1) USING A VESSEL WITH A HOLE FOR "NETILAS YADAYIM"
OPINIONS: The Gemara rules that a vessel with a hole large enough to allow liquid to enter ("Kones Mashkeh") is unfit for use for the Mei Chatas. The Gemara in Chulin (107a) rules that a vessel with a hole of Kones Mashkeh is unfit for Netilas Yadayim, washing the hands, as well.
Do these laws apply only to earthenware vessels (which the Gemara here is discussing) or to all types of vessels?
(a) TOSFOS (DH Im) concludes that since the Gemara in Chulin, which discusses Netilas Yadayim, specifies no particular material, it is evident that a vessel of any type of material which has a hole of Kones Mashkeh is unfit for Netilas Yadayim.
The DERISHAH (OC 159) explains that although holes of different sizes render vessels of different materials unfit with regard to becoming Tahor, Netilas Yadayim requires a whole and complete vessel. Therefore, even a hole the size of Kones Mashkeh renders a vessel unfit for Netilas Yadayim.
(b) The RAMBAM (Hilchos Berachos 6:11) rules, "Any vessel that is broken in a way that it would become Tahor is no longer valid for Netilas Yadayim." The KESEF MISHNEH explains that the Rambam rules differently from Tosfos. According to the Rambam, the size of the hole which invalidates a vessel for Netilas Yadayim varies depending on the material from which it is made, just as the size of the hole that makes the vessel Tahor depends on the material of the vessel. Therefore, a vessel that becomes Tahor with a hole large enough to be Kones Mashkeh becomes invalid for Netilas Yadayim with such a hole, while a vessel that becomes Tahor only with a hole the size of a k'Zayis becomes invalid for Netilas Yadayim only with a hole of that size as well, and not with a smaller hole.
HALACHAH: The TAZ (OC 159:1) and BI'UR HALACHAH rule in accordance with Tosfos that Kones Mashkeh is the uniform Shi'ur for the hole that invalidates all vessels for Netilas Yadayim.
2) USING AN EARTHENWARE VESSEL FOR "MEI CHATAS"
QUESTION: The Gemara states that "Machnis" is invalid for Mei Chatas, but "Motzi" is valid. "Machnis" refers to a vessel that has a hole large enough for water to enter from the outside. Such a vessel does not have the Halachic status of a Kli. "Motzi" refers to a vessel that has a hole large enough only to let water out from inside the vessel. Such a vessel still has the Halachic status of a Kli. As RASHI (DH l'Mei Chatas) explains, one may not be Mekadesh the Mei Chatas in a vessel with a hole that lets water in ("Machnis"), but he may be Mekadesh it in a vessel with a hole that only lets water out ("Motzi").
From the fact that the Mishnah discusses Klei Cheres, earthenware vessels, and the Gemara proceeds to teach the laws of the Mei Chatas, it seems that a Kli Cheres is valid for the Mei Chatas. However, this inference contradicts the Gemara in Yoma (2a) which says that every stage of the Avodah of the Parah Adumah is performed with one of three types of Kelim: Klei Gelalim (Rashi there explains that these are vessels manufactured from cow dung), Klei Avanim (stone vessels), and Klei Adamah (Rashi there explains that these are vessels made from earth but were not baked in a furnace like Klei Cheres; the earth is like soft stone from which vessels can be carved).
The Gemara in Yoma explains the reason for why only these three types of Kelim may be used for the Parah Adumah. A Tevul Yom (a person who immersed in a Mikvah to purify himself of his Tum'ah but has not yet waited until nightfall) is permitted to perform the service of the Parah Adumah. The Tzedukim rejected this Halachah and required that a person be entirely Tahor. In order to disprove them, the Chachamim enacted that we deliberately be Metamei the Kohen who burns the Parah Adumah, so that he will then immerse in the Mikvah and burn the Parah Adumah before nightfall (as a Tevul Yom). However, in order that people not make light of Parah Adumah since a Tevul Yom may perform its service, the Chachamim enacted strict Halachos to enforce its Taharah. One of these enactments is that the water for the Parah Adumah must be prepared only in Kelim that cannot become Tamei.
Why, then, does the Gemara here discuss Klei Cheres in the context of the Mei Chatas? Klei Cheres, which can become Tamei, are invalid for use with the Mei Chatas!
