor still won't go to Levi, because Yehudah has another field, whether another field that Yehudah has from Reuven or another field that Reuven has.
But if Yehudah doesn't have another field, Levi can't testify for Yehudah, because he would be placing himself in front of Reuven's creditor. Basically, Levi is next in line, and therefore he's going to end up having to give up his property to pay the debt. That's the chiddush of the Gemara: in that case, the first loke'ach can testify on behalf of the second loke'ach. That's the lamed. We have ayin, mem, and lamed. What do we have left? Kuf.
Kuf is kablan (strong guarantor). What's a kablan? A kablan is also a type of guarantor, but a stronger type, in the sense that the lender can go directly to the kablan first. That's called an arev kablan. Normally, if the loveh doesn't have anything to pay, then the malveh goes to the arev. An arev kablan puts himself on the line: you can go to him first.
“Kablan, amrei lah me'id ve'amrei lah eino me'id” (some say he testifies, and some say he does not). Some say he can testify for the borrower's benefit, meaning to let the borrower keep a property, because of course the kablan doesn't want the claim to come to him. So the question is whether he's biased. Some say he can testify—we have to see why—and some say he can't.
“Amrei lah me'id”: some say he can testify, “ke'arev damei,” because he's like a regular guarantor. Wasn't that the ayin of Amalek? We said a guarantor can testify. “Ve'amrei lah eino me'id.” Why? “Denicha lei delehvei beyadei tarvayhu”: he'd rather the borrower have both fields, meaning the field he already has plus the field that's in question here. Why? “Dechi atei ba'al chov, mai deba'ei shakil.” When the creditor comes to collect, he can take—and we'll see exactly what this means. The kablan would rather the borrower have more land.
The Rashbam gives us a whole explanation of the benefit here. “Ve'amrei lah.” Look at the Rashbam. He says, “Amrei lah mi kmo arev? Amrei eino me'id, de'akatei nogea be'eduto (person with an interest in his testimony)” (some say, unlike a regular guarantor, he does not testify because he still has an interest in his testimony). Why is he biased? If he has two fields, that debt can go to him. What do you want from him? The Rashbam says, “Denicha lei deneiku tarveihu ar'ata biyedeih” (he prefers both fields to be in the borrower's possession). He wants the borrower to have two fields. Why? “Heichei delihavu leih ar'ata tuva, ziborit ubeinonit.” Once the borrower has two fields, he'll have a ziborit (inferior land) and a beinonit (intermediate land). We know a creditor can collect from the average land.
When the creditor comes to collect intermediate land from the kablan, as a creditor collects intermediate land, the kablan can tell him, “It leih nami beinonit deloveh”—“The borrower also has intermediate land. Go to the borrower's intermediate land. What do you want from my intermediate land?” Therefore, it's beneficial for the borrower to have two fields. One of them will be intermediate land, so the creditor won't be able to collect from the kablan's intermediate land. “Vehilkach, havei nogea be'eduto.” Therefore, he has an interest in his testimony. If the borrower doesn't have intermediate land, the lender will collect only from the kablan's intermediate land. He'd go to the kablan. Therefore, the kablan has an interest.
“Dehachi havei dina, delechol man deba'ei atei bereisha”: he can go first to whoever he wants, to whoever has the intermediate land. But with a regular guarantor, even if the borrower has only one field and it's inferior land, the creditor collects the inferior land from the borrower and cannot then go back to the guarantor for the intermediate land. So the guarantor has no benefit from the borrower having two pieces of land. Therefore, we say this interest is an issue only with an arev kablan. He cannot testify to give the borrower two pieces of land, because he's testifying on behalf of the borrower so he can keep that second field. He's biased; that's not testimony. Somebody else has to testify.
“Of course, that's why you want the second field, so they won't come to me.” “Because he wants him to have two.” “All right, that's why he can't: he wants him to have the two. Now the borrower has intermediate land, so the creditor can't come to me.” “No, once he has two fields, automatically one is better and one is less, so one is called ziborit and one is called beinonit. That's fine. But since I'm on the hook, you can come to me before you come to the borrower. An arev kablan accepts upon himself: ‘I'm like the lender—I'm sorry, I'm like the borrower. You could come to me first, before you go to the borrower.’” “Very good. But with a regular guarantor, we don't say that, because if the borrower has only inferior land, the creditor will collect the inferior land from the borrower. But an arev kablan has to pay the intermediate land. So it's to my advantage to testify that the borrower has intermediate land, so he won't come to take my intermediate land.”
“He can give him money, for sure he can give money. But when it comes to the land—” “Because he looks at him like a regular guarantor.” “He looks at him as a regular guarantor, and again it's—” “Exactly.” “No, no, no. He just doesn't suspect this whole thing.” “No, he doesn't argue with the arev kablan. He agrees you can go to the arev kablan. He just doesn't hold of this whole concern that the borrower won't have the money and will have only inferior land.”
