# dafyomi

lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> If this was the question, how can we answer 
          it?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> We asserted that we could have included 
          everything from 'theft, ox, Seh, donkey, living.' This is 
          wrong. We cannot include more than the latter Klal, 
          which is 'living'!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What do we learn from the Klal u'Frat 
               u'Chlal?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  We cannot learn everything, for the latter Klal 
                    is 'living', which can include only living 
                    things!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Summation of answer):</font></b> This is why we need 'Im 
               Himatzei Simatzei' (to include everything).
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ADJACENT KELALIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The Peratim are not between the Klalim 
          'Himatzei' and 'Simatzei'!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Ravina):</font></b> In such a case, we consider it as 
          if the Peratim were in the middle, to expound like a Klal 
          u'Frat u'Chlal.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> We put 'ox' between 'Himatzei' and 
               'Simatzei'. What does this include?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It need not include living things. We already 
                    know this from 'living'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it includes inanimate things.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  We expound:</font></b> the Prat is movable and has 
                    intrinsic value. We include all such things.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> We put 'donkey' between 'Himatzei' and 
               'Simatzei.' What does this include?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It need not include inanimate things. We already 
                    know them from 'ox'!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it includes specific things 
               (Rashi - that have Simanim; Tosfos - they have a 
               measure, or are whole).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Objection:</font></b> If so, what do we learn from 'Seh'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, we expound it through Ribuyim and 
          Mi'utim, like Tana d'Vei R. Yishmael.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Tana d'Vei R. Yishmael):</font></b> We do not 
               expound 'in water... in water' through the method of 
               Klalim and Peratim. Rather, it is a Ribuy u'Mi'ut 
               u'Ribuy.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If it is a Ribuy u'Mi'ut u'Ribuy, everything 
          is included. Why were the Peratim written?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> One excludes land, one excludes slaves, and one 
          excludes documents;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Theft' and 'living' teach like Rav, that the 
               thief must resuscitate what he stole (restore it to 
               the value at the time he stole it).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHAT DO WE LEARN FROM IM HIMATZEI SIMATZEI?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> According to Beraisa #2 (one verse teaches a 
          thief, and the other about one who claims that the 
          deposit was stolen), what do we learn from 'Im Himatzei 
          Simatzei'?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> It teaches Rava bar Ahilai's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava bar Ahilai):</font></b> Rav taught that if one admits 
               to a fine, and witnesses came later, he is exempt. 
               He learns from 'Im Himatzei Simatzei';
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Himatzei (he will be found) through witnesses, 
                    judges Simatzei (will find him) liable. This 
                    excludes one who incriminates himself (even if 
                    witnesses come later).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> According to Beraisa #1 (both verses discuss 
          one who claims that the deposit was stolen), from where 
          do we know this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> 'That the judges will convict' excludes one who 
          incriminates himself.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> What does the Tana of Beraisa #2 learn from 
          this verse?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It exempts one who admits to a fine. (This 
          allows him to learn from 'Im Himatzei...' that even if 
          witnesses come later, he is exempt.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Tana of Beraisa #1 only has one verse 
               exempting one who admits to a fine. He holds that if 
               witnesses later come, he is liable.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> According to Beraisa #2, we said that 'Im 
          Himatzei Simatzei' teaches like Rava bar Ahilai. What do 
          the Peratim teach?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like Tana d'Vei R. Yishmael taught:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Tana d'Vei R. Yishmael):</font></b> An entire 
               Parshah can be repeated for the one Chidush. (Here, 
               Im Himatzei Simatzei exempts one who admits to a 
               fine. We did not need the Peratim, for we can learn 
               from the coming Parshah (Im Lo Yimatzei ha'Ganav, 
               which discusses one who claims that it was stolen, 
               and also lists the Peratim).)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Suggestion:</font></b> An actual thief should pay Kefel only if he 
          swore!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Rejection (Beraisa - R. Yakov):</font></b> 'He will pay Kefel' - 
          without an oath.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps this is only if he swore!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> It was not so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What does this mean?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Abaye):</font></b> The Torah did not need to write 
               that a thief pays Kefel. We could have learned from 
               a Kal va'Chomer:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  One who (falsely) claims that the deposit was 
                    stolen pays Kefel, even though the object came 
                    to him in a permitted way. A thief took the 
                    object in a forbidden way, all the more so he 
                    pays Kefel!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  The Torah write that a thief 'pays two' to 
                    teach that this is even if he did not swear.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ANOTHER LAW LEARNED FROM IM HIMATZEI SIMATZEI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> We need 'Im Himatzei Simatzei' for another 
          teaching!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Question:</font></b> '(If it will be found in) his 
               hand (he pays two).' What is the source that he pays 
               Kefel even if it is found on his roof or yard?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> 'Im Himatzei Simatzei' - in any place.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Had it written the same word twice, 'Himatzei 
          Himatzei' or 'Simatzei Simatzei', we would only learn one 
          law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Since the Torah switched, we learn two laws.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>RESUSCITATING THE PRINCIPAL</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> A thief pays principal like the value at the 
          time he stole it. The additional payments (of Kefel, four 
          or five) are like the value at the time of the trial.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> It says 'theft' and 'living' - the thief 
               must resuscitate what he stole like when he stole 
               it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Sheshes - Beraisa):</font></b> If a thief stole an 
          animal and fattened it, he pays Kefel, four or five like 
          at the time he stole.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Since the thief fattened the animal, it is not 
          reasonable that he should pay extra for this.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a thief stole a fat animal and 
          weakened it, he pays Kefel, four or five like at the time 
          he stole.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Weakening the animal is like partially killing 
          it (it is not reasonable that he should pay less for 
          this).
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Rav's law applies when the price of animals changed.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> It was worth one (Zuz) when he stole 
               it, and four later (at the time of the trial). Rav 
               argues with Rabah!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rabah):</font></b> If Reuven stole a barrel of wine worth 
                    one Zuz, and later, the price went up to four, 
                    and he broke it or drank it, he pays four. If 
                    it broke by itself, he pays one.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> (Rav does not argue.) Rav discusses when it was 
          worth four when he stole it, and one later.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He pays four for principal, and payments of 
               Kefel, four and five are based on the final value 
               (one).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ADDED FIFTH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (for Rav - R. Chanina - Beraisa):</font></b> If a Shomer 
          claimed that the deposit was stolen, and he swore 
          falsely, admitted that he lied, and witnesses testified 
          that the Shomer himself took it:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he admitted before witnesses came, he pays 
               principal, Chomesh, and brings an Asham;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yakov says, if he admitted after witnesses 
               came, he pays Kefel and brings an Asham. The extra 
               payment (of Kefel) counts for Chomesh.
<br>
<br>

sjt:
<font><b>1) WHEN IS 'HA'AMADAH BA'DIN'?</b></font><b>
<br>OPINIONS:</b> Rav rules that when a Ganav is obligated to pay Tashlumei Arba'ah v'Chamishah, he pays four or five times the value of the animal he stole based on its value at the time of 'Ha'amadah ba'Din.'
</p><p>
Tashlumei Arba'ah v'Chamishah includes the Kefel which the Ganav must pay. Are both the value of the Kefel and the value of the Arba'ah v'Chamishah determined by the animal's value at the time of 'Ha'amadah ba'Din,' which Beis Din issues its verdict on the matter, or are the two values judged differently? Perhaps only the Kefel is based on the value at the time of 'Ha'amadah ba'Din,' while the Arba'ah v'Chamishah is based on the value of the animal at the time it was slaughtered (Tevichah) or sold (Mechirah).
</p><p>
(a) The <b>SHITAH MEKUBETZES</b> explains that the value of the Tashlumei Arba'ah v'Chamishah is also determined based on the value at the time of 'Ha'amadah ba'Din.' The logic for this is that had the Ganav admitted to his act at any point before 'Ha'amadah ba'Din,' he would have been exempt ('Modeh b'Kenas Patur'). Therefore, the obligation to pay the Arba'ah v'Chamishah takes effect not at the time of the Geneivah or at the time of the slaughter or sale, but at the time of 'Ha'amadah ba'Din,' when Beis Din obligates him to pay.
</p><p>
(b) The <b>ROSH</b> (6:2) writes that only the Kefel is assessed based on the value at the time of the actual 'Ha'amadah ba'Din.' The time of 'Ha'amadah ba'Din' for determining the Arba'ah v'Chamishah is the time of the slaughter or sale, for it is for the act of that moment that the Ganav is obligated to pay Arba'ah v'Chamishah (for it is a new act, independent of his initial act of Geneivah). Consequently, if the animal's value appreciated before the time of 'Ha'amadah ba'Din,' the Ganav does not pay according to the new value of the animal, but he pays according to the value at the time of the slaughter or sale. This is similar to the way the value of the Keren is determined. The Ganav pays the Keren according to its value at the time of the Geneivah, whether the animal or item increased or decreased in value after that moment. Since at the time that it decreased in value the Ganav was not doing anything to it, he is not responsible for the decrease in value. The same applies to the Arba'ah v'Chamishah. Since at the time of 'Ha'amadah ba'Din' he was no longer doing anything with the animal, he cannot be obligated to pay according to its value at this moment, but rather he pays according to what its value was at the moment at which he did the act that obligates him (i.e. the slaughter or the sale).
</p><p>
The Rosh's approach, however, is problematic. Why should there be a difference between the Kefel and the Arba'ah v'Chamishah? If he pays according to the value at the time he did the act that obligates him, he should pay Kefel according to the value at the time of the Geneivah, the same way he pays Arba'ah v'Chamishah according to the animal's value at the time of the Tevichah or Mechirah! If, on the other hand, he pays Kefel only according to the value at the time of 'Ha'amadah ba'Din' since he could have exempted himself from it until that point and thus the obligation takes effect only when Beis Din obligates him, then the same should apply to the Arba'ah v'Chamishah, from which he also could exempt himself by admitting to it!
</p><p>
Furthermore, the Rosh writes that if the animal increases in value after the slaughter or sale, the Ganav pays only in accordance with its value at the time of the slaughter or sale, because 'he did nothing' to it. The same reasoning, however, should apply to the Kefel, since after the act of Geneivah he did nothing to it. Why, then, does the Ganav pay Kefel according to the value of the animal at the time of 'Ha'amadah ba'Din'? (See <b>YAM SHEL SHLOMO</b> and Acharonim.)
</p><p>
<b>HA'GAON RAV NAFTALI TROP</b> explains the view of the Rosh by clarifying the difference between Kefel and Arba'ah v'Chamishah as follows. In the case of Kefel, the stolen item has not entirely left the domain of the original owner, since it (the animal) is still in existence, alive and well. Since it has not entirely left the domain of the owner, the Ganav pays Kefel according to the value at 'Ha'amadah ba'Din,' because until the 'Ha'amadah ba'Din' the stolen item is still considered to be within the domain of the owner, and thus the Ganav does not become obligated to pay the Kefel until Beis Din obligates him. In contrast, when the Ganav slaughters or sells the animal, at the moment of the Tevichah or Mechirah he completely removes the animal from the domain of the owner, and at the time of 'Ha'amadah ba'Din' the stolen item is no longer within the domain of the owner at all. The obligation, therefore, is entirely a result of what happened at the moment the Ganav slaughtered or sold the animal, and thus the value that he must pay for the Arba'ah v'Chamishah is determined according to the value at that time (the time of Tevichah or Mechirah), the time at which he completely removed the animal from the owner's domain. This explains the difference between the way the value of Kefel is determined and the way the value of Arba'ah v'Chamishah is determined, according to the Rosh.
</p><p>
According to this explanation, the Gemara must mean merely that Kefel <i>can</i> be paid according to the value at 'Ha'amadah ba'Din,' but it is not necessarily so. In a case in which the item never left the domain of the owner (since it is still in existence in its original form), the Kefel is determined according to the item's value at 'Ha'amadah ba'Din,' while in a case where the item <i>did</i> leave the domain of the owner (for example, it broke after the Ganav stole it), the Kefel is determined according to the item's value at the time that it left the owner's domain (i.e. at the time that it broke). In contrast, Arba'ah v'Chamishah is <i>always</i> determined according to the value at the time of the Tevichah or Mechirah.
</p><p>


<font><b>2) HE SAID IT WHILE HE WAS ASLEEP</b></font><b>
<br>QUESTION:</b> When Rav Sheshes heard Rav's ruling, he responded by saying, 'When Rav was napping and falling asleep he said this teaching!'
</p><p>
How could Rav Sheshes, one of the holy Amora'im, say such a seemingly derogatory remark about Rav?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>CHAVOS YA'IR</b> (#152) explains that Rav Sheshes' statement was not one of derision, G-d forbid, but rather one of great adulation and praise to Rav. He was saying that Rav was so great that he never could have much such an error unless he stated his ruling while he was falling asleep. (See also <b>YOSEF DA'AS</b> to Yevamos 24b.)
</p><p>
(b) The <b>IMREI BINAH</b> (Hakdamah, end of footnotes) quotes the <b>RAMA MI'PANO</b> (end of <b>YONAS ILEM</b>) who asserts that 'Rav' refers to Rav Aba, who was the closest and most esteemed disciple of Rebbi Shimon bar Yochai, the Tana who mastered the hidden, innermost parts of the Torah. Rav Sheshes knew that all of the words of Rav were based on the hidden parts, the inner essence, of the Torah, even those statements that seemed to be based on the revealed parts of Torah.
</p><p>
The <b>ARIZAL</b> writes that the concept of sleep was created by Hash-m so that a man's Neshamah would leave him and be able to fathom the profound secrets of the upper worlds, which are impossible for a person to comprehend while his Neshamah is confined to his body.
</p><p>
Rav Sheshes understood this, and he said that since he cannot understand at all the words of Rav, undoubtedly Rav must have said these words while he was sleeping, when his Neshamah was able to fathom the profound secrets of the inner-essence of the Torah which cannot be understood by a man while he is awake, while his Neshamah is confined within his body.
</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHINUY HA'SHEM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 65b (R. Ila'i):</font></b> If one stole a lamb or calf, and it 
               grew up and became a ram or ox, this is a Shinuy 
               (change), and he acquires it (but he owes its 
               value). If he slaughters or sells it, he slaughters 
               or sells his own animal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (R. Chanina - Beraisa):</font></b> If one stole a lamb 
               or calf, and it grew up and became a ram or ox, he 
               pays Kefel, four or five like at the time of the 
               theft.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he acquires it through Shinuy, he slaughters 
                    or sells his own animal!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Counter-question:</font></b> (R. Ilai): If he does not 
                    acquire, why does he pay like the time of the 
                    theft? He should pay like now!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (R. Chanina):</font></b> He does not, because he 
                    stole a lamb, not a ram!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question (R. Zeira):</font></b> He should acquire through 
               Shinuy ha'Shem (the stolen item has a new name)!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer (Rava):</font></b> Also a one-day old ox is called an ox 
               - 'an ox... that will be born.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (to Question 2 - Rav Sheshes):</font></b> The Beraisa is 
               like Beis Shamai, who say that one does not acquire 
               through a change.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 66b (Rava):</font></b> Physical change acquires, e.g. he stole 
               wood, and now it is Kelim. Also Shinuy ha'Shem 
               acquires. It was a hide, and now it is called a 
               table-cover!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question (Mishnah):</font></b> One who built a stolen beam into 
               his house can return its value to the owner. This is 
               an enactment to help thieves repent.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The beam is now called 'roof', yet he acquires 
                    only due to the enactment!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> It is still called a beam, even 
               after it is built into the roof.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> (R. Zeira):</font></b> Shinuy ha'Shem that can be reversed is 
               not considered a Shinuy.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Inference:</font></b> A Shinuy ha'Shem that cannot be reversed 
               is a Shinuy!
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question (Mishnah):</font></b> If a pipe was affixed and then 
               hollowed out (for water to flow through it into a 
               Mikveh), it does not disqualify the Mikveh. (Before 
               it was called a piece of wood, and now it is a pipe, 
               yet this does not make it a Kli to disqualify!)
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> The law that Mayim She'uvim disqualifies a 
               Mikveh is mid'Rabanan. (Chachamim were lenient about 
               it.)
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> 96a (Rav Papa):</font></b> If one stole a date tree and cut it 
               down, even if he plants it in his property, he did 
               not acquire it. Initially it was called a date tree, 
               and also now! If he stole a date tree and made logs, 
               he did not acquire them, for they are called date 
               logs. If he stole logs and made beams, he acquired 
               them.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 96b (Mishnah):</font></b> The general rule is, all thieves pay 
               like at the time of the theft.
<br>        <b>  <b><font color='darkgreen'>15. </font></b></b> This includes R. Ila'a's case. If one stole a lamb 
               or calf and it became a ram or ox, he acquires it 
               through Shinuy. If he slaughters or sells it, it is 
               his own animal.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (34a and 9:4):</font></b> The Mishnah teaches like 
               R. Ila'i, that if one stole a lamb and it became a 
               ram, he acquires it to be exempt from four or five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 2:14):</font></b> If one stole a lamb 
               or calf, and it grew up and became a ram or ox, this 
               is a Shinuy. He acquires it and pays like at the 
               time of the theft, even if the owner did not 
               despair.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Tzitzis 1:11):</font></b> One cannot make 
               Tzitzis from stolen wool. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (Hilchos Tzitzis (after Menachos) 
                    12b DH Kesherah):</font></b> Stolen threads are Pasul, 
                    because it must be 'of yours'. However, if one 
                    stole wool and made strings, they are Kosher, 
                    for he acquired through despair and Shinuy 
                    ha'Guf. L'Chatchilah it is forbidden, due to 
                    'Sonei Gezel b'Olah.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (7:2):</font></b> Despair with Shinuy Reshus or with a 
               small Shinuy ha'Shem acquires mid'Oraisa. A proper 
               Shinuy ha'Shem, e.g. a calf became an ox, acquires 
               mid'Oraisa (without despair). 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 11:6):</font></b> If one made Tzitzis from 
               stolen wool, they are Pasul, for it says 'they will 
               make for themselves' - from theirs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bi'ur Halachah (DH v'Davka):</font></b> After they are 
                    tied, the strings that hang straight after the 
                    windings are called Gedil. He should acquire 
                    through Shinuy ha'Shem, even though it is 
                    reversible! Perhaps he does not, because they 
                    are called Gedil strings. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is only if he stole strings. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (28):</font></b> Even if there was despair 
                    and he twined the strings, he does not acquire, 
                    for their name did not change.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If he stole wool and made strings, they are 
               Kosher. However, l'Chatchilah one may not make them.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Oso'ah):</font></b> The Rambam disqualifies 
                    Tzitzis from stolen wool. Perhaps he discusses 
                    before despair. Alternatively, he discusses 
                    even after despair. He does not acquire through 
                    Shinuy, for it is reversible.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Drishah 2):</font></b> The Tur (CM 361) says 
                    that Shinuy ha'Shem acquires with despair, even 
                    if it is reversible! He does not say that the 
                    Rambam disagrees! Rather, the Rambam and Tur 
                    discuss before despair.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (5):</font></b> The Nimukei Yosef discusses Shinuy 
                    ha'Guf, i.e. Shinuy ha'Shem. Initially it was 
                    wool, and now it is strings. This resolves the 
                    difficulty from CM 361, which says that despair 
                    does not acquire without Shinuy Reshus. 
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (22):</font></b> The Nimukei Yosef says that Mitzvah 
                    ha'Ba'ah b'Aveirah applies here. However, Sukah 
                    30a connotes that it does not apply when he 
                    acquires through Shinuy ha'Shem! It is 
                    b'Di'eved only due to the Berachah.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (30):</font></b> The Taz holds that he is 
                    Yotzei with despair and Shinuy ha'Shem. The 
                    Magen Avraham and Gra hold that he acquires 
                    through Shinuy Ma'aseh, without despair. If one 
                    bought stolen strings, before despair he was 
                    not Yotzei. If the owner despaired after he 
                    bought, some say that he was Yotzei. If one 
                    bought stolen strings after despair, he was 
                    Yotzei. The Magen Avraham permits blessing, for 
                    he did not steal them. Others are stringent.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Bi'ur Halachah (DH ul'Inyan):</font></b> Sha'arei Teshuvah 
                    (5) explains that according to the Magen 
                    Avraham, if there was despair with Shinuy 
                    ha'Shem, one may bless. The same applies to 
                    despair with Shinuy Reshus or Shinuy Ma'aseh. 
                    The Chavos Ya'ir, Gra and Taz disagree.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Igros Moshe (OC 3:65):</font></b> The Magen Avraham says 
                    that even after Shinuy Ma'aseh, the old 
                    ownership lapsed only because the item is not 
                    here, so the theft is despised regarding 
                    Berachah. After despair, the old ownership 
                    lapsed properly, and one may bless. A full 
                    Shinuy ha'Shem properly uproots the old 
                    ownership, but it does not suffice for Berachah 
                    without despair. The Eliyahu Rabah says that 
                    since Shinuy Ma'aseh does not permit blessing, 
                    and despair by itself does not, even together 
                    they do not. Perhaps this is even if the Isur 
                    is not intact, e.g. a loaf was kneaded with 
                    forbidden water or baked in a forbidden oven.
<br>
<br> 
<br><br><font color='blue'><i>See also:</i>
<br><b><b>A REVERSIBLE SHINUY DOES NOT ACQUIRE </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim say, 'b'Rosho va'Chamishisav' teaches 
               that one adds a Chomesh only when he pays b'Rosho 
               (principal, but not when he pays Kefel).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon bar Yochai says, Chomesh and Asham do 
               not apply when Kefel is paid.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> R. Yakov said that the Kefel counts for 
               Chomesh. What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the deposit was worth four from beginning to 
                    end, the Kefel is four, but the Chomesh is only 
                    one!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it was worth four when he stole 
               it, and one at the end. The Kefel is one, and so is 
               the Chomesh!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> This shows that the principal is paid like the 
               initial price (the Chomesh is a quarter of the 
               principal), and Kefel are like the final price!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Really, it was worth four from 
          beginning to end. The case is, he swore four times, so 
          the Kefel equals the (four) added fifths!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Va'Chamishisav (and its fifths)' teaches that 
               many fifths can be paid for one principal.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	(Beraisa - Chachamim) 'B'Rosho va'Chamishisav' teaches 
          that one adds a fifth when paying (only) principal (but 
          he brings an Asham).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The same reason he is exempt from the Choleh 
          should also exempt from the Asham - ' b'Rosho 
          va'Chamishisav v'Es Ashamo'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim hold that the word 'Es' separates 
          (Asham does not depend on paying only principal);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Shimon holds that the Vav (in v'Es) connects 
               (so also Asham depends on paying only principal).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Chachamim:</font></b> If so, the Torah should have omitted 
               the entire word 'v'Es'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Shimon:</font></b> It must be written to separate between 
               money paid to a person (the Chomesh) and what goes 
               to Hash-m (the Asham).
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>AN ANIMAL THAT CHANGED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Ila'i):</font></b> If a man stole a lamb or calf, and it grew 
          up and became a ram or ox, this is a change, and he 
          acquires it (but he owes its value);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he slaughters or sells it, he slaughters or 
               sells his own animal.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (R. Chanina - Beraisa):</font></b> If a man stole a lamb, 
          and it grew up and became a ram or ox, he pays Kefel, 
          four or five as at the time of the theft.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he acquires it through the change, he should 
               not pay four or five, for he slaughters or sells his 
               own animal!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Counter-question:</font></b> (R. Ilai): If he does not 
               acquire, why does he pay like the time of the theft? 
               He should pay like now!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (R. Chanina):</font></b> He does not pay like now, 
               because he stole a lamb, not a ram!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> He should acquire because the 
          stolen item has a new name!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> A one-day old ox is also called an ox.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We learn from 'an ox... that will be born'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The same applies to rams. Yakov said 'the rams of 
               your flock I did not eat.' Surely, he did not eat 
               Lavan's lambs!
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Question (b) has still not been answered!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Sheshes):</font></b> The Beraisa is like Beis Shamai, 
          who say that one does not acquire through a change.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If a man paid a harlot with wheat, 
               olives or grapes, and she made them into flour, oil 
               or wine, they may not be offered on the Mizbe'ach 
               (they are still considered her wages);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> They may be offered.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Yosef - Beraisa):</font></b> Beis Shamai forbid;
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Beis Hillel permit.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Why do Beis Shamai forbid?
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse (that disqualifies a harlot's wages 
          or something traded for a dog for a Korban) says 'also', 
          to include what they are transformed into.
<br>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ACQUISITION THROUGH CHANGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Beis Hillel say, 'they (are disqualified)', but what 
          they are transformed into is not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beis Shamai expound 'they (are disqualified)', 
               but their offspring are not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Beis Hillel say that 'they' excludes both of 
               these (they are valid for Korbanos).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What do Beis Hillel learn from 'also'?
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	This is left unanswered.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Beis Shamai and Beis Hillel argue only about whether or 
          not one acquires through a change, but all agree, Kefel, 
          four and five are like the time of the theft!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Rav said that principal is like the time of 
          the theft, and Kefel, four and five are like the time of 
          the trial!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Beraisa teaches that he pays lambs, 
          like the time of the theft, but he pays according to the 
          market value at the time of the trial.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rabah):</font></b> A verse and Mishnayos teach that one acquires 
          through a change.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'He will return the stolen object that he stole' 
               - these words are redundant, to teach that he 
               returns it if only it is like he stole. If not, he 
               just owes their value.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a thief stole wood or wool and made 
               it into Kelim, he pays their value at the time he 
               stole them.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a Yisrael dyed his first shearings 
               before giving them to a Kohen, he is exempt (from 
               giving them to a Kohen).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  These show that one acquires through a change.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ACQUISITION THROUGH DESPAIR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rabah):</font></b> If the owner despairs, the thief acquires. We 
          do not know if this is mid'Oraisa or mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps it is like an Aveidah. If the owner 
               despaired before it was found, the finder acquires 
               it mid'Oraisa. The same applies to a thief;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, perhaps an Aveidah is different, for the 
               finder had permission to pick it up;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A thief only acquires mid'Rabanan. This is an 
                    enactment to help people repent.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Yosef):</font></b> A thief does not acquire through despair 
          (of the owner), even mid'Rabanan.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Yosef - Mishnah):</font></b> If a thief stole 
          Chametz, and it became forbidden on Pesach, he can return 
          it after Pesach and say 'here is your Chametz'!
<br>
<br>

sjt:
<font><b>1) THE EXTRA WORD 'GAM'</b></font><b>
<br>QUESTION:</b> The Gemara (65b) says that Beis Shamai and Beis Hillel disagree about whether an item given in exchange for an Esnan Zonah may be offered as a Korban. Beis Shamai, who prohibits it, derives the prohibition from the extra word, 'Gam' ('also'), in the verse which prohibits offering an Esnan Zonah upon the Mizbe'ach (Devarim 23:19). The Gemara asks what Beis Hillel does with the extra word 'Gam,' and it concludes that this indeed is a difficulty on the view of Beis Hillel.
</p><p>
Earlier (54a), Rava says that the word 'Chamor' ('donkey') in the verse which discusses Bor (Shemos 21:33) is a difficulty on the view of Rebbi Yehudah, and the word 'Seh' in the verse discussing Aveidah (Shemos 22:8) is a difficulty on the view of everyone. Why does Rava there not also mention the Gemara here, which says that the word 'Gam' in the verse which discusses Esnan is a difficulty on the view of Beis Hillel?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> earlier (54a, DH Chamor d'Bor; see also Bava Metzia 27a) answers that Rava there mentions only 'Chamor' of Bor and 'Seh' of Aveidah because they are similar to each other in that they are both animals. Similarly, the <b>TOSFOS HA'ROSH</b> (Bava Metzia 27a) writes that 'Chamor' and 'Seh' are 'Inyan Echad.'
</p><p>
(b) The <b>SEFER YERE'IM</b> (2:293) answers that Rava mentions only 'Chamor' of Bor and 'Seh' of Aveidah because the laws of those subjects are taught primarily in Maseches Bava Kama. The subject of Esnan Zonah, on the other hand, in which the extra word 'Gam' is written, is a subject whose Halachos are not discussed primarily in Bava Kama but rather in Temurah.
</p><p>
(c) The <b>PNEI YEHOSHUA</b> here gives a different explanation. He asks, why does the Gemara say that the word 'Gam' in the verse is a difficulty on the view of Beis Hillel? There is a simple answer: Beis Hillel needs the word 'Gam' to include a 'Shinuy ha'Chozer,' a change made to the item that is not permanent. Such a Shinuy does not enable one to be Koneh the object with regard to Esnan, and thus it needs its own Ribuy in the verse.
</p><p>
This question is not a difficulty according to Rebbi Yochanan and Rav Chisda, who maintain that for non-Hekdesh purposes (such as returning a stolen item to its owner), one does not acquire with a 'Shinuy ha'Chozer,' and thus certainly for Hekdesh purposes one does not acquire with such a Shinuy, because such an item is exceedingly loathsome to Shamayim. However, <i>Rabah</i> argues and maintains that one <i>does</i> acquire with a 'Shinuy ha'Chozer' for non-Hekdesh purposes, and, consequently, he should need a Ribuy (i.e. the extra word 'Gam') to teach that one is <i>not</i> Koneh such an item with regard to Esnan!
</p><p>
The answer must be that this Sugya does not follow the view of Rabah, but rather the view of Rebbi Yochanan and Rav Chisda who maintain that one is <i>not</i> Koneh, even for non-Hekdesh purposes, with a 'Shinuy ha'Chozer.' According to Rabah, however, the word 'Gam' indeed is needed to teach that one does not acquire an item with a 'Shinuy ha'Chozer' with regard to Esnan Zonah, and thus the word is no longer extra according to Beis Hillel.
</p><p>
Since the word 'Gam' is not extra according to Rabah's view, Rava earlier (54a) does not mention it as one of the difficulties of extra words.
</p><p>
(See <b>MAHARSHA</b> in Mahadura Basra, who asks the same question as the Pnei Yehoshua -- why does the Gemara not answer that according to Beis Hillel, the word 'Gam' is necessary to teach that one is not Koneh with a 'Shinuy ha'Chozer'? The Maharsha gives two answers. His first answer is like that of the Pnei Yehoshua, that the Gemara means that Beis Hillel's opinion is difficult according to the opinions which disagree with Rabah. See there for his second answer.)
</p><p>
(d) The <b>ZERA AVRAHAM</b> (2:54:2; see <b>HAGAHOS PRI YITZCHAK</b> there) answers that the Gemara earlier (54a) does not mean that <i>both</i> 'Chamor' of Bor <i>and</i> 'Seh' of Aveidah are extra. Had the Torah written only one of them, it would have been necessary, for it would have taught that Tovas Hana'ah has the status of monetary value (see there). The Gemara is asking that once the Torah writes both of them, <i>one</i> of them is extra. In contrast, the extra word 'Gam' according to Beis Hillel is a difficulty in and of itself. According to this approach, it is clear why Rava (on 54a) does not mention 'Gam' according to Beis Hillel.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE ENACTMENT FOR A STOLEN BEAM</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Regarding a beam, a change in name (to 
               'roof') does not acquire!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> One who built a stolen beam into his 
                    house can return its value to the owner. This 
                    is an enactment to help thieves repent.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If not for the enactment, he would not acquire 
                    it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Yosef):</font></b> It is still called a beam, even 
               after it is built into the roof.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'Tzalos of the (future Mikdash)' are 
                    the boards that hold the rafters in place. 
                    'Ha'Ovim' are the beams.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Sukah 27b (Beraisa - Chachamim):</font></b> 'Lecha' 
               disqualifies a stolen Sukah. 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> 30a - Rav Huna (to Yisre'elim who sell myrtle):</font></b> When 
               you buy myrtle from Nochrim, don't cut it 
               yourselves.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> This is because Stam Nochrim steal land, but land is 
               not (Halachically) stolen. If the Nochri cuts it, 
               there is despair when it is in his hands, and the 
               Yisrael acquires through Shinuy Reshus. 
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> In any case, one who buys from the seller is Yotzei. 
               Rav Huna's counsel was needed for the myrtle that 
               the sellers themselves will use for the Mitzvah.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> 31a (Beraisa - R. Eliezer):</font></b> A stolen Sukah is Pasul;
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> Chachamim say, it is Kosher.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> They argue about one who physically 
               expelled Reuven from Reuven's Sukah. All agree that 
               if one stole wood and made a Sukah, he owes only its 
               value (the Sukah is his and he is Yotzei in it).
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> A woman complained to Rav Nachman that the Reish 
               Galusa and Chachamim are in a stolen Sukah (his 
               servants stole her wood). Rav Nachman ignored her.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Rav Nachman:</font></b> She is merely owed its value.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Sukah 5:25):</font></b> If one stole wood and 
               made a Sukah, he is Yotzei with. Chachamim enacted 
               that he owes only the wood's value to its original 
               owner. Even if he stole boards and put them (on the 
               Sukah) without connecting them or changing them at 
               all, he was Yotzei.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kesef Mishneh and R. Mano'ach:</font></b> If one stole 
                    wood and made a Sukah he is Yotzei through 
                    Chachamim's enactment. Chachamim can make 
                    things Hefker. Even after the enactment there 
                    is a case of a stolen Sukah, i.e. on a boat or 
                    wagon. Since it moveable, it can be stolen. 
                    Chachamim expound that a stolen Sukah is Pasul 
                    (27a). This could also refer to a Sukah made 
                    with stolen wood, before the enactment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Sukah 2:16):</font></b> Chachamim use 'Lachem' to 
               disqualify a stolen Sukah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> This refers to one who stole a 
                    Sukah on a boat or wagon. It is not attached to 
                    the ground, so it can be stolen. He does not 
                    return money, rather, the Sukah itself. There 
                    is no enactment for penitents, since he did not 
                    toil to build it or spend money for it. If one 
                    stole wood and used them for Sechach, he owes 
                    only money. The Sukah is not stolen or 
                    borrowed. He acquired through changing their 
                    name and changing them. Also, due to the 
                    enactment he need not dissemble his Sukah. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ran (Sukah 12b):</font></b> If one stole wood and made a 
                    Sukah, mid'Oraisa it is Pasul due to Mitzvah 
                    ha'Ba'ah b'Aveirah. After Chachamim's 
                    enactment, he acquires the wood and is Yotzei. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (OC 637:3):</font></b> A Yisrael may not cut wood (for his 
               Sukah from a Nochri's forest), for l'Chatchilah one 
               may not make a Sukah from theft (Stam Nochrim steal 
               land). Rather, he buys the wood from the Nochri.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Taz (3):</font></b> A Yisrael may cut when the kingdom 
                    gives permission, just like the kingdom cuts 
                    trees to make bridges, and we use them (Bava 
                    Kama 113b). 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bi'ur Halachah (DH Lo Yekatzetzu):</font></b> If the 
                    Nochri has permission from the government, one 
                    may cut with his permission. Even if he stole 
                    from a Yisrael, it is now his. Eliyahu Rabah 
                    questions the Taz' Heter. Ri'az and the Ri 
                    permit if there were never mostly Yisrael in 
                    the area. One may rely on this.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishnah Berurah (12):</font></b> If Levi cuts and gives to 
                    David, this helps, for there is despair when 
                    Levi has it, and David acquires through Shinuy 
                    Reshus.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Mishnah Berurah (13):</font></b> If there is no other 
                    possibility, one may cut himself if he has 
                    permission from the owner.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (14):</font></b> Perhaps in our lands one 
                    may bless on the Sukah, for most Nochrim get 
                    their land with the government's permission, 
                    and Dina d'Malchusa Dina.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch:</font></b> If he stole wood and made a Sukah, 
               he is Yotzei with it. Chachamim enacted that he owes 
               only the wood's value to its original owner. Even if 
               he stole boards and put them (on the Sukah) without 
               connecting them or changing them at all, he was 
               Yotzei. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> The 
                    Ba'al ha'Itur gives another case of a stolen 
                    Sukah: he made it with stolen wood and refuses 
                    to pay for the wood. Then, there is no 
                    enactment for the thief. Rashi says that the 
                    only case of a stolen Sukah is on a boat or 
                    wagon. It seems that he holds that even when 
                    the thief refuses to pay, it was enacted that 
                    he owes only money.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (15,16):</font></b> If one pays for the 
                    wood, afterwards it is his, and he may bless on 
                    the Sukah. If he does not want to pay, he was 
                    not Yotzei.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Sha'ar ha'Tziyon (22):</font></b> If he says that he will 
                    pay, but keeps stalling and saying that he will 
                    pay another time, he is Yotzei, for the 
                    enactment applies.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (29):</font></b> The Birkei Yosef does not 
                    allow relying on the enactment to bless on the 
                    Sukah, until he agrees to pay the value to the 
                    owner. 
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (32):</font></b> If he does not agree to 
                    pay, just promises to return it after Sukos, he 
                    is not Yotzei, unless the owner consents.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Bi'ur Halachah (DH v'Im):</font></b> Even though the 
                    Poskim who allow a Ma'amid (what holds up the 
                    Sechach) that is Pasul for Sechach, perhaps it 
                    is Pasul if one borrowed without permission, 
                    which is theft. (If he pays for it, he is no 
                    worse than a thief, and he is Yotzei.) Even if 
                    the walls were stolen, it is Pasul.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 649:1):</font></b> If any of the four Minim 
               was stolen, it is Pasul, before or after Yi'ush. 
               However, if one stole a Lulav and trimmed it, it is 
               Kosher because he acquired it through Shinuy. 
               However, he may not bless on it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (10,12):</font></b> The Isur to bless is 
                    only if it was surely stolen.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>THE LAW OF A STOLEN SUKAH </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, when Pesach came, the owner despaired. If 
               the thief acquired it, he would not be able to 
               return it. He would need to return the value of what 
               he stole!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> I said only that a thief acquires 
          through despair when he wants to acquire. Here, he does 
          not want to acquire.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> 'His Korban' - not a stolen 
          one.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> If the owner did not despair yet, 
                    this is obvious!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the owner despaired. This shows 
               that the thief did not acquire it!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Counter-question (Rabah - Beraisa):</font></b> 'His (a 
               Zav's) mattress (becomes an Av ha'Tum'ah to be 
               Metamei people when he sits on it)', but a stolen 
               one does not.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Reuven stole wool and made a mattress, all 
                    agree that he acquires through change!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, you must say that he stole 
               another's mattress.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Likewise, we can say that he stole another's 
          Korban!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>WHEN INTENT HELPS FOR TUM'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Abaye - Mishnah):</font></b> Hides of a regular person 
          can receive Tum'ah through intent;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A tanner's hides cannot receive Tum'ah through 
               intent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Hides of a Ganav (covert thief) can receive 
               Tum'ah through intent. Hides of a Gazlan (open 
               robber) cannot.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Shimon says, hides of a Ganav cannot receive 
               Tum'ah through intent. Hides of a Gazlan can, 
               because the owner despaired.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This shows that one acquires through despair of 
               the owner!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> The case is, he cut them (the 
          change helps him acquire them).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Chanan):</font></b> The Mishnah discusses a table-
          cover, which does not need to be cut!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Anything that needs no further work 
               can receive Tum'ah through intent;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Anything that needs further work cannot receive 
               Tum'ah through intent, except for a table-cover.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> A change in the name of the object is 
          like a physical change.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One acquires through physical change, e.g. he 
               stole wood, and now it is Kelim. Similarly, it was 
               called a hide, and now it is called a table-cover.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Regarding a beam, a change in name (to 
          'roof') does not acquire!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One who built a stolen beam into his 
               house can return its value to the owner. This is an 
               enactment to help thieves repent.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If not for the enactment, he would not acquire 
               it!
<br>

