Outlines Of Halachos From The DafDaf Series

Outlines Of Halachos From The Daf

Shevuos 31

Rabbi Mordecai Kornfeld

Halachah Outlines

1)DICEPLAYERS ARE PASUL FOR TESTIMONY [testimony :diceplayers]

(a)GEMARA

1.(Mishnah): Shevu'as ha'Edus applies only to people proper to testify.

2.(Rav Papa): This excludes a king. (It is below his honor to stand.)

3.(Rav Acha bar Yakov): It excludes a diceplayer.

4.Rav Acha excludes even someone disqualified mid'Rabanan. Rav Papa disagrees. He would obligate a diceplayer for Shevu'as ha'Edus.

5.Sanhedrin 24b (Mishnah): Diceplayers may not judge or testify.

6.R. Yehudah: This is if they have no other profession. If they have another profession, they are Kesherim.

7.(Rami bar Chama): They are disqualified because it is Asmachta (the loser did not resolve to pay if he will lose). The winner did not acquire the money.

8.(Rav Sheshes): This is not Asmachta. Rather, it is because they do not contribute to society.

9.They argue about one who has a profession.

10.Question: R. Yehudah is Machshir if they have another profession. This refutes Rami bar Chama!

i.Suggestion: Chachamim argue with R. Yehudah, and they disqualify because it is Asmachta.

ii.Rejection: R. Yehoshua ben Levi taught that whenever R. Yehudah says (in a Mishnah) 'when is this?' or 'what is the case?', he does not argue; he explains the first Tana. R. Yochanan said that when he says 'when is this?', he explains. When he says 'what is the case?', he argues.

11.Answer: Rami bar Chama argues with R. Yehoshua ben Levi and R. Yochanan, and says that 'when is this?' shows that R. Yehudah argues.

12.Question (Beraisa): Whether or not he has a profession, he is disqualified. (All must agree that this is like Chachamim, and they argue!)

13.Answer: The Beraisa is like R. Yehudah in the name of R. Tarfon;

i.(Beraisa - R. Yehudah citing R. Tarfon): (Reuven said 'I accept Nezirus if Ploni is a Nazir, and Shimon said 'I accept Nezirus if Ploni is not a Nazir'. In any case, neither Reuven nor Shimon is a Nazir, because (acceptance of) Nezirus requires Hafla'ah (certainty. Likewise, betting is Asmachta, so it is not a Kinyan.)

14.26b (R. Avahu): The Halachah follows R. Yehudah.

15.Rosh Hashanah 22a (Mishnah): Anything that a woman cannot testify about, diceplayers cannot testify about it.

16.(Rav Menasiyah): This teaches that a Gazlan mid'Rabanan may give Edus Ishah (testify that Ploni died to permit his widow to remarry).

17.Shabbos 149b: One may make a lottery with his sons and household at the table, even if some portions are bigger than others. This is forbidden with others, even during the week, for it is like diceplaying.

(b)RISHONIM

1.Rif (Sanhedrin 4b): Diceplayers are Pesulim because they do not contribute to society.

2.Rambam (Hilchos Gezeilah 6:10): If one plays with dice and stipulates that the winner will receive such an amount, this is Gezel mid'Rabanan. Even though the owner lets him take, since he takes it for nothing through frivolity, this is Gezel. The same applies to people who play with animals or birds and stipulate that the owner of the animal that wins or runs further will receive such an amount. All this and similar things are Gezel mid'Rabanan.

i.Ra'avad (11): If he has no other profession, even if he plays with Nochrim all the more so he is Pasul, for he learns from the Nochri's deeds!