“He cannot. If the borrower has—what do you call it? You can push him back. You can push him to the borrower. If they both have intermediate land, the kablan can push the creditor to the borrower.” So the Rashbam says, okay, he can try to push him. But it says here—let's read it, rabotai. The Rashbam says, “Dechi atei malveh lemigbei beinonit dekablan kedin ba'al chov shedino beveinonit, leima leih, ‘It leih nami beinonit deloveh’”—“Go take the borrower's intermediate land. What do you want from me?” He can make that claim, at least, if he has a benefit. He has an option.
“Amar Rabbi Yochanan.” That was Amalek. Rabbi Yochanan says, “Uman ein lo chazakah.” There was a piece on that, by the way, that we did get, which is worth seeing. They sent it out on Friday.
The Gemara in Bava Batra quotes a beraita (early rabbinic teaching) listing various cases of people testifying for others where they may stand to gain from their testimony: arev, malveh, loke'ach, kablan—the siman Amalek.
Rav Yaakov Emden expresses his surprise that Chazal use Amalek as a siman about whom the Torah says, “Timcheh et zecher Amalek” (you shall erase the memory of Amalek). He explains that Chazal saw in the remez (hint) that the pasuk indicates an exception: Amalek can be used to help you remember your learning. Even Amalek can be used in the service of remembering Torah. Certainly, we should make use of all the tools at our disposal, because the pasuk (verse) says that certainly we should use simanim and stories.
It goes further. If we look carefully at the beraita, we'll notice that the cases aren't arranged in the simplest logical sequence. We'd expect the first case to be the lender, the primary creditor. Then we'd expect a guarantor and a kablan, since they're two types of guarantors. Instead, the order is guarantor, lender, purchaser, kablan—jumping around. It seems that the very order of the beraita was arranged to facilitate the siman Amalek, which is supposed to be used to recall four cases.
As evidence for the suggestion, we can look in the Tur, in Choshen Mishpat, siman lamed-zayin. There he quotes these four cases in their logical sequence: malveh, arev, kablan, loke'ach. That strongly suggests that the beraita's order is different for a reason, namely, to create the siman Amalek.
Rabbeinu Avigdor Cohen Tzedek, one of the Ba'alei Tosafot (Tosafist scholars), wrote a commentary on Eichah (Lamentations). At the end of the first perek, he writes, “Velachen nichtav sefer zeh be'alef-beit” (alphabetical order)—this sefer was written in an alef-beit sequence, in order that it would be familiar and people could remember it. The very pesukim of Megillat Eichah were written in a format using a method to help us remember.
The Mabit in Sefer Beit Elokim writes the following about Ashrei: Why is Ashrei written in an alef-beit sequence? “Kedei sheyeheh shagur umurgal befiv shelo yishkach o lo yashmit pasuk mimenu”—so that it will be familiar and fluent in his mouth, so he won't forget or omit a verse. “Vezeh hayah gam ken ta'am kol mah shesidru be'alef-beit”: this was also the reason for everything they arranged in an alef-beit sequence, so that it would be familiar when recited. Obviously, it's an important chapter, so they wrote it in an alef-beit sequence.
This is also the reason that everything arranged in an alef-beit format is meant to be fluent when recited. Yirmiyahu's Kinot (lamentations) are also arranged in an alef-beit format for this reason, so they can be recited fluently. We see from these sources that Torah shebichtav (Written Torah) itself is written in many places with a memory tool. This is a Zichru commercial over here, because you see that you're even allowed to use Amalek.
That's in the second explanation we gave. By using Amalek, we're taking away his kochot (power); we're destroying him through learning. That's what the pasuk implies: “Timcheh et zecher Amalek”—erase the memory of Amalek. “Lo, tishkach” (you shall not forget). There's a comma there: “Lo, tishkach.”
Who has the Ya'avetz? Who has the Gemara with the Ya'avetz in front of us? Do we have one? Let me see how he quotes the Ya'avetz here. A regular Gemara—we don't have the Ya'avetz anymore. But I think he quotes him here. In a regular Gemara, we'll have a Ya'avetz. Let's read it inside. What daf is this? This is mem-vav. “Rabbi, we're trying to figure out why the Rashbam skips Shimon in that Rashi—in that Rashbam. He went Re'uven, Levi, Yehudah.”
“Amalek, yesh lehakshot eich natnu siman kazeh bemi shene'emar bo timcheh et zecher Amalek. Ve'ulay matz'u remez min hamikra bemai desiyem kra lo tishkach, sheteivat lo mufseket, right? Lo, beta'am tipcha lehorot sheyesh bo makom gam leshichchah.” The Ya'avetz asks how they could give this mnemonic when the Torah says to erase the memory of Amalek. Perhaps they found a hint in the verse's ending, “lo tishkach,” with the word “lo” separated, indicating that there is room even for forgetting. That's what the Ya'avetz says here.
“Dugma zo darshu beSifrei de'azhar the commandments, vele'itim lehishtamesh bo le'ukme hagirsa.” That is, you can use it to establish the text. The speaker's explanation was that you don't have to remember Amalek all the time, but “lo, tishkach”—forget about Amalek? No! “Lo, tishkach!” When you don't have to destroy Amalek, then you can use him as a memory tool. That's how we learned it.