(a) The CHIDUSHI HA'RAMBAN answers that the law in the Gemara in Yoma is only a "Ma'aleh b'Alma," a mere stringency instituted in order to refute the Tzedukim. The Gemara here refers to the law d'Oraisa. According to the Torah, a Kli Cheres is valid for Parah Adumah, but only when it is not "Machnis." (See CHOCHMAS BETZALEL, who writes that this is also the intention of TOSFOS (DH Kasher) when he says that the requirement to use Kli Gelalim is only mid'Rabanan.)
(b) The Ramban cites another opinion that says that the requirement to use a Kli that cannot become Tamei applies only before the water was mixed with the ashes of the Parah Adumah. Once they have been mixed, the water no longer can become Tamei (as the Halachah states that if a Sheretz touches the Mei Chatas, it remains Tahor). From this stage onward the water may be placed into any type of Kli, including a Kli Cheres. The Gemara here teaches that a Kli Cheres which has a hole which is "Machnis" is not valid, but one with a hole which is only "Motzi" is valid.
(RAV ISER ZALMAN MELTZER, in his Hagahos to the Ramban, writes that he did not find a source for the Ramban's assertion that if a Sheretz touches the Mei Chatas it remains Tahor. On the contrary, the Mishnah in Parah (9:8) implies that the Mei Chatas can become Tamei. He suggests that there is a printer's error in the words of the Ramban, and they should read instead, "Mei Chatas which became Tamei can still make others Tahor"; see the Gemara in Zevachim 93a in the name of Rebbi Elazar. However, Rav Iser Zalman Meltzer rejects this suggestion because the text of the RITVA is identical to that of the Ramban. Moreover, the Rabanan in Zevachim there disagree with Rebbi Elazar. He concludes that this question is difficult and requires further elucidation. See also footnote 81 in Chidushei ha'Ritva.) (D. BLOOM)
3) "KELIM" UNDER A "ZAV" WHICH ARE NOT SUITED FOR SITTING UPON
QUESTION: The Mishnah (49a) teaches that there are objects that become Tamei with Tum'as Mes but do not become Tamei with Tum'as Midras. The Gemara here explains that this refers to a Se'ah and Tarkav (types of measuring vessels), which become Tamei with Tum'as Mes but not with Tum'as Midras, since they are not fit for use as seats on which to sit. (The Gemara is discussing a case in which the body of the Zav does not come into contact with the Se'ah or Tarkav, because if it does, then the Se'ah or Tarkav becomes Tamei because of Maga.)
RASHI (DH l'Asuyei) explains that since a Se'ah and Tarkav are not suited for sitting, they do not become an "Av ha'Tum'ah." Rashi's words imply that they nevertheless become Tamei, but they are not Tamei with Av ha'Tum'ah but merely with Rishon l'Tum'ah.
The Mishnah in Zavim (5:2), however, explicitly states that "whatever a Zav is above is Tahor unless it is suited for sitting upon." Why, then, does Rashi here write that a Se'ah or Tarkav becomes Tamei as a Rishon l'Tum'ah?
ANSWER: TOSFOS in Eruvin (27a, DH Kol) quotes RABEINU TAM who explains that the Mishnah in Zavim does not mean literally that the objects beneath the Zav are absolutely Tahor. The Mishnah means that the objects are Tahor only from Av ha'Tum'ah, but they are Tamei as Rishon l'Tum'ah. Rashi here follows the view of Rabeinu Tam. (This is apparent from the words of Rashi later on 54b, DH Hi.)
This also explains why Rashi here says that when a Zav sits on a Se'ah or Tarkav it becomes a Rishon since he has touched it. Why does it become Tamei with Tum'as Maga? The Zav who sits on the Se'ah or Tarkav is presumably wearing pants, and thus his body has not made contact with the Se'ah or Tarkav! Rashi means simply that a Se'ah or Tarkav underneath a Zav is always a Rishon, regardless of whether it touches his skin or not. (M. KORNFELD)
4) THE REASON WHY A BLIND PERSON IS NOT A VALID WITNESS
OPINIONS: The Mishnah states that one who is fit to be a judge is also fit to be a witness, but it is possible for one to be fit to be a witness but not fit to be a judge. In the Gemara, Rebbi Yochanan explains that the Mishnah is teaching that one who is blind in one eye is fit to be a witness but not a judge, in accordance with the ruling of Rebbi Meir.
Why is a person who is blind in one eye considered a valid witness, while a person who is blind in both eyes is not considered a valid witness?