<p>

sjt:
</p><p>
<font><b>2) THE KINYAN OF 'YE'USH'</b></font><b>
<br>QUESTION:</b> The Gemara discusses whether a thief acquires, through 'Ye'ush,' the item he stole. Rav Yosef attempts to prove from a Beraisa that he does not acquire through Ye'ush. The Beraisa says that if one steals Chametz and then Pesach comes and passes, the thief must give back only the Chametz to the owner (and he says, 'Here is your item before you, take it'). He does not have to compensate him with money even though the Chametz is now prohibited to be used. If a thief would acquire through Ye'ush, the thief who stole the Chametz should acquire the Chametz through Ye'ush (since the owner certainly had Ye'ush once Pesach came and made the Chametz prohibited), and he should be obligated to compensate the owner with money. Rabah answers that the case of the Beraisa is different. In that case, even though the owner had Ye'ush the thief did not want to acquire the Chametz. In a normal case, however, the thief <i>does</i> want to acquire the stolen item and thus he acquires it through Ye'ush.
</p><p>
This answer is very difficult to understand. What difference does the thief's intention make? Whether or not the thief intended to acquire the item he stole, the fact that the original owner had Ye'ush caused the item to leave his domain and the item is no longer his. Why may the thief say, 'Here is your item before you, take it'?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>KETZOS HA'CHOSHEN</b> (406:2) proves from the Gemara here that Ye'ush does not make an item completely Hefker (as the <b>NESIVOS HA'MISHPAT</b> (262) asserts). That is, when the owner of an item has Ye'ush, he is not considered as though he makes his item Hefker. Rather, Ye'ush functions by providing a 'Heter Zechiyah,' an allowance for whomever finds the item to take possession of it. The Torah gives permission to anyone to take possession of the item after the owner has had Ye'ush. However, as long as no one has yet taken possession of the item, the item has not left the possession of the original owner completely.
</p><p>
A practical consequence of viewing Ye'ush in this way exists in a case in which the owner has Ye'ush and then stops having Ye'ush. For example, he spots his lost item from afar (and now he no longer despairs of ever retrieving it) but before he has a chance to pick it up from the ground, someone else comes along and picks it up with intent to acquire it. If Ye'ush is considered like Hefker, the person who picked up the item first acquires it. If Ye'ush is not like Hefker but rather it merely provides an allowance to acquire the item from the domain of the owner, this allowance applies only while the owner has Ye'ush. When the owner no longer has Ye'ush (because he has found his item), the item is completely in his possession and no one else has permission to take it.
</p><p>
This explains why the thief may say, 'Here is your item before you.' Since he does not want to acquire it, it is still in the domain of the original owner. The original owner's Ye'ush did not make it Hefker, but merely provided an allowance for anyone to acquire it. Since no one wanted to acquire the Chametz, it remains in the original owner's domain. (<b>RAV SHIMON SHKOP</b>, in Chidushim to Bava Metzia 21:7, writes that the Ketzos ha'Choshen's proof from the Gemara here for how Ye'ush functions 'is a proof that has no rebuttal.')
</p><p>
(b) The grandson of the <b>TERUMAS HA'KRI</b> proposes (in his Hagahos to the Terumas ha'Kri 262:1) a way to refute the proof of the Ketzos ha'Choshen, and he gives a different answer to explain the Gemara. He points out that with regard to <i>mistaken</i> Ye'ush ('Ye'ush b'Ta'us'), the Poskim write that such Ye'ush does not work and is not considered Ye'ush. Hence, if a person has Ye'ush that he will never retrieve his item for a given reason, and then he discovers that the reason did not exist, his Ye'ush does not take effect and the item remains in his domain completely.
</p><p>
The case of the Gemara here is similar. The owner of the Chametz had Ye'ush because he assumed that the thief would burn the Chametz before Pesach in fulfillment of the Mitzvah to destroy Chametz. The thief, however, did not burn the Chametz. Had the owner known that the thief was not going to destroy the Chametz, he would not have had Ye'ush, and hence his Ye'ush is a 'Ye'ush b'Ta'us' and does not take effect. Therefore, the thief may say to him, 'Here is your item before you,' and he does not have to compensate the owner with money.
</p><p>
According to this explanation, why does the Gemara need to answer that the thief did not want to acquire the Chametz? Even if he <i>did</i> want to acquire the Chametz, he would not have acquired it because the Ye'ush of the owner turned out to be an invalid Ye'ush!
</p><p>
The Hagahos to the Terumas ha'Kri answers that the only time a mistaken Ye'ush does not take effect is when the finder (or thief) of the item wants to acquire it after the mistake becomes evident. In the case of the Gemara here, however, had the thief wanted to acquire the Chametz, his intention would have been <i>before</i> it became clear that the Ye'ush was in error. Consequently, even after it becomes evident that the Ye'ush was in error, the right to acquire does not become invalidated retroactively (l'Mafrei'a). Therefore, the Gemara says that the thief did not want to acquire the item, and that is why the item is still in the domain of the owner after the mistaken Ye'ush.
</p><p>
(c) <b>RAV YITZCHAK ELCHANAN SPECTOR</b> zt'l (in <b>BE'ER YITZCHAK</b>) also refutes the proof of the Ketzos ha'Choshen and disagrees with him about how Ye'ush functions. He explains the Gemara here as follows.
</p><p>
Even if Ye'ush works by making the item Hefker, the thief still may give back the Chametz and say, 'Here is your item before you.' The law is that although Chametz becomes forbidden on Pesach (and thus it is like ownerless property), a person still transgresses the prohibition against possessing Chametz because the Torah places the Chametz back into the owner's domain in order to make him liable for 'Bal Yera'eh' and 'Bal Yimatzei.' For this reason, the thief may say to the original owner to take back his Chametz, because the Torah itself places the Chametz in the domain of its owner.
</p><p>
If, however, the thief would have intended to acquire the Chametz, he would have acquired it through Ye'ush. The Torah would not have placed the Chametz back into the possession of the original owner to make him liable for 'Bal Yera'eh' and 'Bal Yimatzei' since someone else acquired the Chametz. (See <b>NODA B'YEHUDAH</b> 2:63, and <b>TZELACH</b> to Pesachim 6a.)
</p><p>
Rav Yitzchak Elchanan questions this approach based on the words of the <b>SHITAH MEKUBETZES</b> (86a) and <b>NODA B'YEHUDAH</b> (1:20), who write that one whose Chametz is stolen does not transgress the prohibitions of 'Bal Yera'eh' and 'Bal Yimatzei,' even when the thief does not intend to acquire it. Clearly, according to the Shitah Mekubetzes and Noda b'Yehudah, the Torah does <i>not</i> place the Chametz into the domain of the owner in such a case. Hence, the question returns -- why may the thief say to the original owner, 'Here is your item before you'?
</p><p>
(Another question may be asked on this approach. This Gezeiras ha'Kasuv -- that the Torah places Chametz back into the domain of the owner -- applies <i>only</i> to make him liable for the prohibitions of 'Bal Yera'eh' and 'Bal Yimatzei.' It does <i>not</i> make him the full owner of the Chametz, since the Chametz is forbidden to him during Pesach. Rav Shimon Shkop zt'l infers this from the wording of the Gemara in Pesachim which says that the Torah makes the Chametz '<i>like</i> (k'Ilu) it is in his domain,' but not that it actually puts it into his domain. -I. Alsheich)
</p><p>
(d) Rav Yitzchak Elchanan therefore gives a second answer. He writes that even if Ye'ush works like Hefker and removes the Chametz from the owner's possession entirely, the thief still may say, 'Here is your item before you,' as long as no one (including the thief) has acquired the Chametz. This is because the Gemara (66a) derives from the verse, 'v'Heshiv Es ha'Gezeilah <i>Asher Gazal</i>' (Vayikra 5:23), that one must return an item 'k'Ein she'Gazal,' like the item that he stole. The Chametz which the thief is holding and wants to return is 'k'Ein she'Gazal.' If the Ye'ush had been due to the negligence of the thief in taking care of the Chametz, then the thief would not be able to say, 'Here is your item before you.' In this case, however, the Ye'ush was due to the fact that Pesach arrived and not due to any act of Peshi'ah of the thief, and therefore the thief is entitled to give back the Chametz and say, 'Here is your item before you,' due to the Gezeiras ha'Kasuv of 'Asher Gazal.'
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>A REVERSIBLE CHANGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> It is still called a beam, even 
          after it is built into the roof.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'Tzal'os of the (future Mikdash)' are 
               the boards that hold the rafters in place. 'Ha'Ovim' 
               are the beams.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #3 (to Question 3:a, 66b - R. Zeira):</font></b> A change 
          in name that can be reversed is not considered a change.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Inference:</font></b> A change of name that cannot be reversed is 
          a change!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> A pipe was called a piece of wood before it 
          was hollowed out (and even after it is a pipe, it is as 
          if did not change)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If a pipe was hollowed out and then 
               affixed (for water to flow through it into a Mikvah, 
               it is considered a Kli. Water that goes through it 
               is called 'She'uvim', and) it disqualifies the 
               Mikvah (if the Mikvah did not yet have 40 Sa'im of 
               water). If it was affixed and then hollowed out, it 
               does not disqualify the Mikvah.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The law that Mayim She'uvim disqualifies a 
          Mikvah is mid'Rabanan. (Chachamim were lenient about it.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even when it was hollowed out first, 
          they should be lenient!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> There, it was a Kli before it was attached.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a Ganav, Gazlan or Chamsan 
          extortionist made something Hekdesh, Terumah or Ma'aser, 
          it takes effect. (This shows that one acquires through 
          despair!)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> No, he acquires due to the change in name from 
          Tevel to Terumah (or Ma'aser), or from Chulin to Hekdesh.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES CHANGE ACQUIRE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Rav Chisda):</font></b> We learn that Shinuy Koneh 
          from 'he will return the stolen item that he stole.' - 
          the extra words teach, he returns it only if it is like 
          what he stole. If not, he returns the value.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> We need that verse to teach that one does not 
          add a Chomesh for stealing from one's father (and 
          swearing to deny it)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The Torah could have written 'he will return 
          his stolen object' to teach that. 'That he stole' is 
          extra, to teach also that Shinuy Koneh.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 (Rav Chisda):</font></b> We learn that Ein Shinuy Koneh 
          from 'he will return the stolen item' - in any case.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> It says 'that he stole'!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> That teaches that one does not add a Chomesh 
          for stealing from one's father. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Ula):</font></b> We learn that Ein Shinuy Koneh from 'and you 
          will offer (an animal that is) stolen, lame or sick.' 
          This equates a stolen animal to a lame one;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Just like a lame animal cannot become acceptable, 
               also a stolen animal, even after the owner despairs!
<br>
<br>

sjt:
<font><b>1) MAKING A 'SHINUY HA'SHEM' BY SEPARATING TERUMAH</b></font><b>
<br>QUESTION:</b> The Gemara continues its discussion about whether a thief acquires the item he stole by virtue of the Ye'ush of the original owner. The Gemara attempts to prove that he <i>does</i> acquire through Ye'ush from a Tosefta in Terumos. The Tosefta says that if a thief consecrates (Makdish) the item he stole, or if he separates Terumah from it, the Hekdesh or Terumah takes effect. Since Hekdesh or Terumah can take effect only if the thief was the owner of the item, it must be that he acquired the item through Ye'ush.
</p><p>
The Gemara refutes the proof and says that in that case, there is both Ye'ush <i>and</i> Shinuy ha'Shem. The change from Chulin to Hekdesh, or from Tevel to Terumah, is considered a Shinuy. Ye'ush alone, however, may not be enough to enable him to acquire the item.
</p><p>
The Gemara's answer is difficult to understand. In a pile of fruit, there are two parts -- the part that is Terumah, and the rest of the pile that is Chulin. The part that is Terumah indeed undergoes a Shinuy ha'Shem when it is separated and changes from Tevel into Terumah, but the part that is Chulin undergoes no Shinuy ha'Shem. The Chulin merely changes from being forbidden (as Tevel) to being permitted (as Chulin), but there is no Shinuy ha'Shem. Hence, the thief does not acquire the rest of the pile of the fruit; he acquires only the Terumah. If that is true, however, then how is his separation of Terumah a valid Terumah? He is separating Terumah from his own fruits (that he acquired through Ye'ush and Shinuy ha'Shem, if the principle of 'Ba'in k'Achas' is applied) on behalf of someone else's fruits (the Chulin, which had no Shinuy ha'Shem and which he did not acquire), and thus his act of separating Terumah should not take effect.
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Gezeilah 5:4) answers simply that the Halachah is that one who separates Terumah from his own fruits on behalf of someone else's fruits does not need the consent of the other owner.
</p><p>
There are several problems with this answer. The reason why one is able to separate Terumah from his own fruits on behalf of someone else's is based on the principle, 'Zachin l'Adam she'Lo b'Fanav.' Here, however, the concept of 'Zechiyah' is not applicable because the owner prefers that the thief <i>not</i> take Terumah, because if the Terumah does not take effect, the thief cannot acquire it. If the thief cannot acquire the Terumah, it is a 'Chov' (a detriment or loss) to the owner, and thus the thief's act of separating Terumah should not take effect. (See <b>CHASON ISH</b>, Bava Kama 17:17; <b>ACHIEZER</b> 3:55:3; <b>RAV SHLOMO ZALMAN AUERBACH</b> zt'l in <b>MA'ADANEI ERETZ</b>, Terumos 4:11:2.)
</p><p>
Moreover, many Rishonim maintain that 'Zechiyah' functions through Shelichus. Accordingly, in the case of the Gemara here, Zechiyah would function either because it is assumed that the original owner would have made the thief a Shali'ach to separate Terumah for him, or because the Torah makes him a Shali'ach. However, Shelichus works only when the owner is able to do the act himself which he appoints the Shali'ach to do. Here, the owner is unable to separate Terumah because the fruits are not in his domain, and thus the thief also should not be able to separate Terumah. (The Or Same'ach himself asks this question, as does the Achiezer 2:37:3.)
</p><p>
Finally, the <b>KETZOS HA'CHOSHEN</b> (243 and elsewhere) writes that 'Zechiyah' works only to be Zocheh an item <i>to</i> a person (i.e. to put an item into his possession), but not to be Zocheh an item <i>from</i> a person (i.e. to remove an item from his possession). Here, the principle of 'Zechiyah' cannot work to enable the thief to take Terumah from his fruits for the fruits of someone else, since he is not giving anything to the owner of the fruits. He merely is attempting to use his own property to enable the owner to do a Mitzvah, but 'Zechiyah' does not work for this.
</p><p>
These three questions on the approach of the Or Same'ach may be answered based on what <b>RAV CHAIM SOLOVEITCHIK</b> writes (in Chidushei ha'Shas 'stencils,' #286). Although in all other cases in which one person separates Terumah from his own fruits on behalf of someone else's fruits, the Terumah takes effect through the mechanism of 'Zachin l'Adam she'Lo b'Fanav,' in the case of the Gemara here it works differently. Normally, 'Zechiyah' is necessary only because one must separate Terumah from the pile of fruits that are Tevel, and not from someone else's pile of fruits on behalf of this pile (as derived from the verse, 'Es Mikdasho Mimenu' Bamidbar 18:29). However, to separate Terumah from one person's pile for him is not a Zechus but a Chov, and therefore one is able to separate only from his own pile on behalf of his friend's pile, for then the principle of 'Zachin l'Adam' makes it as if the fruits of Terumah belong to his friend and the Halachah of 'Es Mikdasho Mimenu' (Bamidbar 18:29) is fulfilled. 
</p><p>
In the case of the Gemara here, however, the thief is able to separate Terumah from the pile itself (that he stole), since he acquires the Terumah through Ye'ush and Shinuy ha'Shem, and thus the requirement of 'Es Mikdasho Mimenu' is fulfilled. Even without the principle of 'Zachin l'Adam,' the Terumah takes effect.
</p><p>
(b) <b>RAV SHIMON SHKOP</b> (Chidushim 35:1) proves from this Gemara that the change from 'Tevel' to 'Chulin' is also considered a Shinuy ha'Shem. Consequently, the thief certainly is able to make the Terumah take effect, because he also acquires the Chulin part of the fruits.
</p><p>
The <b>ACHIEZER</b> rejects this answer and infers from the wording of the Gemara, 'originally it was Tevel and now it is <i>Terumah</i>,' that only the change from Tevel to <i>Terumah</i> is considered a Shinuy ha'Shem and not the change from Tevel to Chulin.
</p><p>
(c) The <b>ACHIEZER</b> instead suggests that the Tosefta refers to a case in which the thief separates Terumah from the fruits of the original owner, on behalf of the <i>thief's</i> own fruits (and not on behalf of the owner's fruits). The Terumah takes effect because he acquires those fruits with Shinuy ha'Shem. (See also <b>ONEG YOM TOV</b> 108.)
</p><p>
The <b>GEDULEI SHMUEL</b> writes that the Or Same'ach does not accept this answer because the Tosefta says merely that the Terumah of the thief is valid, and it does not specify that it is valid only when he separates Terumah from the original owner's fruits on behalf of his own fruits.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>A REVERSIBLE SHINUY DOES NOT ACQUIRE</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 66b - Question:</font></b> Regarding a beam, Shinuy ha'Shem (to 
               'roof') does not acquire!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah):</font></b> If one built a stolen beam into his 
                    house, he returns its value. This is an 
                    enactment to help thieves repent. (Letter of 
                    the law, he did not acquire!)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Zeira):</font></b> A reversible Shinuy ha'Shem is 
               not considered a Shinuy.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 93b (Mishnah #1):</font></b> If one stole wood and he made 
               Kelim, he pays the value at the time he stole it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Inference:</font></b> He pays the value at the time he stole it 
               because he made Kelim. Had he only smoothed the 
               wood, he would not!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> If one stole wood and 
               smoothed it, he pays the value at the time he stole 
               it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> The inference is wrong. The 
               Mishnah teaches about a reversible change, which 
               acquires mid'Rabanan. All the more so, an 
               irreversible Shinuy acquires mid'Oraisa. The case 
               is, he stole boards. The Kelim can be dissembled to 
               boards, like he stole. The Beraisa teaches only 
               about irreversible changes, which acquire 
               mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> The inference is wrong. Also 
               the Mishnah teaches only irreversible changes, which 
               acquire mid'Oraisa. He merely smoothed the wood, and 
               made clubs.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 96a (Rav Papa):</font></b> If one stole long beams and cut them 
               into small beams, he did not acquire. If he made 
               boards out of them, he acquired.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> 96b (Rav Papa):</font></b> If one stole dirt and made a brick, 
               he did not acquire it, because he can return it to 
               dirt. If one stole a brick and made it into dirt, he 
               acquired. Even though he can make a brick again, it 
               would be a different brick.
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> If one stole a lump of silver and made a Zuz (coin), 
               he did not acquire, because he can return it to a 
               lump of silver. If one stole a Zuz and made it a 
               lump of silver, he acquires. He can make a Zuz 
               again, but it would not be the same as initially.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (34a and 9:1):</font></b> We learn from Rav Papa 
               that a reversible Shinuy is not a Shinuy; it does 
               not acquire. This is the Halachah. We establish the 
               Mishnah like Rav Ashi, who is Basra; he merely 
               smoothed the wood, and made clubs.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (CM 353:6):</font></b> The Rif infers that since Abaye 
                    holds that a reversible Shinuy acquires 
                    mid'Rabanan, Rav Ashi must hold that it does 
                    not acquire at all. Tosfos (Sukah 30b DH 
                    Shinuy) holds that Rav Ashi explains Abaye.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> The Mishnah says 'and he made them Kelim.' 
               This shows that merely smoothing the wood suffices 
               only if it is called a Kli or the name changed. If 
               one stole long beams and cut them into small beams, 
               he did not acquire. Rabah taught that Shinuy 
               acquires. Tosfos says that he discusses a reversible 
               Shinuy Ma'aseh. The Gemara (93b) connotes that this 
               does not acquire. Despair with Shinuy Reshus or with 
               a small Shinuy ha'Shem acquires mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Gezeilah 2:10):</font></b> A reversible Shinuy 
               is not a Shinuy. If one stole wood and stuck them 
               together with nails and made a box, it is not a 
               Shinuy, for he can dismantle them and they will be 
               boards, like they were.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (11):</font></b> If one stole dirt and made a brick, he 
               did not acquire it, for he can grind it to dirt, 
               like it was. If one stole a strip of silver and made 
               a coin, he did not acquire, for he can melt it back 
               to a strip. The same applies to all similar cases.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 353:1):</font></b> A reversible Shinuy does 
               not acquire, even mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If with despair there is a 
               reversible Shinuy ha'Shem, some say that he acquires 
               it and returns only its value. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos (in Tur ha'Shalem 14, citing Dibros 
                    Moshe 65:1):</font></b> The Rosh said 'a weak Shinuy 
                    ha'Shem.' The Tur said 'a weak Shinuy ha'Shem 
                    that is reversible.' The Beis Yosef and Bach 
                    hold that he explains that the Rosh refers to a 
                    reversible Shinuy. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Igros Moshe (OC 3:65):</font></b> Tosfos (Sukah 30b DH 
                    v'Likniyuha) holds that with despair, a 
                    reversible Shinuy ha'Shem acquires, but a 
                    reversible Shinuy Ma'aseh does not. This is 
                    because after Shinuy ha'Shem, the theft is not 
                    in the world. Even if it will return like 
                    initially, now it is not around. If so, we need 
                    not say that Abaye (93b) argues with both of 
                    his Rebbeyim (Rabah and Rav Yosef). A 
                    reversible Shinuy ha'Shem doesn't acquire by 
                    itself, but it joins with despair, which makes 
                    it as if there is no other owner. Shinuy 
                    Ma'aseh does not make it as if the theft is not 
                    in the world, so it doesn't join with despair. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (360:5):</font></b> A Shinuy acquires if it is 
               not reversible. If one stole wood and stuck them 
               together with nails and made a box, it is not a 
               Shinuy, for he can dismantle them and they will be 
               boards, like they were. If one stole dirt and made a 
               brick, he did not acquire it, for he can grind it to 
               dirt, like it was. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Gezel):</font></b> The 
                    Rashba (DH Ha) says that if he fired the brick 
                    in a kiln, it cannot be returned to dirt (so he 
                    acquires).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (10):</font></b> The Tur disagrees. Even though it 
                    cannot be returned to dirt as fine as 
                    initially, people are not so particular about 
                    this. This is unlike wool; after it was made 
                    felt, one cannot use it like normal wool.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Chosvu):</font></b> Tosfos (DH v'Avdei) 
                    says that if he made a lump of silver into 
                    Kelim, he acquires, even though he could make 
                    it a lump again. This is no worse than making a 
                    Kli out of boards. A coin or brick is not so 
                    important. The Rashba disagrees. They are very 
                    important. Coins can buy anything! Making a Kli 
                    out of boards does not acquire! The Halachah 
                    follows Rav Ashi against R. Yochanan and Abaye; 
                    making a Kli from boards acquires only if he 
                    smoothed them. In any case, the thief acquires 
                    the increased value.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (1):</font></b> Tosfos equates this to making a Kli 
                    out of boards. It acquires according to the 
                    opinion that a reversible Shinuy acquires. 
                    Tosfos agrees that this is not the Halachah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If one stole a strip of 
               silver and made a coin, he did not acquire, for he 
               can melt it back to a strip. The same applies to all 
               similar cases.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu 
                    umi'Ta'am):</font></b> No one is particular that the strip 
                    of silver be square like it used to be.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (DH u'Mah she'Chosav Rabeinu Gabei):</font></b> 
                    The Tur says that if he refined old coins in a 
                    cauldron and made them new, he acquired. This 
                    is difficult, for he can make them old again! 
                    He must mean that he melted them and made new 
                    coins. This is unlike melting a strip and 
                    making coins. That does not acquire, for it is 
                    not Panim Chodoshos (a new entity). 
                    Alternatively, even if he did not melt the 
                    coins, it is recognizable that they were 
                    refined.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH u'Mah she'Chosav Tavuy):</font></b> The 
                    Rambam and Tur say that one who made spun 
                    thread into garments acquires. This is 
                    difficult, for the Gemara says that he does 
                    not!
<br>
<font color='blue'><i>See also:</i>
<br><b><b>SHINUY HA'SHEM </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rava):</font></b> We learn from 'his Korban' - not a stolen one.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When does this apply?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is before despair, this is obvious. No 
                    verse would be needed!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is after despair. This teaches 
               that despair does not acquire.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Earlier, Rava answered that the thief stole a 
          Korban. (We can say so also here, so the verse is no 
          proof!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rava retracted.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> One of these Rav Papa said, not Rava.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FOUR AND FIVE APPLIES ONLY TO AN OX OR SEH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The payment of four and five (applies only 
          to an ox or Seh).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why don't we learn from Shabbos, about which 
          it says 'ox', and it even applies to wild animals and 
          birds?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> It says 'ox' and 'Seh' twice. The 
          repetition teaches that this is only for an ox or Seh, 
          but nothing else.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Which are extra?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The latter are extra. It could have 
               written 'if a man will steal an ox or Seh and 
               slaughter it or sell it, he will pay five cattle 
               Tachtav (in place of it), and four flock Tachtav.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> If so, one might have thought that he 
               pays nine animals for either!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> One 'Tachtav' is extra, to show that 
                    this is not so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> The extra 'Tachtav' teaches a 
                    different law!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  (Beraisa) Suggestion:</font></b> Perhaps one who stole 
                    an expensive ox may pay dying oxen in place of 
                    it!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Rejection:</font></b> 'Tachas' (they must correspond 
                    to it. 'Tachas' written regarding flock teaches 
                    the same about flock).
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The first 'ox' and 'Seh' are extra. It could 
          have written 'if a man will steal and slaughter it or 
          sell it, he will pay five cattle in place of the ox, and 
          four flock in place of the Seh.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, one might have thought that he pays 
          only when he steals and slaughters an ox and a Seh!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Slaughter it', teaches that that is not so.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> One might have thought that he must steal 
          both, and slaughter one and sell the other!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> 'Slaughter it or sell it' shows that that is 
          not so.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection:</font></b> One might have thought that he must steal 
          both, slaughter or sell one, and keep the other!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The latter 'ox' and the first 'Seh' are 
          extra. It could have written 'if a man will steal an ox 
          and slaughter it or sell it, he will pay five cattle in 
          place of it, and four flock in place of the Seh';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> From the extra 'ox' at the end of the verse, and 
               the extra 'Seh' at the beginning, we hear, four and 
               five applies only to cattle and flock.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>ACQUISITION THROUGH DESPAIR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A thief who steals from a thief does not pay 
          Kefel...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav):</font></b> This is only before despair (of the owner). 
          After despair, the first thief acquires it, and the 
          second thief pays Kefel to the first.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Sheshes - Beraisa - R. Akiva):</font></b> The Torah 
          said that one who slaughters or sells pays four and five, 
          because he entrenched himself in sin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When did he slaughter or sell?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was before despair, he (one who sold) did 
                    not go deeper in sin (the sale does nothing)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it was after despair.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If despair acquires, why 
               does he pay four and five? He slaughters or sells 
               his own animal!
<br>

