# dafyomi

lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav):</font></b> The Torah gave to the father only
          Kidushin money.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Mishnah):</font></b> One who strikes a Yisrael slave is
          liable for all damages, except for Sheves if it is his
          own slave. (Since a girl's labor belongs to her father,
          the Halachah should be the same!)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> Rav admits that the father receives the
          Sheves, since he owns her labor until Bagrus.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question (Beraisa #1):</font></b> If Reuven hit his son, if the
          son is an adult, Reuven pays him immediately. If the son
          is a minor, he buys something lasting.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If Reuven hit his daughter (a minor), he is
               exempt. If Shimon hit Reuven's daughter, he pays
               Reuven.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa discusses the Sheves.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>CHILDREN WHO FEED THEMSELVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa #1):</font></b> If one hit his son (an adult), he pays
          immediately.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa #2):</font></b> If one hit another's sons
          or daughters, if they are adults, he pays them
          immediately. If they are minors, he buys something
          lasting
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If one hit his own sons or daughters, he is
               exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> If one feeds his children, he is exempt (if he
          hits them). If they feed themselves, he is liable.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Beraisa #1 cannot discuss children that feed
          themselves!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa of Beraisa #1):</font></b> If he hit his daughter (a
               minor), he is exempt. Further, if he hit another's
               daughter, he pays her father.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If she feeds herself, she must receive the money!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Even according to the opinion that a master can
               tell his slave 'work for me, and I will not feed
               you' says so only about a Kena'ani slave;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  The master can make him work all day; and the
                    slave can pursue his food at night.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A master cannot tell his Yisrael slave 'work for
               me, and I will not feed you', for it says 'it is
               good for him with you.' He is with you regarding
               food and drink (he eats no worse than his master)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> All the more so, a man cannot tell his daughter
               'work for me, I will not feed you'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> We can answer like Rabah brei d'Rav Ula said
          (elsewhere, that the father gets) the money above what
          she needs to eat.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Beraisa #2 cannot discuss one who feeds his
          children. It says that if one hit another's sons or
          daughters, if they are adults, he pays them immediately.
          If they are minors, he buys something lasting;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The father should receive the money (since he is
               feeding them)!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> A man who feeds his children is insistent not
          to lose money (e.g. if he hits them, he should not pay).
          He does not mind if they get money from another source
          (e.g. when someone else hit them).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> He is insistent to receive lost items that
          they find!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Clarification of Answer:</font></b> He is insistent to get money
          they get from another source if it came without bodily
          pain to them; he is not insistent to get money which came
          through bodily pain.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> We find that he is insistent to receive money
          they get from another source that came through bodily
          pain!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> Further, if he hit another's
               daughter, he pays her father.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> That refers to an exacting father. He does not
          feed his children. He is insistent to get money they get
          from another source;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In Beraisa #2, the father feeds his children. He
               is insistent not to pay them, but he is not
               insistent to get money they get from another source.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> What is the 'something lasting'?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #1 (Rav Chisda):</font></b> It is a Sefer Torah.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (Rabah bar Rav Huna):</font></b> It is a tree from which
          they eat dates.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Reish Lakish):</font></b> The Torah gave to the father only
          Shevach Ne'urim money (like Rav holds).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> Even if someone bruised her, her father
          gets the money.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> Can that really be?! Even R. Elazar only
          asked about a blow that decreases her value, not a bruise
          that does not decrease her value!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (R. Yosi bar Chanina):</font></b> R. Yochanan refers to a
          bruise on the face that decreases her value.
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>HITTING SLAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Reuven hit Shimon's Kena'ani slave, he is
          liable... (R. Yehudah says, Boshes does not apply to
          slaves).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What is R. Yehudah's reason?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> 'When men will fight, a man with his brother'
          refers to people who have (according to Halachah)
          brothers. This excludes slaves.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Chachamim disagree. Since also a slave is
               commanded to keep Mitzvos, he is called a brother of
               a free man.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> According to R. Yehudah, Edim Zomemim who
          tried to kill a slave should not be killed. It says 'like
          he plotted to do to his brother'!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> 'You will eradicate the evil from your
          midst' includes this case.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Chachamim should say that a slave is
          qualified to be king (even though we must appoint a king
          from 'your brothers')!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Counter-question:</font></b> All agree that a convert is
               called your brother, but he may not be appointed
               king!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (to both questions):</font></b> 'From the midst of your
          brothers' - connotes from the best (lineage) of your
          brothers.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Chachamim should say that a slave is
          qualified to testify - 'he testified falsely about his
          brother'!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Ula):</font></b> A Kal va'Chomer disqualifies slave
          from testimony;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even women, who may marry a Yisrael, cannot
               testify. All the more so slaves, who cannot marry
               into Yisrael, may not testify!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> Circumcision does not apply to women.
               Perhaps slaves, to whom circumcision applies, can
               testify!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We see that minors cannot testify, even
               though they are fit for circumcision.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> Children are exempt from Mitzvos.
               Perhaps slaves, who are commanded to fulfill
               Mitzvos, can testify!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> Women are commanded in the Mitzvos, yet
               they cannot testify! (This shows that this is not
               the criterion);
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  The stringent sides of women and children are
                    dissimilar. We learn from the common side:</font></b> they
                    are not commanded about all the Mitzvos, and
                    cannot testify. The same applies to slaves!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Women and children are not men. We
               cannot learn to disqualify adult male slaves!
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> We learn from a robber (just like he
               cannot testify, also a slave).
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Question:</font></b> His sin disqualified him. We cannot
               learn to a slave!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> We learn from the common side of a
               robber, and a woman or minor.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Mar brei d'Ravina):</font></b> 'Fathers will not die
          due to children' - one is not sentenced to die through
          testimony of fathers who have no connection (lineage) to
          their children.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The verse cannot mean that a father will not die
               though testimony of his children. If so, it should
               have said 'fathers will not be put to death due to
               their children'!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Rather, it means like we said.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> If so, we should similarly learn from
          'children will not be put to death due to fathers' that
          one is not sentenced to die through testimony of children
          who have no lineage to their fathers, to disqualify
          converts (but this is false)!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> No. Converts have no lineage to their parents,
          but they have lineage to their children. The verse
          excludes slaves, who have no lineage, not to their
          parents nor to their children.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Had the Torah wanted to disqualify converts, it
               would have he verse would say 'children will not die
               due to their fathers', to teach that a father is not
               sentenced to die through testimony of his children;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> ''And children will not die due to fathers' would
               teach two laws:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Children are not sentenced to die through
                    testimony of their fathers;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  No one is sentenced to die through
                    testimony of people who have no lineage to
                    their fathers (converts);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> We would then learn a Kal va'Chomer:</font></b> if converts
               are disqualified, even though they have lineage to
               their children, all the more so slaves, who have no
               lineage to their parents or children, are
               disqualified!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Since the Torah did not write this. It must be
                    that converts can testify, only slaves are
                    disqualified.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question:</font></b> The Torah should have written 'and children
          will not be put to death due to their fathers.' Why did
          it write 'and children will not be put to death due to
          fathers', which connotes that no one is sentenced to die
          through testimony of people who have no lineage to their
          fathers!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Since the verse starts 'fathers will not be put
          to death due to children', the verse continues 'and
          children will not be put to death due to fathers.'
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>IS KINYAN PEROS LIKE KINYAN HA'GUF?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One loses through encounters with a Cheresh,
          lunatic or child.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	The mother of Rav Shmuel bar Aba of Hegronya wrote a
          document giving her Melug property to Rav Shmuel. After
          she died, R. Yirmiyah bar Aba ruled that Rav Shmuel gets
          the property.
<br>
<br>

sjt:
<font><b>1) TESTIMONY AGAINST AN 'EVED'</b></font><b>
<br>QUESTION:</b> The Gemara explains that according to Rebbi Yehudah, an Eved Kena'ani does not receive payment of Boshes because the verse teaches that Boshes is paid only when one injures his 'brother' (Devarim 25:11). An Eved Kena'ani is not considered one's brother (because he cannot marry into the Jewish people; see <b>RASHI</b>). The Gemara asks that if an Eved is not considered one's brother, then Edim Zomemim who testified that an Eved is Chayav Misah and were then proven to be Zomemim should not be Chayav Misah. Why, then, are they killed?
</p><p>
The Gemara answers that the verse which teaches the punishment of Edim Zomemim concludes, 'u'Vi'arta ha'Ra mi'Kirbecha' (Devarim 19:19). These words teach that the Beis Din must kill the Edim Zomemim who tried to have the Eved killed, even though the Eved is not considered their 'brother.'
</p><p>
Why does the Gemara assume that Edim Zomemim of an Eved are killed? Perhaps they are <i>not</i> killed!
</p><p>
<b>RASHI</b> quotes the Beraisa in Makos (8b) which states that a Jew may be sent to Galus for the inadvertent killing of an Eved, and he may be punished with Malkus for hitting an Eved and causing an injury that is worth less than a Shaveh Perutah. Rashi clearly intends to explain how the Gemara knows that Edim Zomemim who testify against an Eved are punished, but how does the Gemara in Makos prove this? Perhaps Rashi reasons as follows. Just as a Jew is punished for the murder of an Eved with the same punishment one receives for killing an ordinary Jew, so, too, Edim who testify falsely about an Eved should receive the same punishment that the Torah imposes on Edim who give false testimony about an ordinary Jew. It is not logical that the Torah would exempt Edim Zomemim who testify falsely against an Eved, since there <i>are</i> punishments for committing other offenses against an Eved.
</p><p>
<b>TOSFOS</b> (DH Zomemei) takes a different approach and explains the Gemara's logic as follows. If Edim Zomemim who falsely testified against an Eved would not be killed, it would be impossible for a Jew to ever testify that an Eved is Chayav Misah (even when it is true) since such testimony would be 'Edus she'Iy Atah Yachol l'Hazimah.' The <b>NODA B'YEHUDAH</b> (EH 1:74, DH u'Mah she'Hevi Ra'ayah) explains that Tosfos seems to be addressing the question of how the Gemara knows that Edim Zomemim of an Eved are killed. Tosfos answers that they must be killed since it is obvious (because of everyday occurrences) that testimony can be brought against an Eved to prove that he is Chayav Misah, just as it can be brought against an ordinary Jew. Hence, a witness who testifies against an Eved must be able to become an Ed Zomem and be punished with Misah.
</p><p>
Both of these explanations, however, share a common difficulty. According to both Rashi and Tosfos, the Gemara should question not only how Edim Zomemim of an Eved are <i>killed</i>, but how Edim Zomemim can be punished with <i>Malkus</i> when they testify that an Eved is Chayav Malkus. According to Rashi, it is logical that Edim Zomemim of an Eved receive Malkus, since the Beraisa teaches that an ordinary Jew receives Malkus for wounding an Eved. Similarly, according to the logic of Tosfos, those who testify about an Eved are punished with 'Ka'asher Zamam' (the punishment they tried to inflict which, in this case, is Malkus) because, otherwise, their testimony about the Eved would not be accepted, but it is known that such testimony <i>is</i> accepted.
</p><p>
The Gemara's logic, however, applies only to Edim Zomemim who tried to inflict the death penalty on an Eved. The verse of 'u'Vi'arta ha'Ra mi'Kirbecha' teaches only that Beis Din must <i>kill</i> witnesses who attempted to kill someone by testifying against him, but it does not refer to other punishments (as the verse concludes, 'and those who remain alive will hear and fear'). How, then, will the Gemara answer why Edim Zomemim of an Eved are punished with Malkus when they testify falsely that the Eved is Chayav Malkus? (See <b>CHIDUSHEI REBBI AKIVA EIGER</b>.)
</p><p>
Similarly, the Gemara should question the Mishnah itself, which states that if an Eved damages someone, witnesses can testify about him in court and obligate him to pay. However, monetary penalties cannot be derived from the verse the Gemara cites. Why should such testimony be accepted when the witnesses themselves cannot be obligated to pay if they become Edim Zomemim, since their testimony will be 'Edus she'Iy Atah Yachol l'Hazimah'? (See <b>NODA B'YEHUDAH</b>, loc. cit.)
</p><p>
<b>ANSWERS:</b>
<br>(a) Perhaps the Gemara's answer is not based on the literal meaning of the words, 'u'Vi'arta ha'Ra mi'Kirbecha,' which refer to killing a person (see Sanhedrin 78a, where the Gemara discusses the case of a Tereifah who kills another person in front of Beis Din), but rather it is derived from the fact that the Torah adds extra words to the verse (regardless of their meaning). The Torah does not need to say 'u'Vi'arta ha'Ra mi'Kirbecha' altogether (since there is another verse (Devarim 17:7) which refers to a person who is Chayav Misah and says 'u'Vi'arta ha'Ra mi'Kirbecha'). The Gemara derives from the addition of these extra words that the Torah intends to teach something new with regard to Edim Zomemim: even where logic would teach that the punishment of 'Ka'asher Zamam' should not apply, such as in the case of testimony against an Eved, 'Ka'asher Zamam' applies nonetheless. That this is the intent of the Gemara is implied by the Gemara's addition of the words, 'mi'Kol Makom' when it quotes the verse: ''u'Vi'arta ha'Ra mi'Kirbecha' <i>mi'Kol Makom</i>.' The Gemara derives from this verse that the punishment of 'Ka'asher Zamam' applies in more cases than one would have thought.
</p><p>
Accordingly, the verse which the Gemara quotes does not refer specifically to putting a person to death. Rather, it is a general verse that refers to all of the Halachos of 'Ka'asher Zamam,' even to Malkus and monetary obligations. (M. Kornfeld)
</p><p>
(b) In the beginning of Makos, <b>TOSFOS</b> asks why testimony is accepted from witnesses to make a Kohen a Ben Gerushah or Ben Chalutzah, if Beis Din cannot punish the witnesses in the same way if they are found to be Edim Zomemim (i.e. the witnesses themselves do not become Ben Gerushah or Ben Chalutzah). Why is their testimony not 'Edus she'Iy Atah Yachol l'Hazimah'? One of his answers is that any form of testimony that is not discussed in the Parshah which describes 'Ka'asher Zamam' does not have to be punishable with 'Ka'asher Zamam,' the same punishment that the witnesses tried to inflict on the defendant, in order to be valid testimony. Since the Torah specifically teaches that testimony that a Kohen is a Ben Gerushah is not included in the discussion of 'Ka'asher Zamam,' it does not have to be testimony that is 'Yachol l'Hazimah.'
</p><p>
The same answer may be applied here. Since the verse of 'Ka'asher Zamam' discusses one who testifies against 'Achiv,' his brother, and not against an Eved, testimony against an Eved does not need the requirement of 'Yachol l'Hazimah' in order to be valid.
</p><p>
This answer is problematic, however. This answer removes the need for the Gemara to derive from 'u'Vi'arta ha'Ra' that the witnesses are killed. The Gemara could say instead that the witnesses are <i>not</i> killed, and nevertheless the Eved about whom the witnesses testify is killed if they are not found to be Zomemim, because their testimony does not have to be 'Yachol l'Hazimah.'
</p><p>
The answer to this question may be as follows. It is true that the witnesses' testimony does not <i>have</i> to be 'Yachol l'Hazimah.' In the case of testimony about a capital crime, it <i>is</i> 'Yachol l'Hazimah,' since the Gemara maintains that in truth the witnesses <i>are</i> killed because of 'u'Vi'arta ha'Ra.' In contrast, with regard to Malkus and monetary obligations, even though the witnesses will not be punished if found to be Edim Zomemim, their testimony is valid even when it is not 'Yachol l'Hazimah,' and thus the Eved will be punished as a result of their testimony (if they are not found to be Edim Zomemim), as Tosfos in Makos explains.
</p><p>
(c) Tosfos in Makos gives a second answer to his question there, which might provide a clearer understanding of the Gemara here. Tosfos explains that since the witnesses who testify about a Ben Gerushah receive Malkus if they are proven to be Zomemim, their testimony <i>is</i> considered 'Yachol l'Hazimah.' Only testimony intended to punish a person with <i>death</i> must be 'Yachol l'Hazimah' with the same punishment (the death of the witnesses), since the verse says 'Nefesh b'Nefesh.' In contrast, testimony to punish a person with Malkus does not need to be punishable with 'Ka'asher Zamam,' as long as some other punishment is administered.
</p><p>
When witnesses testify against an Eved, although they will not receive Malkus for 'Ka'asher Zamam' they <i>will</i> receive Malkus for 'Lo Se'aneh v'Re'acha Ed Shaker' (Shemos 20:13) -- giving false testimony. Although the Eved is not 'Achiv,' he <i>is</i> 'Re'acha.' Since the witnesses will be punished with Malkus for 'Lo Se'aneh,' their testimony will be accepted to give Malkus to the Eved. (Since this applies only to Malkus and not to Misah, the verse of 'u'Vi'arta ha'Ra' is still needed.)
</p><p>
Tosfos' answer, however, will not apply to testimony to obligate the Eved to pay money (such as in the case of the Mishnah), because with regard to money the verse says 'Yad b'Yad' as it says with regard to death ('Nefesh b'Nefesh'), teaching that such testimony must be 'Yachol l'Hazimah.'
</p><p>
This problem may be resolved in a number of ways:
</p><p>
1. The Noda b'Yehudah (loc. cit.) writes that the Torah does not require that testimony about a monetary obligation be 'Yachol l'Hazimah.' (This is in contrast to the view of many Acharonim. See <b>REBBI AKIVA EIGER</b> in Gilyon ha'Shas to 88a.)
</p><p>
2. The <b>CHIDUSHEI HA'RIM</b> suggests that <i>after</i> the Eved becomes free the witnesses can testify that they saw the Eved damage a person while he was a slave, and the testimony <i>will</i> be 'Yachol l'Hazimah.' This answer would explain the Mishnah which states that an Eved can be obligated to pay for damages.
</p><p>
3. The Chidushei ha'Rim adds that since the Eved has no money until he is freed, the testimony against him -- even if it is said while he is an Eved -- is an attempt to damage only a <i>free</i> man (i.e. the Eved after he will be freed). Hence, it indeed may be called testimony about 'Achiv' and is 'Yachol l'Hazimah.'
</p><p>


<font><b>2) THE SOURCE THAT AN 'EVED' IS NOT A VALID WITNESS</b></font><b>
<br>QUESTIONS:</b> The Gemara asks, according to the Rabanan who disagree with Rebbi Yehudah, what is the source that an Eved cannot serve as a valid witness? The Gemara first suggests that the source is a Kal va'Chomer from a woman, who may not serve as a witness for most forms of testimony, but it refutes the Kal va'Chomer. The Gemara then attempts to derive it from the law of a Katan, who is invalid for testimony. In its conclusion, the Gemara derives it from a 'Tzad ha'Shaveh' from a Gazlan and from either a Katan or a woman.
</p><p>
<b>RASHI</b> (DH Pesulah) explains that a woman is Pesulah l'Edus because the verse says, 'v'Amdu Shnei ha'Anashim' -- 'And the two <i>men</i> shall stand' (Devarim 19:17). Rashi adds that this verse also excludes a Katan from Edus. Rashi adds another reason for why a Katan's testimony is not accepted: it is 'Edus she'Iy Atah Yachol l'Hazimah' since Beis Din cannot give a punishment to a Katan.
</p><p>
Rashi's words are difficult to understand.
</p><p>
(a) As the Acharonim here point out, Rashi quotes the Gemara in Bava Basra (155b) which derives the exclusion of a Katan from Edus from the verse 'v'Amdu Shnei ha'Anashim.' Why, though, does the Gemara there need to derive this Halachah from a verse if the Edus of a Katan is invalid anyway because it is 'Edus she'Iy Atah Yachol l'Hazimah'? This reason alone should disqualify a Katan from giving testimony, as Rashi says. (<b>REBBI AKIVA EIGER</b>, Teshuvos #176)
</p><p>
(b) Why does Rashi need to add a second reason to disqualify a Katan from giving testimony, in addition to the Gemara's reason? Why does the Gemara's reason not suffice? (<b>AYELES AHAVIM</b>, Kesuvos, Kuntrus Acharon #108)
</p><p>
(c) <b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) asks that Rashi's second reason -- that a Katan's testimony is invalid because it is 'Edus she'Iy Atah l'Hazimah,' seems inconsistent with the Gemara here. The Gemara seeks to derive from the laws of a Katan -- either through a Kal va'Chomer or through a Binyan Av -- that an Eved is also disqualified from giving testimony. However, if the reason for why a Katan is disqualified is that it is impossible to make him into an Ed Zomem, then the disqualification of an Eved cannot be derived from that of Katan, since an Eved <i>can</i> be made into an Ed Zomem! In fact, according to Rashi's second reason, there is no specific disqualification of a Katan from Edus; rather, his testimony is disqualified because of the general law that Edus must be 'Yachol l'Hazimah.' How, then, can the Gemara here suggest that from the fact that the Torah disqualifies a Katan, it certainly disqualifies an Eved as well? The Torah never specifically disqualifies a Katan!
</p><p>
<b>ANSWERS:</b>
<br>(a) The Acharonim suggest a number of reasons for why the problem of 'Edus she'Iy Atah Yachol l'Hazimah' does not suffice to disqualify a Katan from Edus.
</p><p>
1. <b>REBBI AKIVA EIGER</b> (Teshuvos, loc. cit.) explains that if 'Yachol l'Hazimah' would be the only reason to disqualify a Katan from Edus, a Katan's testimony <i>would</i> be accepted in certain cases. He would be accepted as a witness to testify about a Kohen who is a Ben Gerushah or Ben Chalutzah, according to the second answer of <b>TOSFOS</b> in Makos (2a), which asserts that such testimony does not have to be 'Yachol l'Hazimah' (see previous Insight). Similarly, Rebbi Akiva Eiger points out that testimony about Kidush ha'Chodesh does not have to be 'Yachol l'Hazimah' since it is not testimony against any person. Also, testimony to protect a person from being killed (by contradicting witnesses who say that a person is Chayav Misah) obviously does not have to be 'Yachol l'Hazimah' since such testimony cannot cause harm to anyone. Since the reasoning of 'Yachol l'Hazimah' would not disqualify a Katan from these forms of testimony, the Gemara in Bava Basra must learn from the verse of 'v'Amdu Shnei ha'Anashim' that a Katan is inherently invalid as a witness.
</p><p>
2. <b>RAV SHLOMO EIGER</b> (in Teshuvos Rebbi Akiva Eiger, loc. cit.) and the <b>GEVUROS ARI</b> (Makos 2a) answer that had the Katan been disqualified only because his Edus is not 'Yachol l'Hazimah,' his testimony <i>would</i> be accepted when he testifies after he reaches adulthood (at which time he <i>is</i> punishable). The verse of 'v'Amdu Shnei ha'Anashim' teaches that even as an adult he may not testify about something he saw when he was a Katan.
</p><p>
The <b>KOVETZ SHI'URIM</b> (Bava Basra #566, #583) asks another question on the Gemara in Bava Basra: Why does the Gemara not give a third reason for a Katan's disqualification from Edus -- the fact that a Katan's word is not reliable? The Kovetz Shi'urim proves that a Katan's word is not reliable from the fact that the Mishnah in Kesuvos (28a) disqualifies the testimony of a Katan even with regard to an Isur, and even if the Katan testifies about the Isur after he becomes an adult (except when he testifies about an Isur d'Rabanan). If the only reason a Katan is disqualified is the verse of 'v'Amdu Shnei ha'Anashim' or the principle of 'Edus she'Iy Atah Yachol l'Hazimah,' his testimony should be accepted with regard to Isurim, since such testimony does not require all of the Halachos of Edus (such as two witnesses); even the testimony of a woman is accepted with regard to Isurim (see <b>TOSFOS</b> to Kesuvos 28a, DH Elu).
</p><p>
The answer to this question might be that the fact that a Katan's testimony is unreliable is not always true. When the Katan has a mature mind (for example, the day before he reaches the age of Bar Mitzvah), his testimony is just as reliable as it is on the day after his Bar Mitzvah. When the Mishnah in Kesuvos teaches that a Katan is not trusted to testify when he is an adult about what he saw when he was a Katan, it refers to what he saw when he was <i>very</i> young, when his testimony certainly was not reliable. Perhaps the Rabanan instituted that he may not testify about what he saw shortly before he became Bar Mitzvah, but mid'Oraisa his testimony indeed should be accepted with regard to Isurim. (M. Kornfeld)
</p><p>
(b) The reason why Rashi finds it necessary to introduce a new reason to disqualify a Katan from Edus (the reason of 'Edus she'Iy Atah Yachol l'Hazimah') is that there is no other way to explain the Gemara. When the Gemara attempts to derive that an Eved is disqualified from Edus through a 'Tzad ha'Shaveh' between Katan and Ishah, the Gemara rejects the 'Tzad ha'Shaveh' with the argument that the Halachah of an Eved cannot be derived from Katan and Ishah because those two have a common element which is the cause for their disqualification -- neither one is an Ish, while an Eved <i>is</i> an Ish! As the <b>TORAS CHAIM</b> points out, this is an extremely odd 'Tzad ha'Shaveh.' If such a form of 'Tzad ha'Shaveh' is valid, then a similar 'Tzad ha'Shaveh' can be advanced to reject <i>any</i> attempted 'Mah ha'Tzad' with the argument that C cannot be derived from A and B because the common element of A and B is that they are not C! This contradicts the most basic premise of the methodology of 'Tzad ha'Shaveh,' which is that the presence of a common element can be the cause of a certain Halachah, but it cannot cause a common <i>lack</i> of a Halachah!
</p><p>
The only way to understand the Gemara is the way that Rashi (DH she'Ein Ish) explains it, which is that both an Ishah and a Katan are excluded by the same verse, 'v'Amdu Shnei ha'Anashim,' and therefore their exclusion is considered a <i>single</i> Halachah from which the exclusion of an Eved cannot be derived, since the verse that excludes non-'Anashim' does not apply to an Eved. If this is true, however, then what does the Gemara mean when it initially suggests that an Eved's disqualification for Edus should be derived from a 'Tzad ha'Shaveh' between Ishah and Katan? Ishah and Katan are not disqualified by two different verses such that one could make a 'Tzad ha'Shaveh.' Rather, they are both disqualified by a single verse that teaches that a witness must be an Ish, and thus an Eved -- who is an Ish -- obviously cannot be disqualified from Edus by this verse!
</p><p>
This is why Rashi finds it necessary to propose that the Gemara initially thinks that a Katan is disqualified from Edus not just because he is excluded by the verse requiring 'Anashim,' but due to another factor as well. Without this second reason, the Tzad ha'Shaveh would not be valid. The reason which Rashi proposes is that Edus of a Katan is not 'Yachol l'Hazimah.' (M. Kornfeld)
</p><p>
(c) There remains one difficulty with Rashi's explanation. As the Gilyon ha'Shas asks, the factor which invalidates a Katan's testimony -- that it is 'Edus she'Iy Atah Yachol l'Hazimah' -- does not invalidate the <i>Katan</i> himself. That is, it does not disqualify the Katan as a witness. Consequently, an Eved's disqualification for Edus cannot be derived from that of a Katan.
</p><p>
This difficulty, however, may be resolved with different interpretation of the Gemara.
</p><p>
The Gemara initially assumes that, logically, the verse 'v'Amdu Shnei ha'Anashim' is not a valid source to disqualify both an Ishah and a Katan from giving testimony. The reason for this is that the two Derashos are not equal (see Bava Kama 3a). Rather, it is more logical to derive that a woman is disqualified from the verse, 'Kol Kevudah Bas Melech Penimah' (Tehilim 45:14), as the Gemara says in Shevuos (30a). A Katan, on the other hand, whose mind is fully developed but does not yet have two Se'aros or has not yet reached the age of adulthood logically should be accepted as a witness like an adult (or like a child who has two Se'aros, as the Gemara implies in Bava Basra 155b).
</p><p>
Although a Katan is neither obligated to observe the Mitzvos nor punished for transgressing them, since testimony is merely a question of trustworthiness a Katan who is almost an adult should be just as trustworthy as an adult.
</p><p>
This is why the Gemara initially assumes that a Katan would not have been disqualified from Edus had his testimony not been 'Edus she'Iy Atah Yachol l'Hazimah.' Since the testimony of a Katan usually is not 'Yachol l'Hazimah' (except in the cases mentioned above, such as testimony for Kidush ha'Chodesh, or testimony he gives when he becomes an adult), a verse is needed to disqualify a Katan only in the few cases where the problem of 'Edus she'Iy Atah Yachol l'Hazimah' does not apply. In order to extend the Pesul of a Katan and make it a general Pesul (even in the cases mentioned above), it suffices to derive from the verse of 'v'Amdu Shnei ha'Anashim' that he is disqualified from giving testimony, even though that verse already teaches that a woman is disqualified. That is, the fact that a Katan's testimony is rejected for <i>other</i> reasons <i>most</i> of the time makes him equal to an Ishah, and thus the two exclusions (that of Katan and that of Ishah) are equal.
</p><p>
This answers the question of the Gilyon ha'Shas. Although Rashi writes that a Katan's Edus is 'Edus she'Iy Atah Yachol l'Hazimah,' ultimately this is not what disqualifies a Katan from giving testimony. It is the verse that says 'ha'Anashim' that disqualifies the <i>person</i> himself from testifying; the Pesul is not merely because the Katan's testimony is not 'Yachol l'Hazimah.'
</p><p>
Nevertheless, the Gemara assumed that it could make a 'Mah ha'Tzad' between Ishah and Katan, since the main reason why a Katan is disqualified is not that he is not an Ish, but that most of his testimony is not 'Yachol l'Hazimah.' The Gemara ultimately concludes that this is not so; rather, the main reason why a Katan is disqualified is because he is not an Ish, like a woman, and indeed a Katan and an Ishah are considered equal aside from the consideration of 'Edus she'Iy Atah Yachol l'Hazimah.' (M. Kornfeld)
</p><p>


