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 betroth a woman, he should bring an Am ha'Aretz with him so that the Am ha'Aretz will 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 a man may not betroth a woman without first looking at her, lest he later find something unattractive about her that disgusts him and transgress the Mitzvah of "v'Ahavta l'Re'acha Kamocha" (Vayikra 19:18).
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 to do an Aveirah for him (see Eruvin 32b, Shabbos 4a, and Tosfos there). The Gemara in Avodah Zarah (20a) says that it is prohibited to look at a woman since doing so might lead to sin, as 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. One is not prohibited from glancing at a woman without gazing at her beauty. Moreover, it is proper to look at a woman before one marries her, in order 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. Talmidei Chachamim, however, 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 exchange her for a different woman. An Am ha'Aretz, in contrast, is not stringent upon himself, and he knows how to distinguish between the appearance of one woman and another. (MAGID MISHNEH, 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 this Halachah.
1. The MIGDAL OZ explains that the Rambam makes no mention of this Halachah because the Rambam is discussing ordinary men when he writes that it is proper for a man to look at his prospective wife. The Rambam is not discussing Talmidei Chachamim, whose practice is never to look at a woman.
The Migdal Oz differentiates between looking at a woman to whom one is already engaged ("Meshudach"), whom one is ready 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 (Hilchos Isurei Bi'ah 21:3) is not discussing the case of looking at a woman to whom one is already engaged and committed (he mentions that Halachah in Hilchos Ishus 3:19), but rather he is discussing the case of looking at a woman to check to see if he should become engaged to her in the first place. Accordingly, it is obvious that a Talmid Chacham should not look at her but rather he should have an Am ha'Aretz look at her instead. In contrast, even a Talmid Chacham should look at his Kalah after he is engaged in order to decide whether she is fit for him to betroth (this is in contrast to the view of the Magid Mishneh mentioned above).
2. The MIRKEVES HA'MISHNEH explains that the Halachah that the Rambam discusses here is the same Halachah which he discusses in Hilchos Ishus. The Rambam maintains that even a Talmid Chacham is supposed to look at his prospective wife before he marries her in order to make sure that she has no blemishes, and to make sure that the woman's family did not exchange her for a different woman. The Rambam understands that the Gemara here does not mean that a Talmid Chacham should not look at his prospective wife, but rather it means that in addition to looking at her he should bring an Am ha'Aretz to check her appearance to make sure that her family does not exchange her for another woman. The Talmid Chacham himself should look at her to make sure that she is not unsightly to him, but he should have an Am ha'Aretz look at her to ensure that the family does not exchange her for another woman, since the ability to distinguish between two women of similar appearances 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. The Gemara's wording implies that the Talmid Chacham should accompany the Am ha'Aretz and look at the woman as well. This is also why the Gemara adds the reason "so that they not exchange her"; this is the expertise of the Am ha'Aretz and his purpose in coming with the Talmid Chacham.
2) A SHTAR WRITTEN WITHOUT "ACHRAYUS"
QUESTION: The Gemara relates that when certain Yishmaelites came to Pumbedisa (see RABEINU GERSHOM), they forcefully took the fields of other people. The original owners of the fields came to Abaye and showed him their deeds of ownership. They requested that he write for them a copy of the deed of ownership, lest the thieves steal the original documents from them. Abaye said that he could not write a second Shtar for the owner of each field, because Rav Safra ruled that one may 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 Beis Din writes 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 with the witnesses below on a fresh part of the paper (which constitutes 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)? A Shtar which explicitly waives the right of Achrayus is a Shtar Ra'ayah which proves that the bearer is the rightful owner of the land, but it does not give the bearer the ability to confiscate a field from Lekuchos.
(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 (that is, in the event that 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) rules that "Osiyos Niknos b'Mesirah" -- a Shtar (and the property it represents) is acquired merely by being given over. Accordingly, Beis Din 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 he will 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, though, did Abaye not simply tell the landowners that the Halachah is like Raban Shimon ben Gamliel who rules that no second Shtar may be written, with or without Achrayus? Why did he tell them the ruling of Rav Safra (who follows the view of the Rabanan who maintain that Beis Din may write a second Shtar without Achrayus)? It seems that Abaye wanted to show them that even the Rabanan maintain that Beis Din 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 rules like Raban Shimon ben Gamliel who states that even a Shtar without Achrayus may not be written.