1) AGADAH: WHEN IS A CURSE EFFECTIVE?

QUESTION: The Gemara relates an incident in which a woman approached Rava with a question. The woman had been a Shechiv Mera and had written in a Shtar that she was giving her property away "from life and in death." She then recovered from her illness and wanted to retract the gift. Rava ruled, in accordance with his opinion about such terminology, that the gift was considered like a normal gift of a healthy person and it took effect already while the woman was still a Shechiv Mera, and he therefore did not allow the woman to retract the gift. The woman harassed him about his ruling. In order to end her harassment, Rava told his scribe to write in a Shtar that she was entitled to retract her gift, but he instructed the scribe to add words from a Mishnah in Bava Metzia (75b) that would make it clear to any knowledgeable person that the Shtar was written only to get rid of the bothersome woman. The woman understood his intentions and cursed him that his boat should sink. The students of Rava soaked his clothes in water in order to cause the curse to be fulfilled in a harmless way. Nevertheless, the Gemara relates, Rava's boat still sank at sea.

If Rava was justified in ruling the way that he did, then why did the woman's curse take effect?

ANSWERS:

(a) The NIMUKEI YOSEF and RITVA explain that Rava indeed did something wrong, and that is why the curse was allowed to take effect. Rava should not have ruled in accordance with his own opinion in this matter, because his opinion was a minority opinion that was not accepted as the Halachah (as the Gemara earlier says clearly). Since Rava ruled incorrectly in a matter of Halachah, he was held liable due to the principle that "an unintentional mistake in one's learning is equivalent to an intentional transgression" -- "Shigegas Talmud Olah Zadon" (Bava Metzia 33b). Even though it was a mistake on Rava's part, it sufficed to allow the woman's curse to take effect.

There are other places in the Gemara where it is clear that a curse can harm a person even for a reason that seems insignificant. The Gemara in Makos (11a) says that the mother of the Kohen Gadol used to supply food to accidental murderers who had fled to the cities of refuge (Arei Miklat). The Gemara explains that she did this so that they would not curse her son for not praying enough to prevent their accidental killing. It is apparent from that Gemara that their curses would have taken effect even though their complaint against the Kohen Gadol was a minor one. Similarly, the Gemara in Bava Metzia (75b) says that a person who lends money without witnesses causes a curse to come upon himself. RASHI there explains that when the lender goes to court and demands repayment, people will curse him because they will think that he is attempting to steal from the alleged borrower, since he has no witnesses to support his claim. In that case, the lender is certainly not a thief; on the contrary, he is a generous man who lent money as a favor and is now merely trying to get his own money back. Nevertheless, the curse can be effective because there is a reason for it to take effect, even though the reason is minimal.

(b) Another answer may be suggested. The Gemara in Gitin (35a) relates that Rava bar Rav Huna had a similar encounter with an angry woman, and there, too, her curse was effective. RAV CHAIM KANIEVSKY shlit'a was asked (by the author of L'RE'ACHA KAMOCHA) why her curse was effective when Rava bar Rav Huna followed the dictates of Halachah. Rav Chaim answered that Rava bar Rav Huna kept telling her why her claim was invalid, and thus caused her pain, which was grounds for her curse to take effect. Perhaps a similar explanation may be given here. Rava may have instructed his scribe in the woman's presence to write the additional words from the Mishnah in Bava Metzia, not realizing that she would figure out that he was trying to trick her. Rava could have given these instructions to his scribe in private, and he caused pain to the woman by doing so in her presence. Consequently, her curse was able to take effect. (Y. MONTROSE)

This also seems to be the approach of the ME'IRI here, who writes, "Leitzanus (mockery) is a most detestable trait. How much more so must the judges and the leaders be careful to avoid Leitzanus, as they are punished even more for it, as we find in the incident [recorded in the Gemara here]." Even though Rava's intention was to protect himself from the woman's harassment, his role as an authority demanded that he be extra careful not to demonstrate any form of mockery or derision. Writing a Shtar to fool the woman was a slightly derisive act, and because of his great stature Rava was held accountable for it and he was vulnerable to the woman's curse.