<font><b>3) TESTIMONY OF FATHERS WHO ARE NOT CONSIDERED RELATED TO THEIR SONS</b></font><b>
<br>QUESTION:</b> Mar brei d'Ravina derives from the verse, 'Lo Yumsu Avos Al Banim' (Devarim 24:16), that the testimony of an Eved is not accepted. The simple translation of the verse is, 'Fathers shall not be put to death because of [the testimony of] sons.' Mar brei d'Ravina interprets the verse as saying, 'Lo Yumsu <i>Al Pi</i> Avos <i>she'Ein Lahem Chayis</i> Banim' -- 'he (the defendant) shall not be put to death based on the testimony of a person who, as a father, has no Halachic familial relationship with his children (i.e. a slave).'
</p><p>
Mar brei d'Ravina's reading of the verse is difficult to understand. How can he read the verse such that 'Avos' refers to the <i>witnesses</i> (as opposed to the defendant)? If it refers to the witnesses, where does it say that the witnesses do <i>not</i> have a familial relationship with their sons? On the contrary, the verse says 'Avos Al Banim,' implying that the 'Avos' <i>are</i> considered to have a familial relationship with their sons. The verse clearly implies that Beis Din cannot put someone to death based on the testimony of fathers who <i>have</i> a familial relationship with their children!
</p><p>
<b>ANSWER:</b> The <b>RA'AVAD</b> cited by the Shitah Mekubetzes explains the verse as follows. 'Lo Yumsu Avos' -- defendants should not be killed, 'Al Banim' -- because of something that has to do with children. The verse means that a familial relationship with children is a factor to take into account when considering whether to accept testimony.
</p><p>
This approach, however, does not seem consistent with the words of the Gemara. The Gemara paraphrases the verse as saying, 'Lo Yumsu Al Pi Avos she'Ein Lahem Chayis Banim' -- one should not die based on [the testimony of] fathers who have no familial relationship with their sons. Since the 'Avos' in the verse are the defendants and not the witnesses, how are the words '*Al Pi* Avos' ('*based on [the testimony]* of fathers') to be understood? Those words completely deviate from the simple meaning of the verse.
</p><p>
The Shitah Mekubetzes cites manuscripts that state, 'Lo Yumsu <i>Avos Al Pi</i> she'Ein Lahem Chayis Banim,' reversing the order of the words 'Al Pi' and 'Avos.' According to this Girsa, the 'Avos' indeed are the defendants, and the verse is saying that 'fathers shall not be put to death based on [the testimony of] those who have no familial relationship with sons.' (The Hamburg manuscript, cited by the Dikdukei Soferim, has a similar Girsa.)
</p><p>
According to our text, the words 'Al Pi' should be read like 'Al Pi Hem,' and they should be read with a pause after them. The Gemara thus means, 'Lo Yumsu Al Pi' -- [they] shall not be put to death based on verbal testimony -- 'Avos,' the fathers (meaning the defendant), 'Al Banim' -- because of something that has to do with familial relationship (as the Ra'avad explains).
</p><p>



</p><p>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>HOW DOES A MARRIED WOMAN PAY FOR DAMAGE OR MESIRAH?</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'> 87a (Mishnah):</font></b> If a (married) woman damaged someone,
               she is exempt now, but pays later, i.e. after she is
               divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 88b (R. Yosi bar Chanina):</font></b> In Usha, they enacted
               that if a woman sells her Melug property and dies in
               her husband's lifetime, he takes the property from
               the buyer.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> We may derive the enactment of Usha from
               our Mishnah. If not for the enactment, she should
               sell her Melug property to pay the damage!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rejection:</font></b> The enactment only prevents her from an
               absolute sale (i.e. the buyer will eventually get it
               even if she dies first). In any case, she can sell
               the Tovas Hana'ah (the rights to get the property if
               and when she is widowed or divorced)! We must say
               that the Mishnah discusses one who has no Melug
               property.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> 89a - Question:</font></b> She can sell the Tovas Hana'ah of
               her Nichsei Melug!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah discusses one who has no Melug
               property.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> She should sell the Tovas Hana'ah of the
               Ikar Kesuvah (100 or 200 Zuz), that she receives if
               she is widowed or divorced) to pay the damage!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer:</font></b> She need not sell the Tovas Hana'ah, for
               Shmuel taught that one who sells a loan document can
               pardon the loan. She will surely pardon the Kesuvah!
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Question:</font></b> She should sell the Tovas Hana'ah of her
               Kesuvah to the victim! Even if she will pardon the
               loan, he does not lose.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer:</font></b> She will surely pardon the Kesuvah. We do
               not exert Beis Din to arrange a sale that will not
               help the victim.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> 117a:</font></b> Reuven and Shimon each claimed to own a
               certain (bird or fish) trap. Reuven handed it over
               to the king's officer.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Abaye:</font></b> We cannot make him pay. He claims that it was
               his!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Rava:</font></b> We don't let him do so! Rather, he is
               excommunicated until he brings the trap to Beis Din
               to judge the case (even if he must pay extra to get
               it back).
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rif:</font></b> If a married woman damaged, we do not make her
               sell Tovas Hana'ah of her Ikar Kesuvah to a buyer of
               the victim, for surely, she would pardon it.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 4:18):</font></b> If a married
               woman damaged someone, she is exempt now, but pays
               later, i.e. after she is divorced.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rosh (Bava Kama 8:9):</font></b> If a married woman damaged
               Levi, we give a document to Levi saying how much she
               owes him when she will be widowed or divorced. If
               she had Nichsei Melug or Nichsei Tzon Barzel, we
               would force her to sell them for Tovas Hana'ah, and
               pay Levi. She need not her sell her Ikar Kesuvah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Mordechai (90):</font></b> If a married woman is Moser (hands
               over) David's property to Anasim, she does not pay
               now, but we excommunicate her, for the Torah equates
               women to men for all punishments. If she has
               property in which her husband has no rights, we give
               it to David. Even her Nichsei Melug are given to
               David, except that her husband eats Peros until she
               dies. Afterwards David gets them. Even if she died
               before her husband, her husband does not inherit
               her. Chachamim allow her husband to take from people
               who bought her property, for they caused their own
               loss. David did not do anything wrong.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos (Bava Basra 139b DH Hasam):</font></b> Even after
               Takanas Usha, if others would lose if her husband is
               like a previous buyer, he is like an heir. Why did
               the Gemara think that Takanas Usha would apply if
               she sold to pay a victim? Indeed, the Gemara could
               have asked also this. The Rashba answered that
               Chachamim enacted for cases when others do not lose.
               They made a uniform enactment (it applies in all
               cases), for it is rare that someone else (who is not
               at fault) loses.
<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 424:9):</font></b> If a (married) woman
               damaged someone, she is exempt now, but pays later,
               i.e. after she is divorced.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> If she has Melug or Tzon Barzel property, she
               sells the Tovas Hana'ah and pays the victim.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (17):</font></b> In Siman 388 we say that we
                    excommunicate a woman who was Moser. The
                    Mordechai (92) says that we excommunicate and
                    lash women who wound, so they will not do so
                    regularly. Perhaps this is only for Moser,
                    wounding or other disgraceful acts, but not for
                    debts. I wrote above that also if she borrowed
                    money or an animal (and it died and she is
                    liable) before Nisu'in, if she has Melug or
                    Tzon Barzel property or Tosefes Kesuvah (he
                    obligated himself to give more than 100 or
                    200), we force her to sell it to pay.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (10):</font></b> If a woman damaged her husband,
               if she has Tosefes Kesuvah or Melug or Tzon Barzel
               property, she sells it to him for Tovas Hana'ah and
               he collects from it if he wants, or divorces he and
               collects everything.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (388:2):</font></b> If a woman was Moser, we excommunicate
               her. If she has property that her husband has no
               rights to it, she pays. If she has Nichsei Melug,
               her husband eats the Peros her entire lifetime.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (SMA 6):</font></b> Why is this different than a
                    woman who wounded? The Tur and Rema obligate
                    one who wounded another to sell Tovas Hana'ah
                    of her property, and the Mechaber obligates one
                    who wounded her husband.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer #1 (SMA):</font></b> Perhaps we are more lenient
                    about Moser, for she did not overtly damage. It
                    is considered a fine. Therefore, if a Moser
                    died before he was brought to trial, his heirs
                    are exempt. For other debts, a woman must sell
                    Tovas Hana'ah of her Melug or Tzon Barzel
                    property and Tosefes Kesuvah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (and Answer #2 - Shach 16):</font></b> Surely, if
                    he wants, also here she must sell Tovas Hana'ah
                    of her Nichsei Melug. The <b>SMA</b> himself says so
                    (424:16). Here, the Chidush is that the victim
                    is immediately Muchzak in the property; her
                    husband eats the Peros in her lifetime, and
                    pays after she dies. One may ask oppositely.
                    Here he pays after she dies, and in Siman 424
                    she just sells Tovas Hana'ah, and if she dies
                    her husband inherits her! We can say that Moser
                    is more common than wounding (this is why we
                    judge it even nowadays), so Takanas Usha does
                    not apply to it. This is like Tosfos' first
                    answer. Indeed, if she wants to sell her
                    Nichsei Melug to pay the victim, she may. If
                    she cannot, or it does not suffice to pay, the
                    victim is paid before her husband inherits. The
                    Rema says that the same applies to other
                    damages; he refers to common damage. The Yam
                    Shel Shlomo (8:30) rules like the Rashba, and
                    says that for wounding or Moser her husband is
                    like a buyer, but we force her to sell Tovas
                    Hana'ah of her Kesuvah, if she can.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Gra (21):</font></b> The Ramban and most Poskim rule like
                    the Rashba.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #3 (Taz):</font></b> There is no difference. Also
                    in Siman 424, the victim gets a document saying
                    what she owes. He can sell the Tovas Hana'ah
                    now if he wants! There is no difference if he
                    or she sells it.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Gra (19):</font></b> Daf 117a teaches that we
                    excommunicate (a Moser until he pays).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rema:</font></b> If she dies, he pays the victim. The same
               applies to other people whom she damaged. Her
               husband is like an heir, who must pay (from what he
               inherits).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (7):</font></b> Normally, we treat her husband like a
                    previous buyer; he takes from people who bought
                    from her during the marriage. They caused
                    themselves a loss by buying from a married
                    woman. Here, the victim did nothing wrong.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DOES A MARRIED WOMAN PAY NOW FOR WHAT SHE DAMAGES? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rav Yehudah):</font></b> Shmuel taught that if a woman
          sold her Melug property in her husband's lifetime, and
          she died, her husband takes the property from the buyer!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yirmiyah):</font></b> I ruled like a Mishnah!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If Reuven wrote a document giving his
               property to his son after Reuven's death, the son
               may not sell the property, because it is under the
               father's Reshus. The father may not sell it, for he
               wrote a document giving it to his son.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If the father sold it, the sale stands until the
               father dies. If the son sold it, the buyer does not
               get it until the father dies.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Inference:</font></b> When the father dies, the buyer gets
               it, even if the son died before the father, and the
               son never received the property.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> This is like Reish Lakish (and unlike
               R. Yochanan)!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (R. Yochanan):</font></b> If the son sold the property and
                    then died in the father's lifetime, the buyer
                    never gets it;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (Reish Lakish):</font></b> The buyer gets it (after
                    the father dies).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer:</font></b> The Mishnah says that if the son sold it,
               the buyer does not get it until the father dies. R.
               Yochanan explains that this is when the father died
               before the son, and the property passed to the son;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If the son died before the father, the property
                    never passed to the son, so the buyer never
                    gets it.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Inference:</font></b> He holds that Kinyan Peros (the father
               owns the yield as long as he is alive) is like
               Kinyan ha'Guf (owning the land itself), so the son
               sold something that he does not own.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> According to Reish Lakish, the Mishnah says that
               the buyer gets it when the father dies. This is even
               if the son died before the father, and the property
               never passed to the son.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Inference:</font></b> He holds that Kinyan Peros is not like
               Kinyan ha'Guf. The son was considered the owner when
               he sold it, so the sale stands.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b></b> (Presumably,) both R. Yirmiyah bar Aba and Rav
               Yehudah hold like Reish Lakish (for the Halachah
               follows him)
<br>        <b>  <b><font color='darkgreen'>10. </font></b></b> R. Yirmiyah bar Aba said that Kinyan Peros cannot be
               like Kinyan ha'Guf, for if it were, when the son
               died before the father, the buyer would not never
               get the property, for the son never owned it.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rebuttal (Rav Yehudah):</font></b> Shmuel taught that the case (of
          the gift of Rav Shmuel's mother) is not like the Mishnah.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why is it different?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #1 (Rav Yosef):</font></b> Had the Mishnah said that Shimon
          wrote a document giving his property to his father after
          Shimon's death, we could indeed learn that Kinyan Peros
          is like Kinyan ha'Guf;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, in the Mishnah Reuven gave his property
               to his son. (Perhaps) the son's sale stands because
               he can inherit his father!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Objection (Abaye):</font></b> Also a father can inherit his son!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Surely, one who gave his property to his father
               intended that his own children not inherit it.
               Likewise, one who gave his property to one son
               intended that his other children not inherit it!
               (The reason that the son's sale stands is not
               because he can inherit his father. He could inherit
               only part! Rather, we must say that Kinyan Peros is
               like Kinyan ha'Guf.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2 (Abaye):</font></b> The case of Rav Shmuel's mother is
          different due to the enactment of Usha.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yosi bar Chanina):</font></b> In Usha, they enacted that
               if a woman sells her Melug property and dies in her
               husband's lifetime, he takes the property from the
               buyer.
<br>

<p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TOVAS HANA'AH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Support (Rav Idi bar Avin - Beraisa):</font></b> If two witnesses
          testified that Reuven divorced his wife and paid her
          Kesuvah, and she is still living with him as his wife,
          and they were found to be Zomemim, they do not pay to her
          the full value of her Kesuvah, only the Tovas Hana'ah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> What is the Tovas Hana'ah?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> We evaluate how much someone (Shimon)
               would pay for the following proposition: if she will
               be divorced or widowed, Shimon will receive her
               Kesuvah. If she dies before her husband, her husband
               inherits her (Shimon receives nothing).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of support:</font></b> If not for the enactment of
               Usha, why does her husband inherit her? She should
               be able to sell (property that she brought into the
               marriage that is written in) her Kesuvah absolutely!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection (Abaye):</font></b> This does not prove that there was
          such an enactment. Granted, without an enactment, she
          could sell Melug property (her husband has no
          responsibility for it. He just has rights to eat the
          Peros during the marriage);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, even without an enactment, she could not
               sell Tzon Barzel property (if she is widowed or
               divorced, she gets back its initial value when she
               brought it into the marriage. It is in his Reshus)!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Abaye):</font></b> When a woman sells the Tovas Hana'ah of her
          Kesuvah, the money is entirely hers.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If it belonged to her husband, why should the
               Zomemim witnesses pay her? Even had she sold it, her
               husband would get the money!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rejection (Rav Salman):</font></b> Really, her husband gets the
          money. Zomemim witnesses pay her because she prefers that
          her husband have more money to spend.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rava):</font></b> The Halachah is, when a woman sells the Tovas
          Hana'ah of her Kesuvah, the money is entirely hers. Her
          husband does not get the Peros (profits made with the
          money).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Why doesn't he get the Peros?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> Chachamim enacted that a husband gets the
          Peros, but not the Peros of the Peros. (The Tovas Hana'ah
          is like Peros of her Kesuvah.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ONE WHO SELLS HER KESUVAH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Papa and Rav Huna brei d'Rav Yehoshua):</font></b> We may
          derive the enactment of Usha from our Mishnah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> One loses from encounters with a slave
               or (married) woman. One who damages either of them
               is liable. If either of them damaged someone, he or
               she is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If not for the enactment of Usha, she should sell
               her Melug property to pay the damage!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> Even if the enactment was made, granted, she
          cannot absolutely sell her Melug property to pay the
          damage, but she can sell the Tovas Hana'ah (if she is
          widowed or divorced, the buyer will get the property)!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We must say that the Mishnah discusses one who
               has no Melug property. Therefore, we cannot deduce
               whether or not there was an enactment.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> She should sell the Tovas Hana'ah of the
          Kesuvah (that her husband must pay to her if she is
          widowed or divorced, at least 200 Zuz (if she was a
          virgin when he married her, or 100 if she was a widow))
          to pay the damage!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Our Mishnah is like R. Meir, who forbids a
          man to live with his wife even for a moment if she does
          have a Kesuvah of at least 100 or 200.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Objection:</font></b> R. Meir forbids this lest he consider
          divorce to be a light matter. Even if she sells her
          Kesuvah, is not a light matter, for he would need to pay
          the buyer of the Kesuvah!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2:</font></b> Rather, Tovas Hana'ah is Mili (intangible),
          therefore there is no lien on it to (force her to sell it
          to) pay the damage.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Objection:</font></b> Why is there no lien? People would pay money
          for such Mili!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3:</font></b> She need not sell the Tovas Hana'ah of the
          Kesuvah due to Shmuel's law.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> If Reuven sells a document (and rights
               to collect the loan it was written for) and then
               pardons the loan, the loan is void. Even Reuven's
               heir can pardon the loan. (If she sells her Kesuvah,
               she can pardon it.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Even so, she can sell Tovas Hana'ah of her
          Kesuvah! If she will pardon the loan, the buyer will
          lose. (Even without Shmuel's law, the buyer might never
          receive the Kesuvah, and he pays only a fraction of the
          amount written in the Kesuvah!)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> She will surely pardon the Kesuvah (to please
          her husband. No one would pay anything for it!)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Would she really do so, causing the
               buyer to lose?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Yes, for she does not directly make him
               lose.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Suggestion:</font></b> She should sell the Tovas Hana'ah of her
          Kesuvah to the victim! Even if she will pardon the loan,
          he does not lose (for without this sale, he does not
          collect anything)!
<br>
<br>

sjt:
<font><b>1) A WOMAN'S ABILITY TO SELL THE RIGHTS TO HER KESUVAH</b></font><b>
<br>QUESTION:</b> The Gemara explains that a woman's Kesuvah has a monetary value to her even before her husband dies or divorces her: she can sell to a buyer her rights to collect the Kesuvah in the event that she is divorced or widowed. This value is referred to as 'Tovas Hana'ah,' since its value is less than the full value of the Kesuvah.
</p><p>
Why is a woman able to sell her rights to collect the Kesuvah? Those rights should be considered a 'Davar she'Lo Ba l'Olam,' an item which does not yet exist in the world, which cannot be sold. In fact, the Gemara applies this rule to a similar case in Kesuvos (59a), in which a married woman sanctifies her earnings (Ma'aseh Yadayim) to Hekdesh from the moment that she will be divorced. The Gemara teaches that since the husband is entitled to receive his wife's earnings, she cannot sanctify her earnings while she is still married because they are not hers to sanctify. The Gemara rules that because of this, she cannot sanctify even what she will earn <i>after</i> she becomes divorced, since it is a 'Davar she'Lo Ba l'Olam.' Just as she cannot sanctify something that will become hers only upon divorce, she also cannot <i>sell</i> something that will become hers only upon divorce!
</p><p>
What is the difference between her Kesuvah and her Ma'aseh Yadayim? The <b>PNEI YEHOSHUA</b> asks this question and adds that he 'thought about it from every angle but could not find a suitable solution.'
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>PNEI YEHOSHUA</b> and the <b>TUMIM</b> (66:41) suggest that the Gemara here follows the opinions of Rav Papa and Rav Huna brei d'Rav Yehoshua in the Havah Amina of the Gemara in Kesuvos. These Amora'im maintain that a woman <i>may</i> sanctify her Ma'aseh Yadayim that she will earn after she becomes divorced. Although the Gemara there concludes that the Halachah is otherwise, the Gemara here quotes Rav Papa and Rav Huna brei d'Rav Yehoshua, who follow their own opinions as expressed in Kesuvos -- that what a woman will receive after her divorce is not considered a 'Davar she'Lo Ba l'Olam.' (Rav Papa, however, considers only a wife's Ma'aseh Yadayim as 'Ba l'Olam,' since the woman owns her hands which are presently 'in the world.' This would not apply to her Kesuvah.)
</p><p>
They add that this might be why the <b>RAMBAM</b> (Hilchos Chovel u'Mazik 4:21) does not specify that a woman is exempt from paying for damages only when she has no Kesuvah and no Nichsei Milug. The Rambam rules like the conclusion of the Gemara in Kesuvos, which states that a woman <i>cannot</i> sell her Nichsei Milug or her Kesuvah for 'Tovas Hana'ah.'
</p><p>
(b) The <b>YAM HA'TALMUD</b> disagrees with the Pnei Yehoshua and explains that a Kesuvah is like any other Shtar Chov, deed of debt. A number of Gemaras discuss the sale of a Shtar Chov (see Bava Basra 75a) and do <i>not</i> consider it a 'Davar she'Lo Ba l'Olam.' The reason is that the debt creates a lien (Shibud) on property that is presently in the possession of the borrower. It is that lien which is present and is a 'Davar she'Ba l'Olam' which can be transferred through the transfer of ownership of the Shtar. This cannot be compared to the case of the Gemara in Kesuvos which discusses something that the woman will produce only after she becomes divorced.
</p><p>
The Pnei Yehoshua himself considers this possibility but rejects it on the grounds that a Shtar Chov normally entitles the recipient (the one who receives the Shtar Chov) to a benefit that is definite. A Kesuvah, however, provides no guaranteed benefit, since it is given to the woman only in the event that the husband divorces her or dies before she does. Therefore, it should be considered a 'Davar she'Lo Ba l'Olam.' Other Acharonim, however, do not differentiate between a Kesuvah and a normal Shtar Chov. They maintain that although the requirement to pay the Kesuvah funds is conditional, the Shtar itself is not considered a 'Davar she'Lo Ba l'Olam' since it creates a conditional lien on the husband's property.
</p><p>


<font><b>2) THE 'TOVAS HANA'AH' OF A WOMAN'S KESUVAH</b></font><b>
<br>QUESTION:</b> Rava rules that money given for Tovas Hana'ah of the Kesuvah (see previous Insight) goes to the woman, and the husband does not receive the Peros produced by that money. The Gemara explains that the reason for this is that when the Rabanan instituted that the husband receives the Peros from his wife's property, they did not institute that he receives the Peros of Peros. The wording of the Gemara implies that Tovas Hana'ah is considered Peros and the husband does not receive the Peros of that Tovas Hana'ah because it is Peros of Peros.
</p><p>
However, this seems self-contradictory. If the Tovas Hana'ah is considered Peros, the husband should receive <i>all</i> of the Tovas Hana'ah just as he receives all of the ordinary Peros of his wife's property! (<b>RASHBA</b>)
</p><p>
<b>ANSWER:</b> The <b>RASHBA</b> cites the <b>RA'AVAD</b> who explains that when the Gemara says that the Rabanan instituted that the husband receives Peros, it does not refer to the Tovas Hana'ah of the Kesuvah. Rather, it refers to the ordinary Peros which grow from his wife's property. The Gemara refers to Tovas Hana'ah itself as Peros of Peros because Tovas Hana'ah is a benefit that is not part of the ordinary Peros that grow from the field, but rather it is external to the field.
</p><p>
The Shitah Mekubetzes cites <b>RABEINU YEHONASAN MI'LUNIL</b> who elucidates this idea. He writes that benefits which can be derived from the field without detracting in any way from the normal benefits that the husband receives constantly from the field (i.e. the fruits that grow from it) are called Peros of Peros since they are a secondary level of benefit. Since Tovas Hana'ah is in this second category, the husband receives neither the Guf nor the Peros of the Tovas Hana'ah.
</p><p>
(This is also the intention of <b>TOSFOS</b> DH Peira d'Peira.)
</p><p>