3.Rambam (Hilchos Edus 10:4): A diceplayer cannot testify if he has no other profession, for he does not contribute to society. The Chazakah is that he consumes what he wins, which is Avak Gezel (a subsidiary of theft). Also one who incites animals or birds, and says 'the owner of the bird that goes first will get both' is Pasul if he has no other profession. All these Pesulim are mid'Rabanan.

i.Kesef Mishneh: Since the Rambam calls this Gezel, he should be disqualified even if he has another profession! We must discuss one who plays with Nochrim, so it is not a problem of Gezel. The Rambam holds that if he has no other profession, the Chazakah is that he plays with Yisre'elim, even if we did not see him do so. Alternatively, we discuss one who plays with Yisrael without money. If he had another profession, we would not suspect that he plays also for money, for many rich people play just to pass time. The Rambam rules like Rami bar Chama due to the Stam Gemara in Shabbos 149b. Rosh Hashanah 22a calls a diceplayer 'a Gazlan mid'Rabanan.' Also, since R. Avahu needed to rule like R. Yehudah, this shows that Chachamim disagree, i.e. they hold like Rami bar Chama. We need not say that he argues with R. Yochanan and R. Yehoshua ben Levi; we did not find anyone explicitly argue with them. The Mishnah disqualifies one who plays with Yisre'elim for money, or for free with Nochrim, if he has no other profession. Perhaps Rami bar Chama meant to say this, but Rav Sheshes interrupted. The Gemara gave the Nafka Minah based on the Hava Amina that Rami argues with R. Yochanan and R. Yehoshua ben Levi. R. Avahu had to rule like R. Yehudah, for it is not clear that Chachamim agree.

4.Rosh (Sanhedrin 3:7): The Halachah follows R. Yehudah. We disqualify Mafrichei Yonim because they do not contribute to society. It is not Asmachta, like I wrote in Bava Metzia.

(c)POSKIM

1.Shulchan Aruch (CM 34:16): A diceplayer cannot testify if he has no other profession, since he does not contribute to society. The Chazakah is that he consumes what he wins, which is Avak Gezel. Also those who incite animals or birds, and says 'the owner of the bird that goes first will get both' is Pasul if he has no other profession. All these Pesulim are mid'Rabanan.

i.Beis Yosef (DH Mesachakim): The Rif rules like Rav Sheshes. Perhaps this is because Rami bar Chama is unlike R. Yochanan and R. Yehoshua ben Levi. Even though R. Avahu ruled like R. Yehudah, which implies that Chachamim disagree (and disqualify even if he has another profession), the Halachah follows R. Yehudah and we disqualify only because he does not contribute to society.

ii.Beis Yosef (DH u'Mah): The Tur explains that if we know that he has other money to support himself, and what he wins he stores away or uses to play more, he is Kosher.

iii.SMA (40): Rami bar Chama holds that it is total Gezel mid'Rabanan. The Rambam rules like Rav Sheshes, that it is not really Gezel, for the loser gave willingly. It was not a proper Kinyan, only through frivolity, therefore, it is Avak Gezel. This disqualifies only if he benefits from it, like the Rema (Sa'if 3) says (about an Aveirah mid'Rabanan). If so, even if he has another profession, but he needs to eat also from his winnings, he is disqualified. Rashi and the Tur say that one who does not work does not appreciate the difficulty of earning money and he is prone to testify falsely. If so, if he has any job at all he is not disqualified, but if he has no job he is disqualified, even if he eats only from savings. The Mechaber holds like the Rambam. Why didn't the Rema comment?!

iv.Gra (203:44): The Rambam holds that Asmachta does not help, and diceplayers transgress Gezel. Tosfos (Shabbos 149b DH Mai) holds that it acquires, and our Gemara is like R. Yehudah in the name of R. Tarfon, but the Halachah does not follow him. This is a poor answer. Rather, it is Avak Gezel, so it disqualifies only if he supports himself from it.

v.Re'em (2:14, cited in R. Akiva Eiger): The Aruch says that diceplayers make stipulations 'if I will win, you will give to me this amount.' He did not define what is 'winning'. It seems that all games are included. In Shabbos (149b), we forbid a lottery (with strangers) if some portions are bigger than others, for it is like diceplaying. Rashi explains that it is Asmachta. This connotes that 'dice` includes all games.