153b----------------------------------------153b

2) THE SIMILARITY BETWEEN A SINKING BOAT AND A DYING PERSON

OPINIONS: The Gemara relates an incident in which a Shtar Matanah (deed of gift) given by a Shechiv Mera mentioned that the benefactor wrote the Shtar while he was bedridden with illness, but did not specify that the benefactor had died as a result of that illness. The heirs of the benefactor claimed that he had recovered from that illness and then died later from a different illness, and thus the gift should be annulled, as is the case when any Shechiv Mera recovers. Rabah ruled that since the benefactor was dead at the time the question arose, Beis Din must assume that he died as a result of that illness and thus the gift should be upheld and the recipient should receive the property. Abaye argued that Beis Din must assume, to the contrary, that the benefactor recovered from his illness and died later, and the gift should be invalid. Abaye proved his view from the Halachah that applies when a boat sinks at sea and it is unknown whether the passengers are still alive. The law is that, out of doubt, the stringencies of both possibilities (that they are alive or that they are dead) are applied. (For example, if the daughter of a Kohen was married to a Yisrael who was on the ship, she remains forbidden to eat Terumah, in case her husband is still alive. On the other hand, if the daughter of a Yisrael was married to a Kohen who was on the ship, she is also forbidden to eat Terumah in case her husband is dead, in which case her Halachic status would revert to that of a Bas Yisrael who is not permitted to eat Terumah.) Abaye reasoned that most passengers on a boat do not survive when the boat sinks, whereas most sick people do not die from their illnesses. If the Chachamim must take into account the possibility that the passengers on a boat that sunk are still alive (where that possibility would result in a stringent ruling), then they certainly must take into account the possibility that a Shechiv Mera recovered from his illness.

The Gemara does not respond to Abaye's argument. Why did Rabah not agree with Abaye?

(a) The RAMBAN and ROSH explain that Rabah understood that there is a major difference between the two cases. When a boat sinks, the fate of its passengers will never become known. The Chachamim therefore must rule stringently in all matters related to them. In contrast, in the case of the Gemara here, Beis Din knows that the benefactor is dead. Hence, they can attribute his death to the illness that he had at the time that he gave the gift.

(b) The SHITAH MEKUBETZES argues with the Ramban and Rosh and says that it is problematic to suggest that this was why Rabah did not accept Abaye's reasoning. Rabah clearly stated that "his grave proves his status," meaning that the assumption that the benefactor died from his illness was based not on the fact that he had been sick, but rather on the fact that he was known to be dead. There must be a different underlying dispute between Rabah and Abaye.

The Shitah Mekubetzes explains, therefore, that Rabah based his position on the benefactor's present status (i.e. the fact that he was dead). Rabah maintained that Beis Din could assume, based on the fact that the benefactor was dead when the question came to them, that he had died from his illness; that is, his present status could be used to determine what had occurred in the past. Abaye maintained that a present situation may be used to determine what occurred in the past only when there is an additional factor that supports the conclusion that can be drawn. For example, when a person who was Tamei immersed himself in a Mikvah, and afterwards the Mikvah was measured and found to lack the amount of water necessary for a valid Mikvah, the person who immersed there remains Tamei. Since the Mikvah was found to lack the requisite amount of water, the Halachah assumes that this was the Mikvah's status even before it was measured, when the Tamei person immersed himself. This ruling, however, is based on an additional factor: the rule that "someone who was Tamei remains so (until it is known for certain that his status changed)." If not for this additional Halachah, the Tamei person indeed would not have been required to immerse himself again, even though the Mikvah was found to be lacking after he used it.

Abaye assumed that Rabah validated the Shechiv Mera's gift (and assumed that the Shechiv Mera had died from his illness) because of two factors: the fact that the Shechiv Mera was dead when the question came to Beis Din, and the fact that he was known to have been sick before. Only the combination of these two factors made it possible to assume that the Shechiv Mera had died from his illness; the mere fact that he was already dead was not sufficient. In response, Abaye cited the case of a sunken boat as proof that the Shechiv Mera's illness could not be a reason to assume that he died from his illness. Abaye argued that if Beis Din must assume (l'Hachmir) that the passengers of a sinking boat survived, then certainly they must assume that a sick person survived and recovered from his illness. Although the fact that the Shechiv Mera was dead was still a valid indication that he had died from his illness, his present status alone would not be sufficient to resolve the Safek of what took place in the past. (Y. MONTROSE)

3) HALACHAH: MAY A HEALTHY PERSON CANCEL A GIFT THAT HE GAVE BY SAYING THAT HE WAS A "SHECHIV MERA" AT THE TIME OF THE GIFT?