<font><b>3) A MARRIED WOMAN'S REQUIREMENT TO PAY FOR DAMAGES THAT SHE CAUSES</b></font><b>
<br>QUESTIONS:</b> The Gemara asks why a woman has no property with which to pay for damages that she causes while she is married. The Gemara asks that she should pay for the damage by selling the Tovas Hana'ah of her Kesuvah and using the money that she receives to pay for the damages. The Gemara explains that the Rabanan did not require her to sell her Kesuvah because they were concerned that she would then pardon (be Mochel) the Kesuvah to her husband and cause the Tovas Hana'ah which the buyer purchased to become worthless. The Gemara then asks that she should be required to give the Tovas Hana'ah of her Kesuvah directly to the person she damaged as payment for the damages. The Gemara answers that this, too, is not an option, again because the woman will certainly pardon the Kesuvah to her husband and cause the Tovas Hana'ah to become worthless.
</p><p>
(a) If there is a concern that the woman might pardon the Kesuvah to her husband, Beis Din should not obligate the woman at all for causing damage, even if to make her pay only <i>after</i> she is divorced! How will she pay after she is divorced if she will pardon the Kesuvah to her husband, leaving her with no money?
</p><p>
(b) Why does the woman even need to sell her Kesuvah for its Tovas Hana'ah in order for the victim to receive payment for the damages done to him? Since the woman inevitably will have to pay her Kesuvah to the victim upon her divorce, the victim himself should be able to sell that Kesuvah for Tovas Hana'ah at present, just as the woman can sell it. He can approach another person and offer to sell this woman's Kesuvah, which she will have to pay to him as compensation for damages in the event that she becomes divorced or widowed. (<b>RAV</b> Y. <b>LANDY</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) Even if the woman does not receive a Kesuvah or Nichsei Milug upon her divorce, anything she produces after her divorce is considered her own money (since she has no husband). It is from that money that she will have to pay the victim. (This in fact is what the Mishnah means when it says that an Eved must pay for damages after he is freed. The money that he pays is money that he earns after he attains his freedom.)
</p><p>
(b) The simple answer to the second question is that the victim does not want to bother with finding a buyer for the Tovas Hana'ah of the Kesuvah. He wants cash. Therefore, it is logical to require the woman to sell the Kesuvah for Tovas Hana'ah and to give the money to the victim as compensation for the damages, rather than placing on the victim the burden of finding a buyer for the Tovas Hana'ah..
</p><p>
However, this answer does not suffice to explain the later part of the Gemara which suggests that the woman should give the Tovas Hana'ah of the Kesuvah directly to the victim as compensation for damages. If the woman pays in such a manner, the victim receives concrete compensation at all -- until after the husband dies and the victim receives the money of the Kesuvah. What, then, is gained by having the woman give the Tovas Hana'ah to the victim before she receives the actual Kesuvah? (This question is posed by the <b>MAHARI KATZ</b> in the Shitah Mekubetzes.)
</p><p>
The <b>DARCHEI DAVID</b> answers that it indeed is beneficial for the victim to receive the Tovas Hana'ah immediately from the woman. If he would receive compensation only after the husband dies, the amount that he would receive from the woman would be exactly equal to the value of the damage that she caused him. For example, if she caused 100 Zuz worth of damage, he will receive 100 Zuz worth of the Kesuvah. However, if the woman pays the victim by giving him the Tovas Hana'ah of the Kesuvah immediately, he will receive a much greater portion of the Kesuvah since the Tovas Hana'ah of 100 Zuz is always worth less than 100 Zuz. Therefore, 100 Zuz worth of Tovas Hana'ah could be worth 150 or 200 Zuz of the Kesuvah after the husband dies.
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>CAN ONE PARDON A DEBT WHEN SHIBUD D'R. NOSON APPLIES? [Shibud d'R. Noson: pardon</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'> 87a (Mishnah):</font></b> If a (married) woman damaged someone,
               she is exempt now, but pays later.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 89a - Question:</font></b> Granted, we can say that she has no
               Nichsei Melug. However, she should sell the Tovas
               Hana'ah of the Kesuvah to pay the damage!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> She need not sell it, for Shmuel taught that
               one who sold a loan document can pardon it. (Surely,
               she will pardon it to please her husband!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Kesuvos 19a (Rav Yehudah):</font></b> If he says that the
               document is Amanah (the borrower gave it to the
               lender before the loan was given, and trusted that
               he will not claim with it improperly), he is not
               believed.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> (Abaye):</font></b> The lender says that it is Amanah. It is a
               case where his admission hurts others (his
               creditors), like R. Noson's law:
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beraisa (R. Noson):</font></b> 'He will give to the one he
                    sinned against' - if Reuven owes Shimon, and
                    Shimon owes Levi, we take from Reuven to pay
                    Levi.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> 81b (Beraisa):</font></b> Reuven owed money to his brother
               Levi. Levi died and his wife fell to Yibum. Reuven
               cannot say 'since I (will do Yibum and) inherit, I
               will keep the money.' Rather, we take the money and
               buy land with it, and he eats the Peros.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> Rav Nachman said that this Beraisa is erroneous.
               This is not because he can say to her 'you have no
               claim against me.' Perhaps the Beraisa is like R.
               Noson!
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Bava Basra 147b - Question:</font></b> Granted, if Matnas
               Shechiv Mera is mid'Oraisa, the heir cannot pardon
               it. (It is unlike sale of a debt, which is only
               mid'Rabanan). But if Matnas Shechiv Mera is only
               mid'Rabanan, why can't the heir pardon it?
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> Why isn't Shimon believed to say that the
               document was Amanah, Migo (since) he could pardon
               the debt? One who sold a loan document can pardon
               it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answers #1 (Rosh and Tosfos, Kesuvos 2:9 and 19a DH
               u'Chegon):</font></b> This is not a Migo, for perhaps he plans
               to collect. He assumes that the borrower does not
               want to steal, and will pay later.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer #2 (Ramban, brought in Magid Mishneh Hilchos
               Malveh 1:4):</font></b> There is a Chazakah that what a person
               has belongs to him. We do not believe a Migo against 
               a Chazakah, especially since people are prone to
               scheme to deprive other people of their rights to
               collect.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #3 (Tosfos, ibid.):</font></b> If the sale of a loan
               document is only mid'Rabanan, perhaps one cannot
               pardon when Shibud d'R. Noson applies, for it is
               mid'Oraisa.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Kesuvos 6a DH l'Olam):</font></b> When Shibud d'R.
                    Noson applies, Shimon cannot pardon the debt,
                    because Levi has a lien against Reuven.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (CM 86 DH v'Da):</font></b> The Rif holds that
                    the sale of a loan document is only
                    mid'Rabanan. R. Tam holds that it can be
                    pardoned because the lender keeps Shibud ha'Guf
                    (the borrower owes him; he sold only collection
                    rights). The Rosh brought only Tosfos' first
                    answer. He holds that one can pardon when
                    Shibud d'R. Noson applies (he said differently
                    in a Teshuvah). Sefer ha'Terumos says that the
                    Ramban says that one can pardon.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question:</font></b> In Bava Kama (87a), we say that a
                    woman need not sell her Kesuvah to pay for
                    damage, for she would surely pardon it. She
                    cannot, due to Shibud d'R. Noson!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (Ran, ibid.):</font></b> Shibud d'R. Noson applies
                    only when it is time to collect the debt.
                    Surely it does not apply to a Kesuvah, which
                    might never be collected (if she will die
                    first)!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Shach (CM 86:11):</font></b> The Ritva (Kesuvos 19a DH
                    Omar) says that Shibud d'R. Noson does not
                    apply to a Kesuvah, for it might never be
                    collected. We may not infer that when Shibud
                    d'R. Noson applies, one can pardon before the
                    debt is due. The Rashba (1112) says that before
                    it is due he can pardon, but after it is due
                    Beis Din collects (gives Shimon's document to
                    Reuven). He holds that one can pardon even
                    after it is due, unless Beis Din already
                    collected. I say that Shibud d'R. Noson applies
                    even to a Kesuvah. Why should we distinguish
                    because it might not be collected? In any case,
                    her husband is Meshubad! Also the Ramban says
                    so. Once she damages, her husband is Meshubad
                    due to R. Noson's law. If she sells her Kesuvah
                    to pay the damagee, this is like any sale of a
                    loan document, and she can pardon it.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Question (Tumim 10):</font></b> We cannot compare a
                    willful sale to forced collection of Beis Din!
                    If Beis Din collected land for a creditor, and
                    then we found that it was not the borrower's,
                    surely the creditor's Shibud did not lapse!
                    Here also, her pardon uproot the Shibud, so the
                    collection was invalid!
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Answer (Ketzos ha'Choshen 6 and 424:3):</font></b> This
                    collection was not mistaken. Her Kesuvah was
                    valid, just later she damaged it by pardoning
                    it. The Rashba says so (in Shitah Mekubetzes
                    Kesuvos 19a DH veha'Ramban).
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Shach (11):</font></b> Whenever Shibud d'R. Noson applies,
                    if Shimon sold the document to Reuven (his
                    creditor), he can then pardon it.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Question (Tumim 10):</font></b> Shimon cannot pardon,
                    because Shibud d'R. Noson gives Shibud ha'Guf
                    to Reuven. Selling to Reuven does not weaken
                    Reuven. Shimon's Shibud to Reuven ends, but
                    Levi is still Meshubad to Reuven!
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Answer (Ketzos ha'Choshen 6):</font></b> Since Shimon's
                    Shibud to Reuven ceased, Shibud d'R. Noson no
                    longer applies.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Hagahos Ashri (Bava Kama 4:4):</font></b> Reuven cannot
                    pardon Levi and make Shimon lose.
<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 86:5):</font></b> Shimon cannot pardon Levi
               or extend the time he has to pay, for Shimon's
               Shibud on Levi was uprooted. Levi is now Meshubad to
               Reuven. Similarly, if Shimon says that the document
               is Amanah or was paid, he is not believed to make
               Reuven lose.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra 16):</font></b> Bava Basra 147b says that one
                    cannot pardon a debt transferred mid'Oraisa.
                    Shibud d'R. Noson is mid'Oraisa!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Gra 66:110):</font></b> Those who disagree hold
                    that one can pardon a debt transferred
                    mid'Oraisa. However, if Matanas Shechiv me'Ra
                    were mid'Oraisa, also the recipient would be
                    like an heir; the giver's child is no better
                    than him.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>SMA (9):</font></b> This is only when Shimon's document
                    says that he is believed. If not, since Levi
                    says that he paid, one who collects from him
                    must swear. Since Shimon agrees that it was
                    paid, Reuven, who collects due to Shimon's
                    power, could not collect.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Shach (11):</font></b> Many hold that Shimon can pardon,
                    i.e. the Rosh (Kesuvos 2:9), Tosfos' first
                    answer, Ba'al ha'Ma'or and Milchamos Hash-m
                    (Kesuvos 6a). The primary opinion is that he
                    cannot pardon. Kesuvos 81b proves that
                    according to R. Noson, Levi cannot say 'you
                    have no claim against me', for Reuven becomes
                    his creditor. Therefore, Shimon cannot pardon.
                    Saying that a document was paid is pardon, and
                    even more so saying that it was Amanah! Since
                    he is not believed, this shows that he cannot
                    pardon it. R. Chananel says that one who sells
                    a loan document can pardon it, for he can say
                    that he later realized that it was (Vadai, or
                    perhaps) paid. Here he cannot say that it was
                    paid, so he cannot pardon. Others say that one
                    can pardon a sold document because the sale is
                    mid'Rabanan, or he retains Shibud ha'Guf. These
                    do not apply here. Sefer ha'Terumos cites
                    Tosfos to say that Shibud d'R. Noson applies
                    only after coming to Beis Din, but beforehand
                    one can pardon. We do not hold like this.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>TO WHICH DEBTS DOES SHIBUD D'R. NASAN APPLY? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> She will surely pardon the Kesuvah. We do not
          exert Beis Din to arrange a sale that will not help the
          victim.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Similarly, if she hit her husband,
          she does not forfeit her Kesuvah.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> She should sell the Tovas Hana'ah of her Kesuvah to
               her husband. If she will pardon it, her husband does
               not lose. He is exempted from paying her!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer:</font></b> Our Mishnah is like R. Meir, who forbids a man 
          to live with his wife even for a moment if she does have
          a Kesuvah (of at least 100 or 200);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The reason is lest he consider divorce to be a
               light matter. Here, divorce would be a light matter,
               for he can divorce her without paying (since he owns
               collection rights of the Kesuvah)!
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Question:</font></b> Even if she does not sell the Tovas Hana'ah
          of her Kesuvah to him, he considers divorce to be a light
          matter, for he will take back what he pays her to be
          payment for the damage!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the damage is worth much less than
          the Kesuvah. He will not divorce her needlessly just
          because he will get back a small part of the Kesuvah (for
          the damage).
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question:</font></b> If her Kesuvah is more than the minimum that
          the Torah requires (200 for a virgin or 100 for a widow),
          she can sell to him the Tovas Hana'ah of the excess!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, her Kesuvah is the minimum;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He will not divorce her needlessly just because
               he will get back (e.g.) four or five Zuz of the 100
               Zuz he pays for the Kesuvah (or 200 Zuz if she was a
               virgin when she married him)!
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Just like she cannot sell her
          Kesuvah and continue to live with her husband, she cannot
          lose (even part of) her Kesuvah (to pay for damage to her
          husband) and continue to live with her husband.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The above answer holds that if her Kesuvah is
               more than the minimum, she loses from the excess!
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> The Seifa (she cannot lose) discusses
          the Tenai Kesuvah (stipulation) about sons (that if she
          dies before her husband, when her husband dies, her sons
          (from him) will inherit her dowry);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Beraisa teaches that just like one who sells
               her Kesuvah does not lose the Tenai about sons, also
               one who sells her Kesuvah to her husband does not
               lose this Tenai.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> In both cases, the reason is that she was forced
               to sell her Kesuvah to get money (she does not
               intend to make her sons lose).
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ENACTMENT OF USHA</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana'im argue about the enactment of Usha.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If Leah brought a slave into her
               marriage to be Melug property, if she destroys a
               limb of his, the slave goes free, but not if her
               husband destroys a limb.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa #2):</font></b> A Melug slave does not go free
               whether she or her husband destroys a limb.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> We are assuming that both Tana'im agree that
               Kinyan Peros is not like Kinyan ha'Guf (therefore,
               the husband is not considered the owner even though
               he owns the Peros).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> (The) Tana (of Beraisa) #2 holds that
               there was an enactment (he is not considered to be
               her slave, since she cannot sell him), and Tana #1
               disagrees (therefore, he is considered to be her
               slave).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection #1:</font></b> No. Both Tana'im hold that there was an
          enactment;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Beraisa #1 discusses before the enactment, and
               Beraisa #2 discusses after the enactment.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection #2:</font></b> Both Tana'im hold that there was an
          enactment, and discuss after the enactment.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> Why does Beraisa #1 say that if she destroys
          a limb, the slave goes free?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> This is like Rava taught, that liens on
          animals, grain and slaves are uprooted through (making
          animals) Hekdesh, fermentation (of grain, when Pesach
          comes, for then Chametz is forbidden) and freedom. (The
          husband only had a lien on the slave. Destroying a limb
          sets the slave free and uproots the lien.)
<br>

<p>

sjt:
</p><p>
<font><b>4) PAYING FOR DAMAGES WITH 'NICHSEI MILUG'</b></font><b>
<br>QUESTION:</b> The Gemara concludes that a married woman is exempt from paying for damages she caused only because she cannot use the Tovas Hana'ah of her Kesuvah as payment. When the Gemara asks why she is not required to use the Tovas Hana'ah of her Nichsei Milug as payment, the Gemara answers that the Mishnah refers to a case of a woman who has no Nichsei Milug. This is the position of the <b>ROSH</b> (8:9) who rules that if the woman has Nichsei Milug or Nichsei Tzon Barzel, she is required to sell them for their Tovas Hana'ah in order to pay for the damages that she caused.
</p><p>
Why does <b>RASHI</b> on the Mishnah (87a, DH Chayavin l'Shalem) write that a woman cannot pay with Nichsei Milug because her Nichsei Milug are Meshubad to the husband for Peros and for Yerushah (if she dies first)? As the <b>HAGAHOS ASHIRI</b> points out, this implies that the woman <i>does</i> have property of Nichsei Milug but she cannot use the produce of the Nichsei Milug, or the Nichsei Milug itself, as payment since it is Meshubad to her husband. Rashi seems to contradict the Gemara that says that the case of the Mishnah is one in which the woman has <i>no</i> Nichsei Milug! (<b>PNEI YEHOSHUA</b>, <b>REBBI AKIVA EIGER</b>)
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHILTEI GIBORIM</b> suggests that according to the Gemara's conclusion, just as the woman may not pay with the Tovas Hana'ah of her Kesuvah (because of the concern that she will be Mochel the Kesuvah to her husband after she sells it, making the Tovas Hana'ah worthless), so, too, she may not pay with the Tovas Hana'ah of the Nichsei Milug or Nichsei Tzon Barzel (because of the concern that she will be Mochel these benefits to her husband, making the Tovas Hana'ah worthless). He cites support for this from the fact that the Gemara seems to compare the Tosefes Kesuvah -- which is part of the Nichsei Tzon Barzel -- to the Kesuvah itself with regard to selling it for the Tovas Hana'ah.
</p><p>
However, the <b>PNEI YEHOSHUA</b>, <b>REBBI AKIVA EIGER</b>, and others strongly oppose this view. They point out that when the Rishonim explain why a person may be Mochel a loan after selling it, none of their explanations apply to a woman who is Mochel the Nichsei Milug or Nichsei Tzon Barzel after she sells them for their Tovas Hana'ah. (See Insights to Kesuvos 85:1.) One reason why a creditor may be Mochel the loan after he has sold it is that a loan is not subject to be sold mid'Oraisa. This applies, however, only to a loan which is merely a Shibud; it does <i>not</i> apply to the Nichsei Milug, which is actually her property and certainly may be sold mid'Oraisa.
</p><p>
Another reason why a creditor may be Mochel a loan after he sells it is that he cannot sell the Shibud ha'Guf at all, even mid'Rabanan; he can sell only the Shibud Mamon, after which point he can be Mochel the Shibud ha'Guf, thereby removing the Shibud Mamon as well. This reason also does not apply to Nichsei Milug, since the woman sells the actual property and not just a Shibud. (The property is hers; the husband's Shibud to it is removed upon his death.)
</p><p>
(b) Perhaps Rashi does not mean that the woman is not obligated to sell her Nichsei Milug for Tovas Hana'ah. Rashi is not addressing the Tovas Hana'ah (for that issue is addressed later in the Gemara). Rather, Rashi is simply explaining why the woman cannot pay with the actual Peros of the Nichsei Milug, or with the Guf of the Nichsei Milug, before her husband's death. Rashi answers that these benefits are Meshubad to the husband. The reason why the woman cannot pay with the Tovas Hana'ah is as the Gemara says: she has no Tovas Hana'ah (and not that she has no Nichsei Milug), such as in a case where she has already sold the Tovas Hana'ah. (M. Kornfeld)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IS OWNING THE PEROS LIKE OWNING THE PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Suggestion:</font></b> Tana #1 holds like Rava, and Tana #2 argues
          with Rava!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Rejection:</font></b> Both Tana'im hold like Rava. Tana #2 holds
          that Chachamim strengthened a husband's lien on his
          wife's property (therefore, freedom does not uproot his
          lien).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection #3:</font></b> Neither Tana holds that there was an
          enactment. They argue about whether or not Kinyan Peros
          is like Kinyan ha'Guf, like the following Tana'im argue:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Reuven sold his slave
               Tavi to Shimon, and stipulated that Tavi will still
               serve Reuven for 30 days, (for those 30 days,) since
               Tavi is with Reuven, Reuven is considered his owner
               regarding the law of 24 hours. (A master is killed
               for striking his slave only if the slave died within
               24 hours of the blow.)
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Meir holds that Kinyan Peros (his labor) is
               like Kinyan ha'Guf.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> 	R. Yehudah says, Shimon is considered the owner
               regarding the law of 24 hours, since he owns him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He holds that Kinyan Peros is not like Kinyan
                    ha'Guf.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> R. Yosi says, both are considered owners
               regarding the law of 24 hours. Reuven is like an
               owner, because Tavi is with him, and Shimon is an
               owner, for Tavi is Shimon's property.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  He is unsure whether or not Kinyan Peros is like
                    Kinyan ha'Guf. Since there is a doubt, we
                    cannot kill either (if the slave lived 24
                    hours).
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> R. Eliezer says, neither is considered an owner
               for the law of 24 hours. Shimon is not, for Tavi is
               not with Shimon, and Reuven is not, because Tavi is
               not Reuven's property.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Rava):</font></b> R. Eliezer learns from 'for he (the slave) is
          his money' - his exclusive money.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom is the following teaching?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Ameimar):</font></b> If a man and his wife sold her Melug
               property, the sale is void.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> It is like R. Eliezer (neither is considered
          the full owner).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Like whom is the following Beraisa?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A half-slave, or a slave of partners,
               does not go free for loss of a limb.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Mordechai citing Rava):</font></b> It is
               according to R. Eliezer;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Just like he expounds (regarding the law of 24
                    hours) 'for he is his money' - his exclusive
                    money, he also expounds (regarding freedom for
                    loss of a limb) 'his slave' - he belongs only
                    to him.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>STANDARD PAYMENT FOR EMBARRASSMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If one was Toke'a a man (hit him near the
          ear; alternatively he blew a Shofar in his ear), he pays
          one Sela;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	 R. Yosi ha'Glili says, he pays a Maneh (this will be
          explained).
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	One who slaps a man on the jaw pays 200 Zuz. If he
          slapped with the back of the hand, he pays 400.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If he tugged on his ear, pulled his hair, spat at him
          (and the spit landed on him), took his cloak off, or
          uncovered a woman's head in the market, he pays 400.
<br>
<br>

sjt:
<font><b>1) KILLING AN 'EVED' THAT ONE DOES NOT FULLY OWN</b></font><b>
<br>QUESTION:</b> The Beraisa discusses a case in which a person sells his Eved and stipulates that 'the sale is <i>on condition</i> that the Eved continues to serve me for the next thirty days.' The Tana'im disagree about whether the first owner has the Halachah of 'Yom O Yomayim.' The Halachah of 'Yom O Yomayim' states that when an owner of an Eved hits his Eved and his Eved dies after a period of only twenty-four hours, the owner is exempt from the punishment of Misah (which he would have received had killed a fellow Jew in such a manner). Some Tana'im rule that the Halachah of 'Yom O Yomayim' applies to him, since he owns the Kinyan Peros of the Eved. Others rule that it applies only to the purchaser, who owns the Kinyan ha'Guf of the Eved.
</p><p>
The premise of the Gemara is difficult to understand. If the sale is conditional on the Eved's continued service of the first owner for thirty days, if the purchaser kills the Eved within that time he has not fulfilled his part of the deal; the sale should be annulled retroactively since the Eved did not serve the first owner for thirty days. Why is the second owner exempt from Misah because of the Halachah of 'Yom O Yomayim?' Since the sale was nullified, the purchaser never owned the Eved at all.
</p><p>
Moreover, if the Eved serves the first owner only because of a stipulation made in the sale, why is the first owner considered to have <i>any</i> ownership in the Eved, even the Kinyan Peros? In truth, he does not own the Eved at all; the Eved is serving him only to fulfill the condition that was stipulated in the sale. (<b><b><b>OR</b></b> SAME'ACH</b>, Hilchos Rotze'ach 2:15; see also <b>KEHILOS YAKOV</b> 1:33.)
</p><p>
<b>ANSWER:</b> In this case, the words 'Al Menas' ('on condition') apparently do not denote an actual Tenai, condition. Rather, when the first owner sold his Eved he retained for himself thirty days of use of the Eved (this is called a 'Shiyur' and not a 'Tenai'). Indeed, the Gemara in Bava Basra (50a) which quotes this Sugya does not include the words 'Al Menas,' and the <b>RAMBAM</b> leaves them out as well.
</p><p>