(a) RASHI (DH l'Asuyei) writes that even though one who is blind in one eye is a valid witness, one who is blind in both eyes is not. The Torah states with regard to witnesses, "Or he saw" (Vayikra 5:1), which teaches that a witness must be able to see. The TUR (CM 35:14) adds that this verse teaches that a blind person is not a valid witness even when he recognizes the voices and the people involved and is mentally capable of testifying.
The RAMBAM (Hilchos Edus 9:12) also writes that the verse, "Or he saw," is the source that a blind person is not a valid witness. The KESEF MISHNEH asks what the Rambam's source for this is, as the Gemara does not mention this verse as the source for this Halachah. The MAGIHAH in the margin of our text of the Rambam writes that the Rambam's source is the Gemara in Erchin (17b). The Gemara there says that if a person had healthy eyesight when he saw the incident but at the time of testimony he was blind, his testimony is not accepted. The Gemara there (18a) says that this is derived from the verse, "Or he saw... if he shall not tell" -- the Torah requires that the witness be valid both when he sees the incident and when he tells Beis Din about it. The Magihah asserts that this is also the source for the statement of Rashi here.
(The KETZOS HA'CHOSHEN (259:2) cites the Tosefta in Shevuos (3:6) that says that a blind man is invalid as a witness because of the verse, "Or he saw." The MITZPEH SHMUEL on the Tosefta (#300) writes that the Kesef Mishneh apparently was unaware of the Tosefta, because had he seen the Tosefta he would not have questioned the Rambam's source.)
(b) However, Rashi in Bava Kama (86b, DH b'Edim) presents a logical reason for why a witness may not be blind. Rashi writes that without the sense of sight, a person cannot testify in cases that depend exclusively on sight, such as in a case in which one person harmed another person and must pay for damages.
The GILYON HA'SHAS asks that according to Rashi there, it should be possible for a blind person to testify in a case in which he saw the event before he became blind. That is, he should be able to testify, after he became blind, about what he saw before he became blind!
The Gilyon ha'Shas cites the ROSH in Bava Basra (8:24) who says that in such a case the blind witness is still invalid. The Rosh writes that there is a requirement that the witness be valid from beginning to end. Even though Beis Din knows that the witness is telling the truth, his testimony is not valid because he must be fit to testify both at the time that he saw the incident and at the time that he appears in Beis Din. The Rosh maintains that the requirement that a witness be able to see is derived from the verse, "Or he saw," as Rashi here in Nidah explains.
This is similar to the source for why a mute person is unfit for testimony. The Gemara in Gitin (71a) derives from the verse, "If he shall not tell" (Vayikra 5:1), that the witness must be able to speak, excluding a person who is mute. Even though such a person is capable of testifying in writing, the Torah requires that he give testimony orally. In the same way, it is necessary for the witness to be capable of seeing with his eyes at the time that he speaks in Beis Din, and it is not sufficient that Beis Din knows that he is telling the truth.
However, the RAN in Gitin (end of 11b in the pages of the Rif) writes that the requirement that the witness be fit from the beginning until the end applies only when the disqualification in question is because of Da'as, intelligence. A blind person is still intelligent, and thus he is a valid witness as long as he was fit at the beginning (when he saw the incident), even though he is not fit when he testifies. The Ran's logic seems to be consistent with the words of Rashi in Bava Kama. (See also CHAZON ISH, EH 104:14.) (D. BLOOM)
5) A FEMALE JUDGE
QUESTION: The Mishnah states that one who is fit to be a judge is also fit to be a witness, but it is possible for one to be fit to be a witness but not fit to be a judge.
According to the Mishnah, how was it possible that one of the Shoftim, judges and leaders of the Jewish people, was Devorah (Shoftim 4:4)? Since a woman may not testify as a witness (Shevuos 30a), and one who cannot be a witness cannot be a judge, Devorah should not have been able to serve as a judge. (TOSFOS DH Kol)
ANSWERS: TOSFOS suggests three answers to this question.
(a) The Mishnah refers specifically to men. All men who are valid judges are valid witnesses. A woman, however, can be a valid judge even though she cannot be a valid witness.
(b) The Halachah is that women generally are not fit to be judges. Devorah, however, was allowed to judge by explicit prophetic authorization.
(c) Perhaps Devorah did not actually judge, but she served merely in an advisory capacity, advising male judges how to rule.