Dr. Joshua Kulp

About Dr. Joshua Kulp

Dr. Joshua Kulp, Rosh Yeshiva, is co-founder of the Conservative Yeshiva in Jerusalem where he has taught Talmud and halakhah for the last 20 years. He is the author of the recently published book Reconstructing the Talmud (Mechon Hadar, 2014) as well as the The Schechter Haggadah: Art, History and Commentary (Schechter Press, 2008). Beginning in 2001 and continuing through 2013, Dr. Kulp authored a commentary in English on the entire Mishnah, which served as the basis for the Mishnah Yomit project. In 2013 Dr. Kulp began the Daf Shevui program, the study of one daf of Talmud per week and has so far completed a commentary on Tractates Sukkah and Megillah and has begun work on Tractate Ketubot. Dr. Kulp was raised in Margate, New Jersey, where his family was active in the Conservative Movement. He spent his summers at Camp Ramah in the Poconos, Camp Ramah in Canada and for the last ten summers, he has served as the scholar-in-residence at Camp Ramah in New England. Dr. Kulp made aliyah in 1994 and currently lives in Modiin with his wife, Julie Zuckerman, and their four children. In his spare time, he is an avid triathlete and runner and has completed three Ironmans.

Dr. Joshua Kulp

Avodah Zarah, Daf Ayin Bet, Part 2

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Avodah Zarah, Daf Ayin Bet, Part 2
Reading for Monday, October 29
Avodah Zarah 72-2

 

Introduction

Another discussion about the rights to retract a sale.

 

ההוא גברא דאמר ליה לחבריה אי מזביננא לה להא ארעא מזביננא לך במאה זוזי

אזל זבנה לאיניש אחרינא במאה ועשרין

אמר רב כהנא קנה קמא

מתקיף לה רב יעקב מנהר פקוד האי זוזי אנסוהו והלכתא כרב יעקב מנהר פקוד

A man once said to his fellow, “If I sell this piece of land I will sell it to you for a hundred zuz.” He later sold it to another for a hundred and twenty.

Kahana said: The first man acquired it.

Rav Ya’akov of Nehar-Pekod objected: These zuz compelled him [to sell to the second person].  

The halakhah agrees with R. Jacob of Nehar-pekod.

 

According to R. Kahana, since they set a price, the first person acquired the land and the sale to the second is not valid. R. Ya’akov looks at this case in a different way—the higher price may have “forced” the owner to sell the land. Had the second person not offered the extra twenty zuz, perhaps he would not have sold it at all. Therefore, the second sale is valid. And this is the halakhah. Until the money is transferred, the sale is not final.

 

א”ל כדשיימי בתלתא אפילו תרי מגו תלתא כדאמרי בתלתא עד דאמרי בתלתא

 

If [the seller] said to [the purchaser], “When the article has been valued by three people [we will settle the price accordingly],” even if two of the three agree [on the price, it must be accepted];

But if he said, “As three will say [the price],” then [the sale is not valid] until all three agree on the price.

 

If the seller says that he will sell the article after it is “evaluated” by three, then he has set them up as a court and he must accept the decision of even two. But if he says that the three will “say” the price, then they are just three people and all three must agree for the price to be final.

 

כדשיימי בארבעה עד דאמרי בארבעה וכ”ש היכא דא”ל כדאמרי בארבעה

   

If he said, “When it has been valued by four people” then there must be four who agree on the price; all the more so if he said, “As four will say [the price].”

 

A court consists of three, not four. So in either case, the price must be set by all four.

 

א”ל כדשיימי בתלתא ואתו תלתא ושמוה וא”ל אידך ליתו תלתא אחריני דקים להו טפי

אמר רב פפא דינא הוא דמעכב

If he said to him, “When the article has been valued by three people” and three men came and valued it, and then the other said, “Let three different people come who are more qualified,” R. Papa said: He has the right to prevent the sale.  

 

The buyer has a right to reject the evaluation based on the grounds that the second group is more qualified.

 

מתקיף לה רב הונא בריה דרב יהושע ממאי דהני קים להו טפי דלמא הני קים להו טפי והלכתא כרב הונא בריה דרב יהושע:

 

Huna the son of R. Joshua raised a difficulty: How can we know that these are more qualified; perhaps the first three were better qualified!

The halakhah agrees with R. Huna the son of R. Joshua.