<font><b>2) SELLING A PARTIALLY-OWNED 'EVED'</b></font><b>
<br>QUESTION:</b> Ameimar teaches that neither a husband nor a wife may sell their respective portions of the wife's Nichsei Milug. The Gemara explains that Ameimar follows the view of Rebbi Eliezer who says that neither the husband nor the wife is exempted by the Halachah of 'Yom O Yomayim' from the punishment of Misah for killing an Eved (of Nichsei Milug), since neither of them owns the Eved fully. Similarly, Rebbi Eliezer rules that an Eved who is owned by two partners (or who is half-free and half-Eved) does not go free due to the Halachah of 'Shen v'Ayin' when one of the owners knocks out his eye or tooth, because the Halachah of 'Shen v'Ayin' applies only to an Eved who belongs completely to the owner.
</p><p>
<b>RASHI</b> (DH Lo Asu) writes that Ameimar's position does not also preclude the partners in a jointly-owned field from selling their respective portions. In such a case, each partner fully owns half of the entire field, and he therefore may sell that half. The only case in which a partner cannot sell his share is when one partner owns the Peros and one owns the Guf, since neither has a full Kinyan on any portion of the property.
</p><p>
How can this be reconciled with the fact that Rebbi Eliezer, who is the source of Ameimar's opinion, teaches that an Eved owned by two partners is not freed when either of the partners knocks out the Shen or Ayin? Rebbi Eliezer seems to refer to a case of a normal partnership, and yet he asserts that neither partner is considered a full owner with regard to causing the Eved to go free. (<b>TOSFOS</b> DH Ish v'Ishah)
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>TOSFOS</b> answers that Rebbi Eliezer does not refer to a case of a normal partnership. Rather, when he says that neither partner frees the Eved through 'Shen v'Ayin,' he refers to a partnership where one owns the Guf and one owns the Peros. (Tosfos explains the case of a half-free Eved in the same manner.)
</p><p>
(b) The <b>RA'AVAD</b> explains that Rebbi Eliezer indeed discusses a case of a normal partnership, and nevertheless freeing an Eved differs from selling property. An Eved is not 'Ra'uy l'Chalukah'; he cannot be divided into two parts in the way that land can be divided. As a result, neither owner is considered the full owner of his share of the Eved.
</p><p>
The <b>TOSFOS RID</b> elaborates on this. He explains that there are two parts to the Kinyan of an Eved: the Kinyan Mamon and the Kinyan Isur. The Kinyan Mamon is dividable (since the Eved can serve one master one day and the other master the next day). It is the Kinyan Isur -- which gives the Eved the Halachos of an Eved -- which cannot be divided. He explains that when one sells the Kinyan Mamon of an Eved, the Kinyan Isur is automatically transferred with it. Therefore, one owner may sell his half of the Eved, and his Kinyan Isur is transferred automatically with the Kinyan Mamon. However, when an Eved goes free due to the law of 'Shen v'Ayin,' it is the Kinyan <i>Isur</i> which is released and causes the Kinyan Mamon to be released along with it. Since the Kinyan Isur cannot be divided into two, neither of the owners can free the Eved through 'Shen v'Ayin' by himself.
</p><p>
Consistent with this logic, the Ra'avad adds that if both owners (of the Peros and the Guf) sell their portions of the Eved at the same time, or if the husband and wife sell the Nichsei Milug property at the same time (or if the two owners of an Eved hold a stick together and knock out the Eved's eye or tooth), the property or the Eved can be transferred. Each of the owners has enough ownership to transfer his part of the property, and the only reason why he cannot do so is that it is not possible to divide the property (the Eved cannot be split into two, and the Kinyan Peros of property cannot be separated from the Kinyan ha'Guf). Therefore, when they sell it together, the property can be transferred.
</p><p>
Rashi and Tosfos may disagree with this approach since they maintain that neither owner has a full-fledged ownership on his half of the property, because a Kinyan Peros or Kinyan ha'Guf alone is not a full ownership. Therefore, they might rule that even when both owners sell the property at the same moment, the sale is ineffective because the owners lack the ability to sell it.
</p><p>
(c) The <b>RAMBAN</b> and <b>RASHBA</b> in Bava Basra (50a) write that the source for the ruling that an Eved is not freed when one of his two owners knocks out his eye or tooth is a Gezeiras ha'Kasuv. The verse teaches that an Eved must be fully owned by the owner in order to go free with 'Shen v'Ayin.' This Gezeiras ha'Kasuv excludes even a normal partnership from the Halachah of 'Shen v'Ayin.' However, when Ameimar teaches that neither a husband nor his wife can sell the Nichsei Milug, his teaching is not based on the verse which the Gemara quotes regarding 'Shen v'Ayin' or regarding the Halachah of 'Yom O Yomayim.' Ameimar simply suggests based on logic (and not based on a verse) that a Kinyan Peros alone, or a Kinyan ha'Guf alone, is not a full enough Kinyan such that it can be sold or transferred. This logic does not apply to a normal partnership, as Rashi writes, and therefore each partner <i>can</i> sell his portion. (According to this, Ameimar's statement is only loosely based on Rebbi Eliezer's ruling.)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>EVALUATING EMBARRASSMENT</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'> 83b (Mishnah):</font></b> We evaluate embarrassment according
               to the one who embarrassed and the one who was
               embarrassed.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> 90a (Mishnah):</font></b> If Levi spat at David, and the spit
               reached him...
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Rav Papa):</font></b> This is if the spit landed on him. If it
               landed on his clothing, Levi is exempt.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question:</font></b> In any case, this is no less than verbal
               embarrassment!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer (R. Yosi bar Avin):</font></b> Our Mishnah teaches that
               one is exempt for verbal embarrassment.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> (Mishnah):</font></b> A case occurred in which a man uncovered
               a woman's head in the market. R. Akiva obligated him
               to pay 400. R. Akiva agreed to give the man time to
               pay.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b></b> The man broke a small flask of oil in front of her.
               She uncovered her hair to dab the oil into her hair.
               The man had witnesses see this, and claimed that he
               should not pay 400 Zuz (since she herself uncovers
               her hair for trifling reason).
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  R. Akiva:</font></b> That is no claim. A person may not
                    injure himself, but if he does, he is exempt.
                    Others may not injure him, if they do, they are
                    liable.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The Rif and Rosh (32b and 8:15):</font></b> If Levi spat at
               David, he is liable only if the spit reached him,
               but not if it landed on his clothing. We learn that
               one is exempt for verbal embarrassment.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> It seems that we learn from 'v'Hechezikah
               bi'Mvushav' (she grabbed a man by his testicles)
               that one pays only for actions to the body. Rav
               Shrirah Gaon says that even for verbal embarrassment
               we put someone in Cherem until he appeases the
               victim properly according to his prestige. It seems
               that verbal embarrassment is worse than
               embarrassment through hitting, for nothing is worse
               than Lashon ha'Ra.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 3:1):</font></b> Embarrassment
               is evaluated according to the one who embarrassed
               and the one who was embarrassed. Being embarrassed
               by a lowly person is unlike being embarrassed by a
               great person. The former is greater.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Ran (Kesuvos 14a DH Masnisin Iy):</font></b> Rashi says
                    that if an average person embarrassed, this is
                    worse than if a lowly or honorable person
                    embarrassed. It seems that this applies to
                    matters other than rape and seduction. (There,
                    the lowlier the man, the greater the
                    embarrassment.)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rambam (5):</font></b> If Levi embarrassed David verbally, or
               spat on his clothing, he is exempt from paying. Beis
               Din should fence the matter in every time and place
               like they see fit. If one embarrassed a Chacham,
               even verbally, he pays the full amount. The law was
               fixed that one who embarrasses a Chacham, even
               verbally, is fined. We collect from him 35 gold
               Dinarim. We have a tradition that we collect this in
               Eretz Yisrael and in Chutz la'Aretz.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Ge'onim enforced this fine
                    without distinguishing between different levels
                    of Chachamim.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rambam (Hilchos Na'arah 2:4):</font></b> Embarrassment (for a
               girl who was raped or enticed) is according to the
               one who embarrassed and the one who was embarrassed.
               Embarrassing a distinguished Na'arah from a family
               of good lineage is unlike embarrassing a lowly poor
               girl. Being embarrassed by a great person is unlike
               being embarrassed by a lowly person.
<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 420:24):</font></b> Embarrassment is
               according to the one who embarrassed and the one who
               was embarrassed. Being embarrassed by a lowly person
               is unlike being embarrassed by a great person. The
               former is greater.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (SMA 25 and Prishah EH 177:5):</font></b> Rashi
                    (Kesuvos 40a) and the Ran both say that (in
                    matters other than rape or seduction) the
                    greatest embarrassment is from an average
                    person. The Tur and Shulchan Aruch are unlike
                    either of them!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Prishah and Gra 30):</font></b> The Tur and
                    Shulchan Aruch are like Rashi in Bava Kama (83b
                    DH ha'Kol) and the Rambam.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (DH Boshes):</font></b> Perhaps Rashi in Kesuvos
                    meant that embarrassment is greatest from an
                    average person only for rape or seduction.
                    (This would resolve the contradiction in
                    Rashi.) However, this is totally opposite to
                    the Ran!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Similarly, the embarrassment of a more
               dignified person is greater. The embarrassment of a
               Kohen is greater than that of someone else.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rivash (94):</font></b> Since it is a Mitzvah to honor
                    Kohanim, clearly one who disgraces a Kohen
                    should be punished more than one who disgraces
                    a Yisrael. Even though normally one is exempt
                    for verbal embarrassment, it is proper to
                    publicly censure one who does so to a Kohen,
                    and force him to ask forgiveness and appease
                    the Kohen until he pardons him. The Rambam says
                    that it is always proper to do so. All the more
                    so this applies to a Kohen who guards his
                    Kedushah regarding marriage and Tum'as Mes.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Shulchan Aruch (EH 177:1):</font></b> One who entices a virgin
               Yisrael (Rema - between three years old and Bagrus)
               pays Boshes, Pegam and a fine.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur:</font></b> Embarrassment is evaluated according to
                    the one who embarrassed and the one who was
                    embarrassed. Embarrassing a distinguished
                    Na'arah from an esteemed family is unlike
                    embarrassing a lowly poor girl. Being
                    embarrassed by a great person is unlike being
                    embarrassed by a lowly person. Beis Din
                    estimates how much her father and family would
                    have [aid in order that this not occur.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (2):</font></b> If the girl was lewd, her
                    embarrassment is smaller than that of a modest
                    Bas Yisrael. It seems that even if we see her
                    act lewdly afterwards, we may assume that she
                    was this way even beforehand. We learn from
                    Bava Kama. Even though the woman herself
                    uncovered her hair, R. Akiva obligated the man
                    to pay 400 Zuz because a person is allowed to
                    harm himself. If not, he would have been
                    exempt. We do not say that only now she began
                    to act immodestly!
<br>
<font color='blue'><i>See also:</i>
<br><b><b>EVALUATING EMBARRASSMENT AND BLEMISH </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	The rule is, the payment is according to his prestige.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	R. Akiva says, we view even the poorest Bnei Yisrael as
          if they were rich people who lost their money, for they
          descend from Avraham, Yitzchak and Yakov;
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	A case occurred in which a man uncovered a woman's head
          in the market. R. Akiva obligated him to pay 400. R.
          Akiva agreed to give the man time to pay.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The man waited for her, and saw her by the
               entrance to her city. He broke a small flask of oil
               in front of her. She uncovered her hair to dab the
               oil into her hair. The man had witnesses see this.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> The man:</font></b> Why should I pay her 400 Zuz? (She
               uncovered her hair just to take advantage of a
               paltry amount of oil!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> R. Akiva:</font></b> That is no claim. One may not injure
               himself, but if he does, he is exempt. Others may
               not injure him, if they do, they are liable.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> One may not cut down one's trees. If he does so,
               he is exempt. If others do this, they are liable.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Gemara) Question:</font></b> Is the Maneh of the Mishnah Tzuri
          (pure silver, 100 Zuz), or common money (worth an eighth
          as much, for seven eighths is copper)?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> A case occurred in which Levi was Toke'a David.
          Levi came in front of R. Yehudah Nesi'ah:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> R. Yehudah Nesi'ah:</font></b> There is me, and there is R.
               Yosi ha'Glili. You must pay a Maneh Tzuri. (This
               shows that the Mishnah refers to a Maneh Tzuri.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> What is the meaning of 'there is me, and
          there is R. Yosi ha'Glili'?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #1:</font></b> It means 'I saw you be Toke'a, and R. Yosi
          ha'Glili obligates a Maneh Tzuri.'
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> This implies that a witness can judge the
          case. We learned differently!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Rebbi Tarfon):</font></b> If the Sanhedrin saw a
               murder, some members testify on this in front of
               other members (who judge the case);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Akiva says, they are all witnesses, and a
               witness cannot judge the case.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Even Rebbi Tarfon permits only that some testify
                    and others judge. He agrees that one who
                    testifies cannot judge that case!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> The Beraisa a Sanhedrin that saw a murder at
          night, for they cannot judge at night. (However, a judge
          can judge based on what he sees during the day!)
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (to Question (j)):</font></b> His words meant 'I hold
          like R. Yosi ha'Glili, who obligates a Maneh Tzuri, and
          witnesses testified against you, so you must pay a Maneh
          Tzuri.'
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>MAY A WITNESS BE A JUDGE?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Akiva really hold that a witness
          cannot be a judge?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - Shimon ha'Teimani):</font></b> 'When a man will
               hit his fellow man with a rock or his fist' - just
               like the judges and witnesses can see his fist (and
               gauge whether or not it is apt to cause the damage
               that resulted), they must see anything used to hit;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This excludes when only the witnesses saw the
                    object he hit him with (it was lost before the
                    trial).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> R. Akiva:</font></b> (Even if Beis Din sees the rock,) did
               he hit him in front of Beis Din, and they saw how
               many times he hit him, and which limb he hit, the
               thigh or over the heart?! If he pushed him off a
               roof, must Beis Din go see the roof, or must we
               bring the house to Beis Din?! If the house fell,
               must we rebuild it?!
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Rather, the verse teaches that just like the
                    witnesses can see his fist, they must see
                    anything used to hit. This excludes witnesses
                    who never saw the rock with which he hit him.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Summation of question:</font></b> R. Akiva said 'did he hit
               him in front of Beis Din...?' This implies that had
               he hit him in front of Beis Din, even though Beis
               Din (saw and) are witnesses, they may judge the
               case!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> R. Akiva holds that they may not judge. He
          addressed Shimon ha'Teimani, who holds that they may
          judge.
<br>

sjt:
</p><p>
<font><b>3) JUDGING AN OX THAT KILLED AND CAUSED DAMAGE</b></font><b>
<br>QUESTION:</b> The Gemara teaches that if a Shor Mu'ad killed a person and also caused damage, Beis Din must first judge it for the monetary damages that it caused, and only afterwards can Beis Din judge it for killing the person and declare it a Shor ha'Niskal, a Shor that must be put to death. The judgment must be done in this order because if the Shor is made into a Shor ha'Niskal first, Beis Din no longer can obligate the owner to pay for damages. The Gemara concludes that the only reason for this is that Beis Din must kill the Shor immediately after making it a Shor ha'Niskal. Since the Shor must be killed immediately, Beis Din will be unable to evaluate whether the Shor was fit to cause damage, and the owner will not be able to use the ox for plowing in order to pay back the damages.
</p><p>
<b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) and the <b>KETZOS HA'CHOSHEN</b> (406:2 in the name of his brother, the author of the Kuntrus ha'Sefeikos) ask why the Gemara gives this reason instead of a more fundamental reason for why Beis Din cannot obligate the owner to pay for damages once the Shor has become a Shor ha'Niskal. The Gemara in Kerisus (24a) teaches that when witnesses testify to make a Shor into a Shor ha'Niskal and then are found to be Edim Zomemim, the Shor is Hefker and anyone may take it since the owner was Mafkir the Shor when he heard that it became a Shor ha'Niskal and Asur b'Hana'ah. The Mishnah earlier (44b) teaches that according to Rebbi Yehudah, a Shor is not killed if its owner is Mafkir or Makdish it after it kills a person. (Rashi later (98b, DH Machur) seems to explain an anonymously-authored Beraisa like Rebbi Yehudah.) In order to be put to death, the Shor must be in the possession of a person (and not Hefker) until after the Gemar Din. The Gemara (13b) applies this rule to compensation for monetary damages as well; the owner of a Shor is liable to pay for damages caused by the Shor only when he owns it at the time of the Gemar Din. Accordingly, in the case of the Gemara here, the owner of the Shor should be exempt from payment as soon as his Shor has been judged as a Shor ha'Niskal, because he is assumed to have been Mafkir the Shor before it was brought to court to be judged for the monetary damages.
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>REBBI AKIVA EIGER</b> (in Gilyon ha'Shas) suggests that it is possible, at least according to Rashi, that when the owner is Mafkir his Shor, this merely exempts the Shor from Misah but does not exempt the owner from monetary payments. (The verse from which the exemption is derived discusses a Shor that kills a person and is Chayav Misah.)
</p><p>
According to this explanation, what is the meaning of the Gemara earlier (13b) which states that the principle that the Shor must be owned until the Gemar Din applies even to a judgment of monetary compensation? Perhaps that Gemara discusses only the payment of 'Kofer' given when the Shor kills a person, while compensation for damages is different.
</p><p>
In fact, this distinction seems to be a necessary conclusion based on Rashi's own view. Rashi writes that not only does being Mafkir the Shor exempt the owner from payment and the Shor from Misah, but even <i>selling</i> the Shor exempts the owner from payment and the Shor from Misah. The <b>TOSFOS RABEINU PERETZ</b> (44b; see Insights there) questions Rashi's position. According to Rashi, how can a person ever be obligated to pay for damages that his Shor caused? After all, the owner can always sell his Shor before it is brought to court and exempt himself from payment without losing the value of his Shor. In light of this question, it seems logical that Rashi does not exempt a person from payment if the Shor is sold or made Hefker before the case is brought to court. Rashi maintains only that the Shor is exempt from Misah and the owner from Kofer, but he does not apply this exemption to the ordinary payments for Nezikin. In these two cases, however, it is not in the best interest of the owner to sell the Shor, because even if the owner becomes exempt from Kofer by selling his Shor, he will remain obligated to pay compensation, or 'Damim' (see 43a). His sale of the Shor also will not exempt the Shor from Misah, since nobody would pay to purchase a Shor that killed a person. It is worthwhile for the owner to keep the Shor since there is a possibility that the Shor will not be found guilty of killing a person.
</p><p>
However, the <b>ROSH</b> (1:16) writes that not only does Rebbi Yehudah exempt the owner of the Shor from paying for damages if he is Mafkir the Shor, but even the Rabanan agree with Rebbi Yehudah in this regard. They argue only with regard to whether the Shor is put to death after the owner makes it Hefker. According to the Rosh's understanding, the owner of the Shor should be exempt from payment according to both Rebbi Yehudah and the Rabanan once the Shor becomes a Shor ha'Niskal.
</p><p>
(b) The <b>KETZOS HA'CHOSHEN</b> answers that there are two ways for a person's property to become Hefker. The first is the normal act of Hefker, wherein the owner willingly removes the object from his property. The second is Ye'ush, wherein the object is unavailable to the person and he gives up hope of ever having use of the object again.
</p><p>
The Ketzos ha'Choshen writes that the ruling of the Gemara in Kerisus -- which says that a Shor convicted of murder as a result of testimony of witnesses found to be Edim Zomemim is Hefker -- may be a function of either one of these two methods of making an object Hefker: first, it may be assumed that the owner was Mafkir the Shor ha'Niskal, and, second, since the owner thought that he would never have use of the Shor again, he had Ye'ush.
</p><p>
However, neither of these methods of making an object Hefker apply to the case of the Gemara here to exempt the owner of the Shor from payment for damages. The Ketzos reasons as follows:
</p><p>
Making an object Hefker is a form of Kinyan, like a sale and like making an object Hekdesh. The Gemara teaches that a person cannot sell or consecrate an object that is not in his domain, available for him to use. Examples of things that are not in his domain are items that were lost, stolen, and items that became Asur b'Hana'ah. In fact, Rashi earlier (45a, DH Eino Mukdash) writes that this is why the owner of a Shor ha'Niskal cannot be Makdish the Shor after its Gemar Din. It follows that the owner cannot be <i>Mafkir</i> a Shor ha'Niskal as well. Why, then, does the Gemara in Kerisus say that if the witnesses of the Shor ha'Niskal are proven to be Edim Zomemim, the Shor becomes Hefker? After all, the owner could not have been Mafkir it when it became a Shor ha'Niskal since it was Asur b'Hana'ah.
</p><p>
The Ketzos ha'Choshen explains that when the witnesses are proven to be Edim Zomemim, it becomes revealed retroactively that the Shor <i>was</i> available for the owner's use at the time he was Mafkir it (when he thought that it was a Shor ha'Niskal). That is why the Hefker takes effect. In the case of the Gemara here, where the witnesses were not found to be Edim Zomemim, the Shor does not become Hefker because it really <i>is</i> Asur b'Hana'ah. (Other Acharonim argue that as long as the owner has no <i>practical</i> use of the Shor, he cannot be Mafkir or Makdish it, even though it is retroactively determined that the Shor was not really Asur b'Hana'ah. They explain that the Gemara in Kerisus considers the Shor to be Hefker only because of Ye'ush, and not because the owner was Mafkir it. See <b>KEHILOS YAKOV</b> 30:4, and <b>BEIS HA'LEVI</b> 1:48:9.)
</p><p>
This explains why the owner cannot be Makdish the Shor. Why, though, does it not become Hefker because of Ye'ush? After all, Ye'ush certainly applies to an object when the owner cannot use it. The owner has Ye'ush precisely because he thinks that the Shor will never become available to him for use, and Ye'ush makes the Shor Hefker. This should exempt the owner from having to pay for damages, since the Shor is Hefker and does not belong to him.
</p><p>
The Ketzos ha'Choshen answers that Ye'ush does <i>not</i> remove an object from the owner's possession; rather, it <i>permits</i> someone else to take possession of the object from the owner's possession. In this respect it is not similar to Hefker which removes the object from the owner's possession immediately. Accordingly, even though the owner of the Shor ha'Niskal had Ye'ush, since the Shor is in his possession he is not exempt from paying for damages. In contrast, in the case in Kerisus where the witnesses were found to be Edim Zomemim, anyone may take the Shor (and remove it from the previous owner's possession) because of the Ye'ush of the Shor's owner.
</p><p>
However, a number of Acharonim disagree with the Ketzos ha'Choshen on this point and maintain that Ye'ush also removes the object from the owner's possession immediately. (See <b>DIVREI YECHEZKEL</b> 49:4, and <b>CHAZON ISH</b>, Bava Kama 18:3.)
</p><p>
(c) The <b>CHASAM SOFER</b> (CM 165) and the <b>CHAZON ISH</b> (Bava Kama 3:16) explain that Hefker exempts the owner of the Shor from paying for damages only when he no longer has any connection to the Shor that caused the damage. However, the owner of a Shor ha'Niskal still has some connection to the Shor, since he has certain responsibilities with regard to his Shor; namely, the owner has a Mitzvah to ensure that the Shor is put to death. Therefore, the owner still is considered the legal owner of the Shor with regard to the obligation to pay for damages.
</p><p>
(d) According to the <b>ROSH</b>, it is possible that in general the Torah exempts the owner from killing the Shor or from paying for damages only because the fact that the owner has lost the Shor (by being Mafkir or Makdish it) is considered sufficient suffering for him. Hence, the exemption would apply only when the owner was willingly Mafkir or Makdish the Shor. If the owner despaired of having use of the Shor because it became unavailable to him against his will (for example, it became a Shor ha'Niskal, or it was lost or stolen), the owner might not be exempt from payment since he did not suffer because of the damage that the Shor caused. (M. Kornfeld)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>PAYMENT FROM AN OX THAT WILL BE KILLED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If a Tam ox killed and damaged, we judge it 
          to stone it, but not to pay the damage;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If a Mu'ad ox killed and damaged, first we judge it to 
          pay the damage, then we judge it to stone it;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If first they judged it to stone it, they do not 
               then judge it to pay the damage.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Even if they first judged it to stone it, 
          they should then judge it to pay the damage!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rava citing Rabanan):</font></b> The Beraisa is like 
          Shimon ha'Teimani, who said 'just like the judges and 
          witnesses can see his fist...' This implies that Beis Din 
          must evaluate the item used to damage;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Once Beis Din sentences the ox to be stoned, we 
               do not delay to evaluate whether or not it was apt 
               to cause the damage.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> The Beraisa is even like R. Akiva. 
          The case is, the owner fled (and we cannot obligate a man 
          who is not here).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If he fled, even if they didn't judge the ox 
          to stone it, we cannot judge the damage!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the owner fled after testimony was 
          accepted.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> If the owner is not here, who will pay?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The victim will rent out the ox for plowing.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, even regarding a Tam, we should first 
          judge it to pay the damage through plowing, then judge it 
          to stone it!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rav Mari brei d'Rav Kahana):</font></b> This shows that 
          money that can be earned through plowing is not 
          considered part of the ox (a Tam pays only up to the 
          value of the animal.)
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>EVALUATION OF DAMAGERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Must we evaluate for damage (whether the 
          damaging object was apt to cause the damage)?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps we evaluate only by killing, for not 
               everything can kill, but anything can (do some) 
               damage;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, also for damage, we must evaluate the object.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> The Torah discusses a (standard) 
          pit to teach that just like a pit is 10 Tefachim deep, 
          which can kill, in all cases (pits of other shapes) one 
          is liable for 10 Tefachim.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If an animal fell in a pit less than 10 Tefachim, 
               if it died he is exempt. If it was hurt, he is 
               liable.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Suggestion:</font></b> The Mishnah considers from below 
               (from shallow to deep), a pit between one Tefach and 
               (but not including) 10 Tefachim is liable for 
               damage, not for death;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This shows that any size can damage. No 
                    evaluation is needed!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, the Mishnah considers from above (from 
          deep to shallow). A pit of 10 Tefachim can kill. Slightly 
          less than 10 Tefachim can damage, but cannot kill;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> For damage, we must evaluate whether the object 
               was apt to damage the injured party.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> If a man hit his slave on the eye 
          and blinded him, or on the ear and deafened him, the 
          slave goes free;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he hit him near the eye and now the slave 
               cannot see, or near the ear and now the slave cannot 
               hear, the slave does not go free.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> What is the reason?
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Suggestion:</font></b> We say that the blow was not enough 
                    to blind or deafen him, because damages need 
                    evaluation.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rejection (and Answer to Question 2) :</font></b> No, we say that 
          the slave blinded or deafened himself from fright.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one frightens someone, Beis Din 
               does not make him pay, but he is liable b'Yedei 
               Shamayim;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he was Toke'a in his ear and deafened him, he 
               is exempt;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If he was holding him when he was Toke'a, he is 
               liable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa):</font></b> For five payments we evaluate and 
          make the damager pay immediately. For Refu'ah and Sheves, 
          we estimate how much they will be until the victim 
          recovers;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he did not recover as quickly as expected, he 
               only gets the amount of the evaluation;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If recovered sooner than expected, he gets the 
               entire evaluation.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> This teaches that we evaluate for damages!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> We knew that we estimate how long he will be 
          bedridden. The question was whether or not we must 
          evaluate if the object used to damage was apt fitting to 
          damage.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #4 (Beraisa - Shimon ha'Teimani):</font></b> ' When a man 
          will hit his fellow man with a rock or his fist' - just 
          like the judges and witnesses can see his fist (and gauge 
          whether or not it is apt to cause the damage that 
          resulted), they must see anything used to hit;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This teaches that we evaluate for damages.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If recovered sooner than expected, he gets 
          the entire evaluation.
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	This supports Rava.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rava):</font></b> If we estimated that a man will be 
               bedridden the entire day, and he recovered in the 
               middle of the day and was able to work, this was 
               Hashem's kindness upon him. He receives Sheves for 
               the entire day.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>PAYMENT FOR EMBARRASSMENT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If Levi spat at David, and the spit reached 
          him...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> This is only if the spit landed on him. If 
          it landed on his clothing, Levi is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Even if it lands on his clothing, this is no 
          less than verbal embarrassment!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (R. Yosi bar Avin):</font></b> Our Mishnah teaches that one 
          is exempt for verbal embarrassment.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The payment is according to his prestige.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Does the first Tana teach a leniency or a 
          stringency?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he teaches a leniency, less distinguished 
               people receive less than 400;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he teaches a stringency, more distinguished 
               people receive more than 400.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Mishnah - R. Akiva):</font></b> We view even the poorest 
          Bnei Yisrael as if they were rich people who lost their 
          money, for they descend from Avraham, Yitzchak and Yakov.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This implies that the first Tana teaches a leniency.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> A case occurred in which a man uncovered a 
          woman's head... (R. Akiva agreed to give him time to 
          pay.)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> R. Chanina taught that if one damaged 
          someone, we do not give him to time to pay!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> That refers to damage that causes monetary 
          loss. Embarrassment causes no loss.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>HARMING ONESELF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The man waited for her... (R. Akiva told 
          him... 'one may not injure himself...')
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Contradiction (Beraisa - R. Akiva):</font></b> You toiled for 
          naught. One may injure himself.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (Rava):</font></b> One may not bodily injure himself, 
          but he may embarrass himself.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah discusses embarrassment, and R. 
          Akiva said that one may not injure himself!
<br>
<br>

