## Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II

###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:1
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אח"כ יש לנו לבאר שני אופני תועלת להוראה מדברי בעלי אסופות, שאע"ג שלכאורה אין בהם חידוש דין, ולא באו אלא לתועלת הזכירה מכ"מ הלכתא רבוותא איכא למישמע מנייהו בשני אופנים.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
**INFERRING LAWS BY ANALYZING HOW THE “MASTERS OF COLLECTIONS” CATEGORIZED SCATTERED TORAH AND TALMUDIC STATEMENTS**
**Translator’s note:** In this chapter the Netziv analyzes the way in which categorizations and enumerations in Talmudic and post-Talmudic texts provide valuable insights into the law. To illustrate this technique, the Netziv gives an in-depth analysis of the Mishnah in Yevamos that lists fifteen types of women who exempt their co-wives, and the co-wives of the co-wives, from yibbum and halitzah.¹ by marrying the widow. If neither she nor all the brothers wish to proceed with *yibbum,* she and the brothers perform the *halitzah* ritual, which releases them from their obligation and frees the woman to remarry whom she wishes. The laws of yibbum are complex, and in order to appreciate the Netziv’s analysis regarding the fifteen women, it is necessary to understand at least the following scenario: Man 1, Man 2 and Man 3 are brothers, and Woman A is the daughter of Man 2. Man 1 marries Woman A, together with one or more women whom we designate as co-wives. If Man 1 dies without issue, Man 2 may not marry Woman A or her co-wives, which renders him exempt from yibbum and halitzah regarding all these women. However, if Man 3 marries one of Man 1’s former co-wives together with one or two others, the latter are known as co-wives of the co-wives. Since Man 1’s co-wives are forbidden to Man 2, he may not marry them or any woman who was a co-wife of a co-wife to Man 3 (See the accompanying chart).² The rule pertaining to co-wives is based on an inference from Scripture,³ cites Deut. 25:19, “… he who will not build his brother’s house (family).” One who can build his brother’s house in its entirety may build it partially (by marrying one of his brother’s wives); a house that one cannot build in its entirety (since he cannot marry one of the wives) cannot be built even partially. See Rabbenu Ovadiah Bartenura (Bertinoro) on the first *Mishnah*in *Yevamos,* which derives this law from the word *litzor*. whereas the source of the rule pertaining to the co-wives of the co-wives is a matter of debate and is discussed by the Netziv in the addendum to this chapter.⁴to derive the rule for the co-wives of the co-wives from logic, while the Jerusalem Talmud understands the*Toras Kohanim*to derive the rule of the co-wives of the co-wives from the word*litzror*in the Torah. According to all opinions, if Man 1 divorces Woman A, the co-wives of Man 1 are no longer forbidden to Man 2. 
 In order to comprehend the Netziv’s analysis fully, it is important to understand the following scenario: 
Levi divorces Rivkah and gives her a get (bill of divorce) that stipulates that she may remarry any man except his brother, Shimon. According to the sages, this divorce is invalid, but according to R. Eliezer, it is valid. According to R. Eliezer, with respect to Shimon, Rivkah retains the status of being married to his brother.⁵ 82a. If Aharon, Shimon’s brother, should then marry Rivkah, there is room to argue that if Aharon dies, Shimon may not marry Rivkah or any of her co-wives. 
It is also important to bear the following rules of yibbum in mind:
 If a woman is an ervah⁶ (one of the twenty-one women listed in Lev. 18 with whom the Torah forbids marriage on the grounds of close kinship) is exempt from both *yibbum* and *halitzah*. to a brother, i.e., a forbidden relationship, then that brother is exempt from yibbum. 
 If a man divorces a woman who is an ervah to a brother, the co-wives are no longer forbidden to that brother. 
 [NOW THAT WE HAVE addressed the two advantages of the “Words of the Sages” as denoted by the words, “goads” and “implanted nails”], we explain the way these [same words] can be used to inform us of the two benefits [that may result from studying the] “masters of collections.”⁷ At first glance, it may seem that the words of [the “masters of collections”] do not convey any new halachic interpretation, and their only apparent benefit is to enhance one’s recollection of the law. However, [this view is not accurate], for novel laws may indeed be derived from the words [of the “masters of collections”] in two different ways:

footnotes:
¹ If a man dies without children, his brother must perform yibbum
² This is a simple scenario and many more complex situations can arise and are dealt with in Tractate Yevamos.
³ Maimonides in his Commentary on the Mishnah
⁴ According to the Netziv, the Babylonian Talmud understands the Toras Kohanim
⁵ See Tractate Gittin
⁶ An ervah
⁷ The Netziv has in mind commentators who collected various sources and organized them by topic. See those discussed in chapter 8 and in this chapter.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:2
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הפן הא' הוא גלוי דמדמנה כך ולא יותר ש"מ שהדין כך. דרך משל מדמנה חמש עשרה נשים פוטרות צרותיהן, ולמדנו דלא יותר, וקשה עלינו הא איכא צרת אשת איש, כגון באומר ה"ז גיטך חוץ לאחיו של המת, שעליו ה"ה א"א, ואסורה ליבום היא וצרתה, אלא ע"כ או דס"ל כחכמים דר"א דא"א לגרש בזה האופן לומר ה"ז גיטך חוץ מזה, או כר"א דר"פ המגרש דאפשר לגרש כך ומכ"מ אינה פוטרת צרתה ומטעם שהביאו התו' יבמות ד' ט' בשם הירו' שהיא ערוה שהיה בידו לפוטרה ולא דמי לאחות אשה, מש"ה אינה פוטרת צרתה. הרי דמחשבון בעלי אסופות יש לנו ללמוד דין, משא"כ אי ניתן הלכה פשוטה דערוה שיש בה כרת פוטרת צרתה, ה"א דה"ה צרת אשת איש לר"א.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
The first way is by elimination.⁸ When the “masters of collections” enumerate laws, they are informing us that only these laws apply in that category, and that no other [possibilities exist]; what they are saying is that only this is the law. For example, [the very first *mishnah*in *Yevamos*] states: “Fifteen women exempt their co-wives and the co-wives of their co-wives from the requirement of *halitzah* and the law of *yibbum*.”⁹ to a particular brother while the other wives are not *ervah* to that brother, all the wives are exempt from *yibbum* and *halitzah* with respect to that brother. This rule in the Mishnah teaches us that there are only fifteen types of women [who can exempt their co-wives and the co-wives of their co-wives] and that no others [can do so]. If that is so, one can ask why a sixteenth type, that is, the co-wife of a married woman [who was forbidden to the brother of the deceased by a divorce with a limiting clause], should not be included. For example, [suppose] a man divorced his wife [with a limiting clause], saying to her, “Behold, this is your *get*, your bill of divorce, [with the limitation that you can marry anyone], except for [my brother].” Regarding that brother she is considered a married woman, and she and her co-wives are forbidden to him for purposes of *yibbum*. [Why is this woman not included in the fifteen types of women listed in the Mishnah who can exempt their co-wives and the co-wives of the co-wives from *yibbum* and *halitzah*]? Therefore, [since only fifteen types of such women are described in the Mishnah], one is forced to conclude that a woman [who receives a *get* with such a stipulation] does not fall into this category [for one of two reasons]. One is that the Mishnah is in accordance with the Sages, and they disagree with R. Eliezer, and hold that this type of divorce is not valid.¹⁰, or bill of divorce, is called *sefer kerisus*, a writ of severance. Alternatively, the Mishnah may be in accordance with R. Eliezer, whose opinion is cited at the beginning of *Ha-megaresh*,¹¹. This *Mishnah*is cited on 82a. [concluding that such a *get* is valid]. [If the Mishnah is in accordance with R. Eliezer that this *get* is valid, the original question stands and we must ask why such a case is not included in the fifteen types of women listed in the Mishnah]. Tosafos’s answer is given in Tractate *Yevamos* 9a,¹² in *Yevamos* 10a. and is based on the Jerusalem Talmud. The Jerusalem Talmud states that even though [the woman with the conditional *get*] is considered an *ervah* [to the man prohibited by the divorce stipulation], her status is based on a factor that her former husband has the power to rescind.¹³ that does not contain this restriction. [This latent power, for example], differentiates the case of the sister of the wife of the deceased [who remains forbidden to the surviving brother according to the Torah, and is thus included as one of the fifteen cases in the Mishnah]. We see therefore that by [analyzing] the enumerations of the “masters of collections,” we can derive laws. For if the Sages in this Mishnah had not provided such an enumeration, and had instead cited a general rule that a forbidden relationship, *ervah*, that is punishable by *kares* [excision], exempts her co-wives from *yibbum* and *halitzah*, one might be able to argue that the wife of the deceased [who remains forbidden to marry her husband’s brother by a limiting divorce, a condition] that R. Eliezer considers valid, also exempts her co-wives from *yibbum* and *halitzah*.¹⁴been framed in terms of general concepts rather than an enumeration of details, one could argue that the woman subject to the divorce condition was like the other types cited in the *Mishnah*.

footnotes:
⁸ The second method is discussed in chapter 12.
⁹ If the deceased had more than one wife and any one of them is an ervah
¹⁰ According to the sages, this is not a valid divorce because a connection to her husband remains. In Deut. 24:1, the get
¹¹ This is the ninth chapter of Tractate Gittin
¹² This explanation of the Jerusalem Talmud is stated by the Tosafos s.v. Le-olam leis leh,
¹³ He can give her another get
¹⁴ The Netziv is arguing that had the Mishnah


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:3
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[ולכשתמצא לומר נחלקו בזה בבלי וירושלמי לדעת תנא דת"כ שמנה חמש עשרה נשים פוטרות כו' ולא פירש מה הן כתנא דמשנתינו ומחולקים בבלי וירושלמי מה כוון תנא דת"כ למלאות זה הענין כאשר יבואר.]

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
****[The Netziv’s Addendum to Chapter 11]¹⁵
AS WE WILL EXPLAIN, the Babylonian and Jerusalem Talmuds disagree as to what the *tanna* in *Toras Kohanim*¹, in the *parashah* of *Kedoshim*, Chapter 12. The *Toras Kohanim,* a collection of *baraisos* on the Book of Leviticus, is also known as the *Sifra*. intended [to include in the fifteen categories of women]. As the *Toras Kohanim* only states, “… there are fifteen categories of women who exempt their co-wives and the co-wives of their co-wives [from *halitzah* and *yibbum*], ad infinitem,” and unlike the [the Mishnah in] *Yevamos*, the *tanna* in *Toras Kohanim* does not list the fifteen types of women. It will be explained, that the Jerusalem and Babylonian Talmuds disagree regarding how the *tanna* of the *Toras Kohanim* [analyzes the facts of the fifteen types of women], so as to assure that the enumeration of the fifteen types of women is complete.

footnotes:
¹⁵ In this addendum, the Netziv presents a remarkable analysis of this Talmudic example of enumeration and demonstrates that the words of the “masters of collections” can create a domino effect, permitting a succession of insights into several areas of Halachah.
¹ This is stated in Toras Kohanim