<p>

sjt:
</p><p>
<font><b>2) 'MIPNEI SHE'NISHTARESH BA'CHET'</b></font><b>
<br>OPINIONS:</b> Rebbi Akiva in a Beraisa says that the reason why a thief who slaughtered (Tavach) or sold (Machar) the animal he stole must pay back Arba'ah v'Chamishah is 'Mipnei she'Nishtaresh ba'Chet' -- 'because he became rooted in sin.' What exactly does this mean?
</p><p>
(a) <b>RASHI</b> here writes that it means that the thief 'made roots, meaning that he strengthened his sin by acquiring it and benefiting from his deeds.' Rashi means that until the slaughter or sell of the animal, the thief did not acquire the animal entirely, but rather it was still considered in the possession of its original owner. (The thief has only a 'Kinyan Gezeilah' which removes the animal from the 'domain' (Reshus) of the owner, but not from the 'ownership' (Mamon) of the owner.) When the thief slaughters or sells the animal, he acquires it entirely. His deed removes the animal entirely from the ownership of the owner. 'He strengthened his sin' refers to the sin he did initially when he stole the animal.
</p><p>
(b) The <b>DIVREI YECHEZKEL</b> (57:3) writes that 'she'Nishtaresh ba'Chet' means that the thief damaged the animal through the act of Tevichah. According to his explanation, 'Nishtaresh ba'Chet' refers to the additional sin of damaging the animal, and it means that he became rooted in additional sin (of Tevichah).
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ACQUISITION THROUGH DESPAIR (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like Rava explained (elsewhere), 
          because he repeated his (intent to) sin.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> 'He will slaughter or sell it' - 
          just like slaughter is irreversible, also the sale.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When is this?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was before despair, why is the sale 
                    irreversible?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it was after despair.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If despair acquires, why 
               does he pay four and five? He slaughters or sells 
               his own animal!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa said that the sale is irreversible 
          like Rav Nachman explained (elsewhere), to exclude a case 
          when he only sold it for 30 days. (However, one is liable 
          before despair, even though the sale is invalid.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If Reuven stole an animal, and 
          Shimon stole it from him, Reuven pays the (extra payment 
          of) Kefel, and Shimon only pays principal.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven stole an animal and sold it, then 
               Shimon stole it, Reuven pays four and five, and 
               Shimon pays Kefel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven stole an animal and slaughtered it, 
               then Shimon stole it, Reuven pays four and five, and 
               Shimon pays only principal.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question #1:</font></b> In the middle case (Reuven stole and 
               sold, then Shimon stole). When did Reuven sell?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was before despair, why does Shimon pay 
                    Kefel? All agree that one who buys from Reuven 
                    does not acquire through a mere change of 
                    domain, without despair!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it was after despair.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Summation of question):</font></b> If despair acquires, why 
               does he pay four and five? He slaughters or sells 
               his own animal!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question #2:</font></b> In the Reisha (Reuven stole and 
               sold, then Shimon stole, and we established that the 
               Beraisa is after despair), if a thief acquires 
               through despair, why doesn't Shimon pay Kefel?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Counter-question (Rava):</font></b> There is a mistake in the 
          Beraisa!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Seifa says that if Reuven stole an animal and 
               slaughtered it, then Shimon stole it, Reuven pays 
               four and five, and Shimon pays only principal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> All agree that one acquires through a change. 
               Shimon should pay Kefel (to Reuven)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (to Questions (g) and (h) - Rava):</font></b> Rather, 
          the Beraisa discusses before despair. The laws of the 
          last two cases must be switched. They say as follows:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven stole an animal and sold it, then 
               Shimon stole it, Reuven pays four and five, and 
               Shimon only pays principal, because a change in 
               domain without despair does not acquire;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If Reuven stole an animal and slaughtered it, 
               then Shimon stole it, Reuven pays four and five, and 
               Shimon pays Kefel, because Reuven acquired through 
               change.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (to Question (h) - Rav Papa):</font></b> We need not 
          switch the cases. The Seifa is like Beis Shamai, who say 
          that one does not acquire through a change.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If so, the first two clauses contradict Rav!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Rav Zvid):</font></b> In the entire Beraisa, Reuven 
          slaughtered or sold before despair. The case is, the 
          owner despaired when the buyer had it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is not because despair acquires only 
               together with a change of domain. Really, despair 
               acquires by itself;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Beraisa discusses when he despaired when the 
               buyer had it, for this is the only way in which the 
               first thief pays four and five, and the latter pays 
               Kefel.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SELLING BEFORE DESPAIR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Nachman):</font></b> If a thief sold before despair, he is 
          liable (four and five);
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Sheshes):</font></b> He is exempt (and pays only Kefel).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Rav Nachman learns from 'and will sell it' - 
               whether before or after despair;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Sheshes says, he is liable only when the sale 
               is valid, i.e. after despair;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This is like the liability for slaughter, in 
                    which his action accomplished something.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Support (Rav Sheshes, for himself - Beraisa - R. 
          Akiva):</font></b> The Torah said that one who slaughters or sells 
          pays four and five, because he entrenched himself in sin.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When did he slaughter or sell?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was before despair, (regarding selling), he 
                    did not go deeper in sin (the sale does 
                    nothing)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it was after despair.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rava):</font></b> Really, it was before despair. He is 
          punished for repeating his (intent to) sin.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> 'He will slaughter or sell it' - 
          just like slaughter is irreversible, also the sale.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When is this?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it was before despair, why is the sale 
                    irreversible?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it was after despair. This shows 
               that one is liable only after despair!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> The Beraisa said that the sale is 
          irreversible to exclude a case when he only sold it for 
          30 days. (However, one is liable before despair, even 
          though the sale is invalid.)
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Also R. Elazar says that if he sells before despair, he 
          is exempt.
<br>
<br>

sjt:
<font><b>1) AS HE SAID ELSEWHERE</b></font><b>
<br>QUESTION:</b> The Mishnah (62b) states that a second Ganav who steals a stolen item from the first Ganav does not pay Tashlumei Kefel. Rav explains that this applies only when the original owner did not have Ye'ush. If he had Ye'ush, then the first Ganav acquired the item through Ye'ush, and when the second Ganav stole it from him, he stole an item that was the property of the first Ganav and he must pay Kefel.
</p><p>
Rav Sheshes challenges Rav's statement from a Beraisa in which Rebbi Akiva says that the reason a Ganav who sells an animal he stole must pay Tashlumei Arba'ah v'Chamishah is that 'he became rooted in sin,' meaning that he added a Shinuy Reshus to the Ye'ush. According to Rav, however, if there was Ye'ush, then the Ganav acquired the item and is now selling his own item, and he should not have to pay Arba'ah v'Chamishah! The Gemara answers, 'As Rava said [elsewhere]: [the Ganav must pay Arba'ah v'Chamishah] because he repeated his sin' (that is, not only did he steal, but he sold what he stole; see following Insight). Thus, according to Rava, the reason why a Ganav must pay Arba'ah v'Chamishah is not that he 'became rooted in sin,' effecting a Shinuy Reshus after Ye'ush, but because he repeated his sin. For this reason, even when he sells the animal before Ye'ush occurs he must pay Arba'ah v'Chamishah.
</p><p>
Why does the Gemara say, 'As Rava said [elsewhere],' implying that he made this statement ('because he repeated his sin') with regard to another Mishnah or Beraisa? The Gemara later on this Amud states clearly that it was with regard to this very Beraisa of Rebbi Akiva that Rava made his statement! The Gemara should have answered by saying, 'But Rava said [with regard to this Beraisa] that it is 'because he repeated his sin''!
</p><p>
(The same question applies to the Gemara's citation of Rav Nachman's statement on the Beraisa later.)
</p><p>
<b>ANSWER:</b> The <b>SHITAH MEKUBETZES</b> answers that Rava did not say his statement with regard to the Beraisa. Rather, Rav Sheshes -- later in the Gemara -- wanted to prove his opinion (that a Ganav who sells the stolen animal before Ye'ush is exempt) from a Beraisa, and Rava refutes his proof by explaining that the word 'Nishtaresh' means 'Shanah' ('repeated'). Rav Sheshes then attempted to bring another proof from a Beraisa, and Rav Nachman refuted his proof by showing that the Beraisa may be understood in a different way. The Gemara here says that just as Rava and Rav Nachman refuted Rav Sheshes' proof from a Beraisa cited later, here, too, they refuted Rav Sheshes' challenge against Rav from the same Beraisos in the same manner.
</p><p>
(The <b>RASHASH</b> in Pesachim (54b) points out a similar usage of this phrase, 'As Rav Shisha brei d'Rav Idi said [elsewhere]....')
</p><p>


<font><b>2) 'BECAUSE HE REPEATED HIS SIN'</b></font><b>
<br>OPINIONS:</b> Rava explains that the reason why a Ganav who sells the animal he stole must pay Arba'ah v'Chamishah is 'because he repeated his sin' ('Mipnei she'Shanah ba'Chet'). In what way did he repeat his sin? Although he committed two sins (he stole the item and then he sold the item), what did he <i>repeat</i>?
</p><p>
(a) <b>RABEINU YEHONASAN</b> (cited by the Shitah Mekubetzes) explains that not only did he succumb once to his Yetzer ha'Ra by stealing, he succumbed again to his Yetzer ha'Ra by not repenting from his misdeed and by deriving benefit from it.
</p><p>
(b) The <b>ME'IRI</b> writes that he repeated his act of iniquity, like a person who is steeped in evil and is unable to move away from it.
</p><p>
(c) The <b>LECHEM AVIRIM</b> writes that Rava means to say as Rav Huna teaches (Kidushin 20a, 40a, and elsewhere): 'When one repeats his sin, it becomes to him like a permissible act.'
</p><p>


<font><b>3) 'YE'USH' AND 'SHINUY RESHUS' ACCORDING TO RAV</b></font><b>
<br>QUESTION:</b> The Gemara challenges Rav's opinion that Ye'ush is Koneh from a Beraisa which clearly implies that Ye'ush is not Koneh. Rav Zevid answers the Gemara's question on Rav by saying that the Beraisa discusses is a case in which the owner had Ye'ush <i>after</i> the Ganav sold the item, and not while the item was still in the hands of the Ganav. The Ganav must pay Arba'ah v'Chamishah since the owner did not yet have Ye'ush when the Ganav sold the item. Had the owner had Ye'ush while the item was in the hands of the Ganav, the Ganav indeed would be exempt since, according to Rav, Ye'ush alone is enough for the Ganav to be Koneh the item.
</p><p>
This answer is difficult in light of Rav Zevid's statement later (115a), where he says that Rav maintains that whether the owner had Ye'ush first and then there was a Shinuy Reshus, or whether there was a Shinuy Reshus and then the owner had Ye'ush, the Ganav is Koneh the item. This implies that Ye'ush <i>alone</i> does <i>not</i> work to be Koneh the item, and that it works only together with a Shinuy Reshus! How can Rav Zevid here say that Rav maintains that Ye'ush alone works to be Koneh the item?
</p><p>
The Gemara there (115a) discusses a case in which a Ganav sold the item that he stole, and only afterwards he was discovered to have been the Ganav. Rav in the name of Rebbi Chiya states that the original owner may make a claim only against the Ganav and not against the buyer (even though the buyer would be able to make a claim against the Ganav). Rebbi Yochanan in the name of Rebbi Yanai argues and says that the original owner may make a claim against the buyer, and then the buyer may in turn make a claim against the Ganav. 
</p><p>
Rav Zevid there explains the Machlokes as follows. Everyone agrees that if the owner did not yet have Ye'ush, the owner may make his claim even against the buyer. As long as the owner did not have Ye'ush, the item was still considered his and thus he may claim it from whoever took possession of it. The argument applies where the owner had Ye'ush <i>after</i> the buyer purchased the item from the Ganav. Rebbi Yochanan in the name of Rebbi Yanai maintains that only when there was Ye'ush first and then Shinuy Reshus does the item change possession, but not when the Shinuy Reshus precedes the Ye'ush (as it does in the case there). Since the buyer purchased the item before both Ye'ush and Shinuy Reshus occurred, it is considered as though he stole it directly from the owner, and thus the owner may make a claim against him. In contrast, Rav in the name of Rebbi Chiya maintains that Ye'ush and Shinuy Reshus are Koneh regardless of the order in which they occur.
</p><p>
Rav Zevid's explanation of the view of Rav there implies that although the order of Ye'ush and Shinuy Reshus does not matter, it <i>is</i> necessary to have <i>both</i> Ye'ush and Shinuy Reshus in order to be Koneh. How can Rav Zevid's statement there be reconciled with his statement here?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> answers that the reason why, in the Gemara later (115a), Rav Zevid mentions that both Ye'ush and Shinuy Reshus are necessary is that Rav there made his statement in the name of Rebbi Chiya, and Rebbi Chiya indeed rules that both Ye'ush and Shinuy Reshus are necessary. Rav himself, however, argues and maintains that Ye'ush alone is Koneh.
</p><p>
The Pnei Yehoshua, however, points out that this answer is unlikely.
</p><p>
(b) The Pnei Yehoshua suggests a second answer. Indeed, Rav Zevid understands that according to Rav, Ye'ush alone is Koneh. In the Gemara later (115a), the only reason why Rebbi Zevid mentions both Ye'ush and Shinuy Reshus is not that they are both necessary in order for the Ganav to be Koneh the item, but rather he mentions them both in order to show the view of Rebbi Yochanan. Rebbi Yochanan argues with Rav and rules that not only is Ye'ush not enough, but also that the Ye'ush must occur before the Shinuy Reshus in order for the Ganav to be Koneh. That is why Rav Zevid there mentions both Ye'ush and Shinuy Reshus in his statement, even though he is explaining the view of Rav; he is emphasizing that Rebbi Yochanan maintains both that Ye'ush alone is not enough, and that the Ye'ush and Shinuy Reshus must also be in a specific order. Rav, in contrast, maintains that Ye'ush alone is Koneh.
</p><p>
(c) The <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Geneivah 1:17) writes that Rav <i>does</i> require both Ye'ush and Shinuy Reshus in order for the Ganav to be Koneh the item, as Rav Zevid implies later (115a). When Rav Zevid here says that Ye'ush alone suffices, he is speaking according to the view of Rav Papa. Rav Papa (on 115a) argues with Rav Zevid (115a) and explains the Machlokes between Rav and Rebbi Yochanan differently. It is according to Rav Papa's view there that Rev Zevid here says that Rav rules that Ye'ush alone is Koneh. Rav Zevid himself is of the opinion that Rav rules that Ye'ush alone is not Koneh without Shinuy Reshus.
</p><p>
(d) The Pnei Yehoshua gives a third answer, which is also the answer proposed by the <b>CHAZON ISH</b> (16:8). They write that when the Gemara says that Rav maintains that Ye'ush alone works, it means that Ye'ush alone works only to be Koneh the actual body of the item. The Ganav is not Koneh the <i>value</i> of the item through Ye'ush; there remains an obligation to <i>pay</i> the owner for the item (as if he is buying the item), as <b>TOSFOS</b> says earlier (66a, DH Hachi). This is why Rav Zevid later (115a) requires both Ye'ush and Shinuy Reshus. There he is explaining how -- according to Rav -- the Ganav is Koneh the item completely, and is even exempt from paying for the item. The Pnei Yehoshua adds that this seems to be the correct answer.
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>ARE WE STRINGENT TO SAY THAT DESPAIR ACQUIRES? </font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 66a (Rabah):</font></b> If the owner despairs, the thief 
               acquires. We do not know if this is mid'Oraisa or 
               mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Yosef):</font></b> A thief does not acquire through 
               despair, even mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 67a (Ula):</font></b> 'You offer (an animal that is) stolen, 
               lame or sick' equates a stolen animal to a lame one. 
               It cannot become acceptable, even after despair!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Rava):</font></b> We learn from 'his Korban' - not a stolen 
               one. Obviously, he cannot bring a Korban before 
               despair! Rather, it is after despair, for despair 
               does not acquire.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 68a:</font></b> Rav Nachman and R. Yochanan hold that if a 
               thief sold before or after despair, he pays four or 
               five. We do not say that the thief acquired, and he 
               slaughters or sells his own animal. 
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (27a):</font></b> The Halachah follows Rav Nachman and R. 
               Yochanan, who obligate for selling before or after 
               despair. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif (Kidushin 7a):</font></b> If a man was Mekadesh with what 
               he stole from others, she is Mekudeshes only if he 
               already acquired it through despair. Then, it is 
               like his.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 1:12):</font></b> If the thief has the 
               stolen object and it did not change, it returns to 
               the owner, before or after despair. 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Ishus 5:7):</font></b> If a thief was Mekadesh 
               with Gezel and it is known that he acquired through 
               despair, she is Mekudeshes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Even though despair alone does 
                    not acquire, here she acquires it through 
                    despair with Shinuy Reshus.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rosh (7:2):</font></b> The Halachah follows Rabah that despair 
               acquires, but he was unsure if this is mid'Oraisa or 
               mid'Rabanan. We are stringent to say that despair 
               acquires regarding Kidushin, i.e. mid'Rabanan. 
               Mid'Oraisa it does not acquire, like Ula, Rav 
               Nachman, Rav Sheshes and R. Yochanan. Despair with 
               Shinuy Reshus acquires mid'Oraisa.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 353:2):</font></b> If the owner despaired, 
               the thief does not acquire. He must return the 
               theft. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ul'Inan):</font></b> The Rosh says that we 
                    are stringent to say that despair acquires. I 
                    did not find anyone who agrees with him. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (3):</font></b> Why didn't the Rema mention the Rosh's 
                    opinion? It seems that he relies on what he 
                    wrote in EH (28:1):
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 28:1):</font></b> If a thief was Mekadesh 
               with Gezel and it is known that he acquired through 
               despair, she is Mekudeshes.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If he was Mekadesh with Gezel after despair 
               alone, she is Mekudeshes mid'Rabanan.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Chelkas Mechokek (4):</font></b> This is from R. Yerucham, 
                    unlike the Magid Mishneh, who says that she 
                    acquires through despair and Shinuy Reshus. 
                    Perhaps the Rema discusses what he stole from 
                    her, like the Ramah cited in the Tur.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Beis Shmuel 6):</font></b> The Tur is unlike 
                    this. Perhaps even after despair, she can say 
                    'I took what is mine!' Rather, he accepted to 
                    compensate her if it will be taken, or there 
                    was no Shinuy Reshus and it is Safek Kidushin 
                    mid'Rabanan. The Beis Yosef holds that a Kinyan 
                    mid'Rabanan makes Kidushin mid'Oraisa, unlike 
                    R. Yerucham.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Yam Shel Shlomo (7:7):</font></b> The Rosh says that 
                    despair acquires l'Chumra (to be stringent). 
                    Perhaps it is a printing mistake; it is not in 
                    some texts. It should say 'despair acquires 
                    l'Chuda (by itself).' The Tur says that it is a 
                    Safek whether despair acquires mid'Rabanan, so 
                    we must be stringent about Kidushin. I.e. 
                    perhaps the Halachah follows Rabah. The Rosh 
                    was not unsure. He said that the Halachah 
                    follows Rabah, that despair acquires! 
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps the Tur had a different 
                    text of the Rosh.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rejection (Yam Shel Shlomo):</font></b> The Tur wrote in 
                    Kitzur Piskei ha'Rosh 'despair acquires 
                    mid'Rabanan. If he was Mekadesh, she needs a 
                    Get.' Rather, our text of the Tur is mistaken. 
                    Perhaps Safek refers to what he wrote 
                    afterwards about Stam Geneivah; it is a Safek 
                    whether there was despair. Regarding Gezeilah, 
                    the Tur wrote 'she needs a Get, like I 
                    explained about Geneivah.' He did not mention 
                    Safek, for regarding Gezeilah we assume that 
                    there is despair. In Siman 361, the Tur 
                    obligates returning the stolen object itself if 
                    there was no Shinuy, for despair alone does not 
                    acquire. When the object is intact, there is no 
                    enactment for penitents. Alternatively, he 
                    teaches the mid'Oraisa law. In Siman 362 he 
                    says that if the price of the stolen object 
                    increased after despair, the thief gets it, 
                    even though there is no Shinuy. The Rambam 
                    disagrees in this case. The Tur holds that 
                    whenever an enactment for penitents applies, 
                    e.g. the price increased, or so he will not 
                    need to toil (to return the theft itself), 
                    Shinuy (presumably, the text should say 
                    'despair') acquires by itself. 
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Suggestion:</font></b> Despair acquires only mid'Rabanan, 
                    so the Kidushin is only mid'Rabanan; if she 
                    accepted Kidushin from another man, we are 
                    concerned.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Rejection (Yam Shel Shlomo):</font></b> Once Chachamim 
                    enacted, the money is totally his. Why does the 
                    Rosh say that the Kidushin is mid'Rabanan? All 
                    agree that it is mid'Oraisa, for when she gets 
                    the money there is also Shinuy Reshus! The Rosh 
                    holds that it is like Kidushin with others' 
                    property, since he did not acquire the money 
                    before he gave it. Still, she is Mekudeshes, 
                    for he acquires it when he gives it to her and 
                    she acquires. We learn from the opinion that 
                    obligates for selling a stolen animal only 
                    after despair, for then the buyer acquires. It 
                    is called a sale, even though the seller did 
                    not own it when he sold it, for the buyer 
                    acquires. It is no worse than a gift, for which 
                    one pays four or five. The Rif wrote Stam that 
                    despair does not acquire, i.e. even 
                    mid'Rabanan, yet he wrote that if he was 
                    Mekadesh, she is Mekudeshes, i.e. through 
                    Shinuy Reshus after despair. The Magid Mishneh 
                    (Hilchos Ishus 5:7) says so explicitly. 
                    However, the Rambam holds that despair 
                    acquires. The Rosh's opinion pertains to one 
                    who deposited the theft with Leah before 
                    despair, and after despair he was Mekadesh her 
                    with the theft in her hands. There is despair 
                    without Shinuy Reshus. According to the Rosh, 
                    through Chachamim's enactment she is Mekudeshes 
                    mid'Oraisa. L'Halachah, we must be concerned 
                    for the opinions who disagree with the Rosh. 
                    They rules like Rav Yosef because R. Yochanan, 
                    Rav Nachman, Rava and Ula hold like him. This 
                    is difficult, for they discuss the law 
                    mid'Oraisa! Perhaps despair acquires 
                    mid'Rabanan! 
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Rebuttal (Gra 4):</font></b> All the Amora'im who say that 
                    despair does not acquire say so even 
                    mid'Rabanan. The Magid Mishneh's opinion is 
                    primary. 
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Bach (CM 353:3):</font></b> The Rosh is stringent like 
                    Rabah, for it is not clear whether Ula and 
                    other Amora'im (who said that despair does not 
                    acquire mid'Oraisa) agree that it acquires 
                    mid'Rabanan.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Hagahos (in Tur ha'Shalem 353:6):</font></b> The Bach 
                    holds that Kidushin after despair is only a 
                    Safek, for he holds (356:10) that when the 
                    buyer knew that it was stolen, Shinuy Reshus 
                    does not totally acquire.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES DESPAIR ACQUIRE? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Elazar):</font></b> We can prove that people are assumed 
               to despair when something is covertly stolen, from 
               the obligation to pay four and five.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If we could not assume that he despaired, why 
                    would he be liable for selling?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps he is liable even if there 
               was no despair!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection:</font></b> It must be like slaughter, which 
               accomplishes something. This is only after despair.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Perhaps he pays four and five only when 
               we heard that the owner despaired, but normally, we 
               do not assume there was despair!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> It is like slaughter, for which he is 
               liable immediately (even before we hear that the 
               owner despaired).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> We can learn from kidnapping. One is 
          liable without despair (the victim does not despair from 
          escaping)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Inference:</font></b> R. Yochanan holds that one is liable (four 
          and five) before despair.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>SELLING BEFORE DESPAIR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Is one liable also after despair?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (R. Yochanan):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Reish Lakish):</font></b> No. The thief acquires it, he 
          slaughters or sells his own animal.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (R. Yochanan - Mishnah):</font></b> If one stole an 
          animal and made it Hekdesh and then slaughtered it, he 
          pays Kefel, but not four and five.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> When is this?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If it is before despair, it does not become 
                    Hekdesh! 'A man who will make his house 
                    Hekdesh' - one can make only his own things 
                    Hekdesh!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, it is after despair. He is exempt 
               only because he made it Hekdesh, and he slaughtered 
               a Hekdesh animal;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Had he not made it Hekdesh, he would be liable. 
                    We do not say that he slaughters or sells his 
                    own animal!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Reish Lakish):</font></b> The case is, the owner made it 
          Hekdesh in the thief's house.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Objection:</font></b> It would not become Hekdesh!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If something was stolen, and the 
               owner did not despair, neither the thief nor owner 
               can make it Hekdesh;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The thief cannot, for it is not his. The owner 
                    cannot, for it is in his Reshus (under his 
                    control)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Reish Lakish holds like Tzenu'im (the pious 
          ones, who were concerned lest people taking Shemitah 
          produce (or stealing) from the Tzenu'im's fields 
          unknowingly take Reva'i (fruits of a tree in its fourth 
          year, which must be eaten in Yerushalayim or redeemed));
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> The Tzenu'im would take coins and say 
               'whatever (Reva'i) was gathered from my field is 
               redeemed on these coins.' (Even though it is not in 
               their Reshus, they can redeem it. Likewise, one can 
               be Makdish something not in his Reshus!)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If the owner made it Hekdesh, he got his 
          animal back. Why does the thief pay Kefel?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he was Makdish it after the trial.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the case?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the judges told him 'go give to him', even if 
               he didn't make it Hekdesh, he would be exempt!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rava):</font></b> If the judges told him 'go give to him' 
                    and he slaughtered or sold, he is exempt.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Answer:</font></b> Once the case was settled, he is 
                    like an open robber, who does not pay four and 
                    five.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  (Rava):</font></b> If the judges told him 'you are 
                    obligated to give him' and he slaughtered or 
                    sold, he is liable.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'>  Answer:</font></b> Since they did not yet say to carry 
                    out the verdict, he is like a thief, who pays 
                    four and five.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the judges told him 'go give him.'
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE BE MAKDISH WHAT IS NOT IN HIS DOMAIN?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> If something was stolen and the owner 
          did not despair, neither the thief nor owner can make it 
          Hekdesh;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The thief cannot, for it is not his. The owner 
               cannot, for it is not in his Reshus!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction:</font></b> R. Yochanan said that the Halachah 
          follows an anonymous Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #1):</font></b> People used to mark off Reva'i with 
               clods off earth.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The symbolism was, just like we can benefit from 
                    earth, also from these fruits (after redeeming 
                    them).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> They would mark off Orlah (fruits in the first 
               three years) with pottery shards.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  This was a sign:</font></b> just like shards give no 
                    benefit, also these fruits.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Graves were marked off with limestone. This 
               signified bones, which are also white.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon ben Gamliel says, this was only in 
               Shemitah, when people may enter others' fields. In 
               other years, one who enters another's field is a 
               thief. We are not concerned if the food he steals is 
               forbidden!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> The Tzenu'im would take coins and say 'whatever 
               (Reva'i) was gathered from my field is redeemed on 
               these coins.' (Even though the Reva'i is not in 
               their Reshus, they were able to redeem it. This 
               shows that one can be Makdish something not in his 
               Reshus!)
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps Tzenu'im hold like R. Shimon 
               ben Gamliel, and R. Yochanan holds like Chachamim.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> Rabah bar bar Chanah cited R. Yochanan 
               to say that wherever R. Shimon ben Gamliel appears 
               in the Mishnah, the Halachah follows him, except for 
               (three Mishnayos:) a guarantor, the case in Tzidon, 
               and one who later found a proof.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The text of the Mishnah should say 'whatever 
          will be gathered from my field is redeemed on these 
          coins.'
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yochanan said that Tzenu'im and R. Dosa 
          hold like each other, and R. Dosa holds that they said so 
          after it was gathered (regarding poor people gathering 
          Leket, i.e. what falls at the time of harvest);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Yehudah):</font></b> In the morning, the owner 
               says 'what the poor will gather today (mistakenly, 
               thinking that it is Leket) is (now) Hefker';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Dosa says, at evening he says 'what the poor 
               gathered is Hefker'.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> We must switch the opinions of R. Yehudah 
          and R. Dosa.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> It is better to switch the words of R. 
          Yochanan, and say that he taught that Tzenu'im and R. 
          Yehudah hold like each other!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> In any case, the Beraisa must be switched. 
          According to our text, R. Yehudah holds that Yesh 
          Bereirah (one can stipulate that things take effect based 
          on future events, e.g. which Peros the poor will take.) 
          We know that R. Yehudah holds that Ein Bereirah!
<br>
<br>

sjt:
<font><b>1) ONE WHO IS 'MAKDISH' AN ITEM WHICH IS NOT HIS</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan rules that an item that was stolen, from which the original owner did not yet have Ye'ush, cannot be made Hekdesh by either the thief or the owner. The thief cannot make it Hekdesh because it does not belong to him. The owner cannot make it Hekdesh because it is not presently in his domain.
</p><p>
The ruling that the original owner cannot make the item Hekdesh is a Chidush. Rebbi Yochanan is teaching that although the item is still legally his, he cannot make it Hekdesh because Hekdesh requires that the item also be physically in his domain. (The Acharonim discuss whether his inability to make the item Hekdesh when it is not in his domain is because of the fact that he cannot make use of the item and exercise his full rights of ownership over it, and therefore his full ownership of the item is lacking, or whether it is because the Kinyan of Gezeilah that the thief made on the item removed the item partially from the ownership of the original owner.)
</p><p>
However, what is Rebbi Yochanan's Chidush with regard to the thief? It is obvious that the thief cannot be Makdish the item. He does not own it! One certainly would not think that a person may sell an item that does not belong to him, so why would one think that the thief can be Makdish an item that does not belong to him?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Kidushin (52a, DH v'Hu) writes that Rebbi Yochanan's statement indeed teaches only a Chidush with regard to the owner's inability to be Makdish the item. He teaches no Chidush with regard to the thief's inability to be Makdish it. Rebbi Yochanan adds that the thief cannot be Makdish the item only as an aside ('Agav Gerara'; <b>RITVA</b>).
</p><p>
(b) The <b>RITVA</b> in Kidushin (52a) writes that there is a Chidush even in Rebbi Yochanan's statement that the thief cannot be Makdish the item. The law is that if the owner has Ye'ush, the thief <i>is</i> able to be Makdish the item that he stole, since he is Koneh it through Ye'ush. One might have thought that even when the thief is Makdish the item when the original owner has not had Ye'ush, the item should still be Hekdesh out of doubt -- since there is an opinion (Rebbi Shimon) that maintains that 'Stam Gezeilah Ye'ush Ba'alim,' in every case of Gezeilah it is assumed that the owner had Ye'ush. Therefore, Rebbi Yochanan teaches that there is no concern that the owner had Ye'ush until there is clear evidence that he had Ye'ush.
</p><p>
(c) <b>RAV ELCHANAN WASSERMAN</b> Hy'd (Kovetz Shi'urim, Kidushin #42) answers that there are two elements involved in making an item Hekdesh. The first element is the actual Kedushah which the item attains. The second is the monetary acquisition (Kinyan Mamon) obtained by Hekdesh over the item.
</p><p>
Rav Elchanan suggests that when an item is made Hekdesh with Kedushas ha'Guf, the monetary acquisition comes as a result of the Kedushah that takes effect on the item (and not vice versa. In contrast, when an item is made Hekdesh with Kedushas Damim, the Kedushah comes as a result of the monetary acquisition. 
</p><p>
According to this distinction, the Chidush of Rebbi Yochanan's ruling is understood. Had Rebbi Yochanan not taught that the thief cannot be Makdish the item, one might have thought that one may make an item Hekdesh with Kedushas ha'Guf even when the item does not belong to him, because the act of making the item Hekdesh gives it Kedushah and then, automatically, as a result of the Kedushah the Kinyan Mamon to Hekdesh takes effect. It is not similar to a sale of an item which one cannot make unless he is in possession of the item, for he has no right to transfer the item to another's ownership. With Hekdesh, however, <i>he</i> does not transfer the ownership; he merely gives the item Kedushah and automatically the ownership is transferred. Therefore, Rebbi Yochanan must teach that a thief <i>cannot</i> be Makdish the item, because making something Hekdesh requires that the item be in the person's domain and ownership, as Rebbi Yochanan derives from the verse.
</p><p>
(d) One may also answer based on the words of <b>TOSFOS</b> in Shabbos (58a, DH Af Al Pi). Tosfos writes that making an item Asur b'Hana'ah is considered a Shinuy Ma'aseh on the item. Accordingly, the thief <i>should</i> be able to be Makdish the item, since doing so makes the item Asur b'Hana'ah and it should be a Shinuy Ma'aseh with which he is Koneh the item (the Hekdesh and the Shinuy coming simultaneously). Indeed, the <b>IMREI YOSHER</b> (II 197:1) asks why a thief cannot be Makdish the item that he stole for this reason (see there for his answer). Because this is a strong reason to say that the thief <i>should</i> be able to be Makdish the item, Rebbi Yochanan must teach that he nevertheless cannot be Makdish it (since the verse teaches that it must be completely in his domain in order to be Makdish it). (I. Alsheich)
</p><p>


