THOUGHTS ON THE DAILY DAF
brought to you by Kollel Iyun Hadaf of Har Nof
Rosh Kollel: Rav Mordecai Kornfeld
Ask A Question about the Daf
Bava Basra, 168
1) HAVING AN "AM HA'ARETZ" LOOK AT ONE'S PROSPECTIVE WIFE
QUESTIONS: Abaye rules that even though it is not the manner of a Talmid
Chacham to look at a woman, if a Talmid Chacham testifies about the identity
of a certain woman and says that he clearly recognizes her (as in the case
of Rav Yirmeyah bar Aba), he is believed. The Gemara records another
statement of Abaye in this regard. Abaye says that when a Talmid Chacham
wants to be Mekadesh a woman, he should bring an Am ha'Aretz with him in
order to for the Am ha'Aretz to look at the woman and make sure that she is
the one whom the Talmid Chacham intends to marry.
(a) How can the Talmid Chacham marry a woman without looking at her himself?
The Gemara in Kidushin (41a) clearly states that it is Asur for a man to be
Mekadesh a woman without first looking at her, lest he later see something
unattractive about her and become disgusted with her and thereby transgress
the Mitzvah of "v'Ahavta l'Rei'acha Kamocha!"!
On the other hand, if it is improper to look at a woman, and that is why the
Talmid Chacham himself does not look, then how can the Talmid Chacham ask
another Jew to do it for him? A person is not allowed to ask another person
do an Aveirah for him (see Eruvin 32b, Shabbos 4a, and Tosfos there)!
Indeed, the Gemara in Avodah Zarah (20a) says that it is prohibited to look
at a woman since doing so might lead to sin, as is derived from the verse,
"v'Nishmarta mi'Kol Davar Ra" (Devarim 23:10)!
(b) Why does the RAMBAM not mention this Halachah at all? (HASAGOS
HA'RA'AVAD, Hilchos Isurei Bi'ah 21:3)
(a) The Acharonim suggest that the prohibition against looking at a woman
applies only to *gazing* at a woman's beauty in order to derive pleasure. It
is not prohibited to glance at a woman without gazing at her beauty.
Moreover, it is *proper* to look at a woman before marrying her to ensure
that she has no uncomely features, as the Gemara in Kidushin teaches, as
long as one does not gaze at her in order to derive pleasure. However,
Talmidei Chachamim are stringent to avoid even glancing at, or seeing, a
woman. Consequently, it will not help for a Talmid Chacham to look at his
prospective bride to determine whether she has any unattractive features,
because a Talmid Chacham is unaccustomed to the appearance of a woman and
thus he does not know the difference between an attractive women and an
unattractive one. Similarly, he will not be able to tell the difference if
the woman's family decides to switch her for a different woman. An Am
ha'Aretz, in contrast, is not stringent upon himself, and he knows the
difference between the way different women look. (MAGID MISHNAH Hilchos
Isurei Bi'ah 21:3; see IGROS MOSHE OC 1:26, 2:4)
(b) The Acharonim give various answers to explain the Rambam's omission of
1. The MIGDAL OZ explains that the Rambam makes no mention of this Halachah
because he is discussing ordinary men when he writes that it is proper for
one to look at his prospective wife. He is not referring to Talmidei
Chachamim who have the practice never to look at a woman. However, the
Migdal Oz differentiates between looking at a woman to whom one is already
engaged ("Meshudach") and is about to be Mekadesh, and looking at a woman to
whom one is not yet engaged in order to check her to see if he should become
engaged to her. The Rambam here (in Hilchos Isurei Bi'ah 21:3) is not
referring to the requirement to look at a woman, to whom one is already
engaged and committed, before marrying her (he mentions that Halachah in
Hilchos Ishus 3:19), but rather he is referring to looking at a woman to
check to see if she is fit to become engaged to in the first place, and thus
it is obvious that a Talmid Chacham should not look at her but rather should
have an Am ha'Aretz look at her. In contrast, even a Talmid Chacham should
look at his Kalah after he is engaged in order to decide whether she is fit
to become engaged to (this is in contrast to the view of the Magid Mishnah
2. The MIRKEVES HA'MISHNAH explains that the Halachah that the Rambam is
discussing here is the same one as he discussed in Hilchos Ishus. The Rambam
maintains that even a Talmid Chacham is supposed to look at his prospective
wife before marrying her in order to make sure she has no blemishes, and to
make sure that the woman's family did not switch her for a different woman.