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:4
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דהנה בת"כ תניא דלהכי כתיב באשית אחיו נדה היא למעט אשת אחיו מאמו מאיסור אשת אח, וכמו שהביאו התוס' ריש מס' יבמות, והכי איתא בירושלמי שבת פרק כלל גדול, ובתלמודין ביבמות ד' נ"ד איתא להפך דנדה היא בא ללמד לחייב אפילו אשת אחיו מאביו דיש היתר ביבום, אבל א"א מאמו פשיטא דבהאי אסורא קיימא.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
For the *Toras Kohanim* says that when the Torah states [Lev. 15:21], “A man who takes his brother’s wife, she is [like] a *niddah*,”² comes from the *Toras Kohanim*’s statement pertaining to Lev. 20:22, “If a man wishes to marry his brother’s wife, she is considered *niddah*as far as he is concerned. He has uncovered his brother’s nakedness. They shall die *aririm* [childless].” The *Toras Kohanim* asks: “Is the verse speaking of the wife of a brother from the same father, or of the wife of a brother from the same mother? Since Scripture forbids a man to marry the sister of his father or mother or his brother’s wife, one could argue thus: Just as a man may not marry the sister of his father or mother, regardless of whether his father or mother are only related to the sister through a common father or mother, so should the wife of his brother be forbidden regardless of whether he is only related to his brother through his father or mother. Scripture therefore states ‘She is [considered] *niddah*’ in order to teach us that the sister of a brother is forbidden in a manner similar to the way a *niddah* is forbidden. Just as relations with a woman who is a *niddah* are forbidden [for a period of time], and there is [a period of time] when she is permitted, so does Scripture forbid one from marrying a wife of a brother who has [a situation] in which she is forbidden, and [a situation] in which she is permitted. What category of a wife of a brother has different situations in which she can be permitted or forbidden? This is the wife of a brother from the same father, for if she has children, she is always forbidden [to her husband’s brother], and if she does not have children, [she is permitted to her husband’s brother after her husband’s death].” [the words, “she is [like] a *niddah*”] exclude the wife of a man’s maternal half-brother from the prohibition of marrying the wife of one’s brother [thus, he, the maternal half-brother, must perform *yibbum* or *halitzah*], as cited by Tosafos in the beginning of *Yevamos*.³ 2a, s.v. *Eshes ahiv me-immo*. This [*Toras Kohanim*] is also cited in Tractate *Shabbos* in the Jerusalem Talmud, in the chapter entitled *Kelal Gadol*.⁴ However, the Babylonian Talmud, in Tractate *Yevamos* 54b,⁵ derives an opposite [conclusion] from this verse. For it infers from the words, “she is [like] a *niddah*,” that there is even the liability [of *kares*] with the wife of the husband’s *paternal*half-brother, therefore exempting her from *yibbum*. It explicitly assumes it to be obvious that the wife of a maternal half-brother is forbidden, [thereby exempting the maternal half-brother from *yibbum* and *halitzah*].⁶ 55a deduces that the wife of a maternal brother is forbidden from two verses: Lev. 18:16, “The *ervah* [nakedness] of your brother’s wife you shall not uncover; she is the *ervah* of your brother,” and Lev. 20:21, “If a man takes his brother’s wife, she is a *niddah*; he has uncovered his brother’s *ervah.”* The words, “the *ervah* of your brother’s wife,” teach that his brother’s wife is forbidden during her husband’s lifetime (after he divorces her) when he does not have children. The word *niddah* conveys that she is forbidden during her husband’s lifetime (after divorce) when he does not have children. The phrase “he has uncovered his brother’s *ervah*” prohibits her if her husband has died and was survived by children. Since all three possible cases are covered by other derivations, the phrase, “the *ervah* of your brother” is available to teach that the wife of a maternal brother is forbidden.

footnotes:
² The source that such a woman is exempt from kares
³ See Tosafos, Yevamos
⁴ Chapter 7, halachah 2.
⁵ Actually it is 55a.
⁶ Tractate Yevamos


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:5
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ולכאורה תמוה היאך חולק התלמוד על הת"כ. אלא כך הענין, דהתלמוד דילן ס"ל דהת"כ ע"כ אינו מונה אשת אחיו מאמו במנין ט"ו נשים, ומכניס תחת זה אשת איש וכר"א, ומעתה משנתינו שמנה אשת אחיו מאמאו, ע"כ חולק על הת"כ, אבל הירושלמי ס"ל דגם הת"כ מונה אשת אחיו מאמו, וא"כ אין חולק.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
At first glance, one may wonder how the [Babylonian] Talmud can disagree with the *Toras Kohanim*, [as an *amora* cannot disagree with the rabbis of the Mishnah or with a *baraisa*]. However, as it will be explained [this is not a question, as the Babylonian Talmud sides with our Mishnah which they interpret to disagree with the *Toras Kohanim*]. Our Talmud is of the opinion that the *Toras Kohanim* does not include the wife of the maternal half-brother in the fifteen types of women, and [completes the list of the fifteen types of women] by inserting in place [of the wife of the maternal half-brother] the married woman [with the divorce limitation], in accordance with R. Eliezer. Therefore [it is seen that according to the Babylonian Talmud], our Mishnah, which includes the wife of the maternal half-brother, disagrees with the *tanna* in *Toras Kohanim*. However, according to the Jerusalem Talmud, the *Toras Kohanim* includes the wife of a man’s maternal half-brother, and does not disagree with the *tanna* of our Mishnah of *Yevamos*.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:6
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ותליא בנוסחא בברייתא דת"כ, דלפי דאיתא לפנינו בנוסחת אותה ברייתא שהובאה בריש מכילתין אין לי אלא צרתה צרת צרתה מנין ת"ל לצרור ולא לצור.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
The difference between the Jerusalem and Babylonian Talmuds [regarding the interpretation of the *Toras Kohanim*], is related to there being two different versions of the text.⁷ on Tractate *Yevamos* 2a writes that one should not feel uncomfortable with the idea that the two Talmuds have different versions of a *baraisa*, as we often find that the Jerusalem and Babylonian Talmuds have different versions of a *mishnah*, as stated by Tosafos in *Bechoros* 22b. According to the extant version of the Babylonian Talmud,⁸ the *baraisa* states: From where is it derived that the co-wife [of the widow] is also excluded [from *yibbum* and *halitzah*]? From the word *litzror* [in the Torah]. I have learned that [only] the co-wife is excluded; from where is it derived that the co-wives of the co-wives are also excluded? The Torah therefore states *litzror*, not *latzor*.⁹appears twice in the word *litzror.* From the extra *resh,* Tosafos infers that the co-wives of the co-wives are also excluded. *Latzor* without the extra *resh* means the same thing.