<font><b>2) 'FEED THE EVILDOER AND LET HIM DIE'</b></font><b>
<br>QUESTIONS:</b> Raban Shimon ben Gamliel rules that the requirement to mark one's fruits of Kerem Reva'i in order for people to know that the fruits must be redeemed before they eat them applies only during the Shevi'is year, when the fruits are Hefker and may be taken by anyone. During all other years one is not required to mark his Kerem Reva'i fruits, because anyone who comes to take them without his permission is a thief, and one may 'feed the evildoer [a prohibited food] and let him die.'
</p><p>
There are a number of questions on this principle of 'feed the evildoer and let him die.'
</p><p>
(a) The Torah commands, 'Lifnei Iver Lo Siten Michshol' (Vayikra 19:14), which means that one is prohibited to cause another person to transgress an Aveirah. Why, then, is there no requirement to mark one's fruits as Kerem Reva'i in order to prevent another person (the thief) from transgressing the Aveirah of eating sanctified fruits without redeeming them?
</p><p>
(b) If the law of 'Lifnei Iver' does not apply in this case for some reason, one still should be obligated to mark the fruits. In this case one is not merely 'putting a stumbling block' of sin in front of a person and giving him the opportunity to do an Aveirah, but rather he is considered as though he actively feeds the prohibited item directly to the person. Feeding a forbidden food directly to the evildoer is not allowed, even without the prohibition of 'Lifnei Iver.'
</p><p>
(c) The principle of 'Kol Yisrael Arevin Zeh la'Zeh' teaches that every Jew is responsible to help every other Jew do Mitzvos and refrain from Aveiros. Why does the Gemara not apply that principle to this case and require that the fruit owner do whatever he can to prevent another Jew from doing an Aveirah?
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps the prohibition of 'Lifnei Iver Lo Siten Michshol' applies only when one actively places the stumbling block of sin in front of the other person (through 'Kum v'Aseh'). In the case of the Gemara, however, the prohibited item (the fruit of Kerem Reva'i) was there already, and the owner merely passively allows ('Shev v'Al Ta'aseh') the other person to eat it. 'Lifnei Iver' does not apply in such a situation.
</p><p>
This approach answers the first question. However, this approach seems to be contradicted by the wording of the Gemara which says, '<i>Feed</i> the evildoer and let him die,' implying that one may actively ('Kum v'Aseh') cause the evildoer to sin.
</p><p>
(b) The <b>CHAZON ISH</b> (Demai 8:9) writes that when the Gemara says '<i>feed</i> the evildoer,' it does not mean literally that one may feed someone a prohibited food. Rather, it means that the owner of the fruit is not required to make an effort to save the evildoer from transgressing the prohibition of Kerem Reva'i. The reason for this is that the person eating the fruit is willfully taking the fruit and knowingly transgressing the Isur of Gezeilah. Although he does not know that he is also transgressing the Isur of Kerem Reva'i, the fact that he knows that he is transgressing the Isur of Gezeilah removes from the owner any responsibility for the thief's actions and the owner is not considered as though he causes the thief to sin. Even without the Isur of Kerem Reva'i, the thief is not permitted to take the fruit because of the Isur of Gezeilah, and thus he is taking the fruit unlawfully. Therefore, the owner is exempt from responsibility to stop him from eating the fruit of Kerem Reva'i. Certainly, however, to offer and feed someone such fruit is prohibited.
</p><p>
The approach of the Chazon Ish also answers the first question. The principle of 'Lifnei Iver' does not apply in this case because the transgressor is purposely taking the item himself, knowingly transgressing a different Isur (Gezeilah). Hence, allowing him to eat the fruit is not called placing a stumbling block before him, and it is not even considered passively ('Shev v'Al Ta'aseh') placing a stumbling block before him.
</p><p>
(The words of the Chazon Ish imply that the Isur of 'Lifnei Iver' also applies when one passively -- through 'Shev v'Al Ta'aseh' -- places a stumbling block of sin before someone else, in contrast to the approach suggested above to the first question.)
</p><p>
(See also <b>SHACH</b> YD 151:6, <b>DAGUL MEREVAVAH</b> and <b>GILYON MAHARSHA</b> there, as cited by <b>YOSEF DA'AS</b> here.)
</p><p>
(c) Why is the owner of the Kerem Reva'i fruits not obligated to mark his fruits as prohibited because of the rule of 'Arvus'? <b>RAV YERUCHAM FISHEL PERLOW</b> (in his Hagahos to Sefer ha'Mitzvos of Rav Sa'adyah Ga'on, 3:57, pp. 209-210) answers as follows. The obligation of 'Arvus' applies only when it is within one's ability to protest effectively against the transgressor's act of sinning. (He proves this from the Gemara in Sanhedrin and Shevuos.) In this case, however, the owner's protest will not be effective because the transgressor anyway intends to transgress the Isur of Gezeilah. Raban Shimon ben Gamliel maintains that since there is no obligation of 'Arvus' with regard to the Isur of Gezeilah (since he is going to steal anyway), there is also no obligation of 'Arvus' with regard to the other Isur (i.e. Kerem Reva'i) which he will transgress if he eats the fruit. 
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE BE MAKDISH WHAT IS NOT IN HIS RESHUS?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 36a:</font></b> A case occurred in which Ploni was obligated to 
               pay Shimon a half-Dinar for damage. Shimon said 
               'give it to the poor'. He later retracted and asked 
               to get it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> You cannot retract. The poor already 
               acquired it! Even though there are no poor people 
               here, I acquired on behalf of poor people elsewhere.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 68b (Mishnah):</font></b> If one stole an animal and made it 
               Hekdesh and then slaughtered it, he pays Kefel, but 
               not four and five.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Reish Lakish):</font></b> The case is, the owner made it 
               Hekdesh in the thief's house.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> R. Yochanan taught that if something was 
               stolen, and the owner did not despair, the thief 
               cannot make it Hekdesh, for it is not his. Also the 
               owner cannot be Makdish it, for it is not in his 
               Reshus (under his control)!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> Reish Lakish holds like Tzenu'im (pious 
               people, who were concerned lest people taking 
               Shemitah produce mistakenly take Revai fruits of a 
               tree in its fourth year, which must be eaten in 
               Yerushalayim or redeemed).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #1):</font></b> Tzenu'im would say 'whatever 
                    (Revai) was gathered from my field is redeemed 
                    on these coins.' (Just like one can redeem 
                    something not in his Reshus, he can be Makdish 
                    something not in his Reshus!)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> R. Yochanan holds like a Stam Mishnah that argues 
               with Mishnah #1.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah #2):</font></b> One who steals from a thief does 
                    not pay Kefel. If he then slaughters or sells 
                    it, he does not pay four and five.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> He doesn't pay the thief, for it is not the 
                    thief's. He doesn't pay the owner, for it was 
                    not in his Reshus. (Similarly, neither can make 
                    it Hekdesh.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> R. Yochanan rules like Mishnah #2 against Mishnah #1 
               because a verse supports it - 'if a man will make 
               his house Hekdesh.' One can be Makdish only things 
               like his house, which is in his Reshus.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Bava Metzi'a 6b:</font></b> A case occurred in which Reuven and 
               Shimon were fighting over a bathhouse. Each said 'it 
               is mine.' Reuven was Makdish it. R. Chananya, R. 
               Oshaya and all the Chachamim stopped using it.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> 7a (R. Chiya bar Avin):</font></b> If one was Makdish property 
               that he cannot obtain through Beis Din, it is not 
               Hekdesh.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Question:</font></b> This implies that if he can obtain it 
               through Beis Din, he can be Makdish it, even before 
               receiving it. This is unlike R. Yochanan!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Answer:</font></b> The bathhouse is not movable. Rather, it is 
               land. If one can obtain land through Beis Din, it is 
               as if it is in his Reshus.
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Bava Basra 88a:</font></b> A case occurred in which Reuven 
               brought gourds to Fum Nahara to sell; everyone took 
               one each (intending to buy it; he thought that they 
               were stealing). He said 'they are Hekdesh'!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rav Kahana:</font></b> One cannot make Hekdesh something 
                    that is not his.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> This is only if the price is known. (The buyers 
                    acquired them; they merely owed money.) . If 
                    not, they still belonged to Reuven; they are 
                    now Hekdesh.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif (Bava Kama 27a) brings R. Yochanan's law. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rif and Rosh (Bava Metzi'a 3b and 1:12):</font></b> If Ploni 
               was Makdish land that he can obtain through Beis 
               Din, it is Hekdesh. If he was Makdish Metaltelim 
               that he can obtain through Beis Din, it is not 
               Hekdesh. This is when the one holding it denies that 
               it is Ploni's, and Ploni must force him through Beis 
               Din. If a Shomer is guarding a deposit and will 
               return it when asked, this is like land; it is in 
               the owner's Reshus. Also a Gaon said so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh:</font></b> Also Bava Metzi'a 88a teaches this. People 
               took gourds from a seller, and the seller was 
               Makdish them. They became Hekdesh (if the price was 
               not known, for the buyers did not acquire, and they 
               did not intend to steal).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Erchin 6:22):</font></b> One cannot be Makdish 
               something not in his Reshus. If Ploni had a deposit 
               with Shimon who denied having it, Ploni cannot be 
               Makdish it. If Shimon did not deny it, it is in 
               Ploni Reshus whenever it is.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (23):</font></b> This refers to Metaltelim. If Shimon 
               stole Ploni's land and denies it, if Ploni can force 
               him to return it through Beis Din, Ploni can be 
               Makdish it even though he did not get it back yet. 
               The land itself is in his Reshus. 
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rambam (24):</font></b> If Shimon stole from Levi, and Levi did 
               not despair, Shimon cannot make it Hekdesh, for it 
               is not his. Levi cannot be Makdish it, for it is not 
               in his Reshus. The same applies to all similar 
               cases. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (YD 258:7):</font></b> One cannot be Makdish 
               something not in his Reshus. If Ploni had a deposit 
               with Shimon who denied having it, Ploni cannot be 
               Makdish it. If Shimon did not deny it, it is in 
               Ploni's Reshus whenever it is. This refers to 
               Metaltelim. If Shimon stole Ploni's land and denies 
               it, if Ploni can force him to return it through Beis 
               Din, Ploni can be Makdish it even before getting it 
               back. The land itself is in his Reshus. If Shimon 
               stole from Levi, and Levi did not despair, Shimon 
               cannot make it Hekdesh, for it is not his. Levi 
               cannot be Makdish it, for it is not in his Reshus. 
               The same applies to all similar cases. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah she'Chosav Rabeinu):</font></b> 
                    Chidushei ha'Ran (Bava Metzi'a 7a DH Ha) 
                    derives that one cannot be Makdish a loan that 
                    others owe him, for it is not in his Reshus. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If David has a security from Moshe for a loan, 
               Moshe cannot be Makdish the amount corresponding to 
               the loan. He can be Makdish its value above the 
               loan. Some say that he cannot be Makdish even the 
               excess. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Darchei Moshe (4):</font></b> The Mordechai (Bava Basra 
                    565) rules that one can be Makdish a loan in 
                    another's hand, and all the more so a deposit, 
                    but not what was stolen or given for a deposit. 
                    However, one can be Makdish the value of the 
                    security above the loan. R. Yerucham (Adam 
                    v'Chavah 167a) says that he cannot be Makdish 
                    even the excess. The Mordechai (Bava Metzi'a 
                    419,420) says that whenever the law is 'whoever 
                    overpowers keeps it', if one seized it, he can 
                    be Makdish it while he has it, even though the 
                    other may seize it back. Hekdesh before it came 
                    to his hand is invalid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (8):</font></b> If one was owed a debt and said 
               'it will be Hekdesh or Tzedakah', his words do not 
               take effect. ): If he said 'what Ploni owes me, I 
               will be Makdish it or give it to Tzedakah wen I get 
               it', he must fulfill his words when he gets it. Even 
               when he said 'it will be Tzedakah', if he said so in 
               front of the borrower and the Gabai (overseer of 
               Tzedakah) or the seven leaders of the city (Rema - 
               or an important person in the city), the Gabai 
               acquired it through the law of Ma'amad Sheloshtam. 
               It is Tzedakah, and he may not change it. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (18):</font></b> We are the Yad of Aniyim; it is as 
                    if the money came to them. He cannot even 
                    permit his vow (Rashba 656).
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>RETURNING INHERITANCE IN YOVEL </b></b>(</font><font color='darkblue'>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>BEREIRAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> (The Kusim were converts who 
          transgress many Mitzvos; they were suspected not to 
          tithe.) If one buys (100 Lugim of) wine from Kusim (and 
          cannot separate the tithes before drinking), he says: the 
          two Lugim that I will later separate should be Terumah. 
          Ten Lugim (that I will separate) are Ma'aser Rishon. Nine 
          Lugim are Ma'aser Sheni. He is Meichal (Rashi - redeems 
          the Ma'aser Sheni) and may drink immediately;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah, R. Yosi and R. Shimon forbid (to 
               drink before separating the tithes).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Even after switching the Beraisa, R. Yochanan 
          still contradicts himself!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan changed the text to read 'that will 
               be gathered.' This shows that he holds that Yesh 
               Bereirah;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Asi citing R. Yochanan):</font></b> Brothers who divide 
               an inheritance are like buyers (we do not know which 
               share each inherits. Whatever each takes is like a 
               purchase, in place of what his brother took from 
               him), so they must re-divide in Yovel (when all sold 
               land reverts to the seller).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (to question 1:b above):</font></b> Really, R. Yochanan 
          leaves the text 'was gathered.' He holds like a Stam 
          Mishnah that argues with Mishnah #1 (of Tzenu'im).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah #2):</font></b> One who steals from a thief does 
               not pay Kefel. If he then slaughters or sells it, he 
               does not pay four and five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> We understand why he doesn't pay Kefel to the 
               first thief - 'and was stolen from the man's house', 
               not from the house of the thief;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Why doesn't he pay Kefel to the owner?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> He doesn't pay the thief, for it is not 
               the thief's. He doesn't pay the owner, for it was 
               not in his Reshus. (For the same reason, neither can 
               make it Hekdesh.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why does R. Yochanan rule like Mishnah #2 
          against Mishnah #1?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> A verse supports it - 'if a man will make his 
          house Hekdesh.' One can be Makdish only things like his 
          house, which is in his Reshus.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TZENU'IM AND R. DOSA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Abaye:</font></b> I would have said differently than R. Yochanan. 
          Tzenu'im hold like R. Dosa, but R. Dosa does not hold 
          like Tzenu'im!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Tzenu'im hold like R. Dosa. If Chachamim made an 
               enactment for thieves (so they not transgress eating 
               Reva'i), all the more so for the poor (who did not 
               intentionally sin)!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Dosa does not hold like Tzenu'im. Chachamim 
               made an enactment for the poor, but not for thieves.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rava:</font></b> I would have said differently than R. Yochanan. 
          Tzenu'im hold like R. Meir;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir says that Ma'aser Sheni is like Hashem's 
               money, but regarding redemption, it is considered a 
               person's money;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'If a man will redeem his Ma'aser, he will add 
               its fifth' - the Torah calls it his Ma'aser, and he 
               adds a fifth;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The same applies to Reva'i of grapes. We learn a 
               Gezeirah Shavah 'Kodesh-Kodesh' from Ma'aser!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Ma'aser is like Hashem's money, but regarding 
                    redemption, it is considered a person's money. 
                    The same applies to Reva'i.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> However, when the poor take what they 
               (mistakenly) think is Leket, that is the owner's 
               money. He cannot redeem it when it is not in his 
               Reshus! (Tzenu'im could argue with R. Dosa.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Ravina:</font></b> R. Yochanan should have said that R. Dosa is 
          the Tana of Mishnah #1;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This would answer why he holds like Mishnah #2, 
               unlike Mishnah #1. R. Yochanan's rule that the 
               Halachah follows a Stam Mishnah does not apply when 
               we find the law of the Mishnah attributed to a 
               particular Tana. 
<br>

<p>

sjt:
</p><p>
<font><b>3) THE RESOLUTION OF CONTRADICTIONS IN RULINGS OF REBBI YOCHANAN</b></font><b>
<br>QUESTION:</b> Rebbi Yochanan (69a) rules that an item that was stolen, from which the original owner did not yet have Ye'ush, cannot be made Hekdesh by either the thief or the owner. The thief cannot make it Hekdesh because it does not belong to him. The owner cannot make it Hekdesh because it is not presently in his domain. The Gemara asks that Rebbi Yochanan seems to contradict himself, because Rebbi Yochanan also states that whenever a ruling is stated anonymously in a Mishnah the Halachah follows that opinion. We find a Mishnah (Ma'aser Sheni 5:1) that implies that the owner of an item <i>is</i> able to effect a change in the status of the item even though the item is not in his domain!
</p><p>
The Gemara here (69b) answers that Rebbi Yochanan found another anonymous Mishnah (Bava Kama 62b) and ruled in accordance with it, and that he ruled like that Mishnah over the other anonymous Mishnah (in Ma'aser Sheni) because a verse supports the ruling of this anonymous Mishnah. 
</p><p>
<b>TOSFOS</b> (DH Ela) cites <b>RABEINU TUVYAH</b> who asks that Rebbi Yochanan still seems to contradict himself. Rebbi Yochanan rules that Bereirah does not work ('Ein Bereirah') while he also rules like the anonymous Mishnah, and the anonymous Mishnah (in Demai 7:4) rules that Bereirah <i>does</i> work! Although there is another anonymous Mishnah (that of 'Tzenu'in' in Ma'aser Sheni 5:1) which does not hold that Bereirah works, for what reason would Rebbi Yochanan rule like the anonymous Mishnah (in Ma'aser Sheni) over the anonymous Mishnah in Demai?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that perhaps when Rebbi Yochanan states that Bereirah does not work, he means that it does not work only where one did not make an explicit condition that it should work (stating that the present status should be determined by a future event). The case of the Mishnah in Demai involves a person who <i>did</i> make an explicit condition (stating that Terumah will take effect now on the two Lugin of wine that in the future he will separate from the rest of the wine).
</p><p>
This answer is problematic, as <b>TOSFOS</b> in Gitin (25b) asks, and as the <b>MAHARSHA</b> and <b>MAHARAM</b> here ask. If it is true that Rebbi Yochanan agrees that Bereirah works in a case where the person made an explicit condition, then what is the Gemara's question when it asks a contradiction from Rebbi Yochanan's statement regarding 'Kol ha'Mislaket' (which implies that he rules that Bereirah <i>does</i> work) to his statement regarding 'Achin she'Chalku' (where he said that brothers who inherit property are considered like buyers, and each one must return his property to the other at the Yovel year since Bereirah does not work to determine that the property that each brother received was the property that was truly intended for him)? In the case of 'Kol ha'Mislaket,' the person made an <i>explicit</i> condition, and that is why Rebbi Yochanan says that Bereirah works there!
</p><p>
Tosfos in Gitin gives two answers to this question.
</p><p>
In his first answer, Tosfos says that the Gemara indeed could have given this as an answer to its question here; it could have differentiated between a case of Bereirah where one made an explicit condition, and a case of Bereirah where one made no condition. The Gemara, however, preferred to answer that Rebbi Yochanan reads the Mishnah in Ma'aser Sheni as 'Kol ha'Nilkat' and not 'Kol ha'Mislaket,' and that he found another anonymous Mishnah which he ruled like. The Gemara prefers this answer because this answer does not necessitate a change in the Girsa of the Mishnah (from 'Nilkat' to 'Mislaket') or switching the opinions of the Tana'im. 
</p><p>
In his second answer, Tosfos explains that if the Gemara would have answered that Rebbi Yochanan rules that Bereirah works when the person makes an explicit condition, the Gemara still would have had a question from another ruling of Rebbi Yochanan in Gitin (25a), where Rebbi Yochanan rules that when a man writes a Get but stipulates that he will decide later to which wife he wants to give it, the Get is entirely invalid because Bereirah does not work. This answer would not have sufficed to answer that question, because in that case Rebbi Yochanan rules that Bereirah does not work even though the person made an explicit condition. 
</p><p>
(b) The <b>BEIS EFRAIM</b> (EH 3:122, p. 83) answers that Rebbi Yochanan ruled like the anonymous Mishnah (that of 'Tzenu'in' in Ma'aser Sheni 5:1) that holds that Bereirah does not work, and not like the anonymous Mishnah (in Demai 7:4) that holds that Bereirah <i>does</i> work, because the Mishnah in Demai is clearly a minority opinion (the opinion of Rebbi Meir). The Mishnah in Ma'aser Sheni, on the other hand, is the opinion of Rebbi, Rebbi Yosi, and Rebbi Shimon. Rebbi Yochanan chose to rule like an anonymous Mishnah which follows the opinion of the majority, instead of ruling like an anonymous Mishnah which follows the opinion of a minority opinion.
</p><p>
(c) The <b>BEIS EFRAIM</b> suggests another answer, which is also the answer given by the <b>ARUCH LA'NER</b> in Sukah (23b). They write that the Gemara in Beitzah explains that the opinion that rules 'Ein Bereirah' applies this ruling only for matters that are mid'Oraisa. For matters that are mid'Rabanan, Bereirah <i>does</i> work. Therefore, no question can be asked on Rebbi Yochanan from the anonymous Mishnah in Demai, because that case discusses Terumah <i>d'Rabanan</i>, according to <b>RABEINU TAM</b> (cited by Tosfos in Bava Metzia 88a, DH Tevu'as) who maintains that one who buys produce after it has been processed with Miru'ach (smoothing the pile) is obligated to separate Terumos u'Ma'aseros only mid'Rabanan. Therefore, Rebbi Yochanan may agree with that Mishnah that Bereirah works, since it applies Bereirah only to a Halachah d'Rabanan.
</p><p>
(The Aruch la'Ner concludes by writing that 'after I wrote this answer, I found that the <b>PNEI YEHOSHUA</b> in Gitin also writes that according to the opinion of Rabeinu Tam, the question of Tosfos is answered, and I rejoiced in having answered like he answers.')
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>AUTHORIZATION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Version #1 (Chachamim of Nehardai):</font></b> One cannot write an 
          Orkesa (power of attorney) for Metaltelim (movable 
          objects).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Ameimar):</font></b> It is due to R. Yochanan's law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> If something was stolen and the 
               owner did not despair, neither the thief nor owner 
               can make it Hekdesh;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The thief cannot, for it is not his. The owner 
               cannot, for it is not in his Reshus!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2 (Chachamim of Nehardai):</font></b> One may not write 
          an Orkesa for contested Metaltelim.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Inference:</font></b> This is only because it looks like Sheker 
          (since another contests this). If they were not 
          contested, one may write it! (end of Version #2) 
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Chachamim of Nehardai):</font></b> If Reuven wrote an Orkesa to 
          authorize Levi, and it does not say 'go claim and acquire 
          for yourself', it is void.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> The one from whom Levi claims (Shimon) can say 
          to him 'you have no claim against me.'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Abaye):</font></b> If it says that Levi receives a percentage of 
          the property, since he has a claim on his percentage, he 
          can argue the case for all the property.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Ameimar):</font></b> If Levi seized the property (and refuses to 
          return it to Reuven; some explain, if he seized from 
          Shimon with an invalid Orkesa), he keeps it.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #1 (Rav Ashi):</font></b> No. Since Reuven wrote 'all 
          (Meiri - gains or) losses you incur, is upon me', Levi 
          is merely a Shali'ach.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #2:</font></b> He is a partner. (end of Version #2)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> What difference does it make if he is a 
          Shali'ach or partner?
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> If he is a partner, he may keep half for 
          himself.
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	The Halachah is, he is a Shali'ach.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TESTIMONY MUST BE ABOUT A FULL MATTER</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one stole in front of two witnesses, and 
          slaughtered or sold in front of them or two other 
          witnesses, he pays four and five;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	In all these cases, he pays four and five:</font></b> he stole and 
          sold on Shabbos, or to idolatry;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He stole and slaughtered on Yom Kipur;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He stole from his father and slaughtered or sold, 
               and then his father died;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He stole and slaughtered, and then made it 
               Hekdesh.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he stole and slaughtered for medicinal needs, or to 
          feed to dogs, or the animal was found to be Tereifah, or 
          he slaughtered Chulin ba'Azarah (in the Mikdash); he pays 
          four or five;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Shimon exempts for these (last) two.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara) Suggestion:</font></b> The Mishnah is unlike R. Akiva, 
          for he holds that testimony must be about a full matter.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Aba Chalafta and R. Yochanan ben 
               Nuri):</font></b> If three different pairs of witnesses saw 
               Reuven living on Shimon's land, and each pair saw 
               this for a different year (for three consecutive 
               years), this is a Chazakah (demonstration of 
               ownership. Reuven is believed to say 'I bought it 
               from you, and I lost my document of purchase.)
<br>
<br>

sjt:
<font><b>1) 'YOU ARE NOT MY LITIGANT'</b></font><b>
<br>QUESTION:</b> The Gemara says that an Urchesa (Harsha'ah) in which the sender does not write for his agent, 'Go deal [with him] in court and take [the item or money] for yourself,' is not a valid Urchesa, because the person from whom the item or money is being claimed may say to the agent, 'You are not my litigant' -- 'Lav Ba'al Devarim Didi At.'
</p><p>
Why may the defendant make that claim? The agent is the Shali'ach of the claimant, and the law is that 'Shali'ach Shel Adam k'Moso' -- the Shali'ach of a person is like the person himself. Why may the defendant say to him that he is not his litigant?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>MORDECHAI</b> (#70) writes that <b>RABEINU YOEL</b> asked this question to his father-in-law, the <b>RA'AVAN</b>, who answered that as long as the sender is alive, the defendant certainly may not claim 'Lav Ba'al Devarim Didi At.' Only if the sender has died may the defendant claim that the agent is not his litigant, because the item or money being claimed now belongs to the heirs of the original claimant, and the heirs did not make this agent their Shali'ach. 
</p><p>
(b) The <b><b><b>OR</b></b> ZARU'A</b> (Piskei Bava Kama #300) gives a similar answer. He writes that the Chachamim were concerned that perhaps the sender would die before the agent collects the item, and the item would then fall to the heirs, and the <i>heirs</i> would say that they did not appoint this agent as their Shali'ach. Therefore, the defendant may say, 'You are not my litigant,' out of doubt that <i>perhaps</i> the property already fell to the heirs, even if it is not known for certain that the sender died.
</p><p>
Apparently, the Mordechai maintains that the defendant <i>cannot</i> say, 'You are not my litigant,' when it is not known for certain that the sender died. The <b>PNEI YEHOSHUA</b>, however, asserts that the Mordechai agrees with the Or Zaru'a and maintains that the defendant may make this claim even when there is a doubt about whether the sender is alive.
</p><p>
Another difference between the Mordechai's answer and that of the Or Zaru'a is that according to the Mordechai, the right to say, 'You are not my litigant,' is an enactment made for the sake of the defendant, to protect <i>his</i> rights. According to the Or Zaru'a, it is an enactment made for the sake of the heirs, to protect <i>their</i> rights. 
</p><p>
(c) The <b>ROSH</b> later (9:21) answers that the Chachamim were concerned that perhaps the sender would annul the Shelichus in front of witnesses. Therefore, the Chachamim enacted that he write in the document, 'Go deal [with him] in court and take [the item or money] for yourself,' which makes it as if he has given to the agent the item or money as an unconditional gift which he may not retract or annul. 
</p><p>
(d) The <b>YAM SHEL SHLOMO</b> (#12) writes that the Gemara refers to a case in which the defendant does not want to give the claimant his item or his money because the defendant himself has other claims against the claimant for obligations that he is owed. Therefore, he may say to the Shali'ach that the Shali'ach is not his litigant, because there are more claims involved, other than the claim which the Shali'ach was sent to collect. (By writing, 'Go deal [with him] in court and take [the item or money] for yourself,' the Shali'ach is able to collect for the claimant because the Chachamim instituted that the item thereby is considered the Shali'ach's for the purpose of collecting it.)
</p><p>
It seems, according to the Yam Shel Shlomo, that if the defendant has no claims against the one who sent the Shali'ach but he merely refuses to send the item with the Shali'ach, he <i>cannot</i> say, 'You are not my litigant,' because 'Shali'ach Shel Adam k'Moso.'
</p><p>
(e) The <b>PNEI YEHOSHUA</b> answers that in this case, the principle of 'Shali'ach Shel Adam k'Moso' does not apply. The defendant may say, 'Who knows whether your sender would have made any claim against me? Perhaps he would not have been so brazen to make a claim against me at all!' That is, the defendant claims that the one who sent the Shali'ach is lying and that he does not have the sender's item at all, and that is why the sender himself is not coming to make a claim against him -- because he is not so brazen as to lie to his face. The Shali'ach, though, is brazen, and thus the principle of 'Shali'ach Shel Adam k'Moso' does not apply here.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>THE ENACTMENT TO ALLOW WRITING A HARSHA'AH</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara </font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Version #1 (Neharda'ei i.e. Chachamim of Nehardai):</font></b> 
               One cannot write a Harsha'ah (power of attorney) for 
               Metaltelim (movable objects).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Ameimar):</font></b> This is due to R. Yochanan's law (since 
               it is not in the owner's Reshus, he cannot authorize 
               another about it).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yochanan):</font></b> If something was stolen, and the 
                    owner did not despair, the thief cannot make it 
                    Hekdesh, for it is not his. Also the owner 
                    cannot be Makdish it, for it is not in his 
                    Reshus (under his control)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Version #2 (Neharda'ei):</font></b> One may not write a 
               Harsha'ah for Metaltelim that were denied.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Inference:</font></b> This is only because it looks like 
               Sheker. If they were not denied, one may write it!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 104b:</font></b> Rav Papa was Masik (owed) 12,000 Zuz in Bei 
               Chuzai. He gave it to Rav Shmuel bar Aba, Agav the 
               corner of his house, who then brought to him the 
               money.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Bava Basra 127a (Rav Papa):</font></b> If it was once known 
               which son was the firstborn, and then it was 
               forgotten, one writes a Harsha'ah to the other (and 
               they split the extra share).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Bava Kama 27a):</font></b> The Halachah follows R. 
               Yochanan and Version #2 of Neharda'ei. If a 
               Harsha'ah was written on denied Metaltelim, we do 
               not force the Nitva to go to Din or swear based on 
               it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (7:4):</font></b> R. Tam says that a Harsha'ah makes a 
               Shali'ach. Even though he cannot be Makneh the loan, 
               he makes a Shali'ach. The episode with Rav Papa 
               supports this. It says he was Masik 12,000 Zuz, 
               which connotes that it was a loan. Another support 
               that Harsha'ah does not depend on Kinyan is that we 
               hold like Version #2 of Neharda'ei, that we write a 
               Harsha'ah on something stolen, even though one 
               cannot be Makneh it, for we hold like R. Yochanan. 
               We must say that it was enacted that Shelichus works 
               as if the Shali'ach himself acquires. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Sheluchim 3:7):</font></b> If one wanted to be 
               Marsheh a deposit of coins, he is Makneh the coins 
               Agav the land. Then, the Shali'ach can go to Din 
               with the Shomer and bring them. One cannot write a 
               Harsha'ah for a loan. This is the law according to 
               the Gemara. The Ge'onim enacted to write a Harsha'ah 
               for a loan, lest people borrow money and go abroad. 
               They also enacted that if one was Marsheh to take 
               money with another, or to claim a loan and the 
               Makneh had no land, he may be Makneh four Amos of 
               his share in Eretz Yisrael, and be Makneh the coins 
               Agav the land. These are extremely flimsy and shaky 
               matters. Who says that he has a share in Eretz 
               Yisrael? Even if he does, it is not in his Reshus! 
               The Ge'onim who enacted this said that we do not say 
               'the law will pierce the mountain'. It is merely to 
               threaten the Nitva (defendant). If he wants to judge 
               and give according to this Harsha'ah, he is exempt, 
               for the one with the Harsha'ah is no worse than a 
               Shali'ach appointed with witnesses. We do not force 
               the Nitva to go to Din or swear based on this 
               Harsha'ah if he does not want to. They also ruled 
               that if one had a loan, whether with a document or 
               with witnesses of a Kinyan, we write a Harsha'ah on 
               it, for this is denial of a lien on land. They did 
               not enact for a Milveh Al Peh that he denied. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ra'avad:</font></b> This is if he did not give over the 
                    document.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kesef Mishneh and Beis Yosef (CM 123 DH u'Mah 
                    she'Chosav b'Shem):</font></b> 'These are extremely flimsy 
                    and shaky matters' refers to being Makneh Agav 
                    one's four Amos in Eretz Yisrael. The enactment 
                    to write a Harsha'ah for a loan, lest people 
                    borrow money and go abroad, was proper. This 
                    concern applies also to a Milveh Al Peh! 
                    Presumably, the Rambam means that letter of the 
                    law we do not write a Harsha'ah on a Milveh Al 
                    Peh, for it has no lien on land, but the 
                    enactment allows even this. However, his words 
                    connote otherwise. Nowadays the custom is to 
                    write a Harsha'ah even on a Milveh Al Peh that 
                    was denied, for Tikun ha'Olam. How does Agav 
                    help for a loan? Chalipin should suffice! 
                    Perhaps since Chachamim were lenient to say 
                    that Harsha'ah helps for a loan, they were 
                    stringent to require Agav.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Hagahos Maimoniyos (30):</font></b> This is flimsy, for 
                    the Gemara says that it is possible that 
                    someone has no land to be Makneh Agav land 
                    (Bava Kama 46a). Why can one make a second 
                    Harsha'ah? He already gave away his four Amos 
                    to the first Shali'ach! R. Tam says that it 
                    works through his admission that he has land 
                    and is Makneh to the Shali'ach. Even a false 
                    admission acquires (Bava Basra 149a). 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 123:1):</font></b> We do not write a 
               Harsha'ah for a deposit that the Shomer denies, nor 
               for a Milveh Al Peh (a loan without a document). 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> This is the Rambam's opinion, that 
                    Harsha'ah needs a proper Kinyan. We hold like 
                    the other opinion, that even if something 
                    cannot be acquired, Chachamim made a Shali'ach 
                    as if he acquired it. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Tosfos 70a DH Lo):</font></b> Rashi says that 
                    since one cannot be Makneh what is not in his 
                    Reshus, if it was lost, the owner could claim 
                    it again from the Shomer. This is difficult, 
                    for he is no worse than a Shali'ach. If the 
                    owner said to give it to a Shali'ach and the 
                    Shomer did so, he is exempt.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Bedek ha'Bayis):</font></b> It is a mere custom 
                    that one who gives it to a Shali'ach is exempt. 
                    One who gave it to one with a Harsha'ah is 
                    exempt according to letter of the law.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Beis Yosef (DH ume'Atah):</font></b> The Rashba (1024) 
                    says that we write a Harsha'ah even on stolen 
                    Metaltelim. The Halachah does not follow him.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> The Ge'onim enacted to write 
               a Harsha'ah for a loan, whether with a document or 
               with witnesses of a Kinyan, even if the borrower 
               denied it in Beis Din, lest people borrow money and 
               go abroad. They did not enact for a Milveh Al Peh 
               that he denied.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (123:5):</font></b> They enacted only for what is 
                    common. It is uncommon to lend without a 
                    document. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (9):</font></b> They did not enact because it is 
                    uncommon, and he denied it. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> In any case, it is no worse than a Shali'ach 
               made in front of witnesses (Siman 122). 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (10):</font></b> This means that if the Nitva gave 
                    to the Shali'ach and it was lost, the Nitva is 
                    exempt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Some say that we write for 
               everything, be it a deposit, theft, Milveh Al Peh or 
               with a document, even if it was denied.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> This is the opinion of R. Tam and the 
                    Rosh. They say that even though one cannot be 
                    Makneh them, the custom from the time of the 
                    Gemara is that Harsha'ah works for them.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (14):</font></b> The entire Sugya is unlike Version 
                    #1. This opinion holds that also we do not hold 
                    like Version #2, for we are not concerned for 
                    what looks like Sheker. The first opinion holds 
                    like the Rashba (Bava Kama 70a DH u'Mihu), that 
                    we are concerned when it will forever look like 
                    Sheker.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Gra (15):</font></b> We learn from Bava Basra 127a that 
                    Harsha'ah helps even when they never received 
                    the property and cannot be Makneh.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>HARSHA'AH ON A LOAN OR LAND </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, it is not a Chazakah. Witnesses 
               must testify about a (full) 'Davar (matter)', not 
               half a Davar. (Living on Shimon's land for one year 
               has no significance. Similarly, the testimony about 
               slaughter has no significance by itself.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> R. Akiva can agree to our Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He surely agrees that if two witnesses saw David 
               be Mekadesh Leah, and two others saw Menasheh have 
               Bi'ah with her, even though the latter testimony has 
               no significance without the former, since the first 
               witnesses do not need the latter, all the testimony 
               stands;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here also, even though the latter witnesses 
               (about the slaughter) need the former witnesses 
               (about the theft), since the former do not need the 
               latter, all the testimony stands!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> In what case do Chachamim invalidate 
          testimony because it is only half a 'Davar'?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> One witness saw that a girl (above 12 years  
          old) has one (pubic) hair on her back, and one witness 
          saw one hair on her front. (She is an adult only if she 
          brought two hairs.) 
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rejection:</font></b> That is half-testimony (only one witness saw 
          each hair)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Two witnesses saw one hair on her back, and 
          two saw one hair on her front.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is a half-Davar, since each pair of 
               witnesses testifies that she is still a minor!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>ONE LIABLE TO DIE DOES NOT PAY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he stole and sold on Shabbos...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> He is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rami bar Chama):</font></b> The Beraisa discusses when 
          Levi (the buyer) told Reuven (the thief) 'pick a date 
          from my tree to be payment for the stolen item.' (Since 
          Reuven is liable to die for detaching on Shabbos, he is 
          exempt from the fine due to the sale that resulted from 
          this action.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection:</font></b> Since Levi cannot force Reuven to give him 
          anything (since Reuven is Chayav Misah for Chilul 
          Shabbos), this is not a sale at all!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> In the Beraisa, Levi told Reuven 
          'throw the stolen item into my yard so I will acquire 
          it'.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Suggestion:</font></b> This is like R. Akiva, who considers an 
          airborne object as if it rests on the ground below. (The 
          item is acquired when it enters the airspace of Levi's 
          yard. That is also when Reuven is liable for Chilul 
          Shabbos.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim hold that the item is acquired when it 
               enters Levi's airspace; but Reuven is not liable 
               until it lands.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> It is even like Chachamim. The case is, Levi 
          said 'I do not want to acquire until it rests on the 
          ground.'
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Defense (of Answer #1 - Rava):</font></b> The Torah forbade the 
          wages of a harlot (to be a Korban) in every case, even if 
          one paid his mother for Bi'ah with her;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even though Beis Din cannot make him pay what he 
               promised her (since he is Chayav Misah for Bi'ah 
               with her), if he pays, it is considered a harlot's 
               wages.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here also, even though Beis Din cannot force 
               Reuven to give Levi the animal (for which Levi paid 
               a date), if Reuven gives it, it was a sale.
<br>

sjt:
</p><p>
<font><b>2) A FORBIDDEN ACT THAT TAKES EFFECT </b></font><b>
<br>QUESTION:</b> The Gemara explains that there is a case in which it is possible for 'Kam Lei bid'Rabah Minei' to exempt a Ganav who steals and sells the item on Shabbos from paying Arba'ah v'Chamishah, even though normally no Melachah is involved with selling an item on Shabbos. That case is where the buyer says to the Ganav on Shabbos, 'Throw the item into my Chatzer and thereby transfer possession of the item to me.' By bringing the item into a Reshus ha'Yachid from Reshus ha'Rabim, the Ganav performs a Melachah d'Oraisa (of Hotza'ah) for which he is Chayav Misah, and therefore the Ganav is exempt from Arba'ah v'Chamishah because of 'Kam Lei bid'Rabah Minei.'
</p><p>
Why, though, is the sale considered a valid Mechirah in this case? There is a principle that 'Kol Milsa d'Amur Rachmana Lo Ta'avid, Iy Avid Lo Mehani' -- when one performs any act which the Torah prohibits, that act does not take effect. In this case, since the act of transferring the item from Reshus ha'Rabim to Reshus ha'Yachid is prohibited by the Torah, that transfer should not be effective in changing the ownership of the item, and the Ganav should not be liable for the Mechirah.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>REBBI AKIVA EIGER</b> writes that the principle of 'Iy Avid Lo Mehani' applies only to Isurim d'Oraisa and not to Isurim d'Rabanan. If a person performs an act which is prohibited mid'Rabanan, the act still takes effect. This is implied by the wording of the principle itself, 'Kol Milsa d'Amur <i>Rachmana</i> Lo Ta'avid, Iy Avid Lo Mehani,' which implies that when the act is prohibited only by the Rabanan and not by the Torah ('Rachmana'), the act still takes effect. Here, the Isur of conducting a sale on Shabbos is an Isur d'Rabanan (lest one come to write on Shabbos), and therefore 'Iy Avid Lo Mehani' does not apply. (This approach does not answer the question fully, however, because there are still Isurim d'Oraisa being done, as in Rami bar Chama's case of a Ganav who picks fruit on Shabbos in exchange for the item.)
</p><p>
(b) The <b>SHACH</b> (CM 208:2) writes that this principle -- that when one does an act prohibited by the Torah that act does not take effect -- applies only to acts such as Temurah where it is not possible to bring about the desired effect in any way other than through an Isur. The only way one can exchange one animal for another that has been sanctified is through an Isur; a sanctified animal cannot be exchanged in a permissible manner at all. In contrast, with regard to a sale that takes place on Shabbos, since it is possible to perform the sale in a permissible manner (i.e. by doing it on a weekday), this rule (that when one does an act prohibited by the Torah that act does not take effect) does not apply.
</p><p>
The <b>KETZOS HA'CHOSHEN</b> there challenges this answer. The Gemara in Temurah which discusses the rule of 'Iy Avid Lo Mehani' questions Rava's opinion there that the act does not take effect from the Halachah that when one separates Terumah from his produce before he sets aside the Bikurim, the Terumah takes effect. Why should the Terumah take effect if the Torah prohibits (with a Lo Ta'aseh) one from separating Terumah before he sets aside Bikurim? This is the Gemara's question there. The Ketzos ha'Choshen asks that according to the Shach, the Gemara's question should be no question at all. In the case of separating Terumah before Bikurim, the act of separating Terumah may be done in a permissible manner (i.e. <i>after</i> one has set aside Bikurim), and that is why it takes effect even when it is done before Bikurim.
</p><p>
(c) <b>REBBI AKIVA EIGER</b> (Teshuvos #129) and the <b>NESIVOS HA'MISHPAT</b> (CM 208:2) answer that the principle of 'Iy Avid Lo Mehani' applies only when the Isur that was done will be rectified in some way by <i>not</i> taking effect. For example, in the case of Temurah, if his act takes effect, he transgresses the Isur against making an exchange for a sanctified animal. If his act does not take effect, he does not transgress the Isur of Temurah. In contrast, in the case of a person who sells an item on Shabbos, even if his act does not take effect and the sale is not valid, he still will have committed an Isur. (For example, in the case of one who picks figs in exchange for the item that he is selling, even though the sale does not take effect the Isur of picking fruit on Shabbos has still been transgressed. Similarly, in the case of one who throws the item into the buyer's Chatzer on Shabbos, even though the sale does not take effect the Isur of Hotza'ah has still been transgressed. Even when no Melachah is done on Shabbos, there is an Isur d'Rabanan against conducting any sale on Shabbos (as a preventative measure against writing on Shabbos), and even when the sale does not take effect one still transgresses the Isur which the Rabanan enacted against doing an <i>act</i> of a Mechirah on Shabbos.) (See Insights to Chulin 8:2.)
</p><p>


