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Bava Basra, 168

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 be Mekadesh a woman, he should bring an Am ha'Aretz with him in order to for the Am ha'Aretz to 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 it is Asur for a man to be Mekadesh a woman without first looking at her, lest he later see something unattractive about her and become disgusted with her and thereby transgress the Mitzvah of "v'Ahavta l'Rei'acha Kamocha!"!

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 do an Aveirah for him (see Eruvin 32b, Shabbos 4a, and Tosfos there)! Indeed, the Gemara in Avodah Zarah (20a) says that it is prohibited to look at a woman since doing so might lead to sin, as is 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)

ANSWERS:

(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. It is not prohibited to glance at a woman without gazing at her beauty. Moreover, it is *proper* to look at a woman before marrying her 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. However, Talmidei Chachamim 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 switch her for a different woman. An Am ha'Aretz, in contrast, is not stringent upon himself, and he knows the difference between the way different women look. (MAGID MISHNAH 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 he is discussing ordinary men when he writes that it is proper for one to look at his prospective wife. He is not referring to Talmidei Chachamim who have the practice never to look at a woman. However, the Migdal Oz differentiates between looking at a woman to whom one is already engaged ("Meshudach") and is about 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 (in Hilchos Isurei Bi'ah 21:3) is not referring to the requirement to look at a woman, to whom one is already engaged and committed, before marrying her (he mentions that Halachah in Hilchos Ishus 3:19), but rather he is referring to looking at a woman to check to see if she is fit to become engaged to in the first place, and thus it is obvious that a Talmid Chacham should not look at her but rather should have an Am ha'Aretz look at her. In contrast, even a Talmid Chacham should look at his Kalah after he is engaged in order to decide whether she is fit to become engaged to (this is in contrast to the view of the Magid Mishnah mentioned above).

2. The MIRKEVES HA'MISHNAH explains that the Halachah that the Rambam is discussing here is the same one as he discussed in Hilchos Ishus. The Rambam maintains that even a Talmid Chacham is supposed to look at his prospective wife before marrying her in order to make sure she has no blemishes, and to make sure that the woman's family did not switch her for a different woman. The Rambam understands that our Gemara is *not* saying that a Talmid Chacham should *not* look at his prospective wife, but rather *in addition* to looking at her, he should bring with him an Am ha'Aretz to check her appearance to make sure that her family does not switch her for another woman. To make sure that this woman is not unattractive to him, the Talmid Chacham should look, but to be able to distinguish between two similar-looking women 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. This is also why the Gemara adds the reason "so that they not switch her" -- this is the purview of the Am ha'Aretz and his purpose in coming with the Talmid Chacham.

168b

QUESTION: The Gemara relates that when certain Yishmaelites came to Pumbedisa (see Rabeinu Gershom), they took by force the fields of other people. The original owners of those fields came to Abaye and showed him their deeds of ownership, and requested that he write for them a copy of the deed of ownership, lest the thieves steal from them the original Shtar. Abaye said that he could not write a second Shtar for the owner of each field, because Rav Safra ruled that we do 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 we write 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 the witnesses below on a fresh part of the paper (which is 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). Such a Shtar, which explicitly waives the right of Achrayus, would be a Shtar Ra'ayah which would prove that they are the rightful owners of the land, but it would not give them the ability to confiscate a field from Lekuchos!

ANSWERS:

(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 (i.e. in case 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) holds that "Osiyos Niknos b'Mesirah" -- a Shtar (and the property it represents) is acquired by merely being given over. Accordingly, we 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 then 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, then, did Abaye not simply tell the landowners that the Halachah is like Raban Shimon ben Gamliel, that *no* second Shtar may be written, with or without Achrayus? Why did he tell them the ruling of Rav Safra (who holds like the Rabanan who maintain that we *may* write a second Shtar without Achrayus)? It seems that Abaye wanted to show them that even the Rabanan maintain that we 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 holds like Raban Shimon ben Gamliel who rules that even a Shtar without Achrayus may not be written.