footnotes:
⁷ The Netziv in Meromei Sadeh
⁸ Yevamos 3b.
⁹ The letter resh


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:7
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וכבר הקשו תוס' בד' ב' א' מהא דרב אשי להלן ד' י"ב דקאמר סברא היא מה לי צרתה מה לי צרת צרתה וע"ש שנדחקו ליישב, אבל הרמב"ן בחי' כתב דבאמת בש"ס דילן ליתא נוסחא זו וכן בהלכות הרי"ף [ולפנינו ברי"ף אי' והיא מידי המגיהים], אבל בירושלמי איתא כ"כ הרמב"ן ז"ל.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
Tosafos has already raised a question in *Yevamos* 2a,¹⁰. based on what Rav Ashi states in *Yevamos* 13a, that the co-wives’ co-wives are excluded by logic:¹¹ “Why is the co-wife forbidden? Because the wife’s co-wife takes the place of the *ervah* [forbidden relative], and therefore the co-wife’s co-wives are also forbidden, since they also take the place of the *ervah*.” [Why would*Toras Kohanim* quoted in *Yevamos* 2b say that the source is the word *litzror,* when Rav Ashi states that this law is derived from logic?]¹² cites an example from *Kesubos* 22a, where it is seen that we do not cite Scripture if a law can be derived by logic. Tosafos is therefore pressed to provide an answer; see what he says [in *Yevamos* 2b].¹³ 2b, where Tosafos answers that from the word *litzror* we derive that if there are two brothers, the first co-wife exempts the co-wives of the co-wives. However, Rav Ashi’s reasoning is that this biblical derivation extends even to a case where there are one hundred brothers: each successive co-wife continues to exempt her own co-wife. However, Nahmanides, in [his book] *Hiddushei [ha-Ramban*], writes that in reality our Talmud does not include within its text [the *Toras Kohanim* regarding the derivation from *litzror* to eliminate the co-wife of a co-wife], as evidenced by the Laws of the Rif also quoting this version of the *Toras Kohanim* [excluding the derivation from *litzror*], in the text of the Babylonian Talmud. (*Note from the Netziv* – The extant text found in [our version of] the Rif [that includes the derivation of *litzror,* has erroneously been] inserted by certain editors [to make the text of the Rif match that of the [erroneous text of the] Babylonian Talmud] – *end of the Netziv’s note*). However, the Jerusalem Talmud does include the text [of the *Toras Kohanim*] regarding the derivation from the word *litzror*. This is what Nahmanides, of blessed memory, states.

footnotes:
¹⁰ See Tosafos s.v. Ad sof ha-olam
¹¹ The text erroneously cites 12a.
¹² The Netziv in Meromei Sadeh
¹³ See Yevamos


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:8
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וע"כ לית ליה להירושלמי סברת רב אשי, אלא יש מקום לחלק בין צרתה לצרת צרתה, והיינו עפ"י סברת הירו' לחלק בין צרת אשת איש לשאר עריות, משום שבידו היה לפטור הערוה, ה"נ אי היה מגרש אשתו לא היתה הצרה עליו ערוה נמצא שלא היינו למדים צרת צרה מצרת ערוה. ובזה מתיישב מקום החלוק שעושה הירושלמי, דלכאורה קשה טובא הא הוקשו כל העריות זל"ז בלי שום חלוק, אבל השתא ניחא דכיון דאיצטריך קרא לצרת צרה ש"מ דצרת א"א מותרת. זהו דעת הירו', ולפי זה אין מקום לומר דהת"כ כוון לצרת אשת איש וכר"א, וע"כ צריך לומר דחמש עשרה נשים היינו אשת אחיו מאמו, ואע"ג שנתמעט היינו מערירי דכתיב באשת אחיו, אבל כרת איכא, ואין תנא דמשנתינו חולק כלל.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
Therefore, you must say that according to the Jerusalem Talmud, we cannot use Rav Ashi’s logical derivation, since they held that we can differentiate between a co-wife and the co-wife of a co-wife. For one can apply the previously cited argument from the Jerusalem Talmud distinguishing between a woman forbidden because of a divorce with a limitation, and a woman forbidden due to her *ervah* status according to Torah law: the divorce condition can be rescinded, which is not the case with the status of*ervah*. Further, the Jerusalem Talmud believes that we can argue that since a man can divorce his wife and thereby remove the *ervah* prohibition from the co-wives,¹⁴ we cannot derive the prohibition of marrying the co-wives of the co-wives from the prohibition of marrying the co-wives of the *ervah*.¹⁵’s co-wife from *yibbum* applies only when the *ervah* and the co-wife are still co-wives at the time of the husband’s death. However, if the husband divorced the *ervah,* the co-wives are no longer excluded from *yibbum*. [Because of this argument] the Jerusalem Talmud required a verse to teach us not to differentiate between the co-wives and the co-wives of her co-wives, and this answers why the Jerusalem Talmud differentiates [between the co-wives of the woman divorced with the stipulation of limitation, and the other women who are forbidden because of *ervah*]. At first glance, one can pose a strong question as to why there should be any difference between one *ervah* or any another, as all are comparable to one another.¹⁶ 54b derives from the case of a wife’s sister that marriage does not take effect between two individuals whose relationship would incur *kares*. As the *gemara* there explains: “The verse [in Lev. 18:29] states, “If anyone commits any of these abominations, the persons doing so will be cut off from among their people.’ All the forbidden relations are compared to [an illicit relationship] with a sister. Just as there is no marriage in the case of a wife’s sister, there is no marriage with regard to all the forbidden relationships.” Since all the *ervah* relationships are compared to one another in regard to the effect of a marriage, why should the laws of *yibbum* involving various types of *ervah* not be derived from one another? See *Meromei Sadeh* on Tractate *Yevamos* 2a. However, since the verse [of *litzror*] is needed to include the co-wives [to teach us not to differentiate between *ervah* relationships that can be removed by divorce, and others that cannot be removed, and since we lack a verse to cover the case of] a woman who is forbidden to marry a brother due to a divorce condition, her co-wives are permissible [to her brother]. Therefore, there is no room to say that according to the [Jerusalem Talmud’s version of the] *Toras Kohanim*, the list of the fifteen types of women includes the woman with the divorce having a stipulation of limitation, which R. Eliezer [rules to be effective]. One is [therefore] forced to conclude that [according to the Jerusalem Talmud, the *Toras Kohanim*] includes the wife of a maternal half-brother in the fifteen types of women. Even though the wife of a maternal half-brother, is excluded from the punishment of *ariri,*[excision without leaving issue], that is written in the Torah pertaining to the prohibition of marrying the wife of one’s brother,¹⁷ she is not excluded from *kares* [where one dies prematurely, but leaves issue]. Our Mishnah fully agrees [with what the *Toras Kohanim* lists in the fifteen types of women].