<font><b>3) THROWING A STOLEN ITEM INTO A BUYER'S DOMAIN ON SHABBOS</b></font><b>
<br>QUESTION:</b> The Gemara explains that there is a case in which it is possible for 'Kam Lei bid'Rabah Minei' to exempt a Ganav who steals and sells the item on Shabbos from paying Arba'ah v'Chamishah, even though normally no Melachah is involved with selling an item on Shabbos. That case is where the buyer says to the Ganav on Shabbos, 'Throw the item into my Chatzer and thereby transfer possession of the item to me.' By bringing the item into a Reshus ha'Yachid from Reshus ha'Rabim, the Ganav performs a Melachah d'Oraisa (of Hotza'ah) for which he is Chayav Misah, and therefore the Ganav is exempt from Arba'ah v'Chamishah because of 'Kam Lei bid'Rabah Minei.'
</p><p>
The Gemara says that this is true only according to Rebbi Akiva. Rebbi Akiva rules that 'Kelutah k'Mi she'Hunchah Dami'; a person who throws an object from one Reshus ha'Yachid to another Reshus ha'Yachid through an intervening Reshus ha'Rabim transgresses the Melachah of Hotza'ah even before the object lands. Consequently, he desecrates Shabbos at the same time that he effects the sale. According to the Rabanan, however, the buyer acquires the item when it enters the airspace of his Chatzer, while the Ganav is liable for Hotza'ah only when the item lands on the ground.
</p><p>
The Gemara here seems problematic in light of the Gemara earlier in Bava Kama. The Gemara earlier (22a) teaches that according to Rebbi Yochanan, who maintains that 'Isho Mishum Chitzav,' all of the effects which occur as a result of one's throwing the arrow or lighting the fire are considered to have occurred at the moment that the arrow was thrown or the fire was lit. From that moment, it is considered as if the person did all of the actions that eventually come about because of that one act (see Insights there).
</p><p>
The <b>NIMUKEI YOSEF</b> (10a of the pages of the Rif) explains this in greater detail. He asks a general question on Rebbi Yochanan's opinion: If 'Isho Mishum Chitzav' means that a person who lights a fire is considered to have done everything that the fire subsequently accomplishes until it burns out, then when a person lights candles before Shabbos and the candles continue to burn during Shabbos, the person should be liable for making a fire <i>on Shabbos</i> since at every moment that the fire burns it is considered as though the person has lit it. The Nimukei Yosef answers that according to Rebbi Yochanan, everything which the fire eventually does is considered to have been caused at the <i>moment</i> at which the fire was initially lit. Therefore, the act of causing the fire to burn on Shabbos was completed before Shabbos, even though the actual burning takes place later, on Shabbos.
</p><p>
According to this explanation of 'Isho Mishum Chitzav,' the Gemara here is difficult to understand. Why does the Gemara say that only according to Rebbi Akiva does the Ganav become Chayav Misah at the same moment that he sells the item? Even according to the Rabanan, all of the effects of his act of throwing the item should be considered as though they happen simultaneously, since the Chiyuv Shabbos also occurs at the moment the item leaves his hands and not just when it lands on the ground.
</p><p>
<b>ANSWER:</b> The <b>KEHILOS YAKOV</b> (#21) answers that although the person is considered as though he <i>performs</i> all of the subsequent acts at the time that the item leaves his hands, the <i>Chiyuv</i> does not take effect until the Aveirah has been done in actuality. Only at that moment -- when the item lands in a different Reshus -- does he become liable for the act which he did originally. When one lit a flame before Shabbos which continued to burn during Shabbos, his Chiyuv would be for the act of lighting that he did, but since the act was done before Shabbos he is not Chayav. In the case of the Gemara here, the Chiyuv occurs at the time that the item lands, which is <i>after</i> the item has been transferred to the buyer's possession. (I. Alsheich)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>DOUBLE LIABILITY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he stole and slaughtered on Yom Kipur...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Why does he pay? Granted, he is not liable to 
          die, but he is lashed, and one does not get lashes and 
          pay!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Mishnah is like R. Meir, who says that 
          one is lashed and pays.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If the Mishnah is like R. Meir, he should pay 
          even if he slaughtered on Shabbos!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps R. Meir says that one is 
               lashed and pays, but one liable to die does not pay.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection (Beraisa - R. Meir):</font></b> A thief pays four 
               and five even for stealing and slaughtering on 
               Shabbos, to idolatry, or an animal sentenced to be 
               stoned;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, R. Meir says that one is lashed and 
          pays, but one liable to die does not pay;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan explained that the Beraisa discusses 
               when the thief made a Shali'ach to slaughter for 
               him. (We do not say that our Mishnah discusses a 
               thief who made a Shali'ach to slaughter, for if so 
               he would be liable even on Shabbos. However, the Rif 
               says that our Mishnah is when the thief made a 
               Shali'ach. It seems that he had a different text.)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Must the thief pay for the transgression of 
          his Shali'ach?! (Such a Shelichus is invalid!)
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> This is an exception, for 'and he 
          will slaughter or sell it' equates slaughter and selling. 
          Just like he is liable for selling it, which involves 
          another person, also for slaughtering it through another 
          person.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Tana d'Vei R. Yishmael):</font></b> 'Or' includes that 
          he is liable through (slaughter by) a Shali'ach.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #3 (Tana d'Vei Chizkiyah):</font></b> 'Tachas (in place 
          of)' includes that he is liable through a Shali'ach.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Mar Zutra):</font></b> Do we ever find that Reuven would 
          be exempt for doing something, and if his Shali'ach does 
          it, Reuven is liable?!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> If the thief would slaughter 
          himself, really he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He need not pay because he is Chayav Misah.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If the thief made a Shali'ach to slaughter 
          for him, why do Chachamim exempt the thief?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim hold like R. Shimon, that slaughter 
          that does not permit the meat is not considered 
          slaughter.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>SLAUGHTER ON SHABBOS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> This explains only slaughter for idolatry or 
          of a sentenced ox. However, slaughter on Shabbos permits 
          the meat!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If one slaughters on Shabbos or Yom 
               Kipur, even though he is Chayav Misah, the slaughter 
               is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Tana holds like R. Yochanan ha'Sandlar.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If one cooks on Shabbos, if 
               it was b'Shogeg, he may eat it (even on Shabbos). If 
               he was Mezid, he may not eat it (on Shabbos);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if he was Shogeg, he may eat it 
               after Shabbos. If he was Mezid, he may never eat it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yochanan ha'Sandlar says, if he was Shogeg, 
               others may eat it after Shabbos. If he was Mezid, 
               even others may never eat it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Yochanan ha'Sandlar's reason?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Chiya):</font></b> '... Shabbos is Kodesh to you' - 
          just like one may not eat Kodesh, also what is made on 
          Shabbos;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps what is made on Shabbos is 
               Asur b'Hana'ah (forbidden to benefit from it), just 
               like Kodesh!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> 'To you' - you may benefit from it.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps even what is made on Shabbos 
               b'Shogeg is Asur b'Hana'ah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Those who profane it will die' 
               applies only to Mezid sinners.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	R. Acha and Ravina argued about whether R. Yochanan 
          ha'Sandlar forbids what is made on Shabbos mid'Oraisa or 
          mid'Rabanan.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> One says that he forbids mid'Oraisa, like we 
               expounded!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The other opinion expounds 'it is Kodesh', but 
               what is made on Shabbos is not Kodesh.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	According to the opinion that forbids mid'Oraisa, we 
          answered why Chachamim exempt the thief.
<br>
<br>

sjt:
<font><b>1) APPOINTING AN AGENT TO SLAUGHTER A STOLEN ANIMAL </b></font><b>
<br>QUESTION:</b> The Gemara quotes a Beraisa in which Rebbi Meir says that if a person stole an animal and slaughtered it on Shabbos, he is obligated to pay Arba'ah v'Chamishah even though the punishment for slaughtering on Shabbos is Misah. The Gemara asks that Rebbi Meir seems to rule that nothing exempts a person from his obligation to pay, even a Chiyuv Misah. The Gemara answers that the Beraisa refers to a case in which the thief appointed someone else to slaughter the animal for him, and the Shali'ach slaughtered it on Shabbos. Since the Ganav is responsible for the slaughtering, he is obligated to pay Arba'ah v'Chamishah, but since he did not actually slaughter the animal on Shabbos (but rather his Shali'ach did), he is not Chayav Misah.
</p><p>
The Gemara challenges this answer. There is a general rule (Kidushin 42b) that when a person appoints a Shali'ach do commit an Aveirah, the Aveirah is not attributed to the sender but to the Shali'ach. Why, then, is the Ganav obligated to pay Arba'ah v'Chamishah because of the Aveirah which the Shali'ach did? Rava answers that the Chiyuv of Arba'ah v'Chamishah is different because the verse (Shemos 21:37) compares Tevichah to Mechirah. This comparison teaches that just as Mechirah is performed through someone else (i.e. the purchaser) and the Ganav is Chayav, so, too, when the Tevichah is performed through someone else (i.e. a Shali'ach) the Ganav is Chayav. D'Vei Rebbi Yishmael derives this from a different source -- from the extra word 'or' ('O') in the verse, 'If a person steals an ox or sheep and then slaughters <i>or</i> sells it, he must repay five oxen for each ox, and four sheep for each sheep' (Shemos 21:37), which teaches that one can become obligated to pay Arba'ah v'Chamishah even through the act of a Shali'ach. D'Vei Chizkiyah derives this from a third source -- from the extra word 'for' ('Tachas') in the verse, '... he must repay five oxen for each ox, and four sheep <i>for</i> each sheep.'
</p><p>
Why does Rava, an Amora, give a different source from those taught by two Tana'im, d'Vei Rebbi Yishmael and d'Vei Chizkiyah?
</p><p>
<b>ANSWER:</b> The <b>BEIS YAKOV</b> in Kesuvos (33b) answers as follows. The Gemara in Me'ilah states that since a Shali'ach <i>can</i> be appointed to do the Aveirah of Me'ilah (and the Aveirah is considered to have been done by the sender) as the verses with regard to Me'ilah teach, even a Shali'ach who is a Cheresh, Shoteh, or Katan -- who normally is disqualified from being appointed as a Shali'ach -- can make the sender Chayav. The same, therefore, must apply to the case of making a Shali'ach to slaughter a stolen animal; even a person who normally cannot be appointed as a Shali'ach <i>can</i> be a Shali'ach to obligate the Ganav to pay Arba'ah v'Chamishah.
</p><p>
If the only source would have been the Derashah of the extra word 'O' or the extra word 'Tachas,' one would not have known that a Tevichah done by someone who normally is not a valid Shali'ach makes the Ganav obligated to pay. One would have thought that only the Tevichah of a person who is qualified to be a Shali'ach can make him obligated. Therefore, Rava teaches an additional source, the comparison of Tevichah to Mechirah, in order to teach that any person appointed by the Ganav -- even one who is not normally fit to be a valid Shali'ach -- makes the Ganav liable when he slaughters the animal.
</p><p>


<font><b>2) SHECHITAH PERFORMED ON SHABBOS</b></font><b>
<br>QUESTION:</b> The Gemara cites a Mishnah which states that even though one who slaughters an animal on Shabbos or Yom Kippur is Chayav Misah (or Kares), the Shechitah is valid.
</p><p>
How can Shechitah performed on Shabbos be valid? The principle of 'Kol Milsa d'Amur Rachmana Lo Ta'avid, Iy Avid Lo Mehani' teaches that when one performs any act which the Torah prohibits (such as Shechitah on Shabbos), that act does not take effect! (See Insights to 70:2.)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHACH</b> (CM 208:2) writes that this principle -- that when one does an act prohibited by the Torah that act does not take effect -- applies only to acts such as Temurah where it is not possible to bring about the desired effect in any way other than through an Isur. 
</p><p>
The only way one can exchange one animal for another that has been sanctified is through an Isur; a sanctified animal cannot be exchanged in a permissible manner at all. In contrast, with regard to slaughtering an animal on Shabbos, since it is possible to perform the Shechitah in a permissible manner (i.e. by doing it on a weekday), this rule (when one does an act prohibited by the Torah that act does not take effect) does not apply. (See Insights to 70:2, where the answer of the Shach is cited in response to a similar question.)
</p><p>
(b) <b>REBBI AKIVA EIGER</b> answers this question in the same manner that he answers the question earlier (see Insights ibid.). He explains that the principle of 'Iy Avid Lo Mehani' applies only when the Isur that was done will be rectified in some way by <i>not</i> taking effect. For example, in the case of Temurah, if his act takes effect, he transgresses the Isur against making an exchange for a sanctified animal. If his act does not take effect, he does not transgress the Isur of Temurah. In contrast, in the case of a person who slaughters an animal on Shabbos, even if his act does not take effect and the Shechitah is not valid, he will have done an act of Isur, the Melachah of Shechitah on Shabbos.
</p><p>
(c) <b>RAV ELCHANAN WASSERMAN</b> Hy'd (Kovetz He'oros 76:3-4) writes that any act a person does which has a Halachic consequence can work in one of two ways. The Halachic effect can be accomplished by the person himself, such as in the case of Kinyanim, Kidushin, and Gerushin, where the person himself makes a certain Halachic status take effect. Alternatively, it can occur without the person but through the action alone, such as in the case of Shechitah (it is the act of Shechitah which permits the animal). Although in such a case it is necessary to have a person do the action ('Ko'ach Gavra'), nevertheless it is not the <i>person</i> who permits the meat but it is the <i>Shechitah</i> which permits the meat (the requirement that it be done by a person is merely a <i>condition</i> in the Matir of Shechitah).
</p><p>
According to the second understanding, the principle of 'Iy Avid Lo Mehani' does not apply to Shechitah because this principle applies only where the Halachic status comes about through the person himself. Where the person sinned, the Halachic status does not come about at all. With regard to Shechitah, however, the change in Halachic status (i.e. the meat becoming permitted) occurs as a result of the act of Shechitah itself and is not related to the person's will or intent. The independent act of Shechitah causes the meat to become permitted, and even though the person did an Aveirah while doing the Shechitah, it is not the <i>person</i> who makes the meat permitted, and therefore the Shechitah remains valid.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN AND TO WHOM IS MELECHES SHABBOS PERMITTED?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If one cooked on Shabbos 
               b'Shogeg, he may eat it. If he was Mezid, he may not 
               eat it;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yehudah says, if he was Shogeg, he may eat it 
               after Shabbos. If he was Mezid, he may never eat it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yochanan ha'Sandlar says, if he was Shogeg, after 
               Shabbos others may eat it but not him. If he was 
               Mezid, even others may never eat it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yochanan ha'Sandlar expounds like R. Chiya. 
               'Shabbos... is Kodesh to you' - just like one may 
               not eat Kodesh, one may not eat Ma'ase (something 
               made on) Shabbos. 'To you' teaches that one may 
               benefit from it.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Chulin 15a (Rav Chanan bar Ami):</font></b> Rav would rule to 
               his Talmidim like R. Meir. In public he ruled like 
               R. Yehudah, due to ignoramuses.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> The Mishnah forbids eating meat slaughtered on 
               Shabbos. Rav established it to be like R. Yehudah. 
               This implies that R. Meir would permit it! R. Meir 
               permits only when a person (in the household) was 
               (dangerously) sick when Shabbos began (they planned 
               to slaughter for him if necessary, so the animal was 
               not Muktzeh).
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Beitzah 24b (Rav Papa):</font></b> The Halachah is, if a Nochri 
               brought a gift for a Yisrael on Yom Tov, if some of 
               the species are attached (to the ground), they are 
               forbidden until bi'Chdei she'Ya'asu (the time needed 
               to do the Melachah, in this case to pick them) after 
               Yom Tov. If none of the species are attached, they 
               are permitted only if they were brought from inside 
               the Techum. If they were brought for one Yisrael, 
               they are permitted to other Yisraelim.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif (Shabbos 17a, also brought in Rosh Chulin 1:18):</font></b> 
               The Halachah follows R. Yehudah, who says that if 
               one cooked b'Shogeg, he or others may eat it after 
               Shabbos. If he was Mezid, others may eat it after 
               Shabbos, but he may not.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (ibid.):</font></b> The Ri says that the Halachah follows 
               R. Meir. The Ge'onim say that nowadays we expound in 
               public to ignorant people, so we rule like R. 
               Yehudah.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashi (Chulin 15a):</font></b> No one may benefit from 
                    Meleches Shabbos, i.e. what was done b'Mezid. 
                    Therefore, all agree that no one may benefit 
                    until bi'Chdei she'Ya'asu (the time needed to 
                    do the Melachah after Shabbos).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Shabbos 6:23):</font></b> If a Yisrael did 
               Melachah on Shabbos b'Mezid, he may never benefit 
               from it. Other Yisraelim may benefit from it on 
               Motza'ei Shabbos immediately. If a Yisrael cooked on 
               Shabbos b'Mezid, others may eat it after Shabbos, 
               but he may never eat it. If he was Shogeg, he or 
               others may eat it immediately after Shabbos. The 
               same applies to everything similar.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ramban forbids to everyone 
                    bi'Chdei she'Ya'asu, even if the Melachah was 
                    b'Shogeg, lest they benefit from Ma'aseh 
                    Shabbos.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question:</font></b> If a Nochri prepared needs of burial 
                    on Shabbos, the Ramban (cited in Magid Mishneh 
                    6:5) says that no one may use them bi'Chdei 
                    she'Ya'asu because we make a uniform decree! 
                    Why don't we forbid here to everyone 
                    permanently (like to the Mevashel) for the sake 
                    of a uniform decree?
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Lechem Mishneh):</font></b> A Nochri is not 
                    commanded about Shabbos, so there is no reason 
                    not to benefit from what he did on Shabbos. It 
                    is reasonable to say that we do not 
                    distinguish, and forbid bi'Chdei she'Ya'asu to 
                    everyone. It is unreasonable to be so stringent 
                    and forbid it permanently to everyone just for 
                    a uniform decree. 
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question:</font></b> Why doesn't the Rambam forbid here to 
                    everyone bi'Chdei she'Ya'asu?
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer (Lechem Mishneh):</font></b> In any case the decree 
                    will not be uniform, since we will not forbid 
                    them permanently like the Mevashel, therefore 
                    we are not stringent about others at all.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (19):</font></b> We are stringent to require waiting 
               bi'Chdei she'Ya'asu when a Nochri did Melachah for a 
               Yisrael, or if a Yisrael <i>caused</i> Melachah to be 
               done on Shabbos in a forbidden way, e.g. he left a 
               pot of raw food on the fire just before Shabbos. 
               This stringency does not apply when a Yisrael did 
               Melachah on Shabbos. This is uncommon, so we do not 
               decree.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Hagahos Ashri:</font></b> If there are attached fruits of 
                    a species, we forbid fruits detached on 
                    Shabbos, lest a Yisrael detach them or tell a 
                    Nochri to do so. It is an exertion to dig up 
                    turnips or trap fish, so we do not decree about 
                    them. However, they are Muktzeh unless he 
                    expected a Nochri to pick them. Similarly, 
                    juice that exuded from fruits is forbidden lest 
                    one squeeze, even if the fruits were intended 
                    to be eaten. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 318:1):</font></b> If one cooked on Shabbos 
               (Rema - or did any other Melachah) b'Mezid, he may 
               never eat it. Others may eat it immediately after 
               Shabbos. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bach (DH u'Mah she'Chosav):</font></b> The Poskim require 
                    bi'Chdei she'Ya'asu only when a Nochri did the 
                    Melachah, lest Yisraelim come to ask Nochrim to 
                    do Melachah. Rashi says that it is to avoid 
                    benefit from Meleches Shabbos; this applies 
                    even when a Yisrael transgressed. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Magen Avraham 2):</font></b> Rashi would say 
                    that we did not decree about this, for it is 
                    uncommon (see the end of the Rosh above).
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magen Avraham (2):</font></b> It seems that the one for 
                    whom it was cooked may never eat it, just like 
                    the Mevashel. The Shulchan Aruch (YD 99:5) 
                    forbids one for whom someone was Mevatel an 
                    Isur. However, the Beis Yosef there connotes 
                    that this is only there, for we are concerned 
                    lest the Yisrael ask a Yisrael or Nochri to do 
                    so.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (12):</font></b> Some say that the one for 
                    whom it was cooked should be stringent. Surely 
                    if an innkeeper regularly cooks on Shabbos, one 
                    may not benefit from it due to Lifnei Iver and 
                    helping transgressors.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (3):</font></b> The Rashba (Teshuvah 
                    1:175) forbids also the pot because it absorbed 
                    Isur. If he cooked for a Choleh, it is 
                    permitted.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Kaf ha'Chayim (9):</font></b> Some permit the pot. In any 
                    case one may Kasher it using boiling water 
                    three times, even if it is earthenware. 
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Kaf ha'Chayim (10):</font></b> If he was Mezid it is 
                    forbidden to his household forever.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If he was Shogeg, it is 
               forbidden on Shabbos also to others. After Shabbos 
               it is permitted also to him immediately.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH v'Chosav):</font></b> The Rashba, Ran and 
                    Magid Mishneh say that if someone cooked or 
                    uprooted food for a Choleh, all permit it 
                    immediately on Motza'ei Shabbos. Bi'Chdei 
                    she'Ya'asu is needed only when there was Chilul 
                    Shabbos b'Shogeg or b'Mezid. Here, the Melachah 
                    was permitted. It is forbidden to a healthy 
                    person only due to Muktzeh, or due to a decree 
                    lest one do extra for a healthy person, so we 
                    do not require bi'Chdei she'Ya'asu.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Tur:</font></b> It would seem that according to the Ri, 
                    who rules like R. Meir, all Melachos are like 
                    cooking, and if it was Shogeg he himself may 
                    use the result on Shabbos. However, Sefer 
                    ha'Terumos says that this is only regarding 
                    cooking, for the food could have been eaten 
                    raw. Regarding slaughter or other Melachos, 
                    even b'Shogeg it is forbidden to him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Beis Yosef (DH v'Davka):</font></b> The Tur should say 
                    'regarding slaughter or other Melachos 
                    (b'Shogeg), it is forbidden to everyone on 
                    Shabbos, due to Muktzeh. Sefer ha'Terumos 
                    explicitly says so.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Kaf ha'Chayim (14):</font></b> If Motza'ei Shabbos was Yom 
                    Tov, many say that the food is forbidden on Yom 
                    Tov, because Shabbos cannot be Mechin (prepare) 
                    for Yom Tov. Some say that Hachanah does not 
                    apply here. One should be stringent, unless it 
                    is something that can be eaten raw.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (YD 102:4):</font></b> Davar she'Yesh Lo Matirim is only 
               if the food will be permitted to the one to whom it 
               is forbidden. If Ploni cooked b'Mezid on Shabbos, 
               even though it is permitted to others (after 
               Shabbos), since it is always forbidden to Ploni, it 
               is Ein Lo Matirim. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Magen Avraham 318:2):</font></b> Terumah is Ein 
                    Lo Matirim regarding Kohanim (it is always 
                    permitted to them) and Yisraelim (it is always 
                    forbidden to them). Here, the food is Yesh Lo 
                    Matirim regarding everyone else, so it is not 
                    Batel even for Ploni! This is like Bikurim, 
                    which is not Batel even for Yisraelim because 
                    it has a Heter for Kohanim in Yerushalayim! 
                    Even though R. Shimshon says that it is Batel 
                    for Yisraelim, the Rambam and Bartenura say 
                    that it is not. One should be stringent. 
                    Perhaps the Shulchan Aruch refers to when it 
                    became mixed after Shabbos. Then it is truly 
                    like Terumah (it is totally permitted to 
                    others, and totally forbidden to the Ploni).
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (318:5):</font></b> The Chavas Da'as holds 
                    that it is Ein Lo Matirim for the Mevashel. All 
                    agree that for others it is Yesh Lo Matirim.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (15):</font></b> Some are stringent and 
                    forbid the mixture to the Mevashel forever. We 
                    may rely on the lenient opinions to permit it 
                    after Shabbos. R. Akiva Eiger concurs.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>MAY ONE EAT FOOD COOKED ON SHABBOS? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> According to the opinion that forbids 
          mid'Rabanan, why do Chachamim exempt him?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, they exempt him only in the other 
          cases.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE OTHER CASES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why does R. Meir obligate him for slaughter 
          to idolatry? Once he starts slaughtering, the animal is 
          Asur b'Hana'ah, and it no longer belongs to the original 
          owner!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, he said that he serves the 
          idolatry only through conclusion of the slaughter.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why does R. Meir obligate for slaughter of a 
          sentenced animal? It is Asur b'Hana'ah. It does not 
          belong to the original owner!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The case is, Levi deposited his ox with 
          a Shomer (Shimon). While it was with Shimon, it gored and 
          was sentenced. Reuven slaughtered it. R. Meir holds like 
          R. Yakov and like R. Shimon.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yakov says, even if a Shomer returns an animal 
               after it was sentenced, it is considered returned;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon obligates one who damages something 
               that is worth money to someone (even if it is 
               worthless to all others. Here, the ox has value only 
               to Shimon, who can exempt himself by returning it.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Mishnah - R. Shimon):</font></b> If one damages a Korban 
                    with Achrayus (one must bring a replacement if 
                    that animal is not brought), he is liable.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Rav Zvid of Nehardai):</font></b> How can R. Yochanan 
          say that our Mishnah (which obligates for slaughter on 
          Yom Kipur) is only like R. Meir (who obligates lashes and 
          money), but unlike R. Shimon?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Reisha):</font></b> R. Shimon exempts in these two cases. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Inference:</font></b> He agrees in all other cases!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Rav Kahana):</font></b> No, we may infer only that he 
          agrees about slaughter for dogs or medicinal needs, which 
          were also taught in the last clause.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>A HALF-FINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he stole from his father and slaughtered 
          or sold...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If Reuven stole and slaughtered an ox 
          of two partners, then he admitted to one of them (which 
          exempts him from paying a fine to that partner), what is 
          the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Torah said 'five cattle in place of the ox', 
               not five half-cattle;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, one pays 'five cattle', and even five half-
               cattle.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rav Nachman):</font></b> There is no payment of five 
          half-cattle.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> If he stole from his father and 
          slaughtered or sold, then his father died, he pays four 
          and five.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When the father dies, he inherits part, and is 
               exempt for his part, yet he pays four and five for 
               the parts of his brothers!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, Beis Din ruled that he is liable, 
          and then his father died.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Inference:</font></b> Had his father died before this, he would be 
          exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why does the Seifa (74b) exempt (from 
          four and five) for slaughter after his father died? It 
          should teach that even when he slaughtered in his 
          father's life, if his father died before the trial, he is 
          exempt!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Indeed, he is exempt then. The Tana preferred 
          to teach about slaughtering after the father died for 
          parallel structure.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (retraction - Rav Nachman):</font></b> He pays five 
          half-cattle.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Last night I answered incorrectly, for I did not 
               investigate well enough (Rashi; Tosfos - I was 
               fasting).
<br>

<p>

sjt:
</p><p>
<font><b>3) 'MA'ASEH SHABBOS D'RABANAN'</b></font><b>
<br>QUESTION:</b> The Gemara asks that according to the opinion that the results of a prohibited act done on Shabbos (such as food cooked on Shabbos, or an animal slaughtered on Shabbos) are <i>permitted</i> mid'Oraisa, why do the Chachamim in the Beraisa (71a) say that the Ganav who slaughtered the animal on Shabbos is exempt from paying Arba'ah v'Chamishah? The Shechitah he did <i>is</i> a valid Shechitah ('Shechitah Re'uyah')! The Gemara answers that the Ganav indeed is obligated to pay Arba'ah v'Chamishah for such a Shechitah, and the Chachamim in the Beraisa who say he is exempt refer to the other types of Shechitah (Shechitah to Avodah Zarah, and Shechitah of a Shor ha'Niskal) mentioned in the Beraisa.
</p><p>
If Rebbi Meir in the Beraisa obligates the Ganav to pay Arba'ah v'Chamishah for a Shechitah that is 'Einah Re'uyah,' certainly he should obligate the Ganav for a Shechitah done on Shabbos, which is a Shechitah <i>Re'uyah</i>. Why does he need to mention the case of Shechitah done on Shabbos at all, especially since the Chachamim do not argue with it?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Kesuvos (34a, DH Ki) answers that Rebbi Meir's statement is a 'Zu Af Zu' statement; he mentions the obvious case first and then the case with the greater Chidush: Not only is the Ganav who slaughters the animal on Shabbos -- in which case the Shechitah is a valid Shechitah -- obligated to pay Arba'ah v'Chamishah, but even the Ganav who slaughters the animal to Avodah Zarah or who slaughters a Shor ha'Niskal -- in which case the Shechitah is <i>not</i> a valid Shechitah -- is obligated to pay Arba'ah v'Chamishah. 
</p><p>
(b) The <b>TOSFOS HA'ROSH</b> there answers that since the cases of Shabbos and Avodah Zarah (with regard to Mechirah) are mentioned together in the Mishnah, the Beraisa also teaches the cases of Shechitah on Shabbos and Shechitah to Avodah Zarah together, even though there is no Chidush in teaching Shechitah on Shabbos.
</p><p>
(c) <b>REBBI AKIVA EIGER</b> (Chidushim to Kesuvos there) answers as follows. The Gemara here continues and asks that according to Rebbi Meir, why is the Ganav obligated to pay Arba'ah v'Chamishah when he slaughters the animal to Avodah Zarah? From the moment he begins the Shechitah with intent that it is for Avodah Zarah, the animal becomes Asur b'Hana'ah. When he has completed the Shechitah, he has slaughtered an item that was Asur b'Hana'ah and which was no longer considered the property of the owner (since an item that is Asur b'Hana'ah has no monetary value and no ownership). If he did not slaughter the person's animal, why must he pay Arba'ah v'Chamishah? Rava answers that the Ganav must pay in a case where he stated explicitly that the animal will not be used for Avodah Zarah until the <i>end</i> of the Shechitah.
</p><p>
The Gemara then asks the same question from the case of Shor ha'Niskal. A Shor ha'Niskal is Asur b'Hana'ah and thus is not considered the property of the owner. Rava answers that the Beraisa refers to a case in which the animal was stolen from the house of a Shomer after it did the damage while in the hands of the Shomer. The Shomer remains obligated to pay back the animal to the original owner, and thus when the Ganav steals the animal from him, the Ganav causes a loss to the Shomer (since the Shomer could have fulfilled his obligation by returning the Shor ha'Niskal to the owner, in accordance with the view of Rebbi Yakov).
</p><p>
This answer of Rava -- that the Ganav stole the animal from the house of the Shomer -- also suffices to answer the first question, why Rebbi Meir says that the Ganav who slaughters the animal for Avodah Zarah is Chayav. The Ganav is causing a loss to the Shomer, since the Shomer could have returned this animal to the original owner. Therefore, the Gemara no longer needs Rava's first answer (that the Ganav said that he wants the animal to be dedicated to Avodah Zarah only at the end of the Shechitah).
</p><p>
According to this approach, had the Beraisa not included the case of a Ganav who slaughters the animal on Shabbos one would not have known that in a case where the Ganav appoints someone else to slaughter the animal (which is the case which Rebbi Meir in the Beraisa is discussing, according to the Gemara earlier), the Ganav is Chayav when the Shali'ach slaughters the animal on Shabbos. One would have assumed that when the Beraisa says that a Ganav who slaughters the animal for Avodah Zarah is Chayav and 'Kam Lei bid'Rabah Minei' does not apply, it is because he wants to dedicate the animal to Avodah Zarah specifically at the <i>beginning</i> of the Shechitah, and by the time the end of the Shechitah is performed there is no Chiyuv Misah but only a Chiyuv to pay Arba'ah v'Chamishah. By adding the case of Shechitah done on Shabbos, the Tana teaches that even where the Ganav is Chayav Misah for the <i>end</i> of the Shechitah (which is the law in the case of the Melachah of Shechitah on Shabbos), he still is Chayav to pay Arba'ah v'Chamishah. Therefore, the case must be one in which the Ganav appointed someone else to do the Shechitah, for otherwise he would be exempt because of 'Kam Lei bid'Rabah Minei.' That is why it is necessary to teach the case of the Ganav who slaughters the animal on Shabbos.
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HOW MUCH MUST HE SLAUGHTER TO BE LIABLE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why is he liable in the Reisha (for slaughter 
          in his father's lifetime) and exempt in the Seifa (for 
          slaughter after his father died)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> 'And he slaughtered it' connotes (that it was 
          forbidden to slaughter) all of it. This is only in the 
          father's lifetime;
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If the animal was found to be Tereifah... 
          (or he slaughtered Chulin ba'Azarah), he pays four or 
          five).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #1 Inference (R. Chavivi of Chuzna'ah):</font></b> Only 
          the completion of slaughter is considered slaughter;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If the entire act of slaughter were considered 
               slaughter, the animal would be Asur b'Hana'ah from 
               the start of slaughter (in the Mikdash). For the 
               rest of the slaughter, the animal did not belong to 
               the original owner!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection #1 (Rav Huna brei d'Rava):</font></b> He is liable for 
          the very beginning of the slaughter!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Defense (Rav Ashi):</font></b> This cannot be. 'And he slaughtered 
          it' connotes the entire slaughter.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection #2 (Rav Gamda):</font></b> He is liable when he started 
          the slaughter outside the Mikdash, and completed it in 
          the Mikdash.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	Version #2 (Reish Lakish) Only the completion of 
          slaughter is considered slaughter;
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> The entire act is considered slaughter.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	R. Chavivi of Chuzna'ah:</font></b> R. Yochanan must hold that the 
          Torah does not forbid Chulin ba'Azarah!
<br>
<br>

sjt:
<font><b>1) AGADAH: THE TASTE OF MEAT</b></font><b>
<br>QUESTION:</b> Rav Nachman explained to Rava that the reason why he did not give him the same answer the previous night as he gave him in the morning was that 'I did not eat the meat of an ox.' What did Rav Nachman mean by this?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> explains that Rav Nachman meant that he was fasting, and thus he was unable to concentrate to answer the question appropriately.
</p><p>
(b) <b>RASHI</b> explains that Rav Nachman was saying, 'I was not careful to examine the reason of the matter (Ta'amo Shel Davar).' Why is the 'Ta'amo Shel Davar' compared to the meat of an ox?
</p><p>
<b>RAV YAKOV EMDEN</b> explains that the meat of an ox refers to fleshy, tasty, and satiating teachings. The Gemara in Bava Basra (22a) quotes Rav Ada bar Aba who told his students, 'Instead of eating the bones in the Yeshiva of Abaye, go and eat the fleshy meat of the Yeshiva of Rava,' a reference to the satiating style of teaching of Rava.
</p><p>
<b>RAV YESHAYAH PIK</b> (Chidushei ha'Shas) writes that the meat of an ox refers to finding the reason, the 'taste,' underlying the concept being studied. The Gemara in Eruvin (21b) cites the verse in Koheles (12:12), 'v'Lahag Harbeh, Yegi'as Basar.' The Gemara explains that this verse means 'anyone who toils in the words of Torah tastes the taste of meat.' Rashi there explains that 'when a person reviews and delves into the words of Torah, he finds 'taste' (reason) in them.' Thus, Rav Nachman here said that since he did not toil enough in the words of Torah he did not taste the reason behind the concept. (See also <b>TORAS CHAIM</b>.)
</p><p>