 

Huna son of R. Joshua points out that there is no objective way of knowing if the second group would be more qualified than the first. Therefore, the evaluation of the first group stands. And the halakhah follows his opinion.

 

Avodah Zarah, Daf Ayin Bet, Part 1

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Avodah Zarah, Daf Ayin Bet, Part 1
Reading for Sunday, October 28
Avodah Zarah 72-1

 

 

Introduction

Today’s sugya deals with a person who promised to sell a piece of land to one person and then went and sold it to someone else.

 

ההוא גברא דא”ל לחבריה אי מזביננא לה להא ארעא לך מזביננא לה. אזל זבנה לאיניש אחרינא

אמר רב יוסף קנה קמא

א”ל אביי והא לא פסק

A man once said to his fellow, “If I sell this piece of land, I will sell it to you,” but he went and sold it to another person.

Joseph said: The first one acquired it.

Abaye said to him: But he had not settled the price!

 

According to R. Joseph, the fact that he promised the land to the first person, means that the first person has acquired it. Abaye holds that unless they had set a price the first person has not acquired the land.

 

ומנא תימרא דכל היכא דלא פסק לא קנה דתנן המוכר יינו לעובד כוכבים פסק עד שלא מדד דמיו מותרין מדד עד שלא פסק דמיו אסורין

 

[R. Joseph asked:] And what is the source for your saying that wherever he had not settled the price he has not acquired it?

[He replied:] As we learn in our Mishnah: If [a Jew] sells his wine to a non-Jew—if he set the price before he measured it out, the purchase-money is permitted;

But if he measured it out before he set the price, the purchase-money is prohibited.

 

Abaye uses the Mishnah that we have been learning to prove that once the price has been set the purchaser has acquired the goods. As long as the Jew sets the price before he measures it out, the non-Jew has acquired the wine and become obligated to pay before the wine becomes nesekh.

 

מאי הוי עלה מאי הוי עלה כדקאמרינן דלמא חומרא דיין נסך שאני

 

What is said about this? “What is said about this”? It is as we said!

Perhaps the stringency of yayin nesekh makes this case different.

 

Joseph would argue that when it comes to yayin nesekh, the rule is more stringent. Generally speaking simply a promise to sell is sufficient for the buyer to acquire the goods. But with yayin nesekh a price must be set.

 

ת”ש דאמר רב אידי בר אבין עובדא הוה בי רב חסדא ורב חסדא בי רב הונא ופשטיה מהא דתנן משך חמריו ופועליו והכניסן לתוך ביתו בין פסק עד שלא מדד ובין מדד עד שלא פסק לא קנה ושניהן יכולין לחזור בהן

פרקן והכניסן לתוך ביתו פסק עד שלא מדד אין שניהן יכולין לחזור בהן מדד עד שלא פסק שניהן יכולין לחזור בהן

Come and hear: R. Idi b. Avin said: A similar case came before R. Hisda who referred it to R. Huna who solved it from that which is taught: If a man took possession of [the produce loaded onto another’s] donkey-drivers [or produce carried by] his workmen  and brought them [the people] into his own house, whether he settled the price before measuring [the produce] or measured it without having settled the price, he has not acquired them and both can retract.

If, however, he unloaded them and brought them into his house, then should he have settled the price before he measured them neither can retract, and should he have measured them before settling the price both can retract.

 

In the first half of this baraita, the buyer brings the worker’s carrying the produce into his home. This does not count as “meshikhah” and therefore he does not acquire the produce, even if he sets a price.

However, if he unloads the produce, then he has performed “meshikhah.” In this case, if they set the price then neither can retract. This accords with Abaye. Setting the price is irrelevant if the buyer has not taken possession of the goods.

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Avodah Zarah, Daf Ayin Aleph, Part 5

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Avodah Zarah, Daf Ayin Aleph, Part 5
Reading for Thursday, October 25
Avodah Zarah 71-5

 

 

Introduction

The sugya continues to discuss whether meshikhah acquires in transactions with non-Jews.

 

א”ל מר קשישא בריה דרב חסדא לרב אשי ת”ש המוכר יינו לעובד כוכבים פסק עד שלא מדד דמיו מותרים ואי אמרת משיכה בעובד כוכבים אינה קונה אמאי דמיו מותרין

 

Mar Kashisha, son of R. Hisda, said to R. Ashi: Come and hear: If [a Jew] sells his wine to a non-Jew—if he set the price before he measured it out, the purchase-money is permitted. Now should you say that acquisition by meshikhah does not apply to a non-Jew, why is the purchase-money permitted?

 

Ashi had said that meshikhah does not effect acquisition in transactions with non-Jews. Mar Kashisha raises our mishnah as a difficulty on him. In the mishnah, as long as the Jew sets the price before he measures it out, the sale is permitted. The non-Jew acquires the wine as soon as it enters his possession and it does not become nesekh until later. This seems to prove that meshikhah acquires.

 

הכא במאי עסקינן דאקדים ליה דינר

 

 [R. Ashi replied:] What are we dealing with here? When he paid him the dinar beforehand.

 

Ashi says that this is a case where he paid him before. Thus the money came into the hands of the Jew before the non-Jew touched the wine. It seems to be the payment that effects transition, not the meshikhah.

 

א”ה אימא סיפא מדד עד שלא פסק דמיו אסורין ואי דקדים ליה דינר אמאי דמיו אסורין

 

[Mar Kashisha said]: If so, what about the end [of the mishnah]: But if he measured it out before he set the price, the purchase-money is prohibited. Now if he paid him the dinar beforehand, why should the purchase-money be prohibited?

 

The problem with R. Ashi’s resolution is that it does not accord with the end of the mishnah—if the non-Jew gave the Jew the dinar before the wine was measured out, why should it become prohibited?

 

א”ל ולדידך דאמרת משיכה בעובד כוכבים קונה אמאי רישא דמיו מותרין וסיפא דמיו אסורין

 

 [R. Ashi replied:] But according to your reasoning, that acquisition by meshikhah does apply to a non-Jew, why in the first clause is the purchase-money permitted and prohibited in the second!

 

To R. Ashi, if meshikhah effects transition, then the purchase money should be permitted in both cases, for in both cases the non-Jew acquires the wine and becomes liable for the payment before he touches it and makes it nesekh.  Effectively, R. Ashi is showing that the operative principle in the mishnah is not acquisition through meshikhah.

 

אלא מאי אית לך למימר פסק סמכא דעתיה לא פסק לא סמכא דעתיה לדידי נמי אע”ג דקדים ליה דינר פסק סמכא דעתיה לא פסק לא סמכא דעתיה

 

Rather, what can you say? When he set the price, his mind is made up [to acquire the wine] and if he had not set the price, his mind is not made up. Similarly, according to my view, even when he has paid him the dinar in advance, should he have set the price his mind is made up and if he had not set the price his mind is not made up.

 

To R. Ashi, the determinative factor is not meshikhah, but whether or not the non-Jew is certain that the Jew will sell him the wine. If the Jew set the price then the non-Jew is assured he will get the wine and he basically acquires the wine before it becomes nesekh. But if the Jew did not set the price, then the non-Jew is not sure the sale will happen and he does not acquire the wine even if he pays for it beforehand. The wine does not become his even after he touches it. This is why it is prohibited.

Avodah Zarah, Daf Ayin Aleph, Part 6

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Avodah Zarah, Daf Ayin Aleph, Part 5
Reading for Friday, October 26
Avodah Zarah 71-6

 

Introduction

Today’s sugya continues to discuss whether meshikha (drawing an object towards oneself) acquires for a non-Jew.

 

א”ל רבינא לרב אשי ת”ש דאמר ר’ חייא בר אבא א”ר יוחנן בן נח נהרג על פחות משוה פרוטה ולא ניתן להישבון

ואי אמרת משיכה בעובד כוכבים אינה קונה אמאי נהרג

Ravina said to R. Ashi: Come and hear: R. Hiyya b. Abba said in the name of R. Yohanan: A Noahide is put to death for stealing less than a perutah’s worth [of the property of an Israelite] and is not obligated to make restitution.

Now if you say that acquisition by meshikhah does not apply to a non-Jew, why should he be put to death? 

 

Ravina uses a baraita about Noahides to prove that meshikhah acquires for non-Jews. Noahides are non-Jews, and according to the Talmud they are obligated to keep seven commandments, one of which is the commandment not to steal. As far as punishments goes, in Talmudic law the Noahide is punished by death—there are no other punishments. I should emphasize that these laws are totally theoretical, there is no evidence that they were ever applied or even meant to apply in real life.

According to the baraita, a Noahide who steals from a Jew is liable for the death penalty, even if he steals less than a perutah’s worth of property. Furthermore, he does not have to give the property back. This seems to prove that it is his and therefore that he can acquire through meshikhah.

 

משום דצעריה לישראל

 

Because he caused trouble to an Israelite.

 

Ashi rejects this reading of the baraita—he is not executed because he acquired the property. He is executed because he gave trouble to a Jew.

 

ומאי לא ניתן להישבון דאינו בתורת הישבון

 

And what does it means “he is not obligated to make restitution”? The laws of restitution do not apply to him.

 

The baraita does not mean to say that he is not obligated to make restitution. He has not really taken possession of anything such that he would not have to return it. Rather it means to say that the laws of restitution do not apply to him because he never really takes possession of the item.

 

אי הכי אימא סיפא בא חבירו ונטלה ממנו נהרג עליה

בשלמא רישא משום דצעריה לישראל אלא סיפא מאי עביד אלא ש”מ משיכה בעובד כוכבים קונה ש”מ

If that is so what about the end of the teaching: If his neighbor came and stole it from him, [that man] is put to death on account of it.

The first part of the baraita makes sense because [the original thief] caused trouble to an Israelite; but the second part, what did he do?

Consequently we must deduce from this that acquisition by meshikhah does apply to a non-Jew! Indeed, draw that conclusion.

 

According to the continuation of the baraita, if another thief comes along and steals from the first thief, he too is killed. Now this thief did not cause any distress to a Jew. The only reason to execute him is that he has stolen property. In order to steal the property, we have to assume that meshikhah acquires for a non-Jew. This is conclusive proof against R. Ashi.

Avodah Zarah, Daf Ayin Aleph, Part 4

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Avodah Zarah, Daf Ayin Aleph, Part 4
Reading for Wednesday, October 24
Avodah Zarah 71-4

 

Introduction

In yesterday’s (long) section we learned that according to Amemar a non-Jew can acquire through meshikhah. Today’s section continues to discuss this.

 

מיתיבי הלוקח גרוטאות מן העובדי כוכבים ומצא בהן עבודת כוכבים אם עד שלא נתן מעות משך יחזיר אם משנתן מעות משך יוליך לים המלח

אי ס”ד משיכה בעובד כוכבים קונה אמאי יחזיר

They raised a difficulty [against Amemar]: One who bought scrap metal from a non-Jew and found an idol in it: if before he gave the coins he drew it to himself, he may return the idol; but if he gave the coins and then drew it to himself, he must throw it into the Dead Sea!  

Now if you thought that acquisition by meshikhah does apply to a Gentile, how can he return it?

 

The Jew buys scrap metal from a non-Jew and finds an idol in the heap. He wants to return the idol and receive regular scrap metal in its place. If he has not yet paid the coins he can return the idol, but if he already paid, he may not. This baraita seems to prove that in a transaction with a non-Jew, drawing the object acquires it—once the Jew has drawn the idol to himself, he may not return it.

 

אמר אביי משום דמיחזי כי מקח טעות

 

Abaye said: Because it appears to be a mistaken acquisition.

 

Abaye says that he may return the idol because it is a mistaken acquisition. He was supposed to be buying srap metal—broken pieces of silver, gold, etc. He did not think that he was buying idols. Thus the whole sale is annulled.

 

אמר רבא רישא מקח טעות סיפא לאו מקח טעות

אלא אמר רבא רישא וסיפא מקח טעות ורישא דלא יהיב זוזי לא מיתחזי כעבודת כוכבים ביד ישראל סיפא דיהיב זוזי מיתחזי כעבודת כוכבים ביד ישראל

   

Rava said: The first circumstance is a mistaken purchase but the second is not!  

Rather Rava said: Both circumstances are a mistaken purchase; but in the first, since he had not paid over the money, it does not look like an idol in the possession of a Jew, whereas in the second, since he had paid over the money, it does look like an idol in the possession of a Jew.

 

Rava says that if the first half of the baraita is a mistaken purchase and therefore annulled, then both cases are a mistaken circumstance. So why is he not allowed to return the idol in the second case?

Rava answers that both cases are mistaken purchases and therefore, in principle, he should be able to return the idol in either case. However, in the second case, since he already paid the money, it looks like the idol is already his and that he is selling it back to the non-Jew. Therefore, he may not return it. But in the first case, it does not look like he has acquired the idol so he may return it.

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