The Rambam understands that our Gemara is *not* saying that a Talmid Chacham
should *not* look at his prospective wife, but rather *in addition* to
looking at her, he should bring with him an Am ha'Aretz to check her
appearance to make sure that her family does not switch her for another
woman. To make sure that this woman is not unattractive to him, the Talmid
Chacham should look, but to be able to distinguish between two
similar-looking women is the expertise of the Am ha'Aretz and not the Talmid
Chacham. This is why the Gemara says that the Talmid Chacham should "bring
an Am ha'Aretz with him," instead of saying that he should "send an Am
ha'Aretz" to check the woman. This is also why the Gemara adds the reason
"so that they not switch her" -- this is the purview of the Am ha'Aretz and
his purpose in coming with the Talmid Chacham.
2) WRITING A SHTAR WITHOUT "ACHRAYUS"
QUESTION: The Gemara relates that when certain Yishmaelites came to
Pumbedisa (see Rabeinu Gershom), they took by force the fields of other
people. The original owners of those fields came to Abaye and showed him
their deeds of ownership, and requested that he write for them a copy of the
deed of ownership, lest the thieves steal from them the original Shtar.
Abaye said that he could not write a second Shtar for the owner of each
field, because Rav Safra ruled that we do not write two Shtaros on one
field, lest the bearer of the Shtar use it to collect twice unlawfully.
(That is, in a case in which the bearer of the Shtar purchased the field
from a person who owed money, and then the seller's creditor came and
confiscated the field from the purchaser. The purchaser is entitled to go to
other purchasers (who bought their fields from the seller/debtor after he
did) and confiscate a field from them with his Shtar. If we write for a
landowner a second Shtar on one field, then he might go a second time and
confiscate another field from another purchaser unlawfully with the second
Shtar.) The landowners continued to bother Abaye about writing a second
Shtar. In order to stop them from bothering him, he told his scribe to write
for them a second Shtar, with the text on an erased part of a paper and the
witnesses below on a fresh part of the paper (which is an invalid Shtar).
Why did Abaye not simply acquiesce to the landowners' request and write for
them a second Shtar, but mention explicitly in the second Shtar that the
Shtar has no power of Achrayus (as the Gemara itself says later on this Daf
and on 169b). Such a Shtar, which explicitly waives the right of Achrayus,
would be a Shtar Ra'ayah which would prove that they are the rightful owners
of the land, but it would not give them the ability to confiscate a field
(a) The RITVA answers that the landowners wanted a second Shtar with
Achrayus, so that they would have the same power that they had with the
first Shtar (i.e. in case a creditor of the seller confiscates the field
from them, they will have the power to take a field from later purchasers).
(b) The PNEI SHLOMO explains that Abaye maintains that the Halachah follows
the view of Raban Shimon ben Gamliel (as Tosfos writes on 76b, DH Amar).
Raban Shimon ben Gamliel (169a) holds that "Osiyos Niknos b'Mesirah" -- a
Shtar (and the property it represents) is acquired by merely being given
over. Accordingly, we may not write a second Shtar -- even without Achrayus
(a Shtar Ra'ayah) -- for a person who purchased land, because perhaps later
he will give back the original Shtar to the seller (and receive his money in
return), thereby transferring the land back to him, and then come later with
the second Shtar, the Shtar Ra'ayah, and take the land away from the seller
unlawfully, since the Shtar Ra'ayah "proves" that he bought the land.
Why, then, did Abaye not simply tell the landowners that the Halachah is
like Raban Shimon ben Gamliel, that *no* second Shtar may be written, with
or without Achrayus? Why did he tell them the ruling of Rav Safra (who holds
like the Rabanan who maintain that we *may* write a second Shtar without
Achrayus)? It seems that Abaye wanted to show them that even the Rabanan
maintain that we may not write a second Shtar (with Achrayus). Had the
landowners then demanded a second Shtar without Achrayus, Abaye would have
told them that he holds like Raban Shimon ben Gamliel who rules that even a
Shtar without Achrayus may not be written.