<font><b>2) THE 'ISUR' OF AN ANIMAL OF 'CHULIN' SLAUGHTERED IN THE AZARAH</b></font><b>
<br>OPINIONS:</b> The Gemara quotes Rebbi Yochanan who says, 'Yeshnah li'Shechitah mi'Techilah v'Ad Sof' -- the entire act of slaughtering, from beginning to end (and not just the final bit of the Shechitah) constitutes Shechitah. Rav Chavivi asks that if this is Rebbi Yochanan's view, then he must also rule that 'an animal of Chulin slaughtered in the Azarah is not Asur mid'Oraisa' (but only Asur mid'Rabanan). If he ruled that it is Asur mid'Oraisa, a Ganav who slaughters a stolen animal in the Azarah should be <i>exempt</i> from Arba'ah v'Chamishah, because from the moment he begins the Shechitah in the Azarah the animal becomes Asur and when he completes the Shechitah it is no longer the property of the owner.
</p><p>
What exactly is Rav Chavivi's question? Does he mean to ask whether Rebbi Yochanan rules that the <i>act of slaughtering</i> an animal in the Azarah is not mid'Oraisa, or that the Isur <i>Hana'ah</i> of an animal slaughtered in the Azarah is not mid'Oraisa, or that the Isur <i>Achilah</i> of an animal slaughtered in the Azarah is not mid'Oraisa?
</p><p>
(a) <b>RASHI</b> in Pesachim (22a, DH Chulin) writes that the Isur <i>Hana'ah</i> of an animal of Chulin that was slaughtered in the Azarah is not mid'Oraisa. Rashi's words there imply that everyone agrees that the Isur Achilah <i>is</i> mid'Oraisa, and the only dispute involves the Isur Hana'ah. 
</p><p>
<b>TOSFOS</b> there questions Rashi's explanation. He asks that the Sugya implies that there is no part of the Isur that is mid'Oraisa.
</p><p>
(b) <b>TOSFOS</b> instead explains that according to the opinion that an animal of Chulin slaughtered in the Azarah is not mid'Oraisa, both the Isur Hana'ah and the Isur Achilah are not mid'Oraisa.
</p><p>
(c) <b>RASHI</b> in Kidushin (58a, DH uv'Chulin) writes that this opinion maintains that neither the Isur to slaughter the animal in the Azarah, nor the Isur Hana'ah, is mid'Oraisa. The words of Rashi here also imply that the Isur of Shechitah is not mid'Oraisa.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>FROM WHEN ARE ZOMEMIM WITNESSES DISQUALIFIED? </font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Abaye):</font></b> If Shimon testified and was Huzam, all 
               testimony that he gave or will give after his 
               fabricated testimony are invalid;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rava):</font></b> Only testimony he gives after he was Huzam 
               is invalid.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Abaye disqualifies him retroactively. He is a Rasha 
               from when he testified, and the Torah says 'do not 
               put... a Rasha (to be a) witness';
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Version #1:</font></b> Rava disqualifies from now and onwards, 
               because the law of Edim Zomemim is a Chidush 
               (exception):
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Why should we believe the latter witnesses 
                    (Mezimim), who say that the first pair lied? 
                    Perhaps the latter are lying! The Torah's 
                    Chidush is that in this trial (and surely, for 
                    future testimonies) we say that the first pair 
                    lied. We have no source to consider them liars 
                    before this!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Version #2:</font></b> Rava agrees that (mid'Oraisa) he is 
               disqualified retroactively. Chachamim enacted that 
               he is disqualified only from now and onwards to 
               prevent a loss to buyers (who used these witnesses 
               to sign their documents of purchase).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Practically, what do the two versions 
               argue about?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1:</font></b> A different pair of witnesses was Mezim 
               each witness. (It is no Chidush to believe two 
               Mezimim against one witness.)
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2:</font></b> There was no Hazamah. Rather witnesses 
               testified, and other witnesses said that they had 
               stolen beforehand (so they were invalid witnesses).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> In both of these cases, it is no Chidush to believe 
               the latter witnesses. Rava disqualifies the first 
               witnesses retroactively only according to Version 
               #1.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> R. Yirmeyah mi'Difti:</font></b> A case occurred, and Rav Papa 
               ruled like Rava.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> (Rav Ashi):</font></b> The Halachah follows Abaye.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> The Halachah follows Abaye against Rava in six 
               places. This is one of them.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (7:6):</font></b> The Halachah follows Abaye.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Edus 10:4):</font></b> An Ed Zomem is 
               disqualified mid'Oraisa from all testimony, even if 
               he was Huzam for monetary testimony and paid. He is 
               disqualified from when he testified, even if he was 
               not Huzam until many days later.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Tur CM 34:15):</font></b> Why is he disqualified 
                    even after returning the money? Perhaps since 
                    he returned due to coercion of Beis Din, he is 
                    not Kosher until he repents by himself.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Beis Yosef DH v'Efshar and Kesef 
                    Mishneh):</font></b> He is disqualified even if he 
                    returned the money by himself. If he was Huzam 
                    for other testimony, after he was lashed he is 
                    Kosher again (Rambam 12:4). Until he is lashed 
                    he is disqualified, even if he paid much money. 
                    One might have thought that one Huzam for 
                    monetary testimony, for which he pays and is 
                    not lashed, he is Kosher after paying. The 
                    Rambam teaches that this is not so. Rather, he 
                    is like a thief. One who sinned about money is 
                    disqualified until he repents, even after he 
                    returned the money (Sanhedrin 25b). 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Bach):</font></b> The Tur is more reasonable. 
                    Whenever Edim Zomemim willingly returned the 
                    money, presumably they repented and will not 
                    sin again. They are unlike gamblers, lenders 
                    who take Ribis, etc., who often return to their 
                    old ways. They must accept in front of Beis 
                    Din. Established thieves are like Edim Zomemim; 
                    it suffices if they willingly repented. If one 
                    stole only once, he is Kosher after returning 
                    it, even if Beis Din forced him.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim </font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 34:8):</font></b> An Ed Zomem is 
               disqualified from all testimony, even if he was 
               Huzam for monetary testimony and paid. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (19):</font></b> All the more so he is disqualified if 
                    he testified about something for which one does 
                    not pay, even if he was Huzam before sentence 
                    was passed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> He is disqualified from when 
               he testified, even if he was not Huzam until many 
               days later.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Akiva Eiger:</font></b> He is disqualified also for 
                    testimony Toch Kedei Dibur before the testimony 
                    for which he was Huzam (Ramban Bava Basra 31a 
                    DH Omar, based on Bava Kama 73a). However, the 
                    Shitah Mekubetzes says that this is when both 
                    testimonies were for the same parties. If not, 
                    the first testimony is Kosher. The Maharit 
                    (1:138) disqualifies any testimony Toch Kedei 
                    Dibur before the witnesses did any Aveirah that 
                    disqualifies from testimony.  
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Question (Chachmas Shlomo):</font></b> Why didn't the 
                    Gemara say that the two versions argue about 
                    Isurim, e.g. the witnesses testified on a Get 
                    or Kidushin or a capital case in between? If 
                    Rava is Machshir because it is a Chidush, the 
                    witnesses are totally Kosher until Hazamah. If 
                    it is due to concern for buyers, this applies 
                    only to money, for Hefker Beis Din Hefker. 
                    Chachamim cannot override Isurei Torah in which 
                    one does an act. Tosfos (Yevamos 90b DH 
                    v'Ligmor) says that they have the power when 
                    needed to correct a breach. However, it does 
                    not seem that this applies to Isur here. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer (Chachmas Shlomo):</font></b> In Version #1, Abaye 
                    agrees that Edim Zomemim is a Chidush. The 
                    Torah disqualifies witnesses only from when 
                    they were Huzam. Because the witnesses 
                    contradict each other; it is a Safek who is 
                    lying. Mid'Oraisa they keep their Chazakah 
                    (each pair is Kosher) from when they testified 
                    until now. Mid'Rabanan we are stringent about 
                    contradictory witnesses, so they are 
                    disqualified retroactively. Rava holds that 
                    Chezkas Kashrus is stronger than other 
                    Chazakos, and we are not stringent about it 
                    when there are contradictory witnesses. 
                    Alternatively, since the Torah was stringent to 
                    disqualify him absolutely, Chachamim were not 
                    stringent to disqualify him retroactively. In 
                    Version #2, Rava is Machshir retroactively lest 
                    buyers lose. All agree that Edim Zomemim is a 
                    Chidush mid'Oraisa, but mid'Rabanan it is no 
                    Chidush (we disqualify contradictory 
                    witnesses), so it would be proper to disqualify 
                    them retroactively. Rava holds that we did not 
                    (rather, stuck to Torah law) lest buyers lose. 
                    Also regarding Isur we do not disqualify 
                    mid'Rabanan, lest people disqualify them even 
                    for monetary cases. When a different pair of 
                    witnesses was Mezim each witness, it is no 
                    Chidush to believe the Mezimim. Mid'Oraisa they 
                    are disqualified retroactively. Due to Hefker 
                    Beis Din Hefker, we are Machshir the testimony 
                    before Hazamah. 
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Note:</font></b> When two pairs of witnesses contradict 
                    each other, the Halachah follows Rav Huna (Bava 
                    Basra 31b), who says that we leave each on its 
                    Chazakah (even mid'Rabanan). Why didn't the 
                    Gemara suggest that Abaye is Machshir because 
                    he holds like Rav Huna?
<br>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he forbade mid'Oraisa, how could he explain 
               why our Mishnah obligates? The animal is forbidden 
               from the start of slaughter. For the rest of the 
               slaughter, the animal did not belong to the original 
               owner!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection #1 (R. Acha brei d'Rava):</font></b> He is liable for 
          the beginning of the slaughter.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection (Rav Ashi):</font></b> 'And he slaughtered it' connotes 
          the entire slaughter.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection #2 (Rav Gamda):</font></b> The case is, he started the 
          slaughter outside the Mikdash, and completed it in the 
          Mikdash.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>LIABILITY OF EDIM ZOMEMIM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two witnesses testified that Reuven stole 
          and slaughtered; and they were Huzmu (found to be 
          Zomemim, i.e. they were not present to see the testimony 
          that they gave), they pay the full fine (four or five).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If two witnesses testified that Reuven stole, and two 
          others testified that he slaughtered, and both pairs were 
          Huzmu, the first pair pays Kefel for the animal, the 
          second pair pays the remaining (two or) three;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If only the second pair was Huzam, Reuven pays 
               Kefel, and the second pair pays (two or) three;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If only one witness was Huzam, if he is from the 
               second pair, the testimony about the slaughter is 
               void;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he is from the first pair, the entire 
               testimony is void. If he did not steal the animal, 
               he may slaughter it!
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FROM WHEN ARE ZOMEMIM WITNESSES DISQUALIFIED?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Abaye):</font></b> If Shimon testified and was Huzam, all 
          testimony that he gave or will give after his fabricated 
          testimony are invalid;
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rava):</font></b> Only testimony he gives after he was Huzam is 
          invalid.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Abaye disqualifies him retroactively. He is a 
               Rasha from when he testified, and it says 'do not 
               put... a Rasha (to be a) witness';
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #1:</font></b> Rava disqualifies from now and onwards, 
          because the law of Edim Zomemim is a Chidush:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Why should we believe the latter witnesses 
               (Mazimim), who say that the first pair are Zomemim? 
               Perhaps the latter pair are lying!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> The Torah's Chidush is that in this trial (and 
               surely, for future testimonies) we say that the 
               first pair are liars. We have no source to consider 
               them liars before this!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Version #2:</font></b> Rava agrees that the Torah disqualifies him 
          retroactively;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim enacted that he is disqualified from 
               now and onwards to prevent a loss to buyers (who 
               used these witnesses to sign their documents of 
               purchase).
<br>

<p>

sjt:
</p><p>
<font><b>3) 'ED ZOMEM'</b></font><b>
<br>QUESTION:</b> The Gemara records a dispute between Abaye and Rava with regard to whether an 'Ed Zomem' becomes an invalid witness retroactively (such that from the time he was found to be an Ed Zomem, all testimonies he gave after the false testimony are invalidated), or only from now on (from the time that he is actually made an Ed Zomem). Why does the Gemara say that the subject of the dispute is an 'Ed Zomem,' in the singular, and not 'Edim Zomemim,' in the plural, which the Mishnah and Gemara always mention? (<b>TOSFOS</b> to Sanhedrin 27a, DH d'As'hidu, and <b>SHITAH MEKUBETZES</b> to Bava Kama 73a)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> in Sanhedrin cites <b>RABEINU TAM</b> who answers that Abaye and Rava refer to a case in which only one of the two witnesses was found to be an Ed Zomem. (This is consistent with the view which Tosfos there discusses, which says that there is no Chidush in the Halachah of Edim Zomemim. Tosfos explains that there is no Chidush in the Halachah of Edim Zomemim only when two witnesses make <i>one</i> witness an Ed Zomem, and therefore it is obvious that the testimony of the two witnesses is accepted over that of the single witness.)
</p><p>
(b) The <b>SHITAH MEKUBETZES</b> (73a) cites <b>RABEINU YESHAYAH</b> who answers that the Gemara here is not exact in its wording. Indeed, the verse itself is says, 'v'Ed Ein Bah,' when it refers to <i>two</i> witnesses.
</p><p>
The <b>TORAS CHAIM</b> cites another verse in the Parshah of Edim Zomemim itself which demonstrates that the singular 'Ed' is often used in place of the plural 'Edim' and it means two witnesses: 'v'Hineh <i>Ed</i> Sheker...' and 'va'Asisem <i>Lo</i> Ka'asher Zamam la'Asos' (Devarim 19:18-19).
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>FROM WHEN ARE ZOMEMIM WITNESSES DISQUALIFIED? (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Practically, what is the difference between 
          the two versions?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1:</font></b> A different pair of witnesses was Mazim each 
          witness (so it is no Chidush to believe the Mazimim. Each 
          pair of Mazimim is contradicted by only one witness.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The witnesses who testified were not Huzmu. 
          Rather other witnesses said that these witnesses stole 
          before they testified (therefore, they were invalid 
          witnesses).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to both answers, it is no Chidush to 
               believe the latter witnesses. According to Version 
               #1, the first witnesses are disqualified 
               retroactively;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> According to Version #2, they are not 
               disqualified retroactively, lest buyers lose.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yirmiyah mi'Difti:</font></b> A case occurred, and Rav Papa 
          ruled like Rava.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> The Halachah follows Abaye.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	The Halachah follows Abaye against Rava in six places. 
          The acronym is <b>YA'AL K'GAM</b>. (Yud alludes to Yi'ush 
          (despair) without knowledge that the object was lost; it 
          is not considered Yi'ush. Ayin alludes to Edim Zomemim 
          (they are disqualified retroactively). Lamed alludes to 
          Lechi (a vertical post to permit carrying in an alley, 
          Leidah (days of childbirth on which she did not see 
          blood) or Lo Efshar (inevitable) benefit from Isur). Kuf 
          alludes to Kidushin that forbids the couple to have 
          Bi'ah. Gimel alludes to Giluy Da'as (showing desire) to 
          nullify a Get. Mem alludes to Mumar (a wanton sinner) who 
          sins to fulfill his desires (not to anger Hash-m).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two witnesses testified that Reuven stole 
          and slaughtered, and they were found to be Zomemim, they 
          pay the full fine.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Assumption:</font></b> The case is, they testified about the 
          theft, and then about the slaughter. They were Huzmu 
          (found to be Zomemim) about the (testimony on the) theft, 
          then they were Huzmu about the slaughter.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (against Abaye):</font></b> If Edim Zomemim are 
          disqualified retroactively, since they were Huzmu on the 
          theft, it turns out that they were disqualified when they 
          testified about the slaughter. They should not pay that 
          part of the fine!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The case is, they were Huzmu about the 
          slaughter first.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection:</font></b> Still, when they were Huzmu about the theft, 
          this shows that retroactively they were disqualified when 
          they testified about the slaughter!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #2:</font></b> The case is, they testified on the theft and 
          slaughter at the same time.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue as Abaye and Rava do.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If two witnesses testified that Reuven 
               stole, and also that he slaughtered, and they were 
               Huzmu about the theft, partially nullified testimony 
               is totally nullified;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If they were Huzmu about the slaughter, Reuven 
               pays Kefel, and the witnesses pay (two or) three;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> R. Yosi says, this applies to two testimonies. 
               Regarding one testimony, partially nullified 
               testimony is totally nullified (Reuven is exempt).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> What does 'one or two testimonies' 
               mean?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> 'Two testimonies' is when a different 
                    pair testified about the slaughter. 'One 
                    testimony' is when the same pair of witnesses 
                    testified at two different times.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> If so why would R. Yosi say that 
                    regarding one testimony, Hazamah about the 
                    slaughter nullifies testimony about the theft? 
                    It is a separate testimony!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, 'two testimonies' is when one 
               pair testified like two testimonies, one after the 
               other. One testimony is when they testified about 
               the theft and slaughter together.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Assumption:</font></b> Both Tana'im hold that anything done 
               Toch Kedei Dibur (within a short time; this will be 
               defined later) is a continuation of the previous 
               matter.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> Chachamim hold that Zomemim witnesses 
                    are disqualified from the time they are 
                    contradicted and onwards. Therefore, they are 
                    Huzmu only about the slaughter;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Yosi holds that they are disqualified 
                    retroactively from when they testified falsely. 
                    Since their testimony about the slaughter is 
                    like a continuation of their testimony about 
                    the theft, they are Huzmu about both.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, all disqualify Zomemim witnesses 
          retroactively. They argue about whether or not Toch Kedei 
          Dibur is considered a continuation of the previous 
          matter;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim say that it is not a continuation. R. 
               Yosi says that it is.
<br>
<br>

sjt:
<font><b>1) PROTECTING THE RIGHTS OF PURCHASERS</b></font><b>
<br>QUESTION:</b> The Gemara (end of 72b) suggests that when Rava says that Edim Zomemim become invalid witnesses 'from now on' ('mi'Kan ul'Haba'), he actually agrees with Abaye that mid'Oraisa they become invalidated l'Mafrei'a, from the time that they gave false testimony. The reason why the Rabanan upheld any testimony which they gave between that time and the time that they were found to be lying is in order to protect any buyers who purchased land and signed these witnesses on their contracts ('Mishum Peseida d'Lekuchos').
</p><p>
Why were the Rabanan not also concerned about protecting the <i>sellers</i> from loss? The seller claims that the sale never took place and that the witnesses signed on the contract are invalid and their testimony is not acceptable. Why were the Rabanan more interested in protecting the buyers than the sellers?
</p><p>
<b>ANSWER:</b> The <b>CHIDUSHEI HA'RAN</b> in Sanhedrin (27a, DH Rava) answers that there is no concern that the sellers will lose out because the buyer is in possession of the land and has a bill of sale which states that the seller sold it to him. Since he has both possession of the land and a bill of sale, it is clear that the seller sold it to him, for if he did not sell it to him, why did the seller not take him to court earlier when he saw this person occupying his land? The only concern is that the contract itself is not a valid contract since the witnesses that signed it are invalid, and the buyer is left without proper proof of the sale. Therefore, the Rabanan said that such witnesses <i>are</i> acceptable when signed on a contract in order to maintain order in the marketplace.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>FROM WHEN ARE WITNESSES DISQUALIFIED DUE TO AN AVEIRAH?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 30b (Beraisa - R. Meir):</font></b> If a loan document 
               specifies that Ribis (usury) will be charged, we 
               fine the lender, and he may not collect even the 
               principal;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, he collects the principal, but not 
               the Ribis.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> 73a (Beraisa):</font></b> If witnesses testified that Levi 
               stole and slaughtered, and they were Huzmu about 
               (others testified that they were not there to 
               witnesses) the slaughter, Levi pays double, and the 
               witnesses pay triple;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yosi says, this applies to two testimonies. 
               Regarding one testimony, partially nullified 
               testimony is totally nullified (Levi is exempt).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> 'Two testimonies' means like two testimonies, one 
               after the other. One testimony is when they 
               testified about the theft and slaughter together.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Assumption:</font></b> Both Tana'im hold that anything done 
               Toch Kedei Dibur is k'Dibur (a continuation of the 
               previous matter). They argue about whether or not 
               Zomemim witnesses are disqualified retroactively 
               from when they testified falsely.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rejection:</font></b> No, they argue about whether or not Toch 
               Kedei Dibur is k'Dibur. Chachamim say that it is not 
               k'Dibur. R. Yosi says that it is.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 4:6):</font></b> If a loan document 
               specifies that there is Ribis mid'Oraisa or 
               mid'Rabanan, he may collect only the principal.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ramban says that the Ribis 
                    is not explicit in the document. The witnesses 
                    were unaware, or were mortally coerced to sign. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (3:8):</font></b> Why aren't the witnesses Pesulim! We 
               discuss Ribis mid'Rabanan. The witnesses are not 
               disqualified, for they do not profit from it. Or, it 
               can even be Ribis mid'Oraisa, for people think that 
               only the lender and borrower transgress. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 52:1):</font></b> If a document specifies 
               that there is Ribis, one may not collect the Ribis, 
               but he collects the principal from Meshubadim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (1):</font></b> Gedolei Terumah says that if Ribis 
                    mid'Rabanan was included with the principal, 
                    all agree that one collects the principal from 
                    Meshubadim. This is even when the witnesses 
                    knew, for if not the Ramban agrees even about 
                    Ribis mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Ketzos ha'Choshen (1 DH uv'Ikar):</font></b> Tosfos 
                    (Chulin 14a DH ha'Shochet) explains that an 
                    animal slaughtered on Shabbos is Kosher because 
                    the Shochet does not become a Mumar through one 
                    slaughter. The Ran says that he becomes a Mumar 
                    only after the Shechitah. The same applies 
                    here. Witnesses do not transgress for a Milveh 
                    Al Peh, for perhaps it will not be collected. 
                    They transgress only after signing. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Maharit (138, cited in Ketzos ha'Choshen 1 DH 
                    u'Motzasi):</font></b> If there was a Cherem not to be a 
                    witness on a Kidushin unless a Chacham who 
                    teaches was there, R. Shmuel Di Mudina (EH 21) 
                    disqualifies testimony of witnesses who 
                    transgressed this. The Shach leaned to agree, 
                    but said that Rabanan do not invalidate such 
                    Kidushin; perhaps the witnesses are 
                    disqualified only after the Kidushin. If so, 
                    what was Tosfos' question? He answered that 
                    regarding Shechitah, they transgress Shabbos 
                    from the beginning of Shechitah for Netilas 
                    Neshamah (killing).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Rebuttal (Maharit):</font></b> We rule like Abaye, who 
                    disqualifies an Ed Zomem retroactively. We 
                    disqualify even his testimony Toch Kedei Dibur 
                    before his false testimony, all the more so the 
                    false testimony itself! Also, witnesses on 
                    Kidushin must be Kosher from the beginning to 
                    the end. They must testify now, and now they 
                    are Pesulim! His answer about Shechitah is 
                    improper. The beginning of Netilas Neshamah is 
                    destructive. One is liable for it only from 
                    when it is useful, i.e. after finishing the 
                    Shechitah. Kidushin is different. Witnesses 
                    transgress only if they were asked to be 
                    witnesses, but not if they merely happened to 
                    witnesses Kidushin. Even if they say that they 
                    were asked, we split the testimony and believe 
                    only that they saw Kidushin.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Defense (of Shach - Ketzos ha'Choshen DH 
                    Emnam):</font></b> Chamas (theft) disqualifies a witness, 
                    due to concern lest he lie to gain. For other 
                    Aveiros, he is disqualified only if he is 
                    liable to be lashed. The Nimukei Yosef 
                    (Sanhedrin 5b) disqualifies one who took a vain 
                    oath from a Gezeras ha'Kasuv, for he is called 
                    a Rasha. He is Kosher for testimony for which 
                    one witness, even a woman, is Kosher; we do not 
                    suspect that he will lie. R. Yerucham says that 
                    if one signed and then transgressed Chamas, we 
                    require that his signature was established in 
                    Beis Din before he transgressed, lest after 
                    transgressing he signed improperly. We do not 
                    require this for one who became a relative 
                    (e.g. a son-in-law) after signing. A Gezeras 
                    ha'Kasuv disqualifies him; he is not suspected 
                    to transgress. Tosfos was unsure about Aveiros 
                    other than Chamas, for one suspected of one 
                    Aveirah is not suspected of others. Therefore, 
                    if one became a Rasha, his testimony before he 
                    became a Rasha is Kosher. What he testified 
                    while transgressing is Kosher, for he is not 
                    suspected to lie. This is like the Ran wrote 
                    about a Mumar's Shechitah. An Ed Zomem or one 
                    who transgressed Chamas is suspected to lie. He 
                    is disqualified from when we suspect him. One 
                    who transgressed the Cherem is not suspected to 
                    lie.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Rebuttal (Nesivos ha'Mishpat 1):</font></b> If one 
                    slaughtered and immediately afterwards ate 
                    Neveilah, he is not suspected retroactively 
                    about the Shechitah. Testimony is different, 
                    for partially disqualified testimony is totally 
                    disqualified. Even if they testified two 
                    testimonies for two people and they were 
                    relatives to one, the Rif (Makos 3a) brings two 
                    opinions about whether both are Batel. Here, 
                    the testimony about Shechitah is disqualified 
                    through Hazamah, so all agree that the entire 
                    testimony is Batel. The Maharit is correct. One 
                    is not a Mumar until he is established, but 
                    surely he is disqualified from testimony. If 
                    witnesses signed a Get on Shabbos she is not 
                    divorced, for they are disqualified mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Meshovev Nesivos (DH v'Im):</font></b> The proof from a 
                    Get is invalid. A witness must sign, in 
                    addition to his name, his father's name or the 
                    word 'Ed'. Once he wrote two letters he is 
                    disqualified, so the end of his signature is 
                    invalid. (Hagahah - Maharik 109 says that even 
                    though he is not disqualified after one 
                    Melachah, he is suspected.)
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Note:</font></b> What is the source to say that a 
                    signature requires two letters? Some Amora'im 
                    signed a single letter or drew a picture in 
                    place of a signature (Gitin 36a). The Chasam 
                    Sofer (87b DH Tziyer) says that a picture 
                    suffices without 'Ed'. If the word 'Ben' was 
                    already written in the Get, one can sign his 
                    name and his father's in two letters! Chinese 
                    has no letters; every word or name is a 
                    separate character. Chachamim exempt one who 
                    wrote a letter with a Siman (e.g. period) to 
                    show that it represents a whole word (Shabbos 
                    104b). However, it seems that Nesivos 
                    ha'Mishpat discusses standard signatures.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Meshovev Nesivos (DH d'Hasam):</font></b> The proof from 
                    the Rif is invalid. Tana'im argue about whether 
                    or not the witness is disqualified 
                    retroactively. According to Nesivos ha'Mishpat, 
                    in either case the first testimony is Batel! 
                    Rather, if they are disqualified from now and 
                    onwards, the first testimony is Kosher. The Rif 
                    discusses one testimony. Certainly a Pesul due 
                    to an action does not disqualify a different 
                    action done just before it!
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A DOCUMENT WITH RIBIS </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>TOCH KEDEI DIBUR</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yosi holds that Toch Kedei Dibur is not a 
          continuation of the previous matter!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Meir):</font></b> If one said 'this (Chulin 
               animal) is Temuras Olah (he tried to transfer the 
               Kedushah of an Olah to the animal), Temuras 
               Shelamim', it is Temuras Olah (it is an Olah);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Yosi says, if he intended from the beginning 
               to make a Temurah of both, it works;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since he cannot say both simultaneously, he said 
                    them one after the other.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he said 'this is Temuras Olah', then 
               reconsidered and said 'Temuras Shelamim', it is 
               Temuras Olah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> This is obvious!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (Rav Papa):</font></b> He reconsidered Toch Kedei 
               Dibur.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> There are two measures of Toch Kedei Dibur: a 
          Talmid greeting his Rebbi, and a Rebbi greeting his 
          Talmid;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> A Rebbi greets his Talmid 'Shalom Alecha' (two 
               words). R. Yosi holds that within this time is a 
               continuation;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> A Talmid greets his Rebbi 'Shalom Alecha Rebbi 
               u'Mori' (four words). R. Yosi holds that within this 
               time (but after the time for two words) is not a 
               continuation.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>HAZAMAH AFTER CONTRADICTION</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If witnesses (about a capital case) were 
          contradicted, and later they were Huzmu, they are killed. 
          Contradiction is the beginning of Hazamah (we do not say 
          that they are exempt because their testimony was already 
          disqualified before they were Huzmu), but the Hazamah is 
          not yet complete. We learn this from a Beraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If two said 'we testify that Ploni 
               blinded his slave's eye and knocked out his tooth. 
               Behold, Ploni says so', and they were Huzmu, they 
               pay to the slave the value of his eye.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> No other witnesses testified that 
                    Ploni hurt his slave.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection #1:</font></b> They made the slave go free. 
                    Why should they pay him?!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Rejection #2:</font></b> They should pay the master 
                    for depriving him of his slave!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Rejection #3:</font></b> Why does it say 'behold Ploni 
                    says so'? Their testimony hurts Ploni!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, two witnesses testified that 
               Ploni knocked out his slave's tooth, then blinded 
               his eye. This obligates Ploni to (free the slave 
               and) pay the value of his eye;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Two other witnesses testified that Ploni blinded 
                    his slave's eye, then knocked out his tooth. 
                    This obligates Ploni to (free the slave and) 
                    pay the value of the tooth;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  This contradicts the first witnesses. The 
                    master supports the latter witnesses, for they 
                    obligate him to pay less.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> The Beraisa concludes that if they were Huzmu, 
               they pay to the slave the value of his eye;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that contradiction is the beginning of 
                    Hazamah.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection ((Tosfos - on behalf of) Abaye):</font></b> No. The case 
          is, the second pair of witnesses testified that Ploni 
          blinded the eye, then knocked out his tooth, and also 
          were Mazim the first pair. (They said, your testimony was 
          fabricated. At the time you claim to have witnessed the 
          blows, you were with us elsewhere. Really, he hit his 
          slave at a different time!)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why does (should) Abaye explain this way?
<br>

<p>

sjt:
</p><p>
<font><b>2) 'TOCH KEDEI DIBUR K'DIBUR DAMI'</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the concept of 'Toch Kedei Dibur k'Dibur Dami.' As the Gemara explains, 'Toch Kedei Dibur' is the length of time that it takes a student to greet his teacher ('Shalom Alecha Rebbi'). Within this small amount of time after a person's act or speech, the act or speech is not considered finished but rather still continuing ('k'Dibur Dami'). Consequently, although the person has physically stopped performing the act or stopped speaking, within this amount of time he may act or say something that will abrogate his previous actions or words (or, in the case of the Gemara here, he may add something to his previous words which will be considered to have been said at the same time as his previous words).
</p><p>
What is the source for the principle of 'Toch Kedei Dibur k'Dibur Dami,' and what is the source for the exceptions? The Rishonim differ with regard to the source and with regard to the way in which 'Toch Kedei Dibur' functions. 
</p><p>
(a) The <b>RAN</b> in Nedarim (87a) writes that the principle of 'Toch Kedei Dibur' and its exceptions are <i>mid'Oraisa</i>. The Torah assumes that a person is never totally committed to his speech or actions and he always reserves the right to retract within the small amount of time of 'Toch Kedei Dibur.' However, when he performs actions which are of a very severe nature (the exceptions mentioned in the Gemara in Nedarim, such as blasphemy (Megadef), idolatry (Avodah Zarah), marriage, and divorce), he does not begin the action until he is absolutely committed to doing it, and therefore he does not reserve in his mind the right to retract.
</p><p>
The <b>RITVA</b> in Nedarim adds that 'Toch Kedei Dibur' is 'k'Dibur Dami' because within that amount of time a person's lips are stilled involved in the speech he just articulated, and he is considered as though he is still speaking.
</p><p>
(b) <b>TOSFOS</b> here (DH Ki Leis Lei) quotes <b>RABEINU TAM</b> who explains that the Halachah of 'Toch Kedei Dibur' is a Takanah d'Rabanan. The Rabanan instituted this principle in order to enable a buyer to greet his teacher or his friend while in the midst of a purchase, or to enable a witness to greet his teacher or his friend while in the midst of giving testimony (since the Gemara in Berachos (6b) says that one who is greeted by someone else and does not return the greeting is called a 'Gazlan'), in such a way that greeting does not constitute an interruption between the words he said before and the words he said afterwards. Tosfos asks, however, that 'Toch Kedei Dibur' cannot be a Takanah d'Rabanan because it applies even with regard to Halachos that are mid'Oraisa.
</p><p>
(c) The <b>RASHBAM</b> in Bava Basra (129b) writes that the principle of 'Toch Kedei Dibur' is mid'Oraisa in all cases, including the exceptions mentioned in the Gemara in Nedarim. Mid'Oraisa, one may retract within Toch Kedei Dibur even in cases of Megadef, Avodah Zarah, marriage, and divorce. However, the Rabanan enacted that 'Toch Kedei Dibur' does <i>not</i> work in those cases. They enacted that it does not work in cases of Megadef and Avodah Zarah because of the severity of the act. They enacted that it does not work in cases of marriage and divorce in order to prevent rumors from spreading which would ruin the reputation of the children born from the union. 
</p><p>
These explanations of 'Toch Kedei Dibur,' however, do not seem consistent with the Gemara here. The Gemara explains that according to Rebbi Yosi, when the witnesses (who testified about the Geneivah and the Tevichah) are found to be lying about the Tevichah (they are found to be Edim Zomemim), their testimony about the Geneivah is also invalidated. It makes sense that, retroactively, all of their testimonies that they gave <i>after</i> the moment that they testified falsely about the Tevichah are invalidated. Why, though, is the testimony that they gave (i.e. about the Geneivah) <i>before</i> the Tevichah invalidated? Just because it was within 'Toch Kedei Dibur' of their testimony about the Tevichah is not a reason to invalidate it!
</p><p>
The <b>AMUDEI <b><b>OR</b></b></b> suggests that since the principle of 'Toch Kedei Dibur' enables the witnesses to retract their testimony (about the Geneivah) within the time of 'Toch Kedei Dibur,' their entire testimony is viewed as though it takes effect only <i>after</i> 'Toch Kedei Dibur' has passed from the time they stopped testifying. It is at that point -- when they no longer can retract what they said -- that they show that their intentions are absolute and irrevocable, and thus it is at that point that their testimony takes effect and becomes binding and official. Therefore, when they are proven to be Edim Zomemim with regard to their testimony about the Tevichah, their testimony about the Geneivah is also invalidated since both parts of their testimony are considered to have been said at the same time -- the moment that 'Toch Kedei Dibur' passed and they could no longer retract any of their testimony. (I. Alsheich) (See Insights to Nedarim 87:1 and Bava Basra 129:2.)
</p><p>