sjt:
<font><b>1) DELAYING THE JUDGMENT ON THE OX</b></font><b>
<br>QUESTION:</b> The Gemara (90b) records a dispute between Shimon ha'Timni and Rebbi Akiva. According to Shimon ha'Timni, the judges must verify for themselves that the person or animal accused of damaging was actually capable of doing the alleged damage (for example, they must verify that the person's fist was strong enough to administer the blow). Rebbi Akiva maintains that Beis Din may rely on the testimony of witnesses who claim that they saw the act.
</p><p>
The Gemara later cites a Beraisa which teaches that when a Shor Tam kills a person and afterwards damages, he is judged by Beis Din for the killing and not for the damage. However, when a Shor Mu'ad kills and then damages, Beis Din first judges the Shor for the damages and afterwards for the killing. If, however, Beis Din judged the Shor Mu'ad for the killing first (and it was found guilty), Beis Din does not judge the Shor afterwards for the damage.
</p><p>
Why does judging the Shor for the killing exclude judging it for the damages? Rava answers that the Rabanan taught that this Beraisa follows the opinion of Shimon ha'Timni who always requires that the Beis Din assess whether the Shor was capable of doing the damage. When Beis Din judged the Shor for the killing and decreed the death penalty for it, the ruling may not be delayed ('Inuy ha'Din') in order to wait for the Beis Din's assessment in the monetary case. Since Beis Din cannot determine whether the damage done was appropriate for this Shor, Beis Din cannot rule on the owner's monetary obligation for the damage. 
</p><p>
The Gemara is difficult to understand. In a normal situation of Inuy ha'Din, the death penalty is not administered in order to prevent the defendant from undue suffering. In order to avoid afflicting those involved in the case, Beis Din does not delay its verdicts. Why does the concern for Inuy ha'Din apply to a Shor? An animal is not aware that it is being judged for death. Why should the laws of Inuy ha'Din apply to its judgment?
</p><p>
<b>ANSWERS:</b>
<br>(a) The <b>SHITAH MEKUBETZES</b> (91a, DH Hacha) writes in the name of the <b>RA'AVAD</b> that the laws of Inuy ha'Din apply to the judgment of an animal because of the principle, 'k'Misas ha'Be'alim Kach Misas ha'Shor,' which the Gemara earlier (44b-45a) derives from a verse. This principle teaches that the same laws which would apply to the judgment of the owner apply to the judgment of the Shor. Accordingly, just as Beis Din may not delay the execution of the owner if he had been sentenced to death, Beis Din may not delay the killing of his Shor.
</p><p>
The <b>YAM SHEL SHLOMO</b> proves that the principle of 'k'Misas ha'Be'alim' applies even when it would seem to defy logic. For example, the Gemara in Sanhedrin (78a) teaches that a Shor which is a Tereifah which kills a person is exempt from the death penalty. Since a man who is a Tereifah who murders is exempt from the death penalty, an animal is also exempt in such a situation.
</p><p>
The reason why a man who is a Tereifah who kills is exempt is that the witnesses who testify against him cannot become Edim Zomemim, and any testimony of witnesses who cannot become Edim Zomemim is invalid (see Bava Kama 75b). Normally, when a second set of witnesses testifies that the first set of witnesses was with them at a different location at the time of the alleged crime, the first set of witnesses should receive the punishment which they attempted to give the defendant. However, in this case the witnesses cannot be given the death penalty, because they tried to convict a man who was a Tereifah, and a man who kills a Tereifah is not put to death.
</p><p>
This reasoning clearly does not apply to a Shor Tereifah that killed a person (because witnesses who testify that a Shor should be killed are not killed themselves if they are found to be Edim Zomemim). Nevertheless, the Gemara in Sanhedrin (78a) compares the law of a Shor to the law of a man in this regard. Clearly, the laws are compared because of the principle of 'k'Misas ha'Be'alim,' even though logic would dictate that the laws of the judgment of a Shor should differ from the laws of the judgment of a man. 
</p><p>
(b) The <b>DEVAR AVRAHAM</b> (2:34:2) cites the <b>YAD RAMAH</b> in Sanhedrin (35a) who writes that prohibition against delaying the punishment of a person (Inuy ha'Din) is derived from the verse, 'v'Ahavta l'Re'acha Kamocha' (Vayikra 19:18). The Devar Avraham explains that the laws of the judgment of a Shor cannot be comparable entirely to those of a man, because a Shor which is Chayav Sekilah is not pushed off a two-story building in the same way that a man is executed with Sekilah (Sanhedrin 45a). The Gemara there derives this detail of Sekilah from the same verse, 'v'Ahavta l'Re'acha Kamocha,' which teaches that Beis Din must execute the guilty with the least painful form of punishment. In the case of Sekilah, this means that Beis Din ensure that the guilty die quickly, but not be defaced by a higher fall. The Devar Avraham asserts that falling from a two-story building is clearly not required for the death of the Shor. 
</p><p>
Therefore, the Devar Avraham asserts that there must be another source for the prohibition of Inuy ha'Din. He suggests that the source is the verse, 'u'Vi'arta ha'Ra mi'Kirbecha' -- 'And you shall destroy the evil from your midst' (Devarim 13:6). The Gemara in Chulin (139a) applies this verse even to a bird who killed a person (and requires that the bird be eradicated from the world). Accordingly, Beis Din may not delay the punishment of the Shor which killed, because the Shor which killed a person is considered an entity of evil in the midst of the community. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>PAYING FOR TAKING ANOTHER'S MITZVAH</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 Reuven claimed 'you killed my ox' (or) 
               'you cut my young trees', and Shimon answered 'you 
               told me to do so', he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Objection (Rav):</font></b> Surely, a damager cannot exempt 
               himself by saying this! 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Rav):</font></b> Rather, the ox or tree needed to be 
               killed or cut. Reuven wanted to do the Mitzvah 
               himself.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa):</font></b> 'He will spill (the blood of a wild 
                    animal or bird) and cover' - the one who 
                    slaughters covers;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> R. Gamliel once obligated a man to pay 10 gold 
                    pieces for covering the blood of what another 
                    man had slaughtered.
<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 (8:15):</font></b> R. Gamliel made a man pay 10 
               gold pieces. This is letter of the law, and we learn 
               from it to other cases. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> What was Rav's question? Perhaps one 
                    is believed to say that he damaged with 
                    permission when there are no witnesses, Migo 
                    (since) he could say that he did not damage!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answers #1,2 (Nimukei Yosef):</font></b> Surely, the 
                    Beraisa teaches more than just Migo. The Ro'oh 
                    says that we do not believe a Migo against a 
                    Chazakah, i.e. normally people do not permit 
                    others to damage their property.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Answer #3 (Mordechai 96):</font></b> We can testify that 
                    he was not authorized to damage. However, if 
                    witnesses did not know that a loan was not 
                    paid, he is believed through the Migo to say 
                    that he was told to exempt the borrower. We 
                    cannot testify that this is not true (for if he 
                    was paid, it is reasonable).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 7:13):</font></b> If the ox or 
               tree needed to be killed or cut, because it was 
               damaging people, and Shimon slaughtered or cut it 
               without Reuven's consent, he must pay Reuven like 
               the judges deem proper, for he prevented Reuven from 
               doing a Mitzvah. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> The Rashba says that we do not 
                    collect this in Bavel, for judges in Chutz 
                    la'Aretz judge only cases with monetary loss. 
                    However, if he seized, we do not force him to 
                    return it. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (14):</font></b> Similarly, if Reuven slaughtered a wild 
               animal or bird, and Shimon covered the blood without 
               Reuven's consent, he pays like the judges deem 
               proper. Some say that there is a fixed fine of 10 
               gold pieces whenever Ploni prevents David from doing 
               a Mitzvas Aseh that it was proper for David to do. 
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rosh (8:15):</font></b> A damager cannot exempt himself by 
               saying 'you told me to do so', for surely one does 
               not tell another 'damage my property.' Rather, the 
               ox was a gorer that one may not keep alive, and the 
               tree needed to be cut, e.g. it leaned over Reshus 
               ha'Rabim or was an Asheirah (planted for idolatry).
<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 382:1):</font></b> If Reuven's ox or tree 
               needed to be killed or cut because it was damaging 
               people, and Shimon slaughtered or cut it without 
               Reuven's consent, he must pay Reuven like the judges 
               deem proper, for he prevented Reuven from doing a 
               Mitzvah. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH u'Mah):</font></b> We discuss an ox that 
                    killed, and an Asheirah or a tree leaning over 
                    Reshus ha'Rabim that is prone to fall and kill 
                    someone. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Gra (1):</font></b> We do not discuss an ox sentenced to 
                    be stoned, for it must be killed in Beis Din. 
                    Rather, even nowadays we kill animals 
                    established to gore.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> If Shimon says that Reuven 
               told him to kill it or cut it, since it needed to be 
               killed or cut, Shimon is exempt. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (ibid.):</font></b> Shimon is believed to say 
                    'you told me to do so.' Presumably, it is true. 
                    Since it needed to be killed or cut, Reuven was 
                    not so particular, and forgot (that he 
                    authorized Shimon).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> Other damagers are not believed to say 'you 
               authorized me.' This is even if one has a Migo to 
               say 'l did not 'damage', i.e. there are no 
               witnesses, for it is a Migo against a Chazakah, 
               which is invalid. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (6):</font></b> The Gemara (Bava Basra 6a) did not 
                    settle whether a Migo is believed against a 
                    Chazakah. It is not believed against a strong 
                    Chazakah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema:</font></b> He is believed to say 'I did not damage', Migo 
               he could say 'I damaged my own property.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (4):</font></b> If he says that he did not damage, and 
                    there are no witnesses, he is exempt without a 
                    Migo! Rather, it is clear from the Darchei 
                    Moshe (1) that the Rema teaches like the 
                    Mordechai (above). One is believed to say that 
                    he was authorized to damage only if he could 
                    claim that he owned what he damaged. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Shach (2):</font></b> The Rema means that he is believed 
                    to say 'my action did not harm you.' E.g. he 
                    pardoned a debt, and says 'the borrower would 
                    not have paid, anyway.'
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Similarly, if Reuven 
               slaughtered a wild animal or bird, and Shimon 
               covered the blood without Reuven's consent, he pays 
               like the judges deem proper. Some say that there is 
               a fixed fine of 10 gold pieces for preventing David 
               from doing a Mitzvas Aseh that it was proper for 
               David to do. 
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> SMA (5):</font></b> One pays only for Mitzvos like covering the 
               blood, which is an absolute obligation. If Ploni was 
               given an animal to slaughter and Almoni slaughtered 
               it, he is exempt, for one must slaughter only if he 
               wants to eat.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Tur (YD Sof Siman 28):</font></b> If Shimon took Reuven's 
                    Mitzvah, it is not enough for Shimon to give to 
                    Reuven a chicken to slaughter. The first 
                    Mitzvah is gone; 'one cannot straighten the 
                    crooked.' However, if Ploni was called to read 
                    the Torah, and Almoni came first and read, he 
                    is exempt, for Kri'as ha'Torah is obligatory 
                    for everyone. Even if a Yisrael read in place 
                    of a Kohen, he is exempt. A mere Asmachta 
                    teaches that a Kohen reads first. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Beis Yosef (Sof Siman 28):</font></b> This comment is not 
                    from the Tur. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Prishah (4):</font></b> Perhaps the Chidush is that one 
                    pays even for Kisuy, even though it is not 
                    certain that Shimon deprived Reuven of a 
                    Mitzvah. Perhaps the wind would have covered it 
                    before Reuven! We can explain the Tur to mean 
                    it is not enough to give him a chicken 'to 
                    slaughter and cover its blood.'
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Tur (ibid.):</font></b> If Reuven slaughtered and did not 
                    cover the blood, and Shimon saw this, he must 
                    cover it. This is like others Mitzvos 
                    obligatory on all Yisrael, just the slaughterer 
                    has precedence. If (Reuven wanted to cover it 
                    and) Shimon covered, he must pay him 10 gold 
                    pieces, the price of the Berachah that he made 
                    Reuven lose. We do not collect this nowadays.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz (28:8):</font></b> If only the slaughterer were 
                    commanded to cover, if someone else covered he 
                    would not bless, and would not pay 10 gold 
                    pieces. That fine is only when another 
                    benefited, i.e. blessed. Here, he just damaged, 
                    i.e. deprived Reuven of a Mitzvah and Berachah. 
                    Rather, everyone is commanded to cover, 
                    therefore Shimon blesses, and pays 10 gold 
                    pieces. Semak says that even though we do not 
                    collect the fine nowadays, Shimon acted 
                    improperly and he must appease Reuven. 
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Rema:</font></b> If Reuven had a son to circumcise and Shimon 
               circumcised him, he must pay 10 gold pieces. If 
               Reuven gave his son to Ploni to circumcise, and 
               Shimon circumcised him, he is exempt.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> Nowadays, we do not collect 
               this. If he seized it, we do not force him to return 
               it.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DO WE LEARN FROM ONE FINE TO ANOTHER? </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1:</font></b> He told the man as follows. Not only 
          regarding embarrassment, in which Reuven may embarrass 
          himself, (even if Reuven does so) if Shimon embarrasses 
          him he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Even regarding bodily damage, in which Reuven may 
               not damage himself, (even if Reuven damages himself 
               and shows that he does not care,) if Shimon damages 
               him, he is liable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> One may damage himself!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa) Suggestion:</font></b> Perhaps one who swore to 
               harm himself and did not do so is exempt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rejection:</font></b> '(If one swore) to harm or to 
               benefit...' - just like the benefit discussed is 
               optional (not a Mitzvah), also the harm. This 
               includes one who swore to harm himself (he is liable 
               if he does not do so).
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Shmuel):</font></b> The Beraisa discusses an oath to fast.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> The Beraisa (Shevu'os 27b) also discusses 
          harming others. Can one make others fast?!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Yes, he locks them in a room without food!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Objection (Beraisa):</font></b> The oath to harm others is 'I will 
          hit Ploni' or 'I will bruise his brain.'
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2 (to Questions (b) and (d)):</font></b> Tana'im argue 
          about this. (Each Tana says R. Akiva agrees with him.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> Which Tana forbids one to damage himself?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	 Answer #1 (Beraisa - R. Elazar):</font></b> 'The blood of your 
          souls I will demand' - I will demand of your souls, your 
          blood (that you yourselves spilled).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps only suicide is forbidden, but not 
          wounding oneself.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #2 (Beraisa):</font></b> We tear clothing out of grief over 
          a death. This is not forbidden due to 'Darkei ha'Emori 
          (following Nochri practices)';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Elazar says, one who tears too much transgresses 
               'Bal Tashchis (wastefully destroying)'. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> All the more so, R. Elazar holds that one who 
               damages his body transgresses!
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Rejection:</font></b> Perhaps damaging one's body is less severe, 
          for the damage can heal, unlike tearing clothing.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yochanan would call his garments 'what honors 
               me.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> When Rav Chisda would walk among thorns, he would 
               lift his garment, because damage to the body heals, 
               but damage to clothes does not heal.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer #3 (Beraisa - R. Eliezer Hakapar b'Ribi) 
          Question:</font></b> 'V'Chiper Alav me'Asher Chata Al ha'Nefesh' - 
          against (or regarding) which soul did he sin?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Answer:</font></b> He pained his own soul by denying himself 
               wine.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> One who denies himself wine is called a sinner. 
               All the more so, one who (fasts and) denies himself 
               all food sins!
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>CUTTING TREES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> One who cuts his young trees...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rabah bar bar Chanah - Beraisa):</font></b> If Reuven claimed 
          against Shimon 'you killed my ox' (or) 'you cut my young 
          trees', and Shimon answered 'you told me to do so', he is 
          exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection (Rav):</font></b> A damager cannot exempt himself by 
          saying this!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Rabah bar bar Chanah:</font></b> There is a mistake in the text. I 
          will no longer recite the Beraisa.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Rav:</font></b> The text is correct. The Beraisa discusses an ox 
          that must be killed or a tree that must be cut.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> If so, what was Reuven's claim?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> He wanted to do the Mitzvah himself.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> 'He will spill (the blood of a wild 
               animal or bird) and cover' - the one who slaughters 
               covers;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Gamliel once obligated a man to pay 10 gold 
               coins for covering the blood of what another man had 
               slaughtered.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Rav):</font></b> One may not cut a date tree that bears a Kav of 
          dates.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> An olive tree that bears a quarter 
          Kav of olives may not be cut.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The amount for olive trees is smaller, for 
          olives are more important than dates.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	R. Chanina:</font></b> My son died only because he cut a fig tree 
          prematurely.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(Ravina):</font></b> If the wood is worth more than the fruit, one 
          may cut it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Support (Beraisa):</font></b> 'Only a tree that you know' 
               refers to a fruit-bearing tree (you may cut it when 
               besieging a city). 'That it is not a fruit tree' 
               refers to a barren tree.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Question:</font></b> If we may cut even fruit-bearing trees, 
               why does the verse allude to a barren tree?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer:</font></b> We may cut fruit trees only if there are 
               no barren trees there.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Suggestion:</font></b> Perhaps one may not cut a tree even 
               if its wood is worth more than its fruit (if barren 
               trees are around)!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rejection:</font></b> 'Only' excludes this.
<br>

sjt:
</p><p>
<font><b>2) SELLING BLOOD</b></font><b>
<br>QUESTION:</b> The Mishnah (90b) relates an incident in which somebody uncovered the hair of a woman in the market place. When she came before Rebbi Akiva to claim compensation for the assault, Rebbi Akiva ruled that the assailant must pay four hundred Zuz for the woman's embarrassment. The defendant attempted to prove that Rebbi Akiva's ruling was incorrect. He waited until he found the woman standing at the gate of her courtyard, and he proceeded to break a barrel containing an Isar's worth of oil in front of her. She removed her hair-covering and collected the oil from the ground with it.
</p><p>
The man returned to Rebbi Akiva and argued that if the woman was prepared to embarrass herself for the sake of only one Isar's worth of oil, it is unreasonable that he should have to pay her four hundred Zuz for uncovering her hair. Rebbi Akiva replied that his reasoning was invalid. Although a person is forbidden to cause harm to himself, nevertheless if he does so he is exempt from payment. In contrast, one who harms another person must pay for the damage (or embarrassment).
</p><p>
The Gemara (end of 91a) questions the Mishnah from a Beraisa. The Beraisa states that Rebbi Akiva told the defendant that a person is <i>permitted</i> to cause harm to himself. The Gemara (91b) later resolves the contradiction by saying that Rebbi Akiva's opinion with regard to harming oneself is the subject of a Machlokes Tana'im. The Beraisa maintains that a person is permitted to harm himself, while the Mishnah maintains that one is prohibited from harming himself.
</p><p>
<b>TOSFOS</b> (91b, DH Ela) writes that according to the opinion that one is prohibited from harming himself, the prohibition applies even when the harm is done for a necessary reason. This is evident from the fact that the woman who uncovered her hair did so to save the oil, and Rebbi Akiva (in the Mishnah) nevertheless stated that such self-inflicted embarrassment is prohibited. (See also <b>RAMBAM</b> Hilchos Chovel u'Mazik 5:1.)
</p><p>
However, Tosfos' conclusion does not seem consistent with the continuation of the Gemara. The Gemara states that the Tana who maintains that one is not permitted to injure oneself is Rebbi Elazar ha'Kapar. He teaches that one who accepts upon himself the oath of a Nazir is considered a sinner, as the verse says, 'He (the Kohen) will atone for him (the Nazir) because he sinned against the soul' (Bamidbar 6:11). He is considered a sinner because he denied himself the pleasure of drinking wine. If a Nazir is considered a sinner merely because he refrained from wine, one who refrains from everything (Rashi explains that he afflicts himself by fasting) certainly is not conducting himself properly.
</p><p>
The Gemara implies that if one would benefit in some tangible way by refraining from wine, such as receiving money in return, he would be permitted to refrain from wine and earn money this way. This is because he merely trades one pleasure for another. Why does Tosfos write that one may not harm oneself even for a good reason (such as to earn money)?
</p><p>
<b>ANSWER: RAV MOSHE FEINSTEIN</b> zt'l (<b>IGROS MOSHE</b> CM 1:103) answers that a distinction must be made between a person who refrains from wine in order to earn money and a person who actively harms himself in order to earn money. The person who refrains from wine in order to earn money has two conflicting interests. When he chooses to earn money and not drink wine, he shows that his more powerful desire is to earn money. If he would drink wine, he would end up feeling remorseful for the money that he did not earn but so strongly desired. 
</p><p>
In contrast, when one actively harms himself in order to gain some tangible pleasure, his act is not an expression of one desire that wins over another. Rather, his act shows that for him, pain overrides desire. Pain cannot be negated by desire even if he chooses to inflict pain upon himself in order to gain money. Since this pain is not negated by the desire, the Torah prohibition against harming oneself still applies. 
</p><p>
According to this reasoning, Rav Moshe Feinstein zt'l writes that it follows that one is forbidden from drawing blood merely for the purpose of earning money from its sale (such as when the blood is not needed for saving lives). This is because drawing blood constitutes harming the body in an active and painful way which is not negated by the desire to earn money. (He concludes, however, that drawing blood in return for money actually should be permitted, because the Gemara views bloodletting in a favorable light and considers it a healthy form of treatment of illness. Accordingly, it should be permitted even when one's motive is merely to receive money. See also Igros Moshe CM (2:66), where he discusses plastic surgery in light of this Sugya.) (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>TREES THAT HARM VINES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b></b>  	Shmuel's sharecropper brought to him dates. Shmuel 
          tasted wine in them, and asked why.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> The sharecropper:</font></b> The trees are between vines.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shmuel:</font></b> They are weakening the vines. Uproot 
               them!
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	Rav Chisda saw date trees among his vines. He told his 
          sharecropper to uproot them, because vines are more 
          profitable than date trees.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>ATONING FOR DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> Even though the damager pays the victim, he 
          must ask the victim for forgiveness - 'return his 
          (Avraham's) wife to him (and he will pray for you)'.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he does not forgive, he is cruel - 'Avraham 
          prayed... and Hash-m cured Avimelech...'
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	(If Reuven told Shimon) 'blind my eye', 'cut off my 
          hand', (or) 'break my foot', and Shimon did so, he is 
          liable, even if Reuven said 'on condition that you will 
          be exempt';
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If he said 'tear my garment' or 'break my jug', and 
          Shimon did so, he is liable;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he said 'on condition that you will be 
               exempt', he is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If Reuven told Shimon to damage Levi's body or 
          property, even if he said 'on condition that you will be 
          exempt', Shimon is liable.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Gemara - Beraisa):</font></b> All the fixed payments (for Toke'a, 
          slapping... - 90a) are only for embarrassment. For the 
          anguish he caused, Korbanos cannot atone until he 
          requests his forgiveness - 'return the man's wife and he 
          will pray for you, for he is a prophet.'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> If he was not a prophet, would he not need to 
          return his wife?!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (R. Shmuel bar Nachmani):</font></b> In any case, he must 
          return his wife;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Avimelech argued 'will you kill an innocent 
               person? He said 'she is my sister...'' Hash-m 
               responded 'he is a prophet.' Avraham had taught that 
               when a guest comes to a city, people should ask 
               whether he has to eat and drink, and not 'is the 
               woman with you your wife or your sister?';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> From here we learn that a Ben Noach is liable 
               for not having learned what he should have learned.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	(R. Elazar):</font></b> The double expression 'Ki Atzor Atzar' 
          teaches that Hash-m had closed the place where a man 
          emits semen, and where a woman emits semen (that she 
          received from a man) and gives birth.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> It teaches that He had closed the place 
          where a man emits semen and urine, and where a woman 
          emits semen and urine and gives birth.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	(Ravina):</font></b> It teaches that the places of emission of 
          semen, urine and excrement (in men and women) and birth 
          (in women) were all closed.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	(D'Vei R. Yanai):</font></b> '(Had closed) every womb' - even hens 
          of Avimelech's house did not lay eggs.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>AGADIC TEACHINGS OF RABAH BAR MARI</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Rabanan say that if Reuven prays for 
          Shimon for something that Reuven himself needs, that 
          Reuven will get it first. What is the source of this?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Mari):</font></b> 'When Iyov prayed for his 
          friend, Hash-m returned what Iyov had lost.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'Avraham prayed... and Hash-m cured 
          Avimelech and his wife and slaves... and Hash-m conferred 
          (pregnancy) upon Sarah like He said' - like Avraham said 
          about Avimelech.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'in uprooting the thorn, 
          also the cabbage is stricken (uprooted - i.e. neighbors 
          of the wicked suffer with the wicked).' What is the 
          source of this?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Mari):</font></b> 'Why do you quarrel with 
          Me, you all sinned against Me' (even Tzadikim are 
          included).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'How long will you refuse to guard My 
          Mitzvos?'
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> '(Yosef) took some of his brothers, 
          five men.' Which did he take?
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari citing R. Yochanan):</font></b> He took the 
          ones whose names were mentioned twice (in Moshe's 
          Berachah, to strengthen them, for they were weak).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question:</font></b> Yehudah is mentioned twice (and he was the 
          strongest)!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer:</font></b> The extra mention was to remedy his problem;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Shmuel bar Nachmani):</font></b> 'Reuven should live and 
               not die... and this is to Yehudah' - all 40 years in 
               the Midbar, Yehudah's bones were dissembled in his 
               coffin (due to the excommunication he accepted on 
               himself if he will not return Binyamin) until Moshe 
               prayed for him;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Moshe:</font></b> Yehudah (through admitting about Tamar) 
                    caused Reuven to admit (about Bilhah)!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  (Moshe asked) 'Hash-m, hear the voice of 
                    Yehudah' - Yehudah's bones assembled, but he 
                    could not enter the Heavenly Yeshivah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  'Bring him to his people' - (he entered), 
                    but he could not understand and debate with the 
                    Rabanan.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b></b>  'His hands are great for him' - he could 
                    argue with them, but he did not merit that the 
                    Halachah follows him.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b></b> 'And You will aid him from his opponents' - he 
                    merited that the Halachah follows him.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say that poverty breeds 
          poverty. What is the source of this?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Mari - Mishnah):</font></b> The rich would 
          bring Bikurim in gold and silver baskets (and take back 
          the baskets). The poor would bring in wicker baskets, and 
          the Kohanim kept the baskets.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'He (the Metzora) will cry Tamei, 
          Tamei' (he will increase his plight).
<br>
<br>