“So now what's your question? Why did the Rashbam skip Shimon in the story? You said Re'uven sold to Levi, and then he sold to Yehudah.” “I don't know what made me think of this, but Amalek is 240. The rashei tevot (initial letters) Re'uven, Levi, Yehudah add up to 240. Maybe that was a siman.” “Wow. Why else would he skip Shimon?” “Why else? I think I can probably think of another reason besides that.” “What a good question! I like the question.” “That's a way to remember the story. He doesn't want to call his name—” “He's calling all the shevatim (tribes).” “Shlomo, Shlomo.”
Shlomo says, “Kegon deRe'uven shemachar sadeh achat leLevi, ve'achar kach sadeh achat leYehudah.” It's an interesting question. He knew that Shimon existed. “Ve'ata inash me'alma.” He didn't say Shimon. That's the inash me'alma! Shimon! Okay, nice diyuk (textual inference). For sure it's a diyuk, I mean—we've seen already that Rashi is medayek (makes inferences from the text), so there's a reason.
“Yeah, we are—we're—” “Gemara, Moshe.” “That was going to take more than an hour, for sure. I was scared to ask the question earlier.” Everybody got good sleep last night, I see. Baruch Hashem, everybody's in a good mood today. Nobody's going anywhere, Shavuot zeh al bab. So come early; we'll give Rabbi a hard time today.
“This is closed? Good. Where's the Rashis? Doesn't he have Rashis over here?” “He has Rashis.” “After the Gemara?” “After the Gemara, all right. I see Tosfot. Before the Tosfot?” “Before the Tosfot, okay.” “I don't see. Where's Rashis? Where's Rashis? I think there was Rashis in this one. Am I missing it?” “Aren't these right here?” “No, no, these are right after.”
“I think people like these printouts.” “Tosfot Rishonim, or the regular Rashbam?” “It's on cell.” “Yeah, let's see mem-vav. Let's see mem-vav, because mem-dalet, mem-hey—it's going to be mem-vav in Rashbam.” “Oh, because maybe it's not Rashi, it's Rashbam, I mean.” “So that's why. It's too long, maybe.” “It's too long, so that's it, he gave up.” “Ah, makes sense.” “Yeah. I tell you, not exactly.” “Okay, I don't see that he says that, but that's an interesting diyuk.” “Okay, Chazak u'varuch, Moshe.”
“Okay, now we go. Amar Rabbi Yochanan: uman ein lo chazakah.” We learned that already. How many times did we say this already yesterday? An uman (artisan) does not have a chazakah (presumption of ownership). That was the Mishnah on mem-bet, or whatever; we saw all the cases. However, ben uman yesh lo chazakah: the son of an artisan has a presumption of ownership. We'll see all these cases in a minute. An aris (tenant farmer) has no presumption of ownership, but the son of an aris does. A gazlan (robber) and a ben gazlan (son of a robber) have no presumption of ownership, but the grandson of a robber does. That's very interesting. Let's read a bit in the Rashbam.
“Uman ein lo chazakah,” as taught in the Mishnah, because he's an artisan, and we expect the item to be there. But the son of an artisan—for example, if the son isn't an artisan—has a presumption of ownership, as we'll see in the case. The Gemara explains what the robber's case is. What's the case? If the children come with the same claim as their father, that their father said it was theirs, then even they don't have a presumption of ownership. They're making the same claim as the artisan, and the artisan doesn't have that claim. The artisan himself wouldn't be ne'eman (believed) to say it was sold to him in certain cases, as we learned. So if the children make that same claim, they enter into the same din (law) as the artisan, and shouldn't be believed.
If they aren't coming with the father's claim, but have a different kind of claim, then even the son of a robber should be believed, because he's not making the same claim as his father, who isn't believed. He's not a robber, so he has a different claim. Mah nafshecha (either way)? No, it is necessary where there are witnesses, who say, “Befaneinu hodah lo” (he admitted it in our presence). He brings witnesses, or has witnesses, who say that the claimant told the father that he sold the item to him. That's the whole issue here, because there are witnesses.
Look at the Rashbam. He says, “Lo tzricha, deka amru edim befaneinu hodah lo hame'ar'er la'avihen shel elu shemecharo lahem.” We need this case where witnesses say that the claimant admitted in their presence to these people's father that he sold it to them. Therefore, these children—the son of the tenant farmer or the son of the artisan—can be saying the truth. They can claim, “Keshto'anin avinu lekachum mimecha” (our father bought it from you). If our father bought it from you, then we are the heirs. He admitted it, and “ve-hoda'at ba'al din keme'ah edim” (a litigant's admission is like a hundred witnesses). They're saying that he admitted that their father bought it from him. Therefore, they have testimony: he admitted that he sold it to them.
But then the son of a robber should be the same thing! “Vegabei ben gazlan af al gav dehodo hai me'ar'er le'avihen shel elu...”