<font><b>3) A STUDENT WHO GREETS HIS TEACHER</b></font><b>
<br>QUESTION:</b> The Gemara says that the amount of time of 'Toch Kedei Dibur' refers to the amount of time that it takes a Talmid to give a greeting to his teacher.
</p><p>
How can this be the time of 'Toch Kedei Dibur' if a Talmid is <i>prohibited</i> from initiating a greeting to his teacher, as the Gemara in Berachos (27b) says, 'One who gives a greeting (of 'Shalom') to his teacher causes the Shechinah to be removed from the world'? (<b>TOSFOS</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> here and in Berachos answers that the Gemara in Berachos refers to a Talmid who greets his teacher in the same manner in which he greets his friend ('Shalom Aleicha'). The Gemara here refers to a greeting of respect for his teacher ('Shalom Aleicha Rebbi'), which is permissible. This is also the explanation of <b>RASHI</b> in Berachos (DH Shalom l'Rabo).
</p><p>
(b) <b>TOSFOS</b> in Berachos answers further that perhaps the Gemara here in Bava Kama refers to a <i>Talmid Chaver</i> (a colleague) and not to a full-fledged Talmid. A Talmid Chaver is permitted to greet his teacher who is also his colleague. (It is clear from Tosfos that even a Talmid Chaver must greet his teacher with a greeting of respect, as the Gemara says, 'Shalom Aleicha Rebbi u'Mori.' This implies that an ordinary Talmid may not greet his teacher altogether, even with a greeting that expresses respect. This is indeed the ruling of the Yerushalmi as mentioned by the <b>REMA</b> in Yoreh De'ah 242:16.)
</p><p>
(c) Although our text of the Gemara in Berachos says that a Talmid may neither greet his teacher (i.e. initiate the greeting) nor return a greeting to his teacher, the <b>RIF</b>, <b>ROSH</b>, and <b>TALMIDEI RABEINU YONAH</b> in Berachos do not have the Girsa that a Talmid may not <i>return</i> a greeting. Accordingly, they explain that when the Gemara here says that 'Toch Kedei Dibur' is the time it takes a Talmid to greet his teacher, it refers to the time it takes for him to <i>return</i> a greeting which, according to their Girsa, is permissible.
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HAZAMAH AFTER CONTRADICTION (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> Since the Seifa discusses when the second pair 
          switched the order of events and were Mazim the first 
          pair, also the Reisha.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If two said 'we testify that Ploni 
               knocked out his slave's tooth, then blinded his eye. 
               Behold, the slave says so', and they were Huzmu, 
               they pay the value of his eye to Ploni.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the case?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> The latter witnesses (the Mazimim) do 
                    not testify that Ploni hurt his slave.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> The first witnesses tried to 
                    improperly make the slave go free. They should 
                    pay the master his full value!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the Mazimim admit that Ploni (at 
               a different time) knocked out his slave's tooth and 
               blinded his eye, but in the reverse order.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> (In both clauses of the Beraisa), do 
               the Mazimim say that Ploni struck the slave before 
               or after the first witnesses testified?
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they say that it was later, the first 
                    witnesses tried to make the slave go free 
                    without reason. They should pay to Ploni the 
                    slave's full value!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, they say that he hit him before 
               the first pair testified.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Still, if the first pair testified 
               before Beis Din ruled that the slave goes free, they 
               should pay Ploni his full value, for Ploni was not 
               obligated to free him (he could have admitted in 
               Beis Din that he struck his slave)!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the first pair testified 
               after (other witnesses testified in a Beis Din that) 
               ruled that the slave goes free.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Acha brei d'Rav Ika):</font></b> From which part of 
          the Beraisa did Rava learn?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> He learned from the Reisha (like he 
               explained above).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> The middle witnesses did not uproot 
               the testimony of the first pair!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If not for the Mazimim, we would know that the 
                    slave goes free, but we would not know if he 
                    collects the value of his tooth or eye. We 
                    would have ruled that he gets the lesser (his 
                    tooth, like the first pair testified), since 
                    all agree that Ploni pays at least this much.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> Rava learned from the Reisha that 
          also the Seifa involves three pairs of witnesses.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Two witnesses testified that Ploni knocked out 
               his slave's tooth, then blinded his eye. Beis Din 
               ruled about this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Two other witnesses later testified that Ploni 
               blinded the slave after knocking out his tooth, 
               contradicting the first pair.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The first witnesses were Huzmu. They pay to Ploni 
               the value of the eye.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If contradiction were not the beginning of 
                    Hazamah, they should be exempt, for they were 
                    already contradicted!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Abaye argues. He agrees that there are three sets of 
          witnesses in the first case, since it says 'behold, the 
          master says so' (it must be, there are other witnesses 
          that would make him pay more);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We need not say so in the Seifa. The slave 
               supports any witnesses who testify that he goes 
               free!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (R. Zeira):</font></b> We should say that the slave goes 
          free for the loss of an eye or tooth or both (without 
          other compensation)!
<br>
<br>

sjt:
<font><b>1) THE OPINION OF RAV HUNA IN THE NAME OF RAV</b></font><b>
<br>QUESTION:</b> The Mishnah states that when two witnesses testify that a person stole an animal, and then one witness or the Ganav himself testifies that he slaughtered the animal, the Ganav must pay Tashlumei Kefel but not Arba'ah v'Chamishah. The Gemara asks that it is obvious that one witness cannot obligate him to pay Arba'ah v'Chamishah. The Gemara answers that the Mishnah means that just as the Ganav is obligated to pay Arba'ah v'Chamishah when another witness joins the first witness, he is obligated to pay in a case where he first admits that he slaughtered the animal and then two witnesses come and testify that he slaughtered the animal. The Gemara says that this is not like the view of Rav Huna in the name of Rav who says that when one admits to a Kenas and then witnesses come afterward, he is still exempt from paying the Kenas.
</p><p>
Why does the Gemara quote this opinion in the name of 'Rav Huna in the name of Rav'? The Gemara elsewhere quotes Rav himself who stated this opinion (and not that Rav Huna said it in his name). (See, for example, Bava Kama 75a, where the Gemara quotes the dispute between Rav and Shmuel regarding this matter.) Why does the Gemara here not quote Rav directly?
</p><p>
<b>ANSWER:</b> The <b>TORAS CHAIM</b> answers that the dispute between Rav and Shmuel later (75a) may apply only in a case in which the person admits to everything. In such a case, Rav rules that his admission exempts him even when witnesses come afterward. In the case of the Gemara here, however, the person admits only to part of the obligation. In such a case, one might have thought that Rav agrees that when witnesses come afterward the person is obligated to pay the Kenas. It is Rav Huna who teaches that even in such a case, Rav rules that the person is exempt when witnesses come later.
</p><p>


<font><b>2) RABAN GAMLIEL BLINDED TEVI'S EYE</b></font><b>
<br>QUESTION:</b> Rav Chisda questions Rav Huna from a Beraisa which relates that Raban Gamliel blinded the eye of Tevi his servant, and Raban Gamliel rejoiced with great joy because thereby Tevi was able to be set free. (Raban Gamliel was unable to set Tevi free in the normal manner of giving him a Get Shichrur, because one who frees his servant transgresses a Mitzvas Aseh).
</p><p>
Why was Raban Gamliel so happy? The Gemara earlier (26b) teaches that only when the master blinds his servant's eye <i>intentionally</i> does the servant go free, as derived from the verse (Shemos 21:26). Certainly Raban Gamliel did not sin and intentionally hit his servant. The loss of Tevi's eye must have been an accident. Why, then, was Raban Gamliel happy, if an Eved does not go free when he loses his eye through an accident?
</p><p>
<b>ANSWER:</b> The <b>YA'AVETZ</b> and others answer that Raban Gamliel followed the view of the Chachamim who disagree with Raban Shimon ben Gamliel and maintain that the Eved goes free even when the master blinds his eye unintentionally.
</p><p>
The <b>KOVA YESHU'AH</b> adds that the <b>KESEF MISHNEH</b> (Hilchos Avadim 5:11) writes that the <b>RAMBAM</b> rules that the Chachamim -- who disagree with Raban Shimon ben Gamliel and maintain that the Eved goes free even when the master blinds him unintentionally -- nevertheless agree that the Eved does <i>not</i> go free when the master had no intention to do anything to the eye at all. They maintain that he goes free only when the master was doing something with the eye (for example, he was involved in a medical procedure) and he accidentally blinded the Eved's eye.
</p><p>
The Kova Yeshu'ah writes that according to this opinion, although Raban Gamliel did not intend to harm the eye of his Eved, he nevertheless was doing some act to his eye (such as a medical procedure) during which he accidentally blinded him, and thus his Eved indeed goes free. (I. Alsheich)
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES TEFISAH HELP WHEN WE DO NOT KNOW WHICH ANIMAL GORED?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> 35b (Mishnah):</font></b> If one of Reuven's oxen damaged 
               Levi's ox, they are liable. If Levi says 'the big 
               (or Mu'ad) ox damaged', and Reuven says 'no, the 
               small (Tam) one damaged', ha'Motzi mi'Chavero Alav 
               ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If two oxen of Reuven damaged two of Levi's oxen, 
               and Levi says that the big (or Mu'ad) ox damaged the 
               big ox, and the small (or Tam) ox damaged the small 
               ox, and Reuven says oppositely, ha'Motzi mi'Chavero 
               Alav ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rabah bar Noson):</font></b> If David claimed that Shimon owes 
               him wheat, and Shimon admitted that he owes barley, 
               Shimon is exempt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah connotes that if Levi cannot 
               bring proof, he collects like Reuven said. This is 
               like wheat and barley (and R. Noson totally 
               exempts)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, if Levi cannot bring proof, he 
               should collect like Reuven says, but does not 
               collect at all.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question (Beraisa):</font></b> Levi collects for the small ox 
               from the big ox, and for the big ox from the small 
               ox.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> That is when Levi seized the damager.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> 74b (Beraisa):</font></b> Once, R. Gamliel once blinded the eye 
               of his slave Tavi. R. Yehoshua said 'your words have 
               no effect, for there are no witnesses.'
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Nizkei Mamon 9:11):</font></b> Rambam (11): If 
               two oxen of Reuven damaged two of Levi's oxen, and 
               Levi says that the big (or Mu'ad) ox damaged the big 
               ox, and the small (Tam) ox damaged the small ox, and 
               Reuven says oppositely, ha'Motzi mi'Chavero Alav 
               ha'Re'ayah. If there was no clear proof, Reuven 
               swears Heses and is totally exempt. If Levi seized, 
               he is paid for the small animal from the big and for 
               the big from the small, like Reuven said. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> There are no witnesses at all. 
                    If not, Reuven would pay like he says, like 
                    above (Halachah 10, in which one ox of Reuven 
                    gored Levi's ox). The Ra'avad explained that 
                    half-damage is unlike other fines. If the 
                    victim seized, he need not return it. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra CM 400, Hashmatos on Sa'if 4):</font></b> 
                    The Rambam says 'if there was no clear proof', 
                    i.e. witnesses know about the goring, but they 
                    do not know which. If there were no witnesses, 
                    why would Tefisah help?! The Rambam holds that 
                    the Sugya holds that half-damage is a fine. He 
                    holds that when there are witnesses on the 
                    basis of the matter (even if we need his 
                    admission in some respects), this is not 
                    considered admission to a fine.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Shach (CM 400:13):</font></b> The Nimukei Yosef holds that 
                    according to the opinion that half-damage is a 
                    fine, it is like all fines. If there were no 
                    witnesses, Tefisah does not help. There are 
                    supports for this. R. Gamliel blinded his 
                    slave's eye. Even though a slave is the 
                    ultimate Tefisah (in himself), it did not help 
                    in a case of admission to a fine.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (3:15):</font></b> The Mishnah did not say 'exempt', 
               rather, ha'Motzi mi'Chavero Alav ha'Re'ayah. This 
               teaches that if he seized, he keeps it. Since he has 
               a claim against both animals, now the damager is 
               ha'Motzi mi'Chavero (to take back his animal), and 
               he must bring a proof! Tefisah does not help in the 
               Reisha, when he has a claim only against one animal, 
               or in the case of wheat and barley. Even if he 
               seized, we take it from him. The Rif said that 
               Tefisah of barley helps. Some answer for the Rif 
               that Tefisah of the small animal does not help 
               because his claim is only for the big animal, which 
               pays only mi'Gufo, and he admitted that the small 
               one did not damage. Tefisah of barley helps, for he 
               can say 'you admitted that you owe me barley. If I 
               do not merit through this, I seize for my claim of 
               wheat.' According to this, seizure of a Tam helps 
               when his claim was against a Mu'ad. Nevertheless, in 
               the Reisha the Mishnah could not say 'ha'Motzi 
               mi'Chavero Alav ha'Re'ayah', for seizure does not 
               help when both were Tam and he seized the small one.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Pilpulei Charifta (5):</font></b> (The Reisha says 
                    ha'Motzi mi'Chavero Alav ha'Re'ayah!) The Rosh 
                    means that in the Reisha we could not answer 
                    that he should collect like Reuven says, but 
                    does not (and the Mishnah says ha'Motzi 
                    mi'Chavero Alav ha'Re'ayah to teach that 
                    Tefisah helps) for Tefisah does not help when 
                    both are Tam.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rebuttal (Rosh):</font></b> These are different. When witnesses 
               are unsure which damaged and he seized the small one 
               in front of witnesses, it does not help, for he 
               admits that he has no claim against it. All the more 
               so Tefisah of barley does not help for a claim of 
               wheat. He cannot hold it for its value for his claim 
               of wheat, since Shimon denied the claim. He is 
               exempt; R. Gamliel and Chachamim argue about whether 
               or not he must swear. Tefisah helps only when there 
               are two damagers and he has a claim against both of 
               them. In this case his Tefisah helps, but only like 
               the damager says, for he seized in front of 
               witnesses.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (17a DH Lo Tzericha):</font></b> Even though 
                    admission without denial does not obligate 
                    paying, if the Levi seized before Reuven 
                    retracted, it is considered as if he had 
                    permission to seize.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Mordechai (40):</font></b> The Rif says that Tefisah helps, 
               like we say here, and regarding wheat and barley. R. 
               Tam says that Tefisah helps only here, for he has a 
               claim against both of them. R. Baruch holds like R. 
               Tam regarding Keren paid mi'Gufo, and like the Rif 
               regarding payments from the Aliyah.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Mordechai (42):</font></b> The Riva explains that Levi seized 
               the value of the small one before the admission. 
               Therefore, the admission helps, even though it was 
               not for what was claimed. 
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 400:3):</font></b> If Levi says 'your big 
               (or Mu'ad) ox damaged', and Reuven says 'the small 
               (Tam) one damaged', ha'Motzi mi'Chavero Alav 
               ha'Re'ayah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Some say that there is no oath here at all, 
               like a claim of wheat and admission of barley. He is 
               totally exempt. If he seized, we make him return it. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (8):</font></b> I proved (88:16,22) that the 
                    Halachah does not follow this opinion, Whenever 
                    there are witnesses, he pays the smaller, and 
                    Tefisah helps.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (4):</font></b> If Levi says 'your big (or 
               Mu'ad) ox damaged my big ox, and the small (Tam) ox 
               damaged the small ox, and Reuven says oppositely, 
               ha'Motzi mi'Chavero Alav ha'Re'ayah. If there was no 
               clear proof, Reuven is totally exempt. If Levi 
               seized, he keeps like Reuven said, but not like Levi 
               said. This is even if he seized in front of 
               witnesses. This is if he seized before coming to 
               Beis Din. After this, Tefisah does not help even to 
               receive like Reuven says.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Beis Yosef DH uv'Zeh):</font></b> Why does the 
                    Tur attribute this opinion to the Rosh? The 
                    Gemara explicitly says so! The Rosh's Chidush 
                    is that we do not learn from here that Tefisah 
                    helps also when only one animal damaged.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Drishah 5):</font></b> The Tur refers also to what 
                    he said above when there is only one damager. 
                    Alternatively, the Rosh holds that Tefisah 
                    helps only before coming to Beis Din, unlike 
                    the Ra'avad who does not distinguish. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (9):</font></b> The Shulchan Aruch holds that if Levi 
                    seized without witnesses, he keeps like he 
                    said, like the Rema said (399:3). This is like 
                    the Rosh and Tur.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>A SAFEK ABOUT WHICH ANIMAL DAMAGED </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> '(He goes free) in place of his eye' - 
          not in place of his eye and tooth; 'in place of his 
          tooth' - not in place of his tooth and eye.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Support (for Rava - Rav Idi bar Avin - Mishnah):</font></b> If two 
          witnesses testified that Reuven stole and slaughtered, 
          and they were found to be Zomemim, they pay the full 
          fine.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> The case is, first they testified 
               about the theft, then about the slaughter. They were 
               Huzmu about the theft, and then Huzmu about the 
               slaughter.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Even though Hazamah about the theft is like 
               contradiction about the slaughter, the witnesses pay 
               the full fine!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If contradiction were not the beginning of 
               Hazamah, they would not pay for the testimony about 
               the slaughter!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Rejection:</font></b> The case is, they were Huzmu about the 
          slaughter first.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	Also the following Amora'im argue about whether 
          contradiction is the beginning of Hazamah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan and R. Elazar argued about witnesses 
               (in a capital case) who were contradicted and later 
               Huzmu. One said they are killed, and the other said 
               they are not.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Inference:</font></b> It must be that R. Elazar said they are not 
          killed, for he said that witnesses about a capital case 
          that were contradicted are lashed.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he held that if they were contradicted and 
               later Huzmu they would be killed, their false 
               testimony is punishable by death. They should be 
               exempt from lashes!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, he must hold that they are not killed.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> Why are they lashed? Perhaps they told the 
          truth, and the others lied!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> They testified that Ploni was murdered, 
          and Ploni walked into Beis Din, exposing their lie.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IF WITNESSES CAME AFTER AN ADMISSION TO A FINE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If two witnesses testified that Reuven 
          stole, and we know that he slaughtered or sold from one 
          witness or from Reuven's admission, he pays Kefel, but 
          not four or five.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Also in the following cases he pays Kefel, but not four 
          or five:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He stole and slaughtered on Shabbos, or to serve 
               idolatry;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> He stole from his father, and slaughtered or sold 
               it after his father died;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> He stole an animal, made it Hekdesh, then 
               slaughtered or sold it.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Shimon says, a thief pays four or five only for a 
          Korban with Achrayus (one must bring a replacement if it 
          becomes lost or blemished).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Why must the Mishnah teach that he 
          does not pay four or five according to one witness? This 
          is obvious!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> The Mishnah equates according to his own 
          admission and according to one witness. When one witness 
          testified, if another witness comes later, they join to 
          make him pay. Similarly, when he admitted, if witnesses 
          later come, he is liable!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This refutes Rav Huna.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Rav Huna):</font></b> If one admitted to a fine, and 
               witnesses came later, he is exempt.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Chisda - Beraisa #1):</font></b> Once, R. Gamliel 
          blinded the eye of his slave Tavi. He was happy, for this 
          would set Tavi free. He told this to R. Yehoshua.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yehoshua:</font></b> Your words have no effect, for you 
               have no witnesses.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> If he had witnesses, Tavi would go 
               free, even though R. Gamliel already admitted. This 
               contradicts Rav Huna!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> His admission did not count, because 
          it was not in front of Beis Din.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yehoshua was the Av Beis Din!
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IF WITNESSES CAME AFTER AN ADMISSION TO A FINE (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Answer:</font></b> He was not in Beis Din at the time.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Beraisa #2):</font></b> Your words have no effect, for 
          you already admitted.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Tana'im argue about Rav Huna's law.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Beraisa #1 said 'your words have no effect, for 
                    you have no witnesses'. It holds that witnesses 
                    obligate a fine even after admission;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Beraisa #2 said 'your words have no effect, 
                    for you already admitted.' It holds that 
                    witnesses do not obligate a fine after 
                    admission.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> No, all agree that he is exempt after 
          admission;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beraisa #1 holds that the admission was not in 
               Beis Din (so witnesses would help later). Beraisa #2 
               holds that the admission was in Beis Din.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rav):</font></b> If one admitted to a fine, and witnesses came 
          later, he is exempt;
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He is liable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rava bar Ahilai):</font></b> Rav learns from 'if (a thief) will 
          be found' - through witnesses. 'He will be found' - 
          through the judges (liable to pay the fine);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This excludes one who incriminates himself.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> We already know this from 'whom the 
               judges will convict'!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> Rather, the first verse exempts one who 
               admits to a fine even if witnesses come later.
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	Shmuel uses that verse to obligate an actual thief (to 
          pay Kefel for anything), like Tana d'Vei Chizkiyah (64a).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rav - Mishnah):</font></b> If a thief saw witnesses 
          (about his theft) coming to Beis Din, and admitted to the 
          theft but not the slaughter, he only pays principal (even 
          after the witnesses testify)!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Shmuel):</font></b> No. The case is, the witnesses 
          never came to Beis Din to testify.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Reisha - R. Elazar b'Rebbi Shimon):</font></b> The 
          witnesses may come and testify.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This shows that Chachamim do not accept their 
               testimony!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (Shmuel):</font></b> I hold like R. Elazar b'Rebbi 
          Shimon.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Shmuel's opinion can only be like R. Elazar 
          b'Rebbi Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b>Is Rav's opinion only like Chachamim?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Rav can say that all agree to his law;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even R. Elazar b'Rebbi Shimon allows the 
               witnesses to testify only because the admission was 
               due to the witnesses. He agrees that one who freely 
               admits is exempt, even if witnesses come later.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>MUST THE ADMISSION OBLIGATE HIM?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Hamnuna):</font></b> Presumably, Rav's law is only when he 
          admitted to stealing before witnesses came, for he 
          obligated himself to pay principal (so he is exempt from 
          Kefel);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if he denied stealing, and witnesses 
               testified that he stole, and then he admitted to 
               slaughtering or selling before witnesses about the 
               slaughter or sale came, he is liable, for his 
               admission did not obligate himself to pay anything!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Version #1 (Rashi, according to Tosfos) - Rava:</font></b> You 
          pained the Talmidim (by saying something false)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) - Rava:</font></b> You (Rav Hamnuna) surpassed 
          the elder of Rav's Talmidim (Rav Huna)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When R. Gamliel admitted to blinding Tavi, he did 
               not obligate himself at all;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rav Chisda tried to disprove Rav from that 
               Beraisa. Rav Huna did not (know to give your) answer 
               that R. Gamliel's admission did not exempt him 
               because he did not obligate himself! (end of Version 
               #2)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba):</font></b> If Reuven admitted to stealing, 
          then two witnesses testified that he stole, he is exempt, 
          because he obligated himself to pay principal;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> But if he denied stealing, and witnesses 
               testified that he stole, and then he admitted to 
               slaughtering or selling, then witnesses testified 
               that he slaughtered or sold, he is liable, for his 
               admission did not obligate himself to pay anything.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Our Mishnah and a Beraisa support this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If two witnesses testified that Reuven 
               stole, and one witness testified or he admitted that 
               he slaughtered or sold, he pays Kefel, but not four 
               or five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why must it say that two witnesses 
               testified that Reuven stole? Let it say that if one 
               witness testified, or he admitted that he stole and 
               slaughtered or sold, he only pays principal!
<br>
<br>

sjt:
<font><b>1) THE EXTENT OF THE EXEMPTION OF 'MODEH B'KENAS'</b></font><b>
<br>QUESTION:</b> The Beraisa relates that when Raban Gamliel admitted that he blinded the eye of Tevi his servant and thus rejoiced because he thereby was able to set Tevi free, Rebbi Yehoshua responded to him, 'Your words are meaningless, since you have admitted.' That is, since one who admits to a Kenas is exempt from paying the Kenas ('Modeh b'Kenas Patur'), Raban Gamliel was exempt from setting free his servant.
</p><p>
Why was Raban Gamliel not able to set his servant free on the basis of having blinded his eye? Although one who admits to a Kenas is exempt from paying, that does not mean that one is not <i>allowed</i> to pay the Kenas. There still should be an obligation to pay the Kenas to fulfill one's duty <i>b'Yedei Shamayim</i>! Why did Rebbi Yehoshua say that Raban Gamliel's words 'meaningless'?
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> (in the name of the Yerushalmi) and many other Rishonim prove from here that the rule of 'Modeh b'Kenas Patur' exempts a person entirely. There is no obligation whatsoever, even b'Yedei Shamayim, to pay the Kenas. 
</p><p>
How exactly does one's admission exempt him entirely, even b'Yedei Shamayim?
</p><p>
The straightforward understanding is that in a case of an ordinary monetary obligation (such as when a person damaged the property of another person and is obligated to pay for it), the obligation takes effect at the moment the damage is done. Witnesses are not necessary to create the obligation itself; the person's act of damaging his friend's property is what obligates him to pay for it. The purpose of the testimony of witnesses in court is merely to serve as proof, to assert that the incident actually occurred (as the Gemara in Kidushin (65b) says, 'The purpose of witnesses is only to prevent lies from being said'). Even without witnesses, and even where Beis Din does not have the ability to force him to pay, there is an essential obligation for the person to pay (at least b'Yedei Shamayim) for the damages he caused.
</p><p>
A Kenas (penalty) is different. There is no obligation at all to pay the Kenas before Beis Din has declared that the person is obligated to pay it. The Kenas is not a natural result of the action the person did; the obligation of the Kenas comes about only when Beis Din issues a ruling that requires a Kenas to be paid. The Kenas is entirely created by the testimony of witnesses in Beis Din, and not by the act that the person did. Therefore, when no verdict was issued in Beis Din requiring the person to pay a Kenas, there is no inherent obligation -- even b'Yedei Shamayim -- to pay it. (See <b>REBBI AKIVA EIGER</b> in Gilyon ha'Shas to Makos 5a.) 
</p><p>