sjt:
<font><b>1) WHY AVIMELECH NEEDED TO APPEASE AVRAHAM AVINU</b></font><b>
<br>QUESTION:</b> The Mishnah states that although one who damages his friend pays him the required compensation, he does not receive atonement for what he did until he requests forgiveness from his victim. This is derived from Hashem's words to Avimelech, 'And now return the man's wife' (Bereishis 20:7). The <b>ME'IRI</b> explains that this is derived from the continuation of the verse, 'v'Yispalel Ba'adcha' -- 'and he will pray for you' (Bereishis 20:7). Hash-m instructed Avimelech to appease Avraham and seek forgiveness from him in order to have Avraham pray for him. (See also <b>PERISHAH</b> (CM 422:1) and <b>S'MA</b> (CM 422:2) who give different explanations for how the Gemara derives from the verses that Avimelech was required to appease Avraham.)
</p><p>
The Gemara cites a Beraisa which states that all the sums mentioned in the Mishnah (90a) are payments for 'Boshes,' 'embarrassment.' Even when all of the payments have been paid, the pain of having been shamed is not forgiven 'even if he brought all the choice rams of Nevayos' (see Yeshayah 60:7). Therefore, he must request forgiveness from the person he embarrassed. The Beraisa derives this from Hashem's command to Avimelech, 'And now, return the man's wife, because he is a prophet, and he will pray for you and you will live' (Bereishis 20:7). The Gemara asks, what is the meaning of Hashem's command? Why did Hash-m imply that only because she was the wife of a Navi must Avimelech return her? Even if she would have been the wife of an ordinary man, Avimelech would not have been permitted to keep her!
</p><p>
Rav Shmuel bar Nachmeni explains that Avimelech was warned to return Sarah regardless of who her husband was. However, in reply to Avimelech's argument that Avraham and Sarah had told him that they were siblings, Hash-m said that since Avraham was a Navi he knew that he would need to conceal the fact that Sarah was his wife. Avraham saw from Avimelech's conduct that Avimelech sought to take Sarah; when he arrived in town, they asked him whether Sarah was his wife or sister instead of asking him whether he had what to eat and drink.
</p><p>
Rashi's commentary on the Chumash seems to differ from the Gemara. Rashi writes that the reason why Hash-m stressed to Avimelech that Avraham was a Navi was in order that Avimelech should be reassured that Avraham knew that he had not defiled Sarah in any way, and thus Avraham would pray that Avimelech should live. Rashi's source is the Midrash (Bereishis Rabah 52:8). Why does Rashi on the Chumash explain the verse according to the Midrash and not according to the Gemara?
</p><p>
<b>ANSWER:</b> The <b>TOSFOS YOM TOV</b> answers that the Gemara and Midrash disagree about whether Avimelech was required to appease Avraham. According to the Midrash, one who insults an ordinary person is required to appease him. This is evident from the Midrash's comment that Avimelech asked Hash-m, 'Who will appease Avraham that I did not approach her?' However, since Avraham was a Navi it was unnecessary to appease him, since he knew that Avimelech had not touched Sarah. The Gemara, however, maintains that Avimelech still was required to appease Avraham.
</p><p>
The Tosfos Yom Tov explains that since the Gemara derives from the account of Avimelech that one is required to seek forgiveness from the person he shamed, Avimelech must have been required to seek forgiveness from Avraham Avinu. However, the simple meaning of the verses is more consistent with the Midrash's explanation that Hash-m told Avimelech that Avraham was a Navi and he thus was aware of the fact that Avimelech had not touched Sarah. Rashi on the Chumash, where he prefers to explain the simple meaning of the verses, chooses to cite the Midrash's explanation. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>11) </font></b><font color='blue'>MAY ONE REFUSE TO PARDON?</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):</font></b> Even though the damager pays the victim, 
               he must ask the victim for forgiveness - 'return his 
               (Avraham's) wife to him (and he will pray for you)'.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he does not forgive, he is cruel - 'Avraham 
               prayed... and Hash-m cured Avimelech...'
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Yuma 85b (Mishnah):</font></b> Yom Kipur does not atone for 
               sins Bein Adam l'Chavero until the sinner appeases 
               the hurt party.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Once, Rav was reading in front of Rebbi. Three 
               Chachamim entered at different times. Each time, Rav 
               started again from the beginning. When R. Chanina 
               entered, Rav refused to start again. R. Chanina was 
               offended. For 13 years Rav went to him on Erev Yom 
               Kipur to appease him; R. Chanina was not appeased.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> Why didn't R. Chanina forgive him? Rava 
               taught that if one is Ma'avir Al Midosav (pardons 
               others who mistreated him), all his Aveiros are 
               overlooked!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer:</font></b> R. Chanina saw in a dream that Rav would 
               become Rosh Yeshiva. He refused to forgive him, so 
               that Rav would to go to Bavel and teach Torah there.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Shabbos 149b (R. Yakov brah d'Vas Yakov):</font></b> If someone 
               is punished due to Ploni), Ploni does not enter 
               Hashem's Mechitzah.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b></b> It says 'Gam Anosh la'Tzadik Lo Tov.' 'Lo Tov' is 
               Ra, and it says 'Ki Lo Kel Chofetz Rasha Atah Lo 
               Yegurcha Ra' - Ra will not dwell in Hashem's 
               dwelling.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Yevamos 79a:</font></b> David tried to appease the Giv'onim; 
               they refused. David said 'there are three Simanim of 
               Yisrael: they are merciful, have a sense of shame, 
               and bestow Chesed.' The Giv'onim lack mercy, so they 
               may not marry Yisre'elim.
<br><b><font color='darkgreen'> <b>    (b)</b>  Rishonim</font></b>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Rif and Rosh (8:16) bring our Mishnah. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Chovel u'Mazik 5:10):</font></b> If Reuven 
               injured Shimon, Shimon may not be cruel and not 
               pardon. This is not the way of Yisrael. Rather, once 
               Reuven requested forgiveness and supplicated once 
               and twice and Shimon knows that he repented, he 
               should forgive him. Whoever is quick to pardon is 
               praiseworthy; Chachamim are pleased with him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Iyun Yakov (Shabbos 149b):</font></b> If someone is 
                    punished due to Ploni and Ploni desires this, 
                    Ploni does not enter Hashem's Mechitzah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Teshuvah 2:10):</font></b> One may not be cruel 
               and not be appeased. He should be easily appeased 
               and hard to be angered. When the sinner asks 
               forgiveness, one must forgive willingly with all his 
               heart. Even if he greatly pained him and sinned 
               against him, he may not avenge this or bear a 
               grudge. This is the way of Yisrael. 
<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 606:1):</font></b> Yom Kipur does not atone 
               for Aveiros Bein Adam l'Chavero until he appeases 
               him. This is even if he only irritated him with 
               words. If Shimon is not appeased the first time, 
               Reuven must return a second and third time, each 
               time with three people. If he is still not appeased, 
               Reuven is exempt. If one offended his Rebbi, he must 
               ask many times until his Rebbi is appeased.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> Shimon may not be cruel and not pardon, unless 
               he intends for Reuven's benefit.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Bach DH v'Da and Gra 5):</font></b> We learn 
                    from R. Chanina that it is forbidden only if he 
                    intends to be cruel. If he has a reason, e.g. 
                    he will benefit from it, he may do so. The Rema 
                    permits if he intends for Reuven's benefit. He 
                    explains that R. Chanina wanted Rav to go to 
                    Bavel, lest Rav be burdened by needs of the 
                    Tzibur and be Batel from learning. One may not 
                    do so for his own benefit. What is the Rema's 
                    source? Rashi explains oppositely!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Answer (Taz 2):</font></b> The Rema explains like Rashi. 
                    He infers that just like one may refuse to 
                    pardon if he seeks his own benefit, he may 
                    refuse if he seeks the sinner's benefit, to 
                    humble his uncircumcised heart. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Pri Chodosh:</font></b> The Rema connotes that whenever he 
                    has a reason, be it his own or Shimon's 
                    benefit, this is not cruel and it is permitted.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Chachmas Shlomo:</font></b> How can we learn from R. 
                    Chanina? Chachamim sting like a scorpion, i.e. 
                    they do not forgive (Perush ha'Mishnayos on 
                    Avos 2:10). Surely, they do not transgress! 
                    Rather, they are not obligated to forgive. How 
                    do we learn from Avraham that one must forgive? 
                    Rather, a Chacham must forgive worldly things 
                    (e.g. taking Sarah), but not spiritual matters 
                    (e.g. Gechazi ruined Elisha's Kidush Hash-m). 
                    The Gemara thought that R. Chanina refused to 
                    forgive a worldly matter (a lack of honor), and 
                    answered that it was a spiritual concern. 
                    Alternatively, Chachamim need not forgive, due 
                    to Kavod ha'Torah. This did not apply before 
                    Matan Torah, e.g. to Avraham. A Chacham must 
                    forgive another Chacham, for it belittles Torah 
                    if the offender must ask forgiveness many 
                    times. Berachos 28a supports the first 
                    explanation; all assumed that R. Yehoshua did 
                    not forgive R. Gamliel.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Mishnah Berurah (9):</font></b> Even when he seeks to 
                    humble Reuven, he must forgive him in his 
                    heart, for he requested forgiveness.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mishnah Berurah (8 and Sha'ar ha'Tziyon 8):</font></b> If 
                    one forgives Shogeg or Mezid injustices, his 
                    analogous Aveiros will be forgiven; if not, 
                    they will not.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Magen Avraham (4):</font></b> Likewise, one may refuse to 
                    pardon if he seeks his own benefit, like R. 
                    Chanina did.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Mishnah Berurah (10):</font></b> He need not pardon if he 
                    fears lest this harm him.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Tosfos Yom ha'Kipurim (Yuma 87b DH veha'Rav):</font></b> 
                    The Rema explains that R. Chanina intended that 
                    Rav become Rosh Yeshiva in Bavel to benefit 
                    Rav. Rashi's Perush does not answer why R. 
                    Chanina refused to forgive! It would be better 
                    for him to forgive, and then his Aveiros will 
                    be pardoned! Perhaps not pardoning (so R. 
                    Chanina can live longer) would cause R. Chanina 
                    to die, since his Aveiros will not be pardoned! 
                    Rather, R. Chanina pardoned Rav in his heart, 
                    but did not reveal this so Rav would go to 
                    Bavel for Rav's benefit.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Note:</font></b> Rashi could likewise explain that R. 
                    Chanina pardoned in his heart, but did not 
                    reveal this so Rav would go to Bavel for R. 
                    Chanina's benefit!
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Yam Shel Shlomo (Yevamos 8:27):</font></b> Full atonement 
                    is only after Shimon prays for him. Reuven 
                    should request this; it is a great Mitzvah for 
                    Shimon to do so.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If Reuven was Motzi Shem Ra on Shimon, he need 
               not forgive him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Darchei Moshe 2 and Beis Yosef CM 
                    420:33 DH v'Chasuv):</font></b> The Mordechai (Yuma 723), 
                    Semag, Hagahos Maimoniyos (Teshuvah 2:9) and 
                    Mahari Veil say that one need not pardon Motzi 
                    Shem Ra (Yerushalmi Bava Kama 8:7). Perhaps 
                    someone heard Reuven be Motzi Shem Ra, and did 
                    not hear that he was appeased. For other 
                    things, he should not be cruel. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> SMA (422:6):</font></b> Shem Ra assails his ancestors and 
                    seed for all generations.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Taz (3):</font></b> The Mordechai connotes that Shimon is 
                    not cruel if he refuses to pardon, but if he 
                    pardons, it helps. This is why if Shimon died, 
                    Reuven goes to his grave to ask forgiveness.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Yam Shel Shlomo (Bava Kama 8:3):</font></b> If one 
                    overcomes his Yetzer and totally forgives even 
                    this, even though it is difficult, it shows 
                    humility and Chasidus. 
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Kaf ha'Chayim (33):</font></b> Even for Motzi Shem Ra, 
                    Reuven need not request forgiveness more than 
                    three times. Lev David disagrees.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (CM 422:1):</font></b> If Reuven injured Shimon, 
               he may not be cruel and not pardon. This is not the 
               way of Yisrael. Rather, once he asked forgiveness 
               once and twice and Shimon knows that he repented, he 
               should forgive him. Whoever is quick to pardon is 
               praiseworthy; Chachamim are pleased with him.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  SMA (5):</font></b> In OC 606, we learn that the offender 
                    must request three times. The victim should 
                    forgive the first or second time. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bach (Sof ha'Siman):</font></b> Even though the offender 
                    must ask many times, one should forgive a 
                    friend the first time he asks, and a Talmid the 
                    second time.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>ASKING FORGIVENESS FROM PEOPLE </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Rabanan say 'rise early in summer and 
          eat early, due to the sun, (eat early) in winter, due to 
          the cold', and people say, '60 runners cannot catch one 
          who eats bread in the morning.' What is the source of 
          this?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Mari):</font></b> 'They will not be hungry or 
          thirsty, and heat and sun will not strike them (because 
          they already ate).'
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'You will serve Hash-m' refers to 
          saying 'Shema Yisrael' and prayer in the morning. 'And He 
          will bless your bread and water' refers to (eating) bread 
          with salt and a flask of water, after which 'I will 
          remove sickness from your midst.'
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Rabanan say 'if your friend calls you 
          a donkey, put a saddle on your back (admit to him).' What 
          is the source of this?
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> '(The angel) said 'Hagar, 
          slave of Sarai... she said 'from Sarai my master.''
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'first tell your 
          detriment.' What is the source of this?
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> 'He (Eliezer) said 'I am the 
          slave of Avraham.''
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>AGADIC TEACHINGS OF RABAH BAR MARI (cont.)</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'a goose walks lowly, but 
          its eyes look ahead (be humble, but ask what you need).' 
          What is the source of this?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> Avigayil told David 'when 
          Hash-m will do good to my master, you will remember your 
          servant.' (Her husband was alive at the time, and she 
          proposed marrying David later.)
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'if one hears another eat, 
          but he does not eat, 60 pains befall his gums (Rashi; 
          Tosfos - big teeth).' What is the source of this?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rabah bar Mari):</font></b> 'He (Adoniyahu) slaughtered 
          flock and cattle and invited... and to me (Nasan) your 
          servant... he did not call.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> 'Yitzchak took Rivkah like a wife... 
          and was consoled after his mother... and Avraham took 
          Keturah like a wife.'
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'the wine belongs to the 
          master, but people show appreciation to the waiter.' What 
          is the source of this?
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> 'Yehoshua bin Nun was full of 
          a spirit of Chachmah because Moshe pressed his hands on 
          him, and all of Bnei Yisrael listened to him.' (Hash-m 
          filled him with Chachmah, but the verse attributes it to 
          Moshe.)
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say that a dog will eat dung 
          (Rashi - rocks) when hungry. What is the source of this?
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> 'A satiated soul will trample 
          the sweetest food, and everything is sweet to a hungry 
          soul.'
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'a bad date tree strolls 
          among barren trees (a parable for empty people).' What is 
          the source of this?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> We learn this from the Torah, 
          the prophets, and the writings (Tosfos - of Ben Sira);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> It says in the Torah 'Esav went to Yishmael 
               (married his daughter)';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It says in the prophets 'empty people gathered to 
               Yiftach';
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> It says in the writings 'every bird dwells with 
               its species, and people with similar people.'
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> (Mishnah):</font></b> Anything connected to something Tamei 
               is Tamei. Anything connected to something Tahor is 
               Tahor;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa - R. Eliezer):</font></b> The Zarzir (starling) 
                    does not dwell with the raven for no reason. It 
                    is the same species. (The Torah says 'ha'Orev 
                    l'Minehu (and its related species)' to include 
                    it. Chachamim disagree and say that the Zarzir 
                    is a Tahor species - Chulin 62a.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'if you called to your 
          friend (to rebuke him) and he did not answer, leave him 
          (to perish in his evil).' What is the source of this?
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> 'Because I (Hash-m) (sought 
          to) purify you and you did not purify from your Tum'ah, 
          henceforth you will not be purified.'
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'if you drank from a pit, 
          do not throw dirt in it.' What is the source of this?
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> 'Do not despise a Mitzri, for 
          you were a stranger in his land.'
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'I will bear the burden 
          only if you bear with me.' What is the source of this?
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> Barak told Devorah that he 
          will go (to fight against Sisera) only if she goes with 
          him.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'when we were small, we 
          were as important as adults. Now that we are mature, we 
          are like children.' What is the source of this?
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> At first it says 'Hash-m went 
          in front of them during the day in a pillar of cloud... 
          in a pillar of fire.' Later, it says 'I will send My 
          angel in front of you.'
<br>

sjt:
</p><p>
<font><b>2) ADMITTING ONE'S SHORTCOMINGS</b></font><b>
<br>QUESTIONS:</b> Rava asked Rabah bar Mari, 'What is the source for the teaching of the Rabanan that 'if your friend calls you a donkey, put a saddle on your back'?' <b>RASHI</b> (DH Uchfa) explains the parable means that one should take the saddle from the donkey and draw it towards oneself; in other words, he should agree with his friend's words and not respond.
</p><p>
Rabah bar Mari answered that the source is the verse in which the Mal'ach asked Hagar, 'Hagar, maidservant of Sarai, from where have you come and to where are you going?' (Bereishis 16:8). Hagar replied, 'I am fleeing from Sarai, my mistress.' Rashi (DH Shifchas) explains that the Rabanan's teaching is derived from the fact that Hagar agreed to the Mal'ach's description of her as Sarai's maidservant.
</p><p>
Rava asked Rabah bar Mari another question. 'What is the source for what people say, 'If you have a shortcoming, tell people about it first'?' Rabah bar Mari answered that the source is Eliezer's words when he met Besuel and Lavan. Eliezer immediately told them on his own initiative, 'I am the servant of Avraham' (Bereishis 24:34), revealing his inferior status as a servant. 
</p><p>
These two teachings seem to contradict each other. The first teaching implies that one should admit to a shortcoming only when someone else first mentions it. The second teaching clearly says that one should declare his own shortcoming even before he is asked about it. What lies behind the differences in the two pieces of advice?
</p><p>
Moreover, is there any significant to the fact that the first teaching (according to our text) is taught by the Rabanan, while the second is merely a popular proverb?
</p><p>
<b>ANSWER:</b> The <b>MAHARSHA</b> explains that the difference between the two pieces of advice is whether or not the person himself agrees that he possesses the shortcoming mentioned. In the case of Hagar, she did not really agree that she was still the maidservant of Sarai, because at that time she was running away from her. Nevertheless, out of humility she did not want to contradict the Mal'ach, and thus she agreed that she was Sarai's maidservant.
</p><p>
However, she would not have volunteered her status as Sarai's maidservant since she did not agree that this was her true status. In contrast, Eliezer agreed that he was the servant of Avraham Avinu and he took pride in that status. Therefore, he was prepared to reveal his status even before he was asked about it.
</p><p>
The Maharsha adds that this distinction also explains the significance between the different sources for the two teachings. Most people are not prepared to admit to a shortcoming that they do not agree that they possess. Therefore, the first teaching is not cited as a popular proverb, but rather it is a teaching of the Rabanan. One who admits to a shortcoming which he does not agree that he possesses acts with piety. In contrast, when one agrees that he possesses a particular shortcoming, he should admit it even before he is asked about it (so as not to create any illusions about his status). Since ordinary people also realize that one should behave in this manner, the Gemara says that 'people say' that this is the correct mode of conduct. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>ASKING HASH-M TO PUNISH OTHERS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> People say 'gather twigs for (be 
          involved with) a wealthy man (and you will prosper).' 
          What is the source of this?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rabah bar Mari):</font></b> 'Also to Lot who was going 
          with Avram there were flock, cattle and tents.'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Chanan):</font></b> If one asks Hash-m to judge between him 
          and another, he is punished first - 'Sarai said to 
          Avram... 'Hashem should judge between me and you'', and 
          she died first.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> This is only if the person could have claimed in 
               Beis Din, and instead asked Hash-m to judge.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	R. Yitzchak:</font></b> Woe to the one who cries (to Hash-m), more 
          than the one due to whom he cries!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> '(Im Tza'ok Yitz'ak... My anger will 
          flare and I will kill you (plural))' refers to the one 
          who screams and the one he screams about (for afflicting 
          him). However, the one who screams is punished first.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(R. Yitzchak):</font></b> The curse of a common person should not 
          be light in your eyes. Avimelech's curse to Sarah was 
          fulfilled in her child 'this is a covering of eyes for 
          you';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> He meant, since you concealed from me that he is 
               your husband and caused me this pain, you should 
               have blind children;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> This was fulfilled in Yitzchak.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(R. Avahu):</font></b> One should be pursued, and not a pursuer. 
          Turtledoves and doves are pursued more than any other 
          birds, and the Torah allows (only) these two species of 
          birds for Korbanos.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>AUTHORIZED DAMAGE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> (If he said) 'blind my eye'... (he is 
          liable).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rav Asi bar Chama):</font></b> Why is this different 
          than the Seifa (if he asked him to break his jug on 
          condition that he will be exempt, he is exempt)?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rabah):</font></b> He is always liable for an eye, for one 
          does not pardon one who destroys an extremal limb (it 
          does not grow back). (We attribute this to Rabah, like 
          the Rif's text; see the marginal note in the Gemara.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rav Asi):</font></b> Does one pardon pain?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If one said 'bruise me on condition 
               that you will be exempt', he is exempt.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Rabah could not answer. He asked Rav Asi if he knew an 
          answer.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Asi citing Rav Sheshes; also, R. 
          Oshaya):</font></b> Really, one pardons even extremal limbs. One is 
          liable for (all the damage to) an eye because it is a 
          disgrace to the family.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> One (pardons pain, but one) does not 
          pardon extremal limbs.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #3 (R. Yochanan):</font></b> Sometimes, a person says 'yes' 
          and means 'no', and vice-versa.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Support (Beraisa):</font></b> Reuven said 'hit me (or) bruise me';
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Shimon:</font></b> On condition that I will be exempt?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Reuven:</font></b> Yes.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This 'yes' really means 'no'.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Reuven:</font></b> Tear my garment.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shimon:</font></b> On condition that I will be exempt?
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Reuven:</font></b> No.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This 'no' really means 'yes'.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he said 'break my jug' (or) 'tear my 
          garment', he is liable.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> '(A Shomer is liable for 
          negligence when given a deposit) to guard' - not (if it 
          was given to him) to ruin, tear or distribute to Aniyim 
          (the poor).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Answer #1 (Rav Huna):</font></b> In the 
          Mishnah, he took the deposit and then damaged it. He is 
          liable (even though he was told to ruin it, unless it was 
          'on condition that you will be exempt');
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Beraisa he ruined it without taking it. He 
               is exempt.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Objection (Rabah):</font></b> The Beraisa learns from 'to guard.' 
          This implies that he received it (and even so, he is 
          exempt)!
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Answer #1 (Rav Huna):</font></b> In the 
          Mishnah, he gave the deposit to the Shomer, then he 
          authorized him to damage it (these are empty words);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> In the Beraisa, he was authorized to take it, and 
               guard it or destroy it. 
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Objection (Rabah):</font></b> The Beraisa learns from 'to guard.' 
          This implies that he already received it! (end of Version 
          #2) 
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Answer #2 (Rabah):</font></b> In the Mishnah, he gave the deposit 
          to be guarded. In the Beraisa, he gave it to be (Tosfos - 
          guarded or) torn.
<br> <b>    <b><font color='darkgreen'>(q)</font></b></b>  	A wallet with Tzedakah money came to Pumbedisa. Rav 
          Yosef deposited it with Ploni. Ploni was negligent, and 
          thieves took it. Rav Yosef obligated Ploni to pay.
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Question (Abaye - Beraisa):</font></b> 'To guard' - not (if he was 
          given)... to distribute to Aniyim.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Answer (Rav Yosef):</font></b> (The Beraisa discusses most places, 
          where we do not know who was destined to receive the 
          money, so no Ani can claim it.) In Pumbedisa, each Ani 
          gets a fixed amount from Tzedakah. Ploni was like a 
          guardian for every Ani.
<br>
<br>

sjt:
<font><b>1) THE GUARDIAN OF CHARITY FUNDS</b></font><b>
<br>QUESTIONS:</b> The Beraisa derives from the verse, 'When a man gives to his friend money or utensils <i>to guard</i>, and they are stolen from the house of the person, if the thief is found he shall pay double' (Shemos 22:6), that that the watchman is liable only if he was instructed 'to guard' it, but not if he was instructed to distribute it to the poor.
</p><p>
<b>RASHI</b> (DH Lishmor) writes that the Shomer is not liable for negligence if the money was entrusted to him in order to distribute it to charity, since the money was not given to him 'Lishmor,' 'to guard,' but rather to distribute. As soon as the Mafkid tells him to distribute the money, it no longer belongs to the Mafkid. Consequently, no one can demand the money back from the Shomer. The poor people also cannot claim the money, because to the Shomer can reply to each poor person that he was not intending to give the money to him but rather to other poor people.
</p><p>
The Gemara later relates an incident in which a wallet of charity money came to Pumbedisa. Rav Yosef, the Gabai of Tzedakah funds, deposited it with a guardian. The guardian was negligent with it and as a result thieves stole it. Rav Yosef ruled that the Shomer must pay for the stolen wallet. Abaye challenged Rav Yosef's ruling from the Beraisa. Rav Yosef replied that a fixed amount of money was allocated to the poor people of Pumbedisa, and thus the verse 'Lishmor' indeed applied to them. Rashi (DH Kayitz) explains that since there was a fixed stipend for every poor person, the money was considered 'Mamon she'Yesh Lo Tov'im' -- 'money that has claimants,' and thus the condition of 'Lishmor' applied. The individual poor people thus could claim their money from the Shomer, since the money was being watched for them. 
</p><p>
Two questions may be asked on Rashi's explanation:
</p><p>
Rashi's introduction of the concept, 'Mamon she'Yesh Lo Tov'im,' is difficult to understand. If the money indeed was 'Mamon she'Yesh Lo Tov'im,' why is a special verse of 'Lishmor' needed to teach that the poor people may claim their money? Similarly,, if the money would have no claimants, no verse would be needed to teach that the Shomer is liable, because there is no one to whom he would be liable to pay.
</p><p>
Moreover, the Gemara later (117b) relates that a wallet full of money that was collected for the redemption of captives was deposited with a Shomer. Bandits came and threatened to kill him. The Shomer took the wallet and gave it to the bandits. Rabah ruled that the Shomer was not required to reimburse the charity fund. Abaye challenged Rabah's ruling: since the Shomer saved his own life with other people's money, he should be required to return the money to its owners. Rabah replied that there was no greater redemption of captives than what the Shomer in fact did with the money. The Shomer himself was considered a captive, and he therefore was entitled to redeem himself with the money since the money had been collected for that purpose.
</p><p>
Why did Rabah argue that the Shomer's use of the money was the greatest form of redemption of captives? He should have said simply that the Shomer was exempt from repaying the money to the Tzedakah fund because the money was 'Mamon she'Ein Lo Tov'im' -- there was no individual, specific captive who could claim that the money was supposed to be allotted for him.
</p><p>
<b>ANSWER:</b> The <b>MACHANEH EFRAIM</b> (Hilchos Shomrim 16, DH v'Nireh and DH v'Hashta) prefaces his answer by quoting the words of Rashi in Gitin. The Mishnah there (54b) states that if a Kohen disqualifies someone's Korban by making it Pigul (he sacrifices it with intent to eat it at the wrong time), the Kohen must compensate the owner with the value of the animal. Rashi there (53a, DH Chayavin) writes that even if the Korban was a Nedavah (a free-will offering) which the owner is not obligated to replace in the event that the specific animal he designated cannot be offered, the Kohen still must pay because the owner wants to bring a Korban as a gift to Hash-m and is upset that the animal he designated cannot be offered.
</p><p>
The Machaneh Efraim writes that the same reasoning applies in the case of the Gemara here. Even though the poor people cannot collect the money that was lost by the negligence of the Shomer, nevertheless the donors of the money have a claim against the Shomer. They wanted the money which they donated to reach a needy recipient. Therefore, if not for the Derashah of 'Lishmor,' which implies that the Shomer is liable only when he was instructed 'to guard' the money but not when he was instructed to distribute it to the needy, the negligent Shomer would have to replace the lost charity funds.
</p><p>
This approach also answers the question from the Gemara later (117b). Although there are no potential captives who may demand the money back from the Shomer, nevertheless the <i>donors</i> could have demanded that he reimburse them if not for the fact that the Shomer used their money for the purpose of the redemption of captives (i.e. himself).
</p><p>
The Machaneh Efraim adds that the Derashah of 'Lishmor' may not provide sufficient grounds to exempt the Shomer in this case. Perhaps the Derashah of 'Lishmor' exempts the Shomer only when the Shomer was negligent in guarding the deposit. In the case of the Gemara later, where the Shomer actively handed the money to the bandits, he would have been liable if not for the fact that he was redeeming himself from captivity with the money. (D.Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>KINYAN THROUGH SHINUY</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'> 93b (Mishnah #1):</font></b> If one stole wool and he made 
               garments, he pays the value at the time he stole it.
<br>       <b>   <b><font color='darkgreen'>2.  </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 been Melaben 
               (bleached) the wool, he would not!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Contradiction (Beraisa):</font></b> If one stole wool and he 
               was Melaben it, or flax and he cleaned it, he pays 
               the value at the time he stole it.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> The Tana of our Mishnah teaches 
               about a reversible change, which acquires 
               mid'Rabanan (one may not infer that Libun alone does 
               not acquire). All the more so, an irreversible 
               Shinuy acquires mid'Oraisa. The case is, he stole 
               spun wool. The garments can be unraveled to wool 
               again. The Beraisa teaches only about irreversible 
               changes, which acquire mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Answer #2 (Rav Ashi):</font></b> Also the Tana of our Mishnah 
               teaches only irreversible changes, which acquire 
               mid'Oraisa (one may not infer that Libun of wool 
               does not acquire). He discusses felt garments (Libun 
               is not done to the wool).
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Contradiction (Mishnah #2):</font></b> If a Yisrael did not 
               give the first shearings to a Kohen until he dyed 
               them, he is exempt from giving them. If he did only 
               Libun, he must give it. (This shows that Libun does 
               not acquire!)
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer #1 (Abaye):</font></b> Mishnah #1 is like R. Shimon, who 
               says that Libun is considered a Shinuy. Mishnah #2 
               is like Chachamim, who say that it is not.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #2 (Rava):</font></b> Both Mishnayos are like R. Shimon. 
               If he unravels the wool, he does not acquire. If he 
               combs it, he acquires.
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #3 (R. Chiya bar Aba):</font></b> (According to all 
               Tana'im,) if he washes (in water alone), he does not 
               acquire. If bleaches it with sulfur, he acquires.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> (Rava):</font></b> R. Shimon holds that Libun acquires, but 
               dying does not, for dye can be removed through soap.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Sukah 9a:</font></b> Beis Hillel expound 'Chag ha'Sukos Ta'aseh 
               Lecha' to disqualify a stolen Sukah.
<br>        <b>  <b><font color='darkgreen'>12. </font></b></b> We disqualify stolen Tzitzis from 'they will make 
               for themselves' - from theirs.
<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 Geneivah 1:13):</font></b> If one stole a lamb 
               or calf, and it grew up and became a ram or ox, he 
               pays Kefel like at the time of the theft. If he 
               slaughtered or sold it after it grew up, he acquired 
               it through the Shinuy. He does not pay four or five, 
               for he slaughtered or sold his own animal.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Tzitzis 1:11):</font></b> One may not 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; 
                    they must be 'yours'. 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><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'>  Mishnah Berurah (27 and Bi'ur Halachah DH Im):</font></b> 
                    If one bought strings or the garment on credit 
                    and the seller is anxious for the money, and 
                    the buyer does not want to pay, letter of the 
                    law they are not his, so he was not Yotzei.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Bi'ur Halachah (DH mi'Tzemer):</font></b> If one attached 
                    stolen strings and later bought them, perhaps 
                    he must untie them and attach them again. 
                    Meticulous people pay for the strings before 
                    attaching them, to acquire them mid'Oraisa. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema:</font></b> This is only if he stole strings. 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'> Rebuttal (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'>Question (Taz 5):</font></b> Both of the Beis Yosef's 
                    answers are difficult. We would not need a 
                    verse to teach about before despair. This is 
                    obvious, just like we say that no verse is 
                    needed to disqualify a stolen Korban before 
                    despair (67a)! 
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer (R. Akiva Eiger):</font></b> There no verse is 
                    needed, for the thief cannot be Makdish it 
                    before despair. Here a verse must teach about 
                    before despair.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Taz (5):</font></b> To explain why a thief who made 
                    garments did not acquire, Abaye (93b) needed to 
                    say that he stole spun wool. Had he stolen 
                    wool, he would acquire through Libun. One 
                    cannot make strings without Libun; it is an 
                    irreversible change. The Rambam must hold like 
                    R. Tam, who says that Ula holds that despair 
                    always acquires, except for Korban. Tosfos 
                    (Sukah 30a DH Ha) equates all Mitzvos 
                    mid'Oraisa to Korbanos. Therefore, despair and 
                    Shinuy ha'Shem do not help. In any case, it is 
                    despised due to Mitzvah ha'Ba'ah b'Aveirah. 
                    This disqualifies even b'Di'eved. Therefore, 
                    one may not rely on the Nimukei Yosef. Stolen 
                    strings are Pasul in every case, like the 
                    Rambam connotes. Why did the Rema rely on the 
                    Nimukei Yosef against the Rambam, especially 
                    since the Nimukei Yosef did not mention the 
                    Rambam?! 
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Magen Avraham (10):</font></b> The Rema connotes that he 
                    acquired through Shinuy Ma'aseh. However, the 
                    Nimukei Yosef says that he acquired through 
                    despair and Shinuy ha'Guf. Perhaps he holds 
                    that since it is reversible, he acquires only 
                    along with despair. CM 360:6 says that it is a 
                    proper Shinuy.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Rebuttal (Bi'ur Halachah DH Aval):</font></b> The Magen 
                    Avraham means that Libun acquires. The Shach 
                    and Acharonim refuted this. The Nimukei Yosef 
                    and Beis Yosef should say that spinning 
                    acquires. Bava Kama 93b proves this!
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Magen Avraham (10):</font></b> If the thief sold the 
                    Tzitzis, see Siman 649:1 (it is not Mitzvah 
                    ha'Ba'ah b'Aveirah for the buyer).
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Question (R. Akiva Eiger 9):</font></b> There we discuss 
                    being Yotzei on Yom Tov Sheni! The only concern 
                    is Mitzvah ha'Ba'ah b'Aveirah, but you need not 
                    own it! If one bought after despair, he 
                    acquired before the Mitzvah, so it is not 
                    Mitzvah ha'Ba'ah b'Aveirah! It is Kosher, like 
                    Shinuy Ma'aseh here! Perhaps the Magen Avraham 
                    means that those who allow blessing there would 
                    allow blessing here.
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Bi'ur Halachah (DH La'asosan):</font></b> He acquires 
                    through despair and Shinuy, and the Aveirah is 
                    not from the Mitzvah itself. However, since he 
                    acquires through spinning, and this is part of 
                    the Mitzvah, for they must be spun Lishmah, it 
                    is Mitzvah ha'Ba'ah b'Aveirah. It seems that 
                    the Gra disagrees, and forbids only due to the 
                    Berachah.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>DO WE BLESS ON EATING ISUR </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<b>PEREK HA'GOZEL ETZIM</b>
<b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CHANGING A STOLEN OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah #1):</font></b> If one stole wood and made Kelim, (or) 
          wool and he made garments, he pays the value at the time 
          he stole it;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If he stole a pregnant cow and it gave birth, or a 
          sheep laden with wool and sheared it, he pays for a cow 
          about to give birth or a laden sheep.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he stole a cow, and it became pregnant and gave 
          birth, or a sheep, and it became laden with wool and he 
          sheared it, he pays the value at the time he stole it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The general rule is, all thieves pay the value at 
               the time of the theft.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	(Gemara) Inference:</font></b> He pays the value at the time he 
          stole it because he made Kelim. Had he only smoothed the 
          wood or been Melaben (bleached) the wool, he would not!
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Contradiction (Beraisa):</font></b> If one stole wood and smoothed 
          it, or wool and he was Melaben it, or flax and he cleaned 
          it, he pays the value at the time he stole it.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The Tana of our Mishnah teaches 
          about a reversible change, which acquires mid'Rabanan 
          (but not to imply that had he only smoothed the wood or 
          been Melaben the wool, he would not acquire). All the 
          more so, an irreversible Shinuy acquires mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Wood and he made Kelim' refers to one who stole 
               boards. The Kelim can be dissembled to boards, like 
               he stole;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Wool and he made garments' refers to one who 
               stole spun wool. The garments can be unraveled to 
               wool again.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> The Tana of the Beraisa teaches only about 
               irreversible changes, which acquire mid'Oraisa.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rav Ashi):</font></b> Also the Tana of our Mishnah teaches only 
          irreversible changes, which acquire mid'Oraisa (but one 
          may not infer that just smoothing wood or Libun of wool 
          does not acquire);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Wood and he made Kelim' refers to one who 
               (merely) smoothed them, and made clubs;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> 'Wool and he made garments' refers to felt 
               garments (Libun is not done to the wool).
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Is Libun really a change that acquires?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Mishnah #2):</font></b> If a Yisrael did not 
               give the first shearings to a Kohen until he dyed 
               them, he is exempt from giving them;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If he only did Libun, he must give it.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> Mishnah #1 is like R. Shimon, who 
          says that Libun is considered a change. Mishnah #2 is 
          like Chachamim, who say that it is not.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa #1):</font></b> If a Yisrael sheared, spun and wove 
               wool from some sheep, it does not join with 
               shearings from other sheep for the law of first 
               shearings (that must be given to a Kohen);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon says, if he was Melaben it, it does not 
               join;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b>Chachamim say, it joins.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> Both Mishnayos are like R. Shimon;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he unravels the wool, he does not acquire. If 
               he combs it, he acquires.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #3 (R. Chiya bar Aba):</font></b> (According to all 
          Tana'im,) if he washes (in water alone), he does not 
          acquire. If he whitens it with sulfur, he acquires.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> If R. Shimon holds that dying does not 
          acquire, can he hold that Libun acquires?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> If a Yisrael sheared his sheep, and 
               dyed, spun or wove the wool from each before 
               shearing the next, they do not join up;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> R. Shimon ben Yehudah cites R. Shimon to say that 
               if he dyed them, they join up.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer #1 (Abaye):</font></b> The Tana of Beraisa #1 holds that R. 
          Shimon says that Libun acquires. R. Shimon ben Yehudah 
          holds that R. Shimon says that even dying does not 
          acquire.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Answer #2 (Rava):</font></b> All agree about R. Shimon's opinion. 
          Libun acquires, but dying does not, for dye can be 
          removed through soap.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Mishnah #2 says that if he dyed the shearings 
               before giving them to a Kohen, he is exempt. It 
               refers to dying with a blue sap (that cannot be 
               removed).
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	(Abaye):</font></b> The following Tana'im all hold that Ein Shinuy 
          Koneh (a change does not acquire): R. Shimon ben Yehudah, 
          Beis Shamai, R. Eliezer ben Yakov, R. Shimon ben Elazar, 
          and R. Yishmael.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We taught about R. Shimon ben Yehudah above;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Beis Shamai - (Beraisa #1):</font></b> If a man paid a 
               harlot for her services with wheat, olives or 
               grapes, and she made them into flour, oil or wine, 
               these may not be brought for a Korban (they are 
               still considered wages of a harlot);
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Beraisa #2):</font></b> They may be brought for a Korban.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  (Rav Yosef - Beraisa):</font></b> Beis Shamai forbid 
                    this, and Beis Hillel permit.
<br>