OPINIONS: Rebbi Nasan and Rebbi Yakov disagree about whether a healthy person who gave a gift is believed to claim that he was a Shechiv Mera at the time that he gave the gift. The specific case in question is when the Shtar Matanah, the deed of gift, contains no information about his health at the time of the gift. Rebbi Yakov says that the benefactor may claim that he was a Shechiv Mera and retract the gift, and the burden of proof is on the recipient of the gift. Rebbi Nasan maintains that Beis Din assumes that the benefactor's status at the time that he gave the gift was the same as his present status. If the benefactor is healthy now, then Beis Din assumes that he was healthy at the time that he gave the gift. The recipient therefore prevails, and if the benefactor wishes to retract the gift on the grounds that it was a Matnas Shechiv Mera, the burden of proof is on him. If, on the other hand, the benefactor is presently ill, then the burden of proof is on the recipient. The same Machlokes applies to a case in which the benefactor died and his heirs claim that he did not die from the same illness from which he suffered at the time that he gave the gift (but rather he recovered from that illness, and the gift is invalid). Whose opinion does the Halachah follow?

(a) The RASHBAM quotes the Gemara in Bava Metzia (117b) that states that the Halachah normally follows the opinion of Rebbi Nasan because he was a judge who "delved into the depths of the law." Since the Halachah follows Rebbi Nasan's opinion that the benefactor's status at the time of the gift is determined based on his present status, the Halachah is also in accordance with the opinion of Rabah who follows the opinion of Rebbi Nasan, as the Gemara mentions. In a case in which a Shechiv Mera gave a gift but the Shtar did not indicate whether he died from his illness, Rabah ruled that since he was known to be dead, Beis Din may assume that he died from the illness (and not from a different, later illness) and the gift should be awarded to the recipient. (TOSFOS, however, says that Rebbi Nasan would not necessarily agree with the ruling of Rabah in that case. Although Rebbi Nasan maintains that the benefactor's present status may be used to determine his status in the past as well, that may be true only for a person who is presently alive and well, because everyone who is alive has a Chazakah that he is healthy. In contrast, when a person is dead, Rebbi Nasan might not agree that we assume that he died from the illness that he had when he wrote the Shtar.)

(b) The RIF and other Rishonim rule in accordance with Rebbi Yakov's opinion. The Gemara later (154a) cites Amora'im who equate Rebbi Nasan's opinion with that of Rebbi Meir (in the Mishnah here), and Rabbi Yakov's opinion with that of the Chachamim. Since the Halachah follows the view of the Chachamim, it cannot follow the view of Rebbi Nasan. (The Rashbam, on the other hand, rules in accordance with the other Amora'im there, who explain that both Rebbi Meir and the Chachamim in the Mishnah agree with Rebbi Nasan.)

The ROSH comments that Rabah himself there explains that Rebbi Nasan does not agree with the Chachamim of the Mishnah. This statement of Rabah implies that he changed his own position and no longer follows the view of Rebbi Nasan.

The RASHBA, however, has the Girsa of "Rava" there, and not "Rabah." According to that Girsa, Rabah himself did not change his opinion. The Rashba, however, rules like Rava (that the Halachah follows the Chachamim and not Rebbi Nasan), since he was the later Amora.

HALACHAH: The SHULCHAN ARUCH (CM 251:2) rules like the Rif and Rosh. The REMA quotes the NIMUKEI YOSEF who says that Beis Din may rely on testimony from people who took care of the deceased man to determine whether he died from his illness. The Nimukei Yosef adds (in the name of the RITVA, who says that this is also the view of the RAMBAN) that it is not even necessary for the witnesses to have been with the person at all times for them to attest that he died from that illness. The witnesses' testimony is valid even if they say that they merely asked the family members and servants about his condition. If they testify that they were told that his condition was worsening and then he subsequently died, that testimony is sufficient for Beis Din to ascertain that he died from that illness. (Y. MONTROSE)

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