<font><b>2) WITNESSES WHO COME AFTER A PERSON ADMITS TO A 'KENAS'</b></font><b>
<br>OPINIONS:</b> One who admits to a Kenas is exempt from paying the Kenas ('Modeh b'Kenas Patur'). Rav and Shmuel disagree about whether one remains exempt when, after he admits to the Kenas, witnesses come and testify that they saw the act. Rav rules that he remains exempt.
</p><p>
Does Rav's ruling apply only in the Beis Din in which the person admitted to the Kenas, or does it apply even when the witnesses go to a second Beis Din and testify there that the person is obligated to pay a Kenas?
</p><p>
(a) The <b>KETZOS HA'CHOSHEN</b> (350:2) proposes, based on a number of proofs, that the exemption that one's own admission creates applies only in the Beis Din in which he admits. If witnesses come to a different Beis Din in which he did not admit, that second Beis Din indeed may obligate him to pay the Kenas. The Ketzos ha'Choshen writes that the reason for this is that the exemption of one who admits to a Kenas does not automatically cancel the act that was done or the obligation that depended on the testimony of witnesses. Rather, it just creates an exemption that prevents the Beis Din from obligating him to pay, since the obligation must come about through witnesses who declare his guilt and not through his own declaration of guilt ('Marshi'a Es Atzmo'). The second Beis Din, in which he did not declare his guilt and which knows about his guilt from the witnesses and not from him, <i>is</i> able to obligate him to pay.
</p><p>
(b) The <b>TERUMAS HA'KRI</b> (#1, as cited by the Ketzos ha'Choshen) maintains that according to Rav, when a person admits to a Kenas in one Beis Din, he no longer can be obligated to pay even if witnesses testify in a different Beis Din.
</p><p>
This argument apparently depends on the way in which 'Modeh b'Kenas' functions to exempt a person from the obligation to pay a Kenas. There are two possible ways in which 'Modeh b'Kenas' may function. The first way is that the person's admission <i>exempts</i> him from the obligation of the Kenas. The second way is that the person's admission <i>prevents</i> the obligation from taking effect in the first place (and not that it takes effect to some degree and he then becomes exempt from it through his admission). 
</p><p>
The Terumas ha'Kri seems to understand that 'Modeh b'Kenas' <i>exempts</i> the person. Hence, once he has exempted himself from the Kenas, it is no longer possible to make him obligated.
</p><p>
The Ketzos ha'Choshen understands that once a person has admitted to a Kenas, Beis Din cannot obligate him to pay. However, another Beis Din -- in which he did not admit -- <i>may</i> obligate him to pay since his admission in the first Beis Din did not create an exemption from the Kenas but merely prevented the Beis Din from obligating him. (See <b>CHIDUSHEI HA'GAON RAV NAFTALI TROP</b>, #125, who writes that the basis for the view of the Ketzos may be found in the words of the <b>RA'AVAD</b> in <b>SEFER HA'ZECHUS</b>, and in the <b>RAMBAN</b> there.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>MUST MONETARY TESTIMONY BE EFSHAR LEHAZIMAH?</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If two witnesses testified that Reuven 
               stole, and two others testified that he sold, and 
               the witnesses about the sale were Huzmu, Reuven pays 
               Kefel, and the Edim Zomemim pay two or three;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Sumchus says, the Edim Zomemim pay Kefel, and Reuven 
               pays two for a Seh or three for an ox.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Acha brei d'Rav Ika):</font></b> They argue about 
               testimony that cannot be Huzam. Two witnesses said 
               'you stole', and Reuven answered, I stole and sold, 
               but I did not steal in front of you, rather, in 
               front of Ploni and Almoni, and Ploni and Almoni 
               testified that he stole and sold.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Chachamim hold that since Ploni and Almoni cannot be 
               Huzmu (for Reuven admitted that they saw him steal 
               and sell), their testimony is invalid;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Sumchus says, even though they cannot be Huzmu, 
               their testimony is valid.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b></b> We hold that testimony that cannot be Huzam is 
               invalid, i.e. when the witnesses do not know at what 
               time they saw the testimony. Such testimony is 
               worthless. Here, the accused supports the testimony!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Sanhedrin 28a - Question:</font></b> What is the source that 
               two relatives cannot testify together (about someone 
               else)?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1 (Rami bar Chama):</font></b> Reasoning teaches this. 
               Witnesses are not made Zomemim unless both are 
               Huzmu. If relatives could testify about someone 
               else, they could be killed due to each other's 
               testimony!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Objection (Rava - Mishnah):</font></b> If David testified about 
               three years of Chazakah, and three brothers 
               testified, each about one of the three years, it is 
               like one testimony for Hazamah (they are exempt 
               unless all of them are Huzmu).
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If they will be Huzmu, the brothers will pay 
                    due to each other's testimony! Rather, they pay 
                    due to the Hazamah, not due to each other's 
                    testimony. Likewise, if relatives testified 
                    together and were Huzmu, they are killed due to 
                    the Hazamah, not due to each other's testimony!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #2 (Rava):</font></b> It says 'u'Vanim' (and not 'Ben Al 
               Avos' or 'Hem Al Avos') to teach that Banim (i.e. 
               relatives) cannot testify with each other.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 78a (Rava):</font></b> If witnesses testified about a Treifah 
               and they were Huzmu, they are exempt. If Treifah 
               witnesses were Huzmu, they are killed.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Rebuttal (Rav Ashi):</font></b> Also Treifah witnesses who were 
               Huzmu are not killed, for the testimony of the 
               Mezimim (who said that the witnesses were elsewhere) 
               cannot be Huzam (we could not kill them for trying 
               to kill Treifos).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif and Rosh (Sanhedrin 8b and 3:32):</font></b> The Yerushalmi 
               disqualifies witnesses related to each other or to 
               the judges due to Hazamah (lest they be killed due 
               to each other).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Ran (Kesuvos 12b DH Kivan):</font></b> The Bavli concluded that 
               the Pesul of relatives is not due to Hazamah. Why 
               does the Rif rely on similar reasoning to disqualify 
               witnesses related to the judges? Rather, since the 
               Bavli learned from 'Banim' that relatives may not 
               testify with each other, the same applies to 
               testifying in front of relatives. Perhaps the Rif 
               brought the Yerushalmi only to teach that the 
               witnesses may not be related to the judges, for this 
               is not explicit in the Bavli, but it follows from 
               the reasoning of the Bavli. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Nimukei Yosef (Bava Kama 32a DH Yerushalmi):</font></b> 
                    The Yerushalmi says that witnesses cannot be 
                    related to the judges. A witness cannot become 
                    a judge because it is Iy Efshar Lehazimah. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Edus 3:3):</font></b> Even though monetary 
               cases do not require Drishah v'Chakirah, if it was 
               done and the witnesses contradicted each other, the 
               testimony is Batel. 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (Hilchos Rotze'ach 2:9):</font></b> Any testimony she'Iy 
               Efshar Lehazimah is invalid for capital cases.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Lechem Mishneh Hilchos Edus 20:7):</font></b> 
                    This connotes that testimony she'Iy Efshar 
                    Lehazimah is Kosher for capital cases. 
                    Sanhedrin 78a says that Stam that it is 
                    invalid! It seems that the Ran (above) holds 
                    that this is even for monetary cases. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Shach CM 33:16):</font></b> (Sanhedrin 78a 
                    disqualifies when witnesses cannot answer 
                    Chakiros or contradict each other. The Rambam 
                    rules like this in Hilchos Edus 3:3). Here (and 
                    in Hilchos Malveh below), the Rambam teaches 
                    that for monetary cases, l'Chatchilah we do not 
                    probe the witnesses, so Hazamah is not 
                    feasible. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Mishneh l'Melech (Hilchos Geneivah 3:8):</font></b> Rav 
                    Acha brei d'Rav Ika explains that Chachamim 
                    hold that since Ploni and Almoni cannot be 
                    Huzmu (for Reuven admitted that they saw him 
                    steal and slaughter or sell), their testimony 
                    is invalid. Perhaps testimony she'Iy Efshar 
                    Lehazimah is Pasul only for capital cases and 
                    fines. The Rivash (266) says that if even if 
                    witnesses cannot answer the Chakiros, the 
                    testimony is Kosher for monetary cases.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Hagahos Ashri (Kesuvos 13:20):</font></b> If a document does 
               not say where it was written, or it has no date, it 
               is Kosher. In monetary cases we are not concerned 
               whether the testimony can be Huzam.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mordechai (Sanhedrin 796):</font></b> The Sar mi'Kutzi 
                    says that witnesses can be relatives of the 
                    judges, for they can be Huzmu in another Beis 
                    Din. Witnesses cannot become judges because it 
                    is Iy Efshar Lehazimah. If they will be Huzam, 
                    the final verdict was invalid, for the judges 
                    were Pasul. Even the opinion that does not 
                    disqualify Edim Zomemim retroactively agrees 
                    that they are disqualified for that testimony.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shulchan Aruch (30:2):</font></b> Even though we do not require 
               Drishah v'Chakirah for monetary cases, if the 
               witnesses contradicted each other in Drishos 
               v'Chakiros, their testimony is Batel. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Shach (5,16):</font></b> It is Batel because it is Iy 
                    Efshar Lehazimah. This is unlike the Rivash 
                    (266), who is Machshir witnesses who cannot 
                    answer Chakiros). Bava Kama 75b says that such 
                    testimony is worthless! It is difficult to say 
                    that this refers only to fines.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Nesivos ha'Mishpat (Bi'urim 2 DH v'Hinei):</font></b> If 
                    witnesses testified that Reuven borrowed from 
                    Levi in a certain time and place, and other 
                    witnesses contradicted this, but said that he 
                    lent to him at another time, he is liable, for 
                    in any case he owes for one loan. Regarding 
                    capital cases we cannot execute him, for we do 
                    not know due to which witnesses he is killed, 
                    so it is Iy Efshar Lehazimah. This proves that 
                    we do not require Efshar Lehazimah for monetary 
                    cases, for when witnesses argue about how much 
                    Reuven owes, he must pay the smaller amount 
                    (Sanhedrin 31a)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (17):</font></b> Witnesses related to the judges 
               are Pesulim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (26):</font></b> The Mordechai and Nimukei Yosef hold 
                    that only capital cases require Efshar 
                    Lehazimah. They allow witnesses who are related 
                    to the judges or are Tereifos, for monetary 
                    cases. The Rema omitted their opinion because 
                    many disagree.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rebuttal (Shach 16):</font></b> Also the Mordechai and Nimukei 
               Yosef require Efshar Lehazimah. They merely say that 
               presumably, the witnesses know the time and place, 
               so we need not check if they know. Indeed, if we 
               find that they do not know, the testimony is 
               invalid. We must explain the Ba'al ha'Itur and 
               Rambam similarly. They disqualify witnesses related 
               to the lender or judges due to Iy Efshar Lehazimah, 
               and elsewhere they say that mid'Rabanan, this is not 
               needed for monetary cases. The Mordechai cites the 
               Ri, who allows witnesses related to the judges. 
               Hazamah is possible in another Beis Din (Tosfos in 
               the name of the Ri). Sanhedrin (32a) requires 
               Drishah v'Chakirah for monetary cases, i.e. to make 
               Hazamah possible (41b). The enactment not to require 
               Drishah v'Chakirah for loans and admissions was only 
               that Beis Din need not ask, but we require Efshar 
               Lehazimah. Chachamim would not enact that we do not 
               need Efshar Lehazimah. If witnesses contradicted 
               each other about Bedikos, the testimony is valid for 
               monetary cases (Sanhedrin 30b). This implies that if 
               they contradicted each other about Chakiros, the 
               testimony is Batel. This is reasonable only if we 
               need Efshar Lehazimah. If not, why is it different 
               than Bedikos?! Likewise, if a witness could not 
               answer a Chakirah, his testimony is Batel, for it is 
               Iy Efshar Lehazimah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Gra (34):</font></b> The Ran says that even though the Gemara 
               concluded that the Pesul of witnesses who are 
               relatives is not due to Hazamah, the law is true (we 
               require Efshar Lehazimah).
<br>
<font color='blue'><i>See also:</i>
<br><b><b>WHEN DOES ADMISSION EXEMPT FROM A FINE? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah teaches that we equate 
               admission to slaughtering or selling and testimony 
               of one witness (if more witness(es) come later, he 
               will pay a total of four or five) only when his 
               admission (to stealing) did not obligate himself;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  However, if one witness testified that he stole 
                    and slaughtered or sold, this is unlike 
                    admission to this, if more witness(es) come 
                    later;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  If he did not admit, once there are two 
                    witnesses, he pays four or five;
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  When he admitted and his admission 
                    obligated him to pay principal, he is exempt 
                    from the fine.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a thief saw witnesses (about his theft) 
          coming to Beis Din, and he admitted to the theft but not 
          to the slaughter, he only pays principal (even after the 
          witnesses testify).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why doesn't the Beraisa say that when 
               he admitted to stealing or slaughtering or selling, 
               he does not pay four or five?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> If he denied stealing, and after 
               witnesses testified that he stole he admitted to 
               slaughtering or selling (and witnesses later 
               testified about this), he pays four or five;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since his admission did not obligate him, it does 
                    not exempt him from a fine.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. Rather, the Beraisa teaches that 
          admission to stealing exempts him from four and five, 
          even if he denied slaughtering or selling and witnesses 
          testify that he did.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> What is the reason?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Admission to stealing exempts him from Kefel. 
          The Torah never obligated paying three or four (i.e. four 
          or five less the extra 'one' of Kefel).
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about this.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If two witnesses testified that Reuven 
               stole, and two others testified that he slaughtered 
               or sold, and the witnesses about the theft were 
               Huzmu, testimony that is partially nullified is 
               totally nullified (Reuven is exempt);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the witnesses about the slaughter or sale were 
               Huzmu, Reuven pays Kefel, and the Edim Zomemim pay 
               two or three;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Sumchus says, the Edim Zomemim witnesses pay 
               Kefel, and Reuven pays two for a Seh or three for an 
               ox.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Does Sumchus argue about the first or 
               second law?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> He argues about the first law.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Rejection:</font></b> Surely he agree that partially 
                    nullified testimony is totally nullified!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #1:</font></b> Rather, he argues with the second law.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Why does he argue with Chachamim? Their 
               law is sound!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #2:</font></b> Rather, they argue in a different 
               case. (The Beraisa did not state the case, nor 
               Chachamim's opinion. The Gemara asserts that the 
               case is as follows.)
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Two witnesses said 'you stole'; Reuven answered, 
                    I stole and slaughtered or sold, but I did not 
                    steal in front of you. Two other witnesses 
                    Hezimu the first two. Witnesses then testified 
                    that Reuven stole and slaughtered or sold.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Chachamim hold that even though the 
                    admission to stealing was because of the 
                    witnesses, the admission to slaughtering or 
                    selling was voluntary, so it exempts Reuven 
                    from four or five. (The Edim Zomemim pay Kefel, 
                    and Reuven uses it to pay the one from whom he 
                    stole.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  Sumchus holds that since the admission to 
                    stealing was due to the witnesses, also the 
                    admission to slaughtering or selling does not 
                    exempt Reuven from the fine.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  Therefore, the Zomemim witnesses pay Kefel, 
                    and Reuven pays two for a Seh or three for an 
                    ox.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>TESTIMONY THAT CANNOT BE HUZAM</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Rejection (and Answer #3 to Question 2:j:4 - Rav Acha 
          brei d'Rav Ika):</font></b> No. All agree, admission to slaughtering 
          does nothing. They argue about testimony that cannot be 
          Huzam.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If two witnesses said 'you stole', and Reuven 
               answered, I stole and slaughtered or sold, but I did 
               not steal in front of you, rather, in front of Ploni 
               and Almoni, and Ploni and Almoni testified that he 
               stole and slaughtered or sold.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim hold that since Ploni and Almoni cannot 
               be Huzmu (for Reuven admitted that they saw him 
               steal and slaughter or sell), their testimony is 
               invalid;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Sumchus says, even though they cannot be Huzmu, 
               their testimony is valid.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> We hold that testimony that cannot be Huzam 
          is invalid!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> That is only when the witnesses do not know at 
          what time they saw the testimony. Such testimony is 
          worthless;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Here, the accused supports the testimony!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The Zomemim witnesses pay Kefel...
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Since Reuven admits that he stole, he should 
          pay principal, (they should only pay him one)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Correction (R. Elazar):</font></b> The Beraisa should say, they 
          pay the extra payment (of Kefel).
<br>

sjt:
</p><p>
<font><b>3) WITNESSES WHO CANNOT BE MADE INTO 'EDIM ZOMEMIM'</b></font><b>
<br>QUESTION:</b> The Gemara says that the Rabanan and Sumchus disagree about 'Edus she'Iy Atah Yachol l'Hazimah' -- testimony which cannot be proven to be false through 'Hazamah.' The Rabanan rule that any testimony of witnesses which does not allow for the possibility of being proven false through 'Hazamah' is not valid testimony. Sumchus rules that this applies only when details of the testimony are not available (such as the day and hour at which the event took place), but not in this case where the witnesses cannot be made into Edim Zomemim because their testimony is obviously true (since the Ganav himself admits to it) and they are merely supporting the claim of the Ganav.
</p><p>
Why do the Rabanan and Sumchus disagree? What is the underlying point of their dispute?
</p><p>
<b>ANSWER:</b> To understand the dispute, it is first necessary to explore why 'Edus she'Iy Atah Yachol l'Hazimah' is not valid testimony. There are two ways to understand why such testimony is not valid. The first way is that it is a Gezeiras ha'Kasuv -- the Torah dictates that such Edus is not valid. Just as the Torah gives other guidelines with regard to Edus (for example, that the testimony of certain people, such as relatives, is invalid), the Torah also states that 'Edus she'Iy Atah Yachol l'Hazimah' is not valid. The second way of understanding this principle is that it is logical: if the witnesses know that they cannot be made into Edim Zomemim and will not face that punishment if found to be lying, they will not have that extra incentive to tell the truth, and thus there is a greater fear that they are lying.
</p><p>
The Rabanan perhaps maintain that 'Edus she'Iy Atah Yachol l'Hazimah' is invalid testimony just like the testimony of any other invalid witness -- it is a Gezeiras ha'Kasuv. Just as the testimony of even the greatest Tzadik for his relative, like Moshe Rabeinu for his brother Aharon, is invalid, any Edus which cannot be found to be false through 'Hazamah' is invalid. In contrast, Sumchus maintains that the basis for this principle is logical -- there is greater concern that the witnesses are lying when there is no way to prove their testimony false. Hence, in this case, where it is known that they are not lying (because the Ganav himself admits), their testimony is accepted even though it cannot be proven false through 'Hazamah.' (I. Alsheich. See also Insights to Bava Kama 84:1.)
</p><p>


<font><b>4) 'EDUS SHE'IY ATAH YACHOL L'HAZIMAH' AND MONETARY MATTERS</b></font><b>
<br>OPINIONS:</b> The Gemara discusses the principle of 'Edus she'Iy Atah Yachol l'Hazimah' -- any testimony of witnesses which cannot be proven false through 'Hazamah' is not valid testimony. The Poskim disagree about whether this principle applies to testimony about monetary matters.
</p><p>
(a) The <b>SHACH</b> (CM 32) proves from the Gemara here that this principle <i>does</i> apply to testimony about monetary matters, as the Gemara itself is discussing matters of monetary payment.
</p><p>
(b) The <b>PNEI YEHOSHUA</b> (Kuntrus Acharon, Kesuvos 21b, #68 DH Amnam) and the <b>NODA B'YEHUDAH</b> (EH 1:72, DH ha'Klal) refute the Shach's proof from the Gemara here. (The Pnei Yehoshua asserts that the words of a number of Rishonim -- including the <b>ITUR</b>, <b>RAMBAM</b>, <b>NIMUKEI YOSEF</b>, <b>RIVASH</b>, and <b>HA'SAR MI'KUTZI</b> -- imply that they maintain that 'Edus she'Iy Atah Yachol l'Hazimah Lo Havi Edus' does not apply to testimony about monetary matters.) They explain that the reason behind the view that this principle does <i>not</i> apply to testimony about monetary matters is that such testimony does not require 'Derishah' and 'Chakirah' (comprehensive interrogation; the Rabanan suspended the necessity for 'Derishah' and 'Chakirah' in testimony about monetary matters in order that lenders not stop lending money in fear that their witnesses will not be able to pass the requirements of 'Derishah' and 'Chakirah'). Obviously, where there is no requirement for 'Derishah' and 'Chakirah' -- procedures which establish many of the specific details of the testimony -- the details of the testimony cannot be proven false through 'Hazamah' since those details are not necessary, and yet such testimony still is accepted.
</p><p>
This reasoning, however, applies only to testimony about ordinary monetary matters. The Gemara here discusses testimony about penalties (Kefel and Arba'ah v'Chamishah). Testimony about a penalty <i>does</i> require 'Derishah v'Chakirah,' as the Gemara in Sanhedrin states. Accordingly, it is possible to make such witnesses into Edim Zomemim, and thus 'Edus she'Iy Atah Yachol l'Hazimah' is invalid testimony.
</p><p>
The Shach himself addresses this question on his opinion. He explains that although the Gemara discusses testimony about a Kenas, it is unlikely that when the Gemara says that 'Edus she'Iy Atah Yachol l'Hazimah' is invalid testimony that it refers only to testimony about a Kenas. The Gemara implies that this principle applies to testimony about all types of monetary matters.
</p><p>
The Pnei Yehoshua says that this is not a question since, mid'Oraisa, all forms of testimony, even for monetary matters, must be 'Edus she'Iy Atah Yachol l'Hazimah,' and the only reason why Edus about monetary matters does not need to be 'Edus she'Iy Atah Yachol l'Hazimah' is because of the Takanas Chachamim. Hence, the Gemara is saying that this principle applies to all forms of testimony except in cases where the Chachamim decreed that it not apply.
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MAKING A STOLEN ANIMAL HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven stole an animal, was Makdish it,
          and slaughtered or sold it (he only pays Kefel).
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	We understand why he does not pay four or five for
          slaughtering it. He slaughters the animal of Hekdesh, not
          of the original owner!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> He should pay four or five for making it
          Hekdesh. Giving to Hekdesh is like selling to a person!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> The Mishnah is like R. Shimon, who says that
          Kodshim with Achrayus are considered to be in the Reshus
          of the original owner.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Since R. Shimon taught the Seifa, the Reisha
          is not R. Shimon!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, the Mishnah discusses Kodshei Kalim.
          It is like R. Yosi ha'Glili, who holds that they are
          considered the property of the owner, and are in the
          owner's Reshus (jurisdiction).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Would he say that one pays four or five for
          Kodshei Kodoshim
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If so, why does the Reisha teach that if he stole
               an animal, slaughtered it and made it Hekdesh, he
               pays four or five? It should distinguish within the
               case of slaughtering after making it Hekdesh!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  It should say that he is exempt from four or five
                    only for Kodshei Kalim, but for Kodshei
                    Kodoshim, he is liable!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> Even for Kodshei Kodoshim, he is exempt. We
          distinguish between giving to Hekdesh and selling to a
          person;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> When one sells to a person, the animal changes
               from being Shimon's ox to Levi's ox;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When one gives to Hekdesh, it is called Shimon's
               ox before and after the Hekdesh!
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>THE EXEMPTION OF HEKDESH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> R. Shimon says...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, R. Shimon does not distinguish
          between giving to Hekdesh and selling to a person, but he
          should say oppositely!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> For Kodshim with act, he should be exempt, for 
               they are still in the original owner's Reshus;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> For Kodshim without Achrayus, he should be
               liable, for they leave the original owner's Reshus!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Shimon refers to a different matter (our 
          Mishnah is abbreviated. It means as follows);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one steals from a thief, or steals Hekdesh
               from its owner's house, he does not pay four or
               five.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Why is he exempt for Hekdesh?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> 'And it was stolen from the man's house'
               - not from the house of Hekdesh.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Shimon says, he is liable (four or five) for
               Kodshim with Achrayus.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> What is his reason?
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> It is considered stealing from the
               owner's house (only) if there is Achrayus.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> R. Shimon holds that slaughter that does not
          permit the meat is not considered slaughter. Slaughter of
          Kodshim (outside the Mikdash) forbids the meat!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rav Dimi, citing R. Yochanan):</font></b> The case is,
          it was Tam (unblemished), and he slaughtered it in the
          Mikdash, Lishmah (for the sake of the owner).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, the owner fulfilled his
               obligation. It is as if he returned the animal!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (R. Yitzchak bar Avin):</font></b> The blood spilled
               (invalidating the Korban).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Ravin, citing R. Yochanan):</font></b> It was Tam, and
          he slaughtered it in the Mikdash Lo Lishmah. (The meat
          may be eaten, but he did not fulfill his obligation.
<br>
<br>

sjt:
<font><b>1) A THIEF WHO SANCTIFIES THE STOLEN ANIMAL</b></font><b>
<br>QUESTION:</b> The Mishnah (74b) states that a Ganav who steals an animal and then sanctifies the animal as a Korban is exempt from paying Arba'ah v'Chamishah. The Gemara asks why should he be exempt when he sanctifies the animal? There should be no difference between making the animal Hekdesh and selling the animal to a person; in either case, he transfers the ownership of the animal to another domain.
</p><p>
The Gemara initially answers that the Tana of the Mishnah is Rebbi Shimon who maintains that when a person sanctifies an animal as Kodshim in such a way that he is responsible for it if it becomes lost ('Kodshim she'Chayav b'Achrayusan'), the animal is considered his property still, and thus the Ganav has not transferred the ownership of the animal to another domain by making it Hekdesh. The Gemara refutes this answer by pointing out that the end of the Mishnah quotes Rebbi Shimon, implying that the beginning of the Mishnah is not Rebbi Shimon.
</p><p>
This answer is problematic for a different reason. The answer is based on the assumption that Rebbi Shimon rules that 'ha'Gorem l'Mamon k'Mamon Dami' even for an item that is physically present. 'Davar ha'Gorem l'Mamon' refers to an object which the owner does not have the right to eat, use, or derive benefit from in any way, such as an animal that is Hekdesh, and yet if the object is destroyed the owner suffers a financial loss. Rebbi Shimon maintains that such an item is considered the property of the owner. Here, the Korban is not really the possession of the owner since it has been sanctified. However, if it is lost the owner will have to pay for it (by replacing it with another animal). Since he is responsible for it, the Korban is considered the property of the owner. However, the Gemara in Pesachim (6a) says that Rebbi Shimon rules that something which can cause a person a financial loss is considered his property only when that item is not physically present or in existence ('Leisei b'Einei'), and when it has already caused the owner a loss. For example, when the Ganav stole from Reuven an animal that was already sanctified as a Korban, Reuven now has a monetary obligation to replace that Korban. Since the animal is considered Reuven's property that the Ganav stole, the Ganav must pay him Kefel. In contrast, while the Korban is still physically present in the possession of the person (the Ganav, in this case), it is not considered 'k'Mamon,' his property. Why, then, when the Ganav makes it Hekdesh, is it not considered a transfer of ownership like Mechirah?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RAV ELCHANAN WASSERMAN</b> Hy'd (Kovetz Shi'urim, Pesachim #18) writes that Kodshim for which the owner is Chayav b'Achrayusan differs from other items that are 'Gorem l'Mamon.' In the case of other items that are 'Gorem l'Mamon,' as long as the item is present it is not considered the owner's property, because the owner has no right to use the item. Kodshim for which the owner is Chayav b'Achrayusan, on the other hand, is considered the property of the owner even when it is still present, because the owner is permitted to use it for some purpose. He may use it to fulfill a Neder-obligation of his that existed before he sanctified this animal. Therefore, Rebbi Shimon maintains that this item of Kodshim, too, is considered the owner's property even though it is still present.
</p><p>
(b) <b>CHIDUSHEI RABEINU MEIR SIMCHAH</b> here writes that in this case, too, the Korban is considered 'Leisei b'Einei,' not physically present. This is because the Ganav acquired it for himself when he made it Hekdesh, through Shinuy Reshus and Ye'ush. However, the Ganav cannot offer this animal as a Korban because this Korban is a 'Mitzvah ha'Ba'ah b'Aveirah' and is thus Pasul, and the verse ('Korbano') teaches that it must be <i>his</i> Korban and not a stolen animal. Thus, the Ganav is obligated to bring a replacement animal in place of this Korban that he sanctified, and he must let the one that he sanctified graze until it gets a blemish. Accordingly, this Korban is considered as though it is no longer present, 'Leisei b'Einei,' and it is causing the Ganav a financial loss (since he must replace it).
</p><p>
(c) The <b>NETZIV</b> (in Meromei Sadeh) answers in a completely different manner, based on the Gemara in Pesachim (6a). The Gemara there (5b) relates that Rava told the inhabitants of Mechuza to burn the Chametz which Nochri soldiers had deposited with them. Since the Jews had accepted responsibility for the Chametz should it become stolen or lost, it was as if the Chametz was theirs. The Gemara then cites two different versions of a question and answer on Rava's ruling. The first version asks that Rava's ruling makes sense according to the opinion of Rebbi Shimon who maintains that 'Davar ha'Gorem l'Mamon' is 'k'Mamon Dami,' for in this case the Chametz is a 'Davar ha'Gorem l'Mamon' since the Jews will be responsible for it if it is lost or stolen, and thus it is like the Chametz is their own property. According to the Rabanan who maintain that 'Davar ha'Gorem l'Mamon' is <i>not</i> considered like Mamon, how are is Rava's ruling to be understood? The Chametz is not considered the property of the Jews, so why should they have to destroy it? The Gemara answers that Chametz is different because the Torah specifically states, 'Lo Yimatzei' -- even if the Chametz is not the monetary property of the one in physical possession of it, since he accepted responsibility for it he is obligated to burn it as though it belonged to him.
</p><p>
The second version of the Gemara's question there asks that Rava's ruling makes sense according to the opinion of the <i>Rabanan</i> who maintain that 'Davar ha'Gorem l'Mamon' is <i>not</i> considered like Mamon. That is why it is necessary for the Torah to state the extra verse of 'Lo Yimatzei' -- to teach that even when the Chametz is not the property of the one in possession of it, he still is obligated to burn it. According to Rebbi Shimon, however, who maintains that 'Davar ha'Gorem l'Mamon' is 'k'Mamon Dami,' it is logical that one must burn all Chametz for which one is responsible since it is considered his own Chametz. Why, then, is a special verse of 'Lo Yimatzei' needed?
</p><p>
The Gemara answers that Rebbi Shimon also requires a special verse in this case. Without the verse, one would have assumed that a 'Davar ha'Gorem l'Mamon' is considered like Mamon only when the item is 'Leisei b'Einei,' when the item is lost or stolen. When the item is still present -- such as the Chametz -- it is not considered his property since he has not yet become obligated to pay for it, as it has not yet become lost or stolen. Consequently, even according to Rebbi Shimon it would not be considered his property if not for the verse of 'Lo Yimatzei.'
</p><p>
The Netziv points out that according to the first version in the Gemara there, there is no question why the verse of 'Lo Yimatzei' is necessary according to Rebbi Shimon. Why, though, is this not a question according to the first version? Why indeed is a special verse for Chametz necessary if Rebbi Shimon rules that an item for which a person is responsible is considered his property? The Netziv answers that the Chidush of Rava there is that even responsibility for Geneivah and Aveidah alone obligated the Jews to burn the Chametz of the Nochrim deposited with them. This implies that the Jews did not accept responsibility for an Ones that might happen to the Chametz, but only for Geneivah and Aveidah, and the soldiers indeed would not have held the Jews responsible for an Ones. Accordingly, without the verse one might have thought that whenever the person watching the Chametz does not have <i>full</i> and absolute responsibility (including responsibility for any Ones that might happen), he is not obligated to burn the Chametz. Since he is exempt from paying for it if an Ones happens to it -- and thus with regard to an Ones it is <i>not</i> a 'Davar ha'Gorem l'Mamon,' it logically is not considered his. Therefore, the first version in the Gemara knows that the verse 'Lo Yimatzei' is necessary according to Rebbi Shimon; it teaches that even if the person watching the Chametz will not be responsible to pay for it if an Ones happens, nevertheless it is considered his since he is responsible for Geneivah and Aveidah and he must burn it.
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The second version in the Gemara does not agree that this is why the extra verse of 'Lo Yimatzei' is needed, according to Rebbi Shimon. The second version understands that, indeed, if the person is responsible to pay for the Chametz only if it is lost or stolen but not if an Ones occurs, he is <i>not</i> required to burn it. He is required to burn it only when he is fully responsible for the Chametz (including any Ones that might happen). This was the ruling of Rava, and since this is logical no verse is necessary. This is also the view of <i>Rabah</i>, as <b>TOSFOS</b> (Bava Metzia 82a) points out. That is why the second version in the Gemara in Pesachim must find a different reason for why the Torah writes the extra verse.
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The Gemara here in Bava Kama does not follow the view of Rabah, because Rabah maintains that the Ganav acquires the item through Ye'ush alone. Since the Gemara here does not follow the view of Rabah, it also does not follow the second version in the Gemara in Pesachim (which is in accordance with Rabah). Rather, it follows the first version there. According to the first version, there is no difference between an item which is present ('Isei b'Einei') or not present ('Leisei b'Einei'); in either case, Rebbi Shimon rules that if it is a 'Davar ha'Gorem l'Mamon' it is considered the property of the owner.
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(d) The answers mentioned above explain why Rebbi Shimon rules here that 'Davar ha'Gorem l'Mamon' is 'k'Mamon Dami' even when it is 'Isei b'Einei,' even though the Gemara in Pesachim states that he rules that it is 'k'Mamon Dami' only when it is 'Leisei b'Einei.' The <b>MAHARIT ALGAZI</b> (Hilchos Chalah #10) has a completely different approach (see also <b>AFIKEI YAM</b> 2:10). He writes that the Gemara in Pesachim agrees that Rebbi Shimon rules that a 'Davar ha'Gorem l'Mamon' is 'k'Mamon Dami' even when it is still present ('Isei b'Einei'). When the Gemara there says otherwise, it is expressing only its initial assumption (Havah Amina). The conclusion of the Gemara there is that once the Torah states the verse of 'Lo Yimatzei' and teaches that a person must burn Chametz which he does not legally own but for which he has responsibility, we derive from there to all other cases in the Torah that a 'Davar ha'Gorem l'Mamon' is 'k'Mamon Dami' even when the item is still present.
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(e) The <b>DEVAR SHMUEL</b> in Pesachim answers based on the words of the <b><b><b>OR</b></b> SAME'ACH</b> (Hilchos Chametz u'Matzah 4:3), who writes that there are two separate Halachos involved with an item that is a 'Davar ha'Gorem l'Mamon.' The first Halachah is that the person owns only the monetary <i>value</i> of the item, but not the actual <i>body</i> of the item itself. The second Halachah is that the person owns even the actual body of the item itself. The second Halachah, however, applies only when the item is no longer present, 'Leisei b'Einei.'
</p><p>
Based on this, the Devar Shmuel writes that when the Gemara says that a 'Davar ha'Gorem l'Mamon' is 'k'Mamon Dami' even when it is present ('Isei b'Einei'), it means that only the monetary value of the item belongs to the person but not the actual body of the item itself. With regard to Chametz, however, in order to transgress the Isurim of 'Bal Yera'eh and Bal Yimatzei' it does not suffice to own the monetary value of the item; the person must own the actual body of the Chametz in order that it be considered his property such that he must burn it, but he does not own that part of the item when it is 'Isei b'Einei,' as the Or Same'ach writes.
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</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'> SHELICHUS TO OFFER KORBANOS</font></b>
<br><b><font color='darkgreen'> <b>    (a)</b>  Gemara</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah - R. Shimon):</font></b> If one stole Hekdesh from its
               owner's house and slaughtered, he pays four or five
               for Kodshim with Acharayos.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> R. Shimon holds that Shechitah that does
               not permit the meat is not called Shechitah.
               Shechitah of Kodshim (outside the Mikdash) forbids
               the meat!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav Dimi, citing R. Yochanan):</font></b> The case is,
               it was unblemished, and he slaughtered it in the
               Mikdash Lishmah (for the sake of the owner).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> If so, (the owner was Yotzei.) It is as if
               the thief returned the animal!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Nedarim 35b (Mishnah):</font></b> A Kohen may offer, for one
               who is Mudar Hana'ah (may not benefit) from him,
               bird-offerings of a Zav or Zavah or a woman who gave
               birth, Chata'os and Ashamos;
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Are Kohanim (serving in the Mikdash)
               Shluchim (agents) on behalf of us (Yisraelim), or on
               behalf of Hash-m?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer (Mishnah):</font></b> He may offer for him bird-
               offerings of a Zav...
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he is the Yisrael's Shali'ach, he benefits
                    him!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Objection:</font></b> If he is Hashem's Shali'ach, he should be
               able to offer all Korbanos! Rather, Mechusar Kipurim
               (Korbanos that complete Taharah) are different.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yochanan):</font></b> Any Korban brought for Levi
                    requires Levi's consent, except for Mechusar
                    Kipurim, for one brings them for his minor
                    children (even though a child has no intent).
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> If a Kohen is a Yisrael's Shali'ach, why
               can he be Mefagel (disqualify a Korban through
               improper intent? One cannot forbid (through intent)
               what is not his! One makes a Shali'ach only to help
               him, but not to harm him!)
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> Pigul is an exception. It says '(ha'Makriv
               Oso) Lo Yechashev' - in any case (intent of the one
               who offered it counts, even if it is not his
               Korban).
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Kidushin 23a (Rav Huna brei d'Rav Yehoshua):</font></b> Kohanim
               who serve in the Mikdash are Sheluchim of Hash-m.
               They could not be Sheluchim of Yisrael, for one
               cannot appoint a Shali'ach to do something that he
               himself cannot do!
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 41b (R. Yehoshua ben Korchah):</font></b> Why does it say 'all
               of Yisrael will slaughter (the Pesach)'? Only one
               person slaughters (each Korban)! Rather, this
               teaches that we attribute a Shali'ach's actions to
               the one who appointed him.
<br>        <b>  <b><font color='darkgreen'>13. </font></b></b> Other verses teach about Shelichus for divorce and
               Terumah. We could not learn from Pesach, for most
               matters of Kodshim are done through Sheluchim.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rambam (Hilchos Nedarim 6:5):</font></b> A Kohen may offer
               Korbanos for one Mudar Hana'ah from him, because
               Kohanim are Hashem's Sheluchim, not the owners'.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Or Some'ach:</font></b> The Yerushalmi explains that the
                    Kohen may offer his own Kinim, Chata'os and
                    Ashamos for the Mudar; it is like paying his
                    loan, which is permitted. He may not do so for
                    Kodshim Kalim, for this is like giving a gift
                    (the Mudar receives the meat). We permit for
                    Kodshei Kodoshim even if there is Acharayos.
                    Even R. Shimon says Davar ha'Gorem l'Mamon
                    k'Mamon Dami (it is considered a person's
                    property, since if it is lost, he must bring
                    another) only when it is lost. When it is here,
                    he agrees that it is Hashem's. One cannot sell
                    an Olah. It seems that the Madir (from whim the 
                    Mudar may not benefit) may offer his own animal
                    for the Mudar only for Korbanos of Mechusar
                    Kipurim, which do not require Da'as of the
                    Miskaper (the one for whom it is offered). He
                    may offer it even with the Mudar's Da'as, since
                    it is not Shelichus. It is like paying his
                    debt. Other Korbanos require Da'as. If one
                    separated for him without his Da'as, he was not
                    Yotzei. Therefore, it is as if the Mudar takes
                    the Madir's money to pay a debt. One opinion
                    forbids the Mudar to return the Madir's
                    Aveidah, for it exempts him from giving
                    Tzedakah (while engaged with the Aveidah), even
                    though the Madir does not lose! The other
                    opinion permits only because it is uncommon to
                    save money through this. It is not Mavri'ach
                    Ari (merely preventing potential damage)
                    because the Mudar takes the Madir's property.
                    Even if something does not require Shelichus,
                    if the Mudar commands the Madir, he may not do
                    it. It does not need Da'as because it is
                    Zechus, and Stam we assume that he wants it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question (Tosfos Kidushin 41b DH Nafka):</font></b> A verse
               teaches that the Kohen Gadol must own the bull he
               offers on Yom Kipur. This implies that for other
               Korbanos, one may offer another's Korban. Why can't
               we learn Shelichus for all Korbanos from here?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Tosfos):</font></b> The Kohen Gadol's bull is a Chatas.
               'Oso' teaches that we may offer a Chatas for Ploni
               against his will. Therefore, Shelichus works for
               Chatas.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Igros Moshe (Kodshim 9 (OC 1 p.360)):</font></b> If a
                    thief stole Levi's Korban and slaughtered it in
                    the Mikdash l'Shem Levi, is as if he returned
                    the animal. We cannot consider this like Levi's
                    action through Shelichus, since he did not know
                    about it. Zachin l'Adam she'Lo b'Fanav does not
                    apply, for it is not Zechus (Levi lost the
                    Mitzvah of Semichah). Rather, we must say that
                    others can slaughter his Korban b'Al Korcho
                    without Shelichus; as long as we did not hear
                    that Levi does not want to get Kaparah. Tosfos
                    holds that Shelichus is needed. Tosfos must
                    explain that since now Levi will not be able to
                    do Semichah in any case, it is Zechus for him
                    that the Korban be Kosher. Zachin l'Adam
                    applies, so the thief is considered Levi's
                    Shali'ach. Olah and Shelamim are Kosher even
                    when they do not atone. If a convert had an
                    Olah or Shelamim and died without heirs, we
                    offer it. It is not clear whether it helps to
                    offer it for a person who did not agree to
                    offer it.
<br><b><font color='darkgreen'> <b>    (c)</b>  Poskim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rema (OC 128:10):</font></b> (When calling the Kohanim to give
               Birkas Kohanim,) the Shali'ach Tzibur says 'Am
               Kedoshecha.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (Sof Siman 127 DH Kosav):</font></b> One should
                    not say 'Kohanei Am Kedoshecha', for they are
                    not Kohanim of Yisrael, rather, of Hash-m. One
                    can say 'Kohanim Am Kedoshecha', similar to
                    'u'Vnei Aharon Am Kedoshecha' in the Viduy of
                    Yom Kipur. The text of Rav Amram Gaon, Rav
                    Sadya Gaon and the Rambam (Sof Hilchos Tefilah)
                    is Kohanim Am Kedoshecha.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Hagahos (in Tur ha'Shalem 11):</font></b> Some editions
                    say that this is from Bedek ha'Bayis. Really,
                    it is a Hagahah in the Beis Yosef, like Shirei
                    Keneses ha'Gedolah and Mor u'Ktzi'ah say.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Magen Avraham (3):</font></b> Sefer Chasidim (805; this is
                    not in our texts of Sefer Chasidim) says that
                    'Kohanim Am' is not a Semichus (it does not
                    mean 'the Kohanim of Am Yisrael'). We hold that
                    they are Hashem's Sheluchim. Rather, they are
                    called 'Am Kodshecha', even though they are not
                    called just 'Am' (Yuma 41b).
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Pri Chodosh (2, cited in Eshel Avraham 3):</font></b> The
                    Gemara in Yuma (41b and 66a) says that Kohanim
                    are called Am Kedoshecha.
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