sjt:
</p><p>
<font><b>2) THE CHANGE THAT OCCURS TO AN ANIMAL WHEN IT GIVES BIRTH</b></font><b>
<br>QUESTION:</b> The Mishnah states that if someone stole wood and made utensils from it, or he stole wool and made clothes from it, he must repay according to its value at the time of the theft. <b>RASHI</b> (DH Meshalem) explains that this means that he pays the value of the wood or the wool that he stole, and he does not need to return the utensils or clothing, because he acquired them through the 'Shinuy' ('change') that he made in the raw material.
</p><p>
The Mishnah continues and teaches that if someone stole a pregnant cow and it gave birth, or he stole a sheep with a full fleece of wool and he sheared the wool, he must pay the owner the value of a pregnant cow before birth or the value of a sheep with a full fleece. Rashi (DH u'Demei) explains that after he pays the value of the object that he stole, the extra amount that the calf or the wool is worth now belongs to the thief because he acquired it through as a result of the Shinuy.
</p><p>
The <b>NIMUKEI YOSEF</b> (beginning of 33b of the pages of the Rif) writes that when the Mishnah states that he must pay the value of the animal before birth or before it was sheared, it refers to the embryo in the womb or the fleece when it was on the animal. The Mishnah does not refer to the animal itself; the act of giving birth or being sheared is not a Shinuy in the animal itself. The animal is no different from an animal which excretes dung; such an act certainly is not considered a Shinuy. What has changed is that the calf was previously an embryo and is now a live calf, or that the wool was part of an animal and now it is wool that is ready to be made into clothing. The Nimukei Yosef writes that this is also the intent of Rashi. (See Insights to 96b.)
</p><p>
The Mishnah continues that if one stole a cow and it became pregnant while in the possession of the thief, or he stole a sheep that later grew wool while in his possession, the thief must pay the value of the object at the time of the theft. According to the Nimukei Yosef's ruling in the previous case of the Mishnah, it seems that the thief must return the animal. Since the Nimukei Yosef maintains that giving birth is not considered a Shinuy, becoming pregnant also should not be considered a Shinuy.
</p><p>
If these two cases indeed are similar, and in both cases the thief must return the animal in its present state, but he may keep the calf or wool and pay merely its value at the time of the theft, why does the Mishnah express them differently? In the second case, the Mishnah states that the thief must return the value of the animal 'about to give birth' or 'about to be sheared.' In the last case, however, the Mishnah states merely that he must pay according to the value at the time of the theft. This is also the term used in the first case in the Mishnah (which discusses wood he turned into utensils). Why do the first and third cases in the Mishnah both state 'Meshalem k'She'as ha'Gezeilah' -- 'he pays like the [value at the] time it was stolen,' while the second case says he pays 'k'Parah ha'Omedes Leiled, 'like a cow about to give birth?' (See <b>TOSFOS YOM TOV</b>, DH Gozel.)
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> (95a, on Rashi DH Gezeilah) answers that the Mishnah is teaching a novel leniency in the second case. The leniency is apparent when the animal itself lost value after the theft. The Gemara (94a) states that according to Rebbi Shimon ben Elazar, if the animal became weaker after it was stolen, the thief still may say to the owners, 'Harei Shelcha Lefanecha' -- 'your stolen object is in front of you,' and the owner is obligated to receive it as is. (The Halachah follows Rebbi Shimon ben Elazar.)
</p><p>
One might have thought that 'Harei Shelcha Lefanecha' is a valid claim only when one returns every part of the animal. In the middle case of the Mishnah, the thief does not return everything he stole. He keeps the baby or the wool, and returns only their lower value at the time of the theft. Accordingly, one might have thought that the thief is not given two leniencies. The Mishnah therefore says that he must return the baby or wool only according to their value before birth or shearing, and it implies that this law applies whether or not the animal depreciated in value. This teaches that not only may he return a weaker animal from the one that he stole, but he also may keep the baby or wool, and is required to return only the lower rate of the value at the time of the theft. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>CHANGING AN OBJECT (SHINUY) DOES NOT ACQUIRE IT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Why do Beis Shamai forbid?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The verse (forbidding a Korban that was a 
          harlot's wages or was traded for a dog) says 'also', to 
          include what they are transformed into.
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	Beis Hillel explain, they are forbidden, but what they 
          are transformed into is not.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	Beis Shamai explain, they are forbidden, but their 
          offspring are not.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	Beis Hillel say that both are excluded.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> What do Beis Hillel learn from 'also'?
<br> <b>    <b><font color='darkgreen'>(g)</font></b></b>  	This is left difficult.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	(Abaye taught that also R. Eliezer ben Yakov, R. Shimon 
          ben Elazar, and R. Yishmael hold that Ein Shinuy Koneh. 
          The coming three Beraisos show this.)
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'>(Beraisa - R. Eliezer ben Yakov):</font></b> If Reuven stole 
               wheat, ground it, kneaded and baked it and separated 
               Chalah from it, his Berachah only angers Hash-m;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  'A thief who blesses, blasphemes.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Beraisa - R. Shimon ben Elazar):</font></b> The general 
               rule is, whatever improvement a thief made on a 
               stolen object, he has the upper hand. He may keep 
               the improvement, or say 'here is your object.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question:</font></b> What does this mean?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'>  Answer (Rav Sheshes):</font></b> If he improved it, he 
                    receives the added value; if he decreased its 
                    value, he returns the object and says 'here is 
                    your object', since he did not acquire it.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>  Question:</font></b> If so, when he improved it, why 
                    does he receive the added value?
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'>  Answer:</font></b> That is an enactment to facilitate 
                    repentance of thieves.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> (Beraisa):</font></b> Pe'ah should be designated and not 
               harvested. If it was harvested, one separates (the 
               amount that should have been left) from the sheaves 
               (and gives it to the poor). If he did not do so, he 
               separates from the stack before Miru'ach (final 
               processing);
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If Miru'ach was already done, he separates the 
                    proper amount, takes Ma'asros on it, and gives 
                    it to the poor.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  R. Yishmael says, even if he made a dough, 
                    he separates from the dough and give to the 
                    poor (he still did not acquire it).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Objection #1 (Rav Papa):</font></b> Do all these Tana'im hold like 
          Beis Shamai?!
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer (Abaye):</font></b> No, they say that Beis Hillel agree 
          that Ein Shinuy Koneh.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Objection #2 (Rava):</font></b> We need not say that they hold 
          that Ein Shinuy Koneh!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Perhaps R. Shimon ben Yehudah says only that 
               dying does not acquire because it can be removed 
               through soap!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Perhaps Beis Shamai say that Ein Shinuy Koneh 
               only regarding a Korban, because it is despised 
               (since it was once a harlot's wages)!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Perhaps R. Eliezer ben Yakov says that Ein Shinuy 
               Koneh only regarding Berachah, because the Mitzvah 
               came through a sin!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> Perhaps R. Shimon ben Elazar says only that a 
               reversible Shinuy does not acquire!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Perhaps R. Yishmael says that Ein Shinuy Koneh 
               only regarding Pe'ah, because the verse says an 
               extra 'leave' (for the poor).
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question:</font></b> R. Yishmael should learn from Pe'ah to 
          elsewhere that Ein Shinuy Koneh!
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer:</font></b> We cannot learn from gifts to the poor, like R. 
          Yonasan taught:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question #1 (R. Yonasan):</font></b> What is R. Yishmael's 
               reason? 
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Does he hold that normally, Ein Shinuy Koneh?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, perhaps he normally holds that Shinuy 
                    Koneh. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'>Question #2:</font></b> If he normally holds that Ein Shinuy 
               Koneh, why does the verse repeat 'leave'? How do 
               Chachamim expound this?   
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Answer (Beraisa):</font></b> If one declared his vineyard 
               Hefker and harvests it, he must leave Peret (grapes 
               that fall during harvesting), Olelos (deficient 
               clusters), Shichechah (what was forgotten in the 
               vineyard) and Pe'ah for the poor, but he is exempt 
               from Ma'asros.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>HOW WE RULE WITH REGARD TO SHINUY KONEH</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Yehudah citing Shmuel):</font></b> The Halachah follows R. 
          Shimon ben Elazar.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> Elsewhere, Shmuel taught differently!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> We do not make an evaluation (of an 
               animal that died) for thieves or Gazlanim (because 
               they acquire the carcass), only for damages.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer #1 (for Rava):</font></b> R. Shimon ben Elazar said only 
          that a reversible Shinuy does not acquire;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Abaye says that R. Shimon ben Elazar 
               holds that even an irreversible Shinuy does not 
               acquire!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (for Abaye):</font></b> Shmuel said that some rule like 
          R. Shimon ben Elazar, but he himself does not.
<br>
<br>

sjt:
<font><b>1) A BLESSING ON FORBIDDEN FOOD</b></font><b>
<br>OPINIONS:</b> Abaye (93b) lists several Tana'im who maintain that a stolen object remains in the possession of the original owner even when the thief makes a Shinuy to the object. One of those Tana'im is Rebbi Eliezer ben Yakov. Rebbi Eliezer ben Yaakov said that when one steals a Se'ah of wheat and he grinds, kneads, bakes, and even separates Chalah from it, he may not recite a blessing over the b read when he eats it. The blessing would not be a praise to Hash-m but rather a curse. The verse says about such a person, 'And the robber blesses himself about having blasphemed Hash-m' (Tehilim 10:3), which Rebbi Eliezer ben Yakov interprets to mean, 'And the robber who makes a blessing [on food that he stole] has blasphemed Hash-m.' Abaye understands from this statement that Rebbi Eliezer ben Yaakov maintains that the thief does not acquire the stolen wheat through the Shinuy, because if he does acquire it through the Shinuy it would now be his wheat and his blessing should be valid. (Some explain that the blessing to which Rebbi Eliezer ben Yakov refers is the blessing for the Mitzvah of separating Chalah, while others say that it refers to the blessing recited before one eats the bread. See <b>SHITAH MEKUBETZES</b> here and <b>TESHUVOS AFRAKASTA D'ANYA</b> 1:148.)
</p><p>
Rava replies that Abaye's proof is refutable. Perhaps Rebbi Eliezer ben Yakov maintains that a thief <i>does</i> acquire the stolen object with a Shinuy. The reason why Rebbi Eliezer ben Yaakov said that the thief's blessing is like a curse is that the object for which he makes the blessing is a stolen object, and thus his blessing is a 'Mitzvah ha'Ba'ah b'Aveirah.' 
</p><p>
The Gemara here may be the source for the dispute among the Poskim with regard to whether one recites a blessing when he eats forbidden food. 
</p><p>
(a) The <b>RAMBAM</b> (Hilchos Berachos 1:19) writes that one who eats forbidden food recites no blessing over it, before or after eating, whether he eats it deliberately or inadvertently.
</p><p>
(b) The <b>RA'AVAD</b> cites the Mishnah in Berachos (45a) which states that when one eats Tevel (produce from which Terumos and Ma'aseros have not been separated) or other forbidden foods, he may not join others to make a Zimun for Birkas ha'Mazon. The Mishnah implies that although he cannot join the Zimun, he <i>is</i> obligated to recite Birkas ha'Mazon.
</p><p>
The <b>ROSH</b> (Berachos 7:2) cites support for the Ra'avad's opinion from the opinion of Rebbi Eliezer ben Yakov in the Gemara here, who says that one who recites a blessing over stolen bread is considered as though he curses Hash-m. This implies that he <i>is</i> obligated to recite the blessing, but the blessing which he recites is considered a curse and not a blessing. The <b>MA'ADANEI YOM TOV</b> (#40) explains that the Rosh makes this inference from the Gemara's terminology. The Gemara does not say that the thief 'may not recite a blessing.' Rather, it says that he 'does not bless but rather curses.' This implies that the blessing which he is required to recite is considered a curse.
<br> 
<br>The <b>KESEF MISHNEH</b> points out that the Girsa of the Gemara according to the Rosh is slightly different from the Girsa which appears in our text. Our text reads, 'How can he recite a blessing? He does not bless but rather curses Him!' The Rosh's text omits the words, 'How can he recite a blessing?' Accordingly, the Kesef Mishneh asserts that the Girsa of the Gemara as it appears in our text certainly supports the <i>Rambam's</i> opinion. The Gemara's question, 'How can he recite a blessing?' expresses astonishment at the thief's recitation of a blessing in the first place. The Gemar means that <i>if</i> a thief would recite a blessing on such an item, it would be nothing more than a curse.
<br> 
<br>The Kesef Mishneh adds that even according to the Rosh's text, the Gemara does not necessarily provide support for the Ra'avad's opinion. The Gemara may be understood as saying that if one would recite a blessing on the stolen food, he in fact would not be blessing Hash-m but rather cursing Him. Accordingly, the conclusion of the Gemara is that one should <i>not</i> recite a blessing.
</p><p>

<b>HALACHAH:</b> The <b>SHULCHAN ARUCH</b> (OC 196:1) rules that when one eats a forbidden food, he does not recite a blessing either before or after he eats, even if the food is forbidden only mid'Rabanan. The <b>MISHNAH BERURAH</b> (196:4) cites the <b>TAZ</b> and other Acharonim who write that if one eats the food inadvertently and only afterwards realizes that it is forbidden, he may recite the Berachah Acharonah, since the act of eating is not considered a curse (as he did the act inadvertently). Even in such a case, however, one should not join a Zimun after he has eaten such food. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DO WE BLESS ON EATING ISUR</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. Eliezer ben Yakov):</font></b> If one stole 
               wheat, ground it, kneaded and baked it and separated 
               Chalah from it, his Berachah only angers Hash-m - 'a 
               thief who blesses, blasphemes.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Abaye):</font></b> He holds that Ein Shinuy Koneh (changing a 
               stolen object does not acquire it).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rava):</font></b> Perhaps he holds that Shinuy 
               Koneh. However, one may not bless because it is a 
               Mitzvah ha'Ba'ah b'Aveirah!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Berachos 45a (Mishnah):</font></b> We do not count for a Zimun 
               (a preface before Birkas ha'Mazon) one who ate Tevel 
               (untithed produce). We count one who ate Demai 
               (Safek Tevel).
<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 Berachos 1:19):</font></b> If one ate Isur, 
               whether b'Mezid or b'Shogeg, he does not bless on it 
               before or after.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Ra'avad):</font></b> The Gemara did not say that 
                    we do not bless on it. It said only that we do 
                    not make a Zimun on it, for this is not 
                    considered Kevi'us (fixed to eat together), 
                    just like eating Peros. Why shouldn't they 
                    bless?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (Berachos 7:2):</font></b> I agree with the Ra'avad. The 
               Gemara in Bava Kama says that one who blesses 
               blasphemes. This connotes that he must bless, just 
               it angers Hash-m.
<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 196:1):</font></b> If one ate Isur, even an 
               Isur mid'Rabanan, he does not bless on it before or 
               after.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Question (Beis Yosef OC 196 DH Kosav 
                    ha'Rambam):</font></b> Why did the Rosh reject the Rambam? 
                    The Yerushalmi forbids blessing on stolen 
                    Matzah. Do not say that Matzah is different, 
                    because it is a Mitzvah. Also Birkas ha'Mazon 
                    is a Mitzvah! The Beraisa 'one who blesses 
                    blasphemes' supports the Rambam. Our text says 
                    'how will he bless?!' Also according to the 
                    Rosh's text, we can explain 'if he will bless, 
                    this angers Hash-m. Therefore, he should not 
                    bless.' A Tosefta (Demai 2:14) says 'one may 
                    not give wine to a Nazir... we do not bless on 
                    these or answer Amen.' It seems that Rashi and 
                    R. Yonah agree. The Rashba brings a proof from 
                    Shabbos 23a, which says that we make an Eruv 
                    with Demai (it is permitted to an Oni), bless 
                    on it, and make a Zimun with it. This implies 
                    that we do not bless on Tevel. It is difficult 
                    to say that 'we bless' (is no Chidush, for we 
                    bless even on Tevel, and) was merely included 
                    with the other matters.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (1):</font></b> The Rosh agrees that it is better not 
                    to bless than to anger Hash-m. The Ra'avad 
                    agrees that one who ate Isur b'Mezid does not 
                    bless. He argues only about one who ate 
                    b'Shogeg. All hold that the Mishnah in Berachos 
                    discusses one who ate b'Shogeg, for we do not 
                    make a Zimun with a Rasha. The Rambam holds 
                    that it is as if he did not eat at all. 
                    Similarly, if one bought an Isur mid'Oraisa and 
                    ate it; he gets back his money (YD 119:13). 
                    Regarding Berachos, even if he ate an Isur 
                    mid'Rabanan, it is as if he did not eat. 
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bach (DH u'Mah she'Chosav):</font></b> Even if one does 
                    not bless on Isur, all agree that if one 
                    acquired it through Shinuy, he blesses 
                    afterwards. The Yerushalmi brings an argument 
                    about blessing beforehand in this case. The 
                    Halachah is that we bless, like Rava says in 
                    the Bavli; he acquires and must bless, but he 
                    angers Hash-m. If one stole Matzah, all agree 
                    that one does not bless before eating it, for 
                    he did not acquire it. He does bless 
                    afterwards.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Magen Avraham (1):</font></b> The Beis Yosef says that 
                    even if one ground stolen wheat and baked it, 
                    and acquired through Shinuy, he does not bless 
                    before or after. The Mechaber (649:1) and Rema 
                    (454:4 and 11:6) say similarly about a stolen 
                    Lulav, Matzah or Tzitzis acquired through 
                    Shinuy. However, the Magid Mishneh says that 
                    the Rambam holds that one is Yotzei with Matzah 
                    in such a case. Hence (based on the Rambam in 
                    Hilchos Berachos) one blesses on it. One should 
                    rule like this; Birkas ha'Mazon is mid'Oraisa, 
                    so we must be stringent. Perhaps even one who 
                    ate stolen bread blesses, for he acquired it 
                    through eating. Also, the Beis Yosef was in 
                    doubt in Siman 649, so we must be stringent 
                    about Birkas ha'Mazon. The Bach is unlike the 
                    Magid Mishneh.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Gra (2):</font></b> The Mishnah (Demai 1:4) says that we 
                    bless on Demai. This implies that we do not 
                    bless on (absolute) Isurim.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> R. Akiva Eiger (1):</font></b> Mid'Rabanan, one may not 
                    knead bread with milk (or lard), lest one eat 
                    it with meat (or milk). This is not such an 
                    Isur (so one blesses on it), especially since 
                    the Kreisi permits to give a small amount to 
                    each of many people. This is like Demai, which 
                    is permitted if one is Mafkir his property. 
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Eshel Avraham (168 Sof 16):</font></b> One does not bless 
                    on such bread.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Mishnah Berurah (1):</font></b> One does not bless even on 
                    Heter that one forbade to himself.
<br>             <b>  <b><font color='darkgreen'>ix. </font></b><font color='darkgreen'> Mishnah Berurah (4):</font></b> If one ate b'Shogeg, some 
                    say that even if he was not satiated, he 
                    blesses afterwards. Some say that even if one 
                    ground stolen wheat and baked it, and acquired 
                    through Shinuy, we are more stringent about 
                    Berachos. He does not bless before or after, 
                    for this would anger Hash-m. 
<br>            <b>   <b><font color='darkgreen'>x.  </font></b><font color='darkgreen'> Kaf ha'Chayim (2):</font></b> Opinions differ about 
                    whether or not he blesses after eating Gezel. 
                    One should bless, lest he increase his sin, but 
                    first he should repent and resolve to pay for 
                    the theft. One only thinks the Berachah 
                    beforehand, but does not say it.
<br>             <b>  <b><font color='darkgreen'>xi. </font></b><font color='darkgreen'> Kaf ha'Chayim (5):</font></b> Mishbetzos Zahav says that 
                    one blesses after a Safek Isur mid'Rabanan, but 
                    not after a Safek Isur mid'Oraisa.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (2):</font></b> If one ate Isur due to danger, 
               he blesses on it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH ha'Ochel):</font></b> R. Yerucham says that 
                    the Ramah holds that one who ate Isur due to 
                    danger does not bless on it. I say that the 
                    Rambam would agree that he blesses on it.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Rebuttal (Taz 1):</font></b> The Rambam would equate this 
                    to eating b'Shogeg, and say that he does not 
                    bless. However, l'Halachah, since he was 
                    permitted to eat Isur, his Berachah does not 
                    anger Hash-m. Therefore, he must bless.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Kaf ha'Chayim (8):</font></b> Many say that he blesses, 
                    but the Birkei Yosef disagrees. We are lenient 
                    about Safek Berachos. Therefore, he should 
                    bless on Heter to exempt the Isur, or only 
                    think the Berachah in his heart.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>KINYAN THROUGH SHINUY </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(R. Chiya bar Aba citing R. Yochanan):</font></b> Mid'Oraisa, one 
          who changes a stolen object must return it - 'he will 
          return the stolen object that he stole', even if it 
          changed;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah says that he acquires it. This is an 
               enactment to facilitate repentance of thieves.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> Did R. Yochanan really say that?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (R. Yochanan):</font></b> The Halachah follows an anonymous 
               Mishnah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Mishnah):</font></b> If he dyed the shearings before giving 
               them to a Kohen, he is exempt.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (R. Yakov):</font></b> R. Yochanan holds that our Mishnah 
          discusses stealing smooth wood, so making Kelim is a 
          reversible change. (This acquires only mid'Rabanan. An 
          irreversible Shinuy acquires mid'Oraisa.)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>THE ENACTMENT TO FACILITATE REPENTANCE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> If thieves or people who collected Ribis 
          want to return what they took, we do not accept from 
          them. Chachamim are unhappy with one who accepts from 
          them.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Yochanan):</font></b> This was taught in Rebbi's time.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa):</font></b> A case occurred in which a thief 
               wanted to repent. His wife dissuaded him, for then 
               he would need to return even his belt!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> It was then enacted not to accept from thieves or 
               people who collected Ribis who want to return what 
               they took.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> If a man died, and left to his 
          orphans money that he collected for Ribis, even if they 
          know this, they need not return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> They need not return it, but their 
               father would need to return it!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Really, even their father is exempt. The 
          Beraisa discusses them for parallel structure to the 
          Seifa.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Seifa):</font></b> If their father left them a cow, garment 
               or any specific item, they must return it due to the 
               honor of their father.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why should they need to return it for the 
          honor of their father?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> 'Do not curse a Nasi of your nation' refers to 
               one who acts like your nation (but we are not 
               concerned for honor of the wicked)!
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> We can answer like Rav Pinchas answered 
          (elsewhere). The case is, the father repented.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If he repented, he should have returned 
               it!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> He died before he was able to.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> Thieves or people who lent on 
          Ribis, even if they collected, they return it.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> The expression 'collected' does not 
               apply to thieves!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Correction:</font></b> The Beraisa means, thieves, i.e. 
               people who lent on Ribis, even if they collected, 
               they return.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> They return, but the borrowers do not accept.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why does the Beraisa tell them 
               to return it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Through offering to return it, they 
               fulfill their obligation b'Yedei Shamayim.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Question (Beraisa):</font></b> It is difficult for shepherds (they 
          graze their animals in others' fields) and tax collectors 
          (who take more than they should) to repent;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> They must return to the people from whom they 
               know that they stole.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Answer #1:</font></b> They return, but (the ones they stole from) 
          do not accept.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question:</font></b> If so, why does the Beraisa tell them 
               to return it?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer:</font></b> Through offering, they fulfill their 
               obligation b'Yedei Shamayim.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question #1:</font></b> If so, why is it hard for them to 
               repent?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Question #2 (Seifa of Beraisa):</font></b> To atone for 
               those that they do not know, they pay for public 
               needs;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Chisda):</font></b> They build pits to store water.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer #2:</font></b> This Beraisa was before the enactment.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer #3:</font></b> We can even say that the Beraisa is after 
          the enactment. Rav Nachman taught that if they still have 
          the stolen object, they must return it.
<br>