footnotes:
¹⁴ The co-wives do not take the place of a woman who has the status of an ervah.
¹⁵ The exclusion of an ervah
¹⁶ Tractate Kiddushin
¹⁷ Therefore this raises the question of why the wife of a maternal half-brother would be included in the fifteen types of women, all of whom are subject to excision.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:9
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אבל תלמוד דילן לא גריס צרת צרתה מנין וכרב אשי דסברא היא, וא"כ א"א למעט צרת אשת איש לר"א, וא"כ אפשר לומר דתנא דת"כ דמיעט אשת אחיו מאמו, מכרת גם כן מיעט, ובאמת אינה פוטרת צרה, וחמש עשרה נשים היינו צרת אשת איש וכר"א. ומעתה משנתינו דקחשיב אשת אחיו מאמו, ע"כ פליגי, והיינו דש"ס דילן חולק על הת"כ בפי' נדה היא.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
However, the Babylonian Talmud does not have the version [of the *Toras Kohanim* which exempts the co-wives of the co-wives from *yibbum*], from the word *litzror*; it derives this exemption from the logical argument of Rav Ashi. Therefore, according to the Babylonian Talmud, it would be impossible to exclude the co-wives of a woman [who was divorced with a stipulation of limitation], which R. Eliezer holds is valid, [as it does not believe that one can differentiate between those excluded by being *ervah* as defined by Torah law, or those excluded by a condition in a *get*]. Consequently, it is possible to say that the *Tanna* of *Toras Kohanim,* who excludes the wife of a maternal half-brother, is also exempting [the brother], from *kares*. In reality, she [the wife of the maternal half brother], does not exempt her co-wives, and the fifteen women who exempt their co-wives includes the woman [who was divorced with a condition], according to R. Eliezer.¹⁸ One must then conclude [that according to the Babylonian Talmud], our Mishnah that lists the wife of a maternal half-brother, disagrees with the *Toras Kohanim* in the derivation from the words, “she is [like] a *niddah*.”¹⁹

footnotes:
¹⁸ The list does not include the wife of a maternal half-brother as the total would be sixteen.
¹⁹ The Netziv described this at the beginning of this addendum.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:10
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ובזה נתיישב פרש"י שפי' דכרת דכה"ת היינו ערירי שמת בלא זרע, ומיתה בידי שמים היינו שזרעו קיים, והתוס' ריש יבמות הקשה הרבה לפי הת"כ והירושלמי דממעטי אשת אחיו מאמו, וע"כ מערירי מיעט ואיתנייהו בכרת מדפוטרת צרה. אבל למש"כ לק"מ דודאי גם בזה פליגי בבלי וירושלמי, שהרי בבבלי יבמות ד' נ"ה איתא איצטרך למיכתב ערירים יהיו ואיצטרך למימר ערירים ימותו כו', הרי דס"ל דמה שנאמר בחדא ערוה ה"ה בכולהו, ואין זה אלא גלוי מלתא דכרת כך הוא. וקושית התוס' כבר נתיישבה שפיר, דמשנתינו ס"ל דלא נתמעט אשת אחיו מאמו, והת"כ לא מנה אשת אחיו מאמו כלל.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
This explanation, [that the Babylonian and Jerusalem Talmuds disagree in the interpretation of the *Toras Kohanim*], resolves the objections to Rashi’s definition of *kares*. [Rashi is of the opinion that] throughout the Torah [*kares*] is synonymous with the word, *ariri*, which means [the Divinely-imposed punishment of] dying childless, while only the phrase “death by the hands of Heaven” refers to one dying at a younger age, but [with] surviving children.²⁰ 2a, “*Eshes ahiv me-immo*,” writes that the interpretation of the word *kares* depends on the context. Tosafos has to take this position because he believes that both the Jerusalem and Babylonian Talmuds have the same version of the *Toras Kohanim,*which includes the wife of the maternal half-brother among the fifteen categories of women. His argument is based on the following logic: Tractate *Yevamos* 20a states that a woman is exempt from *yibbum* only if her union with the brother of the deceased involves the punishment of *karesa.* Yet we see from the Jerusalem Talmud that a wife of a brother from the same mother is exempt from *yibbum*, even though they are exempt from *karesa.*
We see that according to the Jerusalem Talmud, only the wife of a paternal brother is liable to *kares*, not the wife of a maternal brother. Why, then, is the wife of a maternal brother exempt from *yibbum*? Tosafos resolves the question by positing a difference in meaning between *kares* and *ariri*. *Ariri* means dying childless, whereas *kares* means that one dies young, yet still has children. The *Toras Kohanim* is stating, according to Tosafos’ view, that the wife of a maternal brother is excluded only from the punishment of *ariri,* dying childless. However, she is subject to the punishment of *kares*, premature death. Tosafos’ question is: since the Jerusalem Talmud and *Toras Kohanim* rule [according to his understanding] that the wife of the maternal half-brother is exempt from *ariri*, why does such a woman exempt herself and her co-wives from *yibbum* and *halitzah*? [A woman is exempt from *yibbum* only if her union with the brother of the deceased involves excision, and according to Rashi, exemption from *ariri* includes exemption from all types of excision. Therefore, Tosafos argues that one must conclude that there are two types of excision: *kares*, dying a premature death, and *ariri*, dying childless. While the wife of the maternal half-brother is exempt from *ariri*, she is still subject to *kares*.] However, according to how we explained [that the Jerusalem and Babylonian Talmud disagree whether the *Toras Kohanim* includes the wife of the maternal half-brother in the fifteen types of women, we will demonstrate] that they must also disagree [in the definition of *kares* and *ariri*]. For according to the Babylonian Talmud, as stated in *Yevamos* 55a, the reason for the Torah to state [in Lev. 20:20, concerning the forbidden relationship with one’s aunt], “they shall *die* childless,” and the necessity for the verse [in Lev. 20:21, regarding the relationship of his brother’s wife], “*shall be* childless,” teaches us the extent to which the punishment of *kares* is meted out by God; [not only the children born from the time of the transgression and onward will die, but those born before the transgression will also die]. For according to the Babylonian Talmud, whatever punishment is written regarding one *ervah* must be applied to any other *ervah*; the reason for stating “childless” is only in order to define *kares*.²¹ can be derived from one another, so why is there a need to state the punishment of *kares* in the verses describing the forbidden relationships with one’s aunt and brother’s wife, since it is derivable without these verses? The Talmud therefore concludes that it is defining how *kares* is carried out by God. Thus, Tosafos’s question has now been well answered, for according to our Mishnah, the wife of one’s maternal half-brother has not been excluded [from *kares*], whereas according to the *Toras Kohanim,* this woman is not included at all within the fifteen types, [and is thus exempt from the punishment of *kares*].²² exempts the wife of the maternal half-brother from *yibbum* and *halitzah*.

footnotes:
²⁰ Tosafos in Yevamos
²¹ According to the Babylonian Talmud, various types of ervah
²² Tosafos’s difficulty is based on his understanding that the Babylonian Talmud agrees that the Toras Kohanim


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:11
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אבל בירו' פ' כלל גדול איתא דהיכא דכתיב ערירים יהיו כך הדין והיכא דכתיב ערירים ימותו כך הוא, הרי דאין למדים זה מזה כלל, ושפיר י"ל דלא נתמעטה אשת אחיו מאמו אלא מחומר דערירי, אבל בכרת דשאר עריות איתא.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
However, according to the Jerusalem Talmud [in Tractate *Shabbos*], in *Klal Gadol*,²³2. [the punishment of childlessness] is where the Torah states, “they will be childless,” [i.e., only if one is intimate with his brother’s wife, he will not have children from that time onward], and infers from the verse, “they shall die childless” [that only by having sexual relations with one’s aunt, he incurs the punishment of his children dying even if they were born prior to that sin]. Therefore, we see that according to the Jerusalem Talmud, we do not infer [the different types of *ervah*] from one another [and the different types of *ervah* can incur different types of excision]. Thus, it would logically follow [that according to the Jerusalem Talmud], the wife of the maternal half-brother is only excluded from the punishment of *ariri*, [being childless] however, [such a woman] is still included within the punishment of *kares*, dying a premature death [without affecting the children’s lives], similar to the other types of *ervah*. [Rashi’s definition of *kares* and *ariri* is in accordance with the Babylonian Talmud’s definition].
**Translator’s note:** The Netziv will be using the opinion of R. Nehuniah ben Hakanah in tractate Kesubos to prove that Rashi’s definition of kares and “dying by the hand of Heaven”²⁴ means that one is liable to a premature death without issue, whereas “death by the hand of Heaven” describes premature death for the offender only, not for his children. accords with the Babylonian Talmud. Exodus 21:3 states that “If an ason (fatality) should occur, then you shall give life for life.” This verse teaches the halachic principle, “kam leh be-de-rabbah mineih,” “one is subject only to the greater penalty,” meaning that if the courts have sentenced a person to death and also to a fine, he is subject only to the death penalty. R. Nehuniah extends the “kam leh be-de-rabbah mineih” rule to apply even when one is liable to “death at the hand of Heaven.”²⁵, the desecrator is not liable for monetary payment as he considers *kares* to be more severe than a monetary payment. Although the transgressor on Yom Kippur is liable to *kares,* the Gemara states that R. Nehuniah applies *kam leh be-de-rabbah mineh* to any “death by the hand of Heaven.” Kesubos 30a states that R. Nehuniah derives this principle from the usage of ason in reference to Benjaimin in Gen 42:38, “He [Jacob] said to [to Reuben], ‘My son [Benjamin] shall not go down with you, for his brother is dead and he alone is left. Should an ason (disaster) befall him on the journey that you are about to take, then you will have brought down my grey hairs in sorrow to the grave.’”²⁶ Just as ason in Gen. 42:38 refers to a death imposed by Heaven, so does ason in Ex. 21:3 refer to a death imposed by Heaven.

footnotes:
²³ Chapter 7, halachah
²⁴ Kares
²⁵ R. Nehuniah holds that one who burns another’s stack of grain on Yom Kippur is exempt from paying damages. Since the penalty for desecrating Yom Kippur is kares
²⁶ Jacob feared that Benjamin would have an accident – i.e., be punished by God on the way, since when a man is in a dangerous situation, such as a journey far from home, Satan takes the opportunity to accuse him before God.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:12
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והוספתי דע"כ ש"ס דילן ס"ל כפרש"י דסתם כרת הוא וזרעו נכרתים, דלשיטת התוס' צ"ל דהנ"מ בין כרת למיתה בי"ש היינו דכרת לפני חמישים ומיתה לפני ששים, וא"כ קשה הא דאיתא בכתובות ד' ל' דמאן דיליף לרנבה"ק אסון אסון מבנימין, מיתה בידי שמים ג"כ פוטר מתשלומין, ולשיטת התוס' קשה מנלן, הא בנימין הרבה לפני חמישים היה אז, וה"ז כרת, אלא צריך לומר כפרש"י דכרת הוא וזרעו נענשים, וידוע דלבנימין היה כבר בנים, מש"ה לא נחשב אסונו אלא למיתה, והכי דייק רש"י שם דכרת הוא וזרעו נכרתים.]

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
I would like to add that according to the Babylonian Talmud, *kares* must be as defined by Rashi, i.e., that both the transgressor and his children suffer excision. [For according to Tosafos, since he regards *kares* as dying a premature death with no effect on one’s children, he is confronted with how to define the punishment of *kares* and “dying by the hand of Heaven” as both appear to be the same]. Therefore, Tosafos must define *kares* as a punishment of dying before the age of fifty, while “dying by the hand of Heaven” is the punishment of dying before the age of sixty. There is a question against this definition because of what the Talmud states in Tractate Kesubos 30a, pertaining to the opinion of R. Nehuniah ben Hakanah, who infers from the word *ason* [stated in Ex. 21:23²⁷ [fatality] occur, then you shall give a life in place of a life.” This is interpreted to mean, “If there is an *ason* [one has been sentenced to death by the courts], then you shall give a life in place of a life [and not commute the sentence to a fine].”], and *ason* as it is used in reference to Benjamin in Gen. 42:38²⁸ (disaster) befall him on the journey that you shall take, then you will have brought down my gray hairs in sorrow to the grave.’” that one subject to “dying by the hand of Heaven” is exempt from paying damages. How could the Talmud infer from the word *ason*, as it was used to refer to a possible disaster befalling Benjamin, that one deserving of “dying by the hand of Heaven” is exempt from payment? One could argue that [according to Tosafos’s definitions of *kares* and “dying by the hand of Heaven”], one is exempt from payment only if one is younger than fifty – i.e., *kares*, since Benjamin [at the time of that incident] was much younger than fifty. Therefore, one is compelled to conclude, as Rashi says, that *kares* [according to the Babylonian Talmud] means that a person and his children are liable to suffer a premature death by the hand of Heaven. Since Benjamin at the time of that incident already had children, [and Jacob was only concerned for the *ason* of Benjamin himself], the Talmud can derive from *ason* that it is referring to one liable to suffer a premature death [and not *kares*]. That is how Rashi inferred [in *Kesubos*] that *kares* means that both he and his children are punished.
**Translator’s summary:** Using several examples of enumerations of laws provided by the “masters of collections,” the Netziv illustrates how, using careful analysis of their words, one can derive new laws and obtain insights into the interpretation of the Talmud. By citing the example of the fifteen women who can exempt their co-wives and the co-wives of the co-wives from yibbum and halitzah, the Netziv demonstrates that the words of the “masters of collections” can create a domino effect permitting a succession of insights into several areas of Halacha. For by analyzing the enumeration and the types of women who are listed in the Mishnah or Toras Kohanim, combined with the understanding whether certain prohibitions are to be derived from Scripture or logic, one not only concludes which women are to be included or excluded from such a categorization; one infers whether or not the different types of ervah, forbidden relationships, can be derived from one another, which in turn influences how one is to define kares and ariri. The Netziv demonstrates this by illustrating how the Jerusalem and Babylonian Talmuds have two different versions of the Toras Kohanim, and what appears to be a subtle variation, actually results in significant halachic differences.
According to the Jerusalem Talmud, the version of the Toras Kohanim is that the co-wives of the co-wives are exempt from yibbum and halitzah based on the Scriptural derivation of litzror. The need for this Scriptural derivation teaches us that the Toras Kohanim believes that the various types of ervah cannot be derived from one another, which thus precludes the use of the logical argument of Rav Ashi. It is therefore also clear that since various forbidden women cannot be derived from one another, one cannot derive the case of the woman with the conditional divorce from other ervah. For in the case of a conditional divorce the ex-husband can rescind his condition, and there is no verse that exempts the co-wives of the woman with the conditional divorce. Since the conditional divorce is not included in the listing of those women who exempt the co-wives and the co-wives of the co-wives, and there is a need to complete the list of fifteen, it therefore must include the wife of the maternal half-brother. If the Toras Kohanim is read to include the wife of the maternal half-brother, the question then arises as to how that inclusion is valid if the Toras Kohanim excludes such a woman from kares. Therefore, one is forced to conclude that the Jerusalem Talmud believes that there are two forms of excision, one of which is premature death inflicted on the transgressor and his children, and another type of excision, which affects only the actual transgressor.
However, according to the Babylonian Talmud, the text of the Toras Kohanim does not derive the co-wives of the co-wives from the word litzror. We thus infer that according to the Toras Kohanim, the various types of forbidden relationships may be derived from one another even when the forbidden nature of the relationship may be obviated either through divorce or by rescinding a condition. Therefore, the Babylonian Talmud understands the Toras Kohanim to include in the list of the fifteen women the woman who was divorced with the condition that prohibits her marriage to a certain man. If one were to include the wife of the maternal half-brother, the number would be increased to sixteen. Therefore, the Babylonian Talmud concludes that the Toras Kohanim excludes the wife of the maternal half-brother. Since the wife of the maternal half-brother does not exempt the co-wives from yibbum and halitzah, it would logically explain why such a woman would be excluded from the punishment of kares. Therefore, according to the Babylonian Talmud, there is no need to delineate two levels of kares.

footnotes:
²⁷ In that chapter (verse 22), Scripture states that when men are fighting and one jostles a pregnant woman, causing her to miscarry, but the woman herself does not die, he shall pay the value of the aborted offspring as determined by the court. Scripture continues in verse 23, “But should an ason
²⁸ “He [Jacob] said [to Reuben], ‘My son [Benjamin] shall not go down with you, for his brother is dead and he alone is left. Should an ason


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:13
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נחזור לענין, דמנין חמש עשרה נשים, המה כדרבנות ללמדינו חדשות ונצורות. וכך יש ללמוד מכל בעלי אסופות, שאספו סדרי המאמרים מפוזרים לענין אחד, יש להבין מזה דעת המאסף בפ' אותו המאמר.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
Returning to the matter we were discussing, we see from the enumeration of the fifteen types of women that such categorizations function as goads to teach us novel concepts and secret matters. Similarly, one gleans [insights] from the sayings of the “masters of collections,” who have gathered [laws] from all of the scattered statements regarding a particular area and put them into one collection. [By careful analysis of the manner in which these laws have been collected], we obtain an understanding of the intent of the original Talmudic statements that have been collected.


###### Haamek Sheilah on Sheiltot d'Rav Achai Gaon, Kidmat HaEmek, Part II 11:14
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וכמו שדקדקנו בסי' קל"ד לענין אסור למלאות פיו שחוק, דעת רבינו שאסף אותו המאמר לה' תשעה באב, ובסי' נ"ז אות ד' ובכ"מ למדנו מסדרי אסיפת רבינו ענינים להוראה, וכן בס' בה"ג ע' מש"כ סי' נ"ג אות ד' לענין ק"ש, ובס' הרי"ף ע' מש"כ בסי' כ"ז אות ו' ובסי' כ' אות י"ג ועוד הרבה, והיינו שאמר קהלת כדרבנות בעלי אסופות, אסיפתם בלי אומר ודברים המה דרבן ליתן חיים ללומדיהן.

**The path of Torah, introduction to Ha'amek she'elah. Trans. by Elchanan Greenman. Urim, 2009:**
[For another example], see [my commentary, *Ha’amek She’elah*] 134:4, in which we derived insights from the words of our master [the She’iltos] pertaining to the prohibition of filling one’s mouth with laughter. [We asked why the She’iltos] included this prohibition in the section pertaining to the laws of *Tisha be-Av*.¹⁶ 31a states, “R. Yohanan says in the name of R. Shimeon ben Yohai, ‘One may not fill one’s mouth with laughter in this world.” One may interpret this statement to refer to this world as opposed to the World to Come. However, since the She’iltos groups this statement together with the laws of Tisha be-Av, one infers that the phrase “this world” refers to this world in the absence of the Holy Temple, and that one may not fill his mouth with laughter because we mourn the destruction of the Temple. Further, see the way we inferred so much in 57:4,¹⁷ 60b states: “We must not decorate our rooms with plaster, panels and paintings in these days. However, if one purchased a courtyard that had walls that were plastered, paneled and painted, it may be retained in its current state.” Most authorities explain this gemara as a reminder not to plaster or paint one’s house so that we will more readily recall the destruction of the Temple. However, the She’iltos records this statement together with the prohibition against making images of heavenly objects and angels. He states that “… We are not concerned that to remove suspicion of [having made forbidden images, one should remove those that have already been made]. This is stated in the *baraisa*, ‘One who [had already] purchased a courtyard that had walls which were plastered, paneled and painted, may retain them in their current state.’” Therefore, according to the She’iltos, this prohibition of plastering, paneling and painting one’s home is not to remember the destruction of the Temple, but rather alludes to the prohibition of making something that may be construed as constructing forbidden images. The She’iltos’ version of *Bava Basra* 31a did not include the words “in these days.” In addition, many question why the Rif did not include the prohibition of painting or plastering one’s house in order to remember the destruction of the Temple. However, we see the Rif agrees with the She’iltos that this relates to the prohibition against making forbidden images. as in many other places, by analyzing the manner in which [the She’iltos] categorized collections of laws. Similarly, we obtained further insights by analyzing the words of the Bahag, [as demonstrated] by what is written in [*Ha’amek She’elah*] 53:4,¹⁸ is required by the Torah, since he includes it in the 613 mitzvos. That is, the inference that one is required to recite the evening and morning shema from the words *be-shochbecha u-ve-kumecha* is not an *asmachta* but a Torah law. pertaining to the laws of the reading of the *shema.* In addition, see how this method was applied to Rav Yitzchak Alfasi based on what we wrote in [*Ha’amek She’elah*] 27:6¹⁹ (evil speech about another). In addition, he has the right to beat the litigants if necessary, and is exempt from damages if he causes them physical harm. The Netziv writes that the Rif is of the opinion that the bailiff has the capacity to perform these acts, since his trustworthiness is equal to the testimony of two witnesses. Although the Rif does not state this explicitly, it is inferred from the manner in which, in the third chapter of *Mo’ed Katan*, he groups a Gemara from *Mo’ed Katan* together with a citation from *Bava Kamma*. He first cites from *Mo’ed Katan* 16a that a court bailiff may bring a negative report of a person’s behavior to the court, and then follows this by citing from *Bava Kamma* 112b that a court bailiff’s word carries the same weight as the testimony of two witnesses, and he is allowed to harm the litigants physically as he deems necessary. and 20:13,²⁰ (watchman) who entrusts another *shomer* with an object or animal to watch without obtaining the owner’s permission. His view of the Rif’s opinion in part relates to his analysis of why the Rif juxtaposes a statement of Rav from *Bava Metzia* 112a, with another statement of Rav’s from *Bava Metzia* 97b. and as in many other places. When Koheles stated, “as goads are the masters of collections,” it was [in reference to this method of inferring laws from categorizations]. This means that [the way the collected laws are categorized and expressed, enables one to obtain insights about the law, even though] these interpretations were not explicitly stated by the “masters of collections.”²¹of the masters of collections,” as it said “the words of the sages.” These categorizations function as a “goad” to bring life to those who learn them.

footnotes:
¹⁶ Talmud Berachos
¹⁷ Tractate Bava Basra
¹⁸ There the Netziv writes that according to the Bahag, we can infer that the reading of the shema
¹⁹ There the She’iltos discusses whether one may take the law into his own hands, such as wounding someone in order to prevent him from sinning, or removing by force money that was wrongly taken. The She’iltos concludes that it is permitted only if there are two witnesses. Similarly, a court bailiff who is slighted by any of the litigants may report their behavior to the court, and this shall not be considered lashon ha-ra
²⁰ There the Netziv extensively discusses the scope of liability of one shomer
²¹ The Netziv is explaining why the verse does not say “The words