Gittin 37-40 - Prozbul, Aliyah laRegel, Jurisprudence, and davening with a minyan

I am way behind on publishing these notes; sorry to take so long. If they are of interest to anyone, great. If they bore you to tears, go read my Elul Panic Attack below.

Gittin 37a
The gemara talks about possible origins for the word Prozbul, and offers some interesting reads. It seems clear that this of non-Semitic origin, though, like Sanhedrin and Parhedrin.

We say here that the borrower must have some minimal amount of land in order for Prozbul to work, and the gemara talks about the lender licensing land to the borrower if the borrower does not own land.
This would seem to pose a problem for the Torah Temimah’s explanation for a nuance of the mitzvah of aliyah laregel. The gemara (Pesachim 8b) says that one is obligated in that mitzvah only if he owns land - but the Rambam omits that point. The Torah Temimah suggests that the Rambam omits it because he believes that all Jews automatically have a right to four amot in Israel - but then there should be no need for this law of Prozbul requiring land ownership! (Unless it needs to be more concrete for the sake of a lien?)


Gittin 37b
The gemara here allows a judge to help a litigant make his claim, arguing that this is “opening one’s mouth on behalf of the mute פתח פיך לאלם.” We find a similar view expressed by Rav Huna in Yerushalmi Sanhedrin 3:8.
There is much we could say regarding this, but for now we’ll just note that this is justified in two ways: (1) Hashavat Aveidah in restoring the (potential) loss of the litigant, or (2) Part of the judges’ requirement of achieving truth (Rashba in Shut Rashba 2:404).
The problem, of course, is that this might contradict the judge’s need to maintain neutrality and not appear to aid any one side! For more on this point see Mishneh Torah, Hilchot Sanhedrin 21:8-11, Tashbetz to Pirkei Avot 1:8, Rashbash 288, Tur Choshen Mishpat 17, Shulchan Aruch Choshen Mishpat 17:9, Shut Chaim b’Yad 45, Shut Yachel Yisrael 102.


Gittin 38a
See Tosafot אבל on how one ‘acquires’ right to an עבד.

The term אמה as used here for a non-Jewish עבד seems odd; I was under the impression that we usually used אמה for a Jew and שפחה for a non-Jew.


Gittin 38b
The gemara here justifies overriding a biblical prohibition for the sake of davening with a minyan, saying, “a mitzvah is different מצוה שאני.” This is odd - although Rav Moshe Feinstein does (in a teshuvah) seem to say one cannot fulfill the core mitzvah of davening if he davens alone, that is a landmark statement!

It appears that one reason we specify one should eat his larger Shabbos meal as the second meal is because in their day one’s major meal was the midday meal, as it is continues in Europe today?


Gittin 39b
Rashi feels the need to translate בית תפילה, informing us this is a בית כנסת, probably because the gemara’s usual term for synagogue is בית כנסת (Hebrew) or בי כנישתא (Aramaic).


Gittin 40a
Tosafot כשרבו here stands by his view, more famously expressed at the end of Rosh haShanah, that one may perform a mitzvah from which he is exempt, and recite the berachah upon it - even if that mitzvah is tefillin.


Gittin 40b
See Tosafot וכתב as far as who freed the עבד here.

See Rashi’s two views on וכולן בשטר.

If one party acknowledges having given his property to another, and that other denies it, why don’t we say that whoever takes it first, gets it - it should be Hefker (ownerless)?
Perhaps this is because Hefker applies where one has no right to it. Here, one has a right and is simply unaware of it.

Gittin 36 - Written Torah, Prozbul, Shemitah and Yovel today, and Joyous Suffering

I had intended to record my notes on Gittin 36 through 38, but there’s so much on 36 alone that I have to settle for that. If you have the patience, and access to a gemara, you may find some of these interesting.

Or not.

Gittin 36a
Ordinarily, a vow taken “על דעת רבים - on the mindset of the community” cannot be nullified, for the mindset of the individual taking the vow, and any subsequent regret he feels, is irrelevant. Here, though, we say that such a vow may be revoked for the sake of a mitzvah. Tosafot explains that the community, it may be assumed, does desire that the mitzvah take place. Further, he says it is not a reference to the community in general, but rather to specified individuals - who could, I suppose, be polled for their approval.
However: What is the mitzvah in our case?!

The gemara mentions דיסקי as one way in which people would recognize the signatures of various sages. Rashi explains that דיסקי were letters of responsa, as well as letters of greeting.
This is one example, among several, that show there was a practice of recording Torah well before Rebbe canonized the mishnah. Elsewhere we have seen recordings of berachot, scrolls on which people recorded novellae cited in the beit midrash, and Aramaic translation/commentary in the targumim. The Sfat Emet (Megilah 3a) contends that the prohibition against recording Torah was specifically against publishing it.

The gemara here records Hillel’s justification for formalizing the Prozbul; the issue was a need to ensure a flow of (interest-free) loans. This was critical, since it was (and still is) the greatest form of tzedakah - it allows for a greater magnitude of aid than we could ever see from gifts. Therefore the sages made numerous enactments to encourage lending - this Prozbul, as well as requiring that debts be repaid with a strong currency, eliminating intense interrogation of witnesses and more. This is what the sages called שלא תנעול דלת בפני לווין, to keep the door from being closed before lenders.

Note the basic debate between Rashi and Tosafot as to how Prozbul works.

The gemara here says that Hillel could subvert Shemitah’s release of overdue debts because Shemitah is rabbinic rather than biblical today. This is a problem for the view (see Erchin 31b-32a) that Shemitah remained biblical throughout the second Beit haMikdash, when Hillel lived!
Tosafot here answers that Hillel created the enactment to apply after the destruction of the Beit haMikdash.
Ramban here finds that answer unacceptable, and argues that one must say it was rabbinic during the second Beit haMikdash.


Gittin 36b
Tosafot ותקון asks why the sages would have enacted a rabbinic memorial to shemitah, but not to Yovel. He answers that the prohibition against farming during Yovel, coming on the heels of Shemitah, would be too great a difficulty to impose rabbinically. Note that Tosafot must follow the system of counting that we use, that does not count Yovel as part of the Shemitah cycle. This is against the view that Yovel is part of the seven-year Shemitah cycle, and so is not always the year following Shemitah.

Rashi יחרם כל רכושו stresses that this co-opting of the property of people who did not return for the second Beit haMikdash was a verdict of the Great Assembly. Perhaps this is lest one consider it a הוראת שעה of a prophet, and therefore invalid as precedent for rabbinic action.

See Tosafot דאלימי on what kind of Beit Din is needed to perform a Prozbul.

I prefer to take שמחין ביסורין as “joyous despite suffering” rather than “joyous in suffering.” But I could be wrong.