sjt:
</p><p>
<font><b>2) THE GEMARA FOLLOWS THE VIEW OF RAMI BAR CHAMA</b></font><b>
<br>QUESTION:</b> The Beraisa states that the victim of a theft may not accept his stolen object when a thief returns it together with the profit he made through his transgression. The victim of Ribis may not accept from the creditor the profit which the creditor made by charging interest on the loan. Rebbi Yochanan explains that this teaching was stated in the days of Rebbi, as related in another Beraisa. The Beraisa relates that there was a man who sought to repent but his wife said to him, 'Empty one! If you do Teshuvah than even the belt you are wearing will not be yours!' He was thereby deterred from doing Teshuvah. As a result, the Chachamim declared that one may not receive what thieves (or creditors who loan money with Ribis) return.
</p><p>
The Gemara questions this from another Beraisa which states that when a man dies and leaves to his sons money which he earned through the prohibition of Ribis, the sons are not obligated to return it to the borrowers. The Gemara infers from here that only the <i>sons</i> do not need to return it, but if the father was alive he would be obligated to return the Ribis. This Beraisa seems to contradict the first Beraisa which says that the lender's returns are not accepted. 
</p><p>
<b>RASHI</b> (DH Ein Chayavim) explains that the reason why the heirs are not obligated to return the Ribis money which they inherited is that the Torah commands a person to return money acquired unlawfully only when he is the one who stole it. Since the heirs did not steal or charge interest, they do not have to return anything to the victim of their father's unlawful conduct. The Ribis money becomes their property because of the principle, 'Reshus Yoresh k'Reshus Loke'ach Dami' -- 'the domain of an heir is like the domain of a buyer.' Rashi (111b, DH Reshus) explains that this means that when children inherit from their father, the inheritance is considered as though it enters a different domain (and undergoes a 'Shinuy Reshus') from that of the father. Therefore, if the victim of the theft or Ribis had Ye'ush, the orphans acquire the object through the combination of Ye'ush and Shinuy Reshus. 
</p><p>
Rashi's explanation of the Beraisa based on the principle of 'Reshus Yoresh k'Reshus Loke'ach Dami' is not consistent with the Halachah. The Gemara later (111b) says that this principle is only the opinion of Rami bar Chama. Rava there disagrees and maintains that when a man bequeaths a stolen object to his sons after the owner had Ye'ush, the sons do not acquire it through Ye'ush (and inheriting it) alone. The Gemara (112a) says that according to Rava, the reason why sons are not obligated to return the Ribis their father received is that the Torah says, 'Take no interest from him... that your brother may live with you' (Vayikra 25:36). The purpose of the Mitzvah to return Ribis is to enable one's brother to be able to live. However, the Torah gives this Mitzvah only to the father who took the Ribis in the first place, but not to his sons. The Halachah follows the view of Rava and not Rami bar Chama (see <b>RAMBAM</b>, Hilchos Gezeilah v'Aveidah 2:1). Why does Rashi explain the Gemara here according to an opinion which the Halachah does not follow? (This question is asked by the <b>MISHNEH L'MELECH</b>, Hilchos Malveh v'Loveh 4:4.)
</p><p>
<b>ANSWER: REBBI AKIVA EIGER</b> (in Chidushim) quotes his son-in-law who answers that Rashi is bothered by the question of <b>TOSFOS</b> (DH Ha). Tosfos questions the Gemara's inference that if the father would be alive he would be obligated to return the Ribis. Why does the Gemara not answer simply that the father indeed would have been obligated to return the Ribis but only 'mi'Dinei Shamayim,' to fulfill his Heavenly obligation (but Beis Din cannot force him to return it)?
</p><p>
Rebbi Akiva Eiger's son-in-law explains that Rashi maintains that the heirs also are obligated to return the Ribis mi'Dinei Shamayim. Their father essentially bequeathed to them stolen money; just as they are required to honor other financial obligations of their father's estate (even when they do not inherit land; see Kesuvos 91b), they must fulfill requirements of Dinei Shamayim and give back the stolen money, even if they acquired it through Ye'ush and Shinuy Reshus. Accordingly, when the Gemara says that there is a difference between the obligation of the father and that of the son, it must not be referring to requirements of Dinei Shamayim.
</p><p>
However, Rashi maintains that only Rami bar Chama maintains that Ribis is considered theft. The heirs technically acquire that money through Ye'ush and Shinuy Reshus, which is why they are not obligated to return it in Beis Din but must return it mi'Dinei Shamayim. In contrast, according to Rava, Ribis money becomes the possession of the recipient immediately. Only the recipient, and not his heirs, has a Mitzvah to return the Ribis money to the borrower (based on the verse cited by the Gemara on 112a). (See <b>TOSFOS</b> to Bava Metzia 61b, DH Yachin, and Chidushei Rebbi Akiva Eiger here, DH Divrei.) According to Rava, the sons have no obligation to return the money, even mi'Dinei Shamayim. Therefore, Rashi explains that the Gemara here must follow the opinion of Rami bar Chama, because otherwise the question of Tosfos would remain (since the Gemara could have answered that the father must pay mi'Dinei Shamayim, in contrast to the sons who have no obligation to pay mi'Dinei Shamayim according to Rava). (Rebbi Akiva Eiger praises his son-in-law's answer.) (D.Bloom) 
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>WHEN DOES THE ENACTMENT APPLY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> The enactment was made due to a case in which 
          a man didn't repent lest he need to return his belt!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> It meant, lest he need to return the value of 
          his belt (the belt itself was not stolen).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Is it really true that the enactment does not 
          apply if the stolen object is still here?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Mishnah):</font></b> There was an enactment to help 
               penitents that if one built a stolen beam into a 
               building, he returns only its value.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> That case is different. (Letter of the law, he 
          must dissemble the building.) The loss is so great, that 
          Chachamim consider it as if the beam is not here.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DOES SHINUY ACQUIRE A STOLEN OBJECT ACCORDING TO R. MEIR?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he stole a pregnant cow and it gave 
          birth...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Beraisa - R. Meir):</font></b> If one stole a sheep and sheared 
          it, or a cow and it gave birth, he pays for it and its 
          shearings and children;
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	R. Yehudah says, he returns the stolen animal itself;
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	R. Shimon says, we view what the animal was worth at 
          the time of the theft.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Version #1 - Question:</font></b> What is R. Meir's reason?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Does he hold that Shinuy does not acquire?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Or, does he hold that Shinuy Koneh, but here we 
               fine the thief, lest he profit from his sin?
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> What difference does it make which is 
               his reason?
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> It determines what he pays for a stolen 
               animal that changed and declined in value.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Mishnah):</font></b> If a thief stole an animal or 
          slaves and they grew old, he pays like the time of the 
          theft;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Meir says, regarding slaves he says 'here are 
               your slaves.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> Regarding animals, R. Meir agrees that 
               he pays like the time of the theft;
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he held that Ein Shinuy Koneh, also regarding 
                    animals he should allow saying 'here are your 
                    animals'!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Rather, he must hold that Shinuy Koneh. 
                    When the stolen object rises in value, we fine 
                    the thief so he will not profit.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Rejection:</font></b> No. R. Meir addresses Chachamim's opinion;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> I hold that Ein Shinuy Koneh. Even regarding 
               animals, he can say 'here is your animal';
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> You hold that Shinuy Koneh. You should agree 
               about slaves, for they are equated to land and 
               cannot be stolen!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> Chachamim disagree. They hold that slaves are not 
               like land.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah - R. Meir):</font></b> Reuven gave wool to 
          Shimon to dye red, and he dyed it black, or vice-versa - 
          Shimon pays him the value of the wool he received.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> He only pays the value of the wool, 
               not the added value of dyed wool.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If he held that Ein Shinuy Koneh, he should pay 
                    for dyed wool!
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  He must hold that Shinuy Koneh (and in the 
                    Beraisa, we fine the thief).)
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Version #2:</font></b> Surely, R. Meir holds that Shinuy Koneh, 
          for Rav switched the opinions in the Mishnah;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Rav's version of the Mishnah - R. Meir):</font></b> If a 
               thief stole an animal or slaves and they grew old, 
               he pays like the time of the theft;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Chachamim say, regarding slaves he says 'here are 
               your slaves.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  In our Beraisa, R. Meir fines the thief so he 
                    will not profit.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>FINING THE THIEF</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Does R. Meir fine only a Mezid thief, or even 
          one who b'Shogeg took another's animal (e.g. he bought it 
          from the thief)?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer #1 (Beraisa):</font></b> Five kinds of payments are 
          collected only from Bnei Chorin (i.e. but not from 
          property bought from the one who owes):
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> Peros (this is explained below);
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Improvements (this is explained below);
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> One who accepted to feed his wife's child (from a 
               previous husband);
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> A loan document that does not put a lien on land;
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> A Kesuvah that does not put a lien on land.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Question:</font></b> Who is the Tana of this Beraisa, who 
               holds that a document does not automatically put a 
               lien on land?
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Answer:</font></b> It is R. Meir.
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'>Question:</font></b> The Beraisa lists Peros and improvements. 
               What is the case?
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer:</font></b> Reuven stole Shimon's land and sold it to 
               Levi, who improved it. When Shimon takes back the 
               land, Levi can collect what he paid from Reuven's 
               Meshu'abadim (property that he sold), and the value 
               of his improvements from Reuven's Bnei Chorin.
<br>
<br>

sjt:
<font><b>1) ONE WHO IS UNAWARE THAT HE HAS BOUGHT A STOLEN ARTICLE</b></font><b>
<br>QUESTION:</b> In the Beraisa, Rebbi Meir rules that one who steals a sheep and then shears its wool, or steals a cow which then gives birth, must pay for the animal and the value of the wool or the calf. <b>RASHI</b> (DH Meshalem) adds that he also must pay any profit which he accrued from these items.
</p><p>
The Gemara later (in the second version) states that Rebbi Meir's law essentially is a fine. Rashi (DH Kenasa) explains that the purpose of the fine is to prevent the thief from benefiting from his transgression by receiving profits from the animal.
</p><p>
The Gemara inquires whether Rebbi Meir imposes a fine only on one who stole deliberately, or even on one who stole inadvertently? Rashi (DH b'Shogeg) explains that an example of inadvertent theft is one who buys a stolen object from a thief. The buyer worked with the animal and profited from it, and he was not aware that the animal he purchased was stolen.
</p><p>
The Gemara cites a Beraisa, which it asserts expresses the view of Rebbi Meir. The Beraisa discusses a case in which a person steals a field and profits from it. When the original owner reclaims the field, he also receives the profits which the thief made. The Gemara suggests that the Beraisa refers to a case in which an ignoramus, who did not know the law of 'Karka Einah Nigzeles' -- 'land does not change possession when stolen' -- bought the field. The buyer thought that the field fully enters his possession at the moment he purchases it from the thief. Nevertheless, the owner may reclaim the profits from the ignoramus. This proves that Rebbi Meir's fine applies even to one who steals accidentally, since in this case the buyer was not aware that a stolen field does not become the possession of the one who purchases it.
</p><p>
Rashi earlier (DH b'Shogeg) explains that the case of the inadvertent thief refers to one who purchases an object which he was not aware was stolen. Why does Rashi not he cite the example which the Gemara itself discusses here, the case of a buyer who was an ignoramus and who did not know that the object does not automatically become his when he pays for it?
</p><p>
<b>ANSWER:</b> The <b>PNEI YEHOSHUA</b> answers that a distinction must be made between Karka (land) and Metaltelin (movable objects). The Gemara later, which states that an ignoramus does not know that 'Karka Einah Nigzeles', refers specifically to Karka. Therefore, if the owner had Ye'ush, the ignoramus might erroneously think that the land becomes his when he buys it.
</p><p>
Indeed, the <b>SHITAH MEKUBETZES</b> (95b) and <b>CHAZON ISH</b> (Bava Kama 17:13) explain that the ignoramus' mistake is that he thinks that Ye'ush and Shinuy Reshus is effective to make the land enter his possession.
</p><p>
In contrast, the Gemara earlier, which asks whether Rebbi Meir establishes a fine for an inadvertent thief, refers to a thief who stole Metaltelin. Even an ignoramus would not think that when he buys a stolen movable object that it belongs to him. Consequently, Rashi cannot explain that the Gemara earlier refers to an ignoramus who bought the sheep or the cow, but rather he needs to explain that the buyer did not know that it was stolen at all, and therefore he assumed it was his and worked with it. (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>SHINUY 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'> 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 is Koneh (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'> 66b (Mishnah):</font></b> Hides of a Ganav (covert thief) can 
               receive Tum'ah through intent (to use it as is, for 
               a table-cover). 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><font color='darkgreen'> Inference (Abaye):</font></b> This shows that one acquires 
               through despair of the owner!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rebuttal (Rava):</font></b> A change in the name of the object 
               is like a physical change.
<br>             <b>  <b><font color='darkgreen'>i. </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'>6.  </font></b><font color='darkgreen'> 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'>7.  </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'>8.  </font></b><font color='darkgreen'> 68a (Beraisa):</font></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'>9.  </font></b><font color='darkgreen'> Objection (Rava):</font></b> All agree that Shinuy Koneh. 
               Shimon owes Kefel (to Reuven)!
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Answer #1(Rava):</font></b> The text should say that Shimon 
               pays Kefel.
<br>        <b>  <b><font color='darkgreen'>11. </font></b><font color='darkgreen'> Answer #2 (Rav Papa):</font></b> The Beraisa is Beis Shamai, 
               who say that Ein Shinuy Koneh (it does not acquire).
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> 93b (Mishnah):</font></b> If one stole wood and he made Kelim, 
               he pays the initial value.
<br>        <b>  <b><font color='darkgreen'>13. </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'>14. </font></b><font color='darkgreen'> 95a (Beraisa - R. Meir):</font></b> If one stole a sheep and 
               sheared it, or a cow and it gave birth, he pays for 
               it and its shearings and children;
<br>        <b>  <b><font color='darkgreen'>15. </font></b><font color='darkgreen'> Version #1 - Question:</font></b> Does R. Meir hold that Shinuy 
               does not acquire? Or, does he hold that Shinuy 
               Koneh, but here we fine the thief, lest he profit 
               from his sin?
<br>        <b>  <b><font color='darkgreen'>16. </font></b><font color='darkgreen'> Answer (Mishnah - R. Meir):</font></b> If Reuven gave wool to 
               Shimon to dye red, and he dyed it black, or vice-
               versa, Shimon pays him the value of the wool he 
               received.
<br>        <b>  <b><font color='darkgreen'>17. </font></b><font color='darkgreen'> Inference:</font></b> He does not pay the added value of dyed 
               wool. If he held that Ein Shinuy Koneh, he should 
               pay for dyed wool! Rather, he holds that Shinuy 
               Koneh.
<br>        <b>  <b><font color='darkgreen'>18. </font></b><font color='darkgreen'> Version #2:</font></b> R. Meir holds that Shinuy Koneh, for Rav 
               switched the Mishnah (about a stolen animal that 
               grew old) so that R. Meir says that he pays like the 
               time of the theft.
<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 (27a and 7:2):</font></b> If one stole a lamb or 
               calf and it became a ram or ox, he pays Kefel like 
               he stole, i.e. lambs. If he slaughtered or sold it, 
               he is exempt from four or five, for he acquired it 
               through Shinuy, like R. Ila'a taught, so he 
               slaughtered or sold his own animal. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rambam (Hilchos Geneivah 1:12):</font></b> If the stolen object 
               changed in the thief's hands, he acquires and its 
               improvements, even before despair. He pays only its 
               value. 
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (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'>4.  </font></b><font color='darkgreen'> Rosh (9:1):</font></b> The Mishnah says 'and he made them 
               Kelim.' I.e. merely smoothing the wood does not 
               suffice unless it is called a Kli or the name 
               changed. 
<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> If the stolen object 
               changed in the thief's hand, e.g. he stole a lamb or 
               calf, and it grew up and became a ram or ox, he 
               acquires it through Shinuy ha'Shem. 
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rebuttal (Yam Shel Shlomo 7:5):</font></b> (This is like 
                    the Rosh.) What is his source to say that a 
                    lamb that became a ram is a proper Shinuy? 
                    Perhaps he learns from the Stam Gemara, which 
                    asked that he should acquire due to Shinuy 
                    ha'Shem. Tosfos (67a DH Ha) says similarly. 
                    However, Rava, who is Basra, proved from verse 
                    that this is not a Shinuy ha'Shem! Rather, R. 
                    Ila'a and R. Chanina argue about Shinuy 
                    Ma'aseh. A small animal that became big is the 
                    ultimate Shinuy Ma'aseh. R. Chanina holds that 
                    a Shinuy that comes by itself does not acquire. 
                    Tosfos (68a DH Mah) says that other Amora'im 
                    disagree. Our Gemara asked that all should 
                    agree that Shinuy ha'Shem acquires by itself; 
                    Rava answered that there is no Shinuy ha'Shem 
                    here. 
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Suggestion:</font></b> Even though it was initially called 
                    a ram, it is still Shinuy ha'Shem because it 
                    used to be called (also) a lamb, and after one 
                    year it is not!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Rebuttal (Yam Shel Shlomo):</font></b> A beam that was 
                    built into the roof is not a Shinuy ha'Shem, 
                    even though it is now called roof, for it is 
                    still called (also) beam. Even though there it 
                    gained a new name, and here it lost a name, it 
                    is unreasonable to distinguish between these. 
                    Perush ha'Mishnayos (9:1) says that he acquires 
                    because it became big. I.e. now it is big in 
                    years (old). The primary Shinuy ha'Shem of 
                    maturing is that it is no longer called a calf, 
                    rather, an ox. Rava did not need to say why it 
                    does not acquire through Shinuy ha'Shem from 
                    small to big. Indeed, the Gemara's question 
                    proves that Shinuy ha'Shem acquires, but all 
                    agree with Rava that becoming a ram or ox is 
                    not Shinuy ha'Shem. According to the Rosh, if 
                    one stole a lamb exactly one year old, he would 
                    acquire in one day, for the next day it is 
                    called Palgas (it is not Kosher for Korbanos 
                    that require a lamb). Or, if he stole a Palgas 
                    exactly 13 months old, he would acquire in one 
                    day, for the next day it is called a ram, even 
                    if it did not grow. I hold that growth during 
                    the first year or during the second year does 
                    not acquire, for it is not Shinuy Ma'aseh. We 
                    do not find that one who stole a ram or ox 
                    acquires if it gets bigger. This would be a 
                    bigger Chidush! Rather, we require physical 
                    growth and a change in name.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Defense #1 (Shach 1):</font></b> We follow the way people 
                    speak, even to be lenient. We see that people 
                    do not call a newborn a ram or ox. It seems 
                    that the same applied the days of the Gemara. 
                    If not, R. Zeira had no question! Rava answered 
                    that since the Torah calls them ram and ox, we 
                    can say that people did so the days of R. 
                    Ila'a. We say like this in Nedarim (49a).
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'>Defense #2 (Gra 1):</font></b> The Rosh merely gave an 
                    example of Shinuy ha'Shem, i.e. according to R. 
                    Zeira's Hava Amina. Really, an animal that 
                    matures is a Shinuy Ma'aseh. 
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rema (360:6):</font></b> Something is called a Shinuy (Ma'aseh) 
               only if the name of the stolen object changed due to 
               the Shinuy.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (10):</font></b> There are exceptions. The Gemara 
                    suggested that the myrtle vendor should acquire 
                    through Shinuy Ma'aseh, and afterwards it 
                    suggested that he should acquire through Shinuy 
                    ha'Shem, and said that there was no Shinuy 
                    ha'Shem. A thief acquires a lamb that matures, 
                    even though there is no Shinuy ha'Shem.
<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'>10. </font></b><font color='darkgreen'>  Suggestion:</font></b> Levi is an ignoramus, who does not 
               know whether or not land is (legally considered) 
               stolen, and still Shimon collects the land and its 
               improvements.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  This teaches that R. Meir fines even if the thief 
                    was Shogeg!
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, Levi is a Chacham (he knows that land is 
          not stolen).
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #2 (Mishnah - R. Meir):</font></b> If Reuven gave wool to 
          Shimon to dye red, and he dyed it black, or vice-versa, 
          Shimon pays to him the value of the wool that he 
          received.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Inference:</font></b> He only pays the value of the wool, 
               not the added value of dyed wool.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If R. Meir fines even for Shogeg, Shimon should 
                    pay for dyed wool!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Conclusion:</font></b> R. Meir fines only one who stole 
               b'Mezid.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>IMPROVEMENTS ON THE STOLEN OBJECT</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Beraisa - R. Yehudah):</font></b> He returns the stolen animal 
          itself;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Shimon says, we view the thief like a Shomer 
          guarding an animal whose value was assessed (at the time 
          of the theft).
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> What do they argue about?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer #1 (Rav Zvid):</font></b> They argue about improvements to 
          the stolen object.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah holds that the owner keeps the 
               improvements, and R. Shimon holds that the thief 
               gets them.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer #2 (Rav Papa):</font></b> All agree that the thief receives 
          improvements on the stolen object;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> R. Yehudah holds that the thief keeps all the 
               improvements. R. Shimon holds that the thief keeps a 
               half, third or quarter (like people who raise 
               others' animals normally receive).
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he stole a cow and it became pregnant and 
          gave birth, or a sheep and it became laden with wool and 
          he sheared it, he pays the value at the time he stole it.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Inference:</font></b> Had it not given birth, he would return the 
          cow itself.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question:</font></b> Granted, according to Rav Zvid, the Mishnah 
          is like R. Yehudah, who says that the owner gets all 
          improvements on the stolen object;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> However, Rav Papa holds that all agree that the 
               thief gets (at least part of) the improvements. The 
               Mishnah is not as either Tana!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav Papa explains that even had it not given 
          birth, he pays the value at the time he stole it (the 
          Mishnah is like R. Yehudah, who says that the thief gets 
          all improvements);
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> The Mishnah said that it gave birth for parallel 
               structure to the previous case.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Support (for Rav Papa - Beraisa - R. Shimon):</font></b> We view 
          the animal as if its value was assessed (at the time of 
          the theft) for one who raises another's animal to keep a 
          half, third or quarter of the improvement.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question (Rav Ashi):</font></b> R. Shimon says that the thief gets 
          a half, third or quarter of the improvement. Does he get 
          money, or can he demand some of the meat of the animal?
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> We learn from Shmuel.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Shmuel):</font></b> In three cases, we evaluate the 
               improvements and they are paid with money:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  A firstborn who gets an extra share of property 
                    that all the brothers improved after the father 
                    died (he pays their share of the improvements);
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  A creditor who takes land that people 
                    bought from the borrower (the creditor pays for 
                    the improvements that they made);
<br>             <b>  <b><font color='darkgreen'>iii. </font></b></b>  A creditor who takes land from the orphans 
                    of the borrower.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> (R. Chananel, brought in Rashba - in all other 
               cases, the improvements are collected from the 
               matter itself; Tosfos - a thief receives money, just 
               like these cases.)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> Did Shmuel really say that a 
          creditor pays for improvements made by one who bought 
          from the borrower?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Shmuel):</font></b> A creditor collects (and 
               keeps) the improvements (that the buyer made).
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	Version #1 (Rashi) Answer (Rav Ashi):</font></b> The creditor pays 
          the buyer for produce that has grown fully and is ready 
          to be harvested.
<br> <b>    <b><font color='darkgreen'>(o)</font></b><font color='darkgreen'>  	Version #2 (Tosfos) Answer (Rav Ashi):</font></b> He pays for 
          improvements that can later be taken from the field (i.e. 
          produce that is not fully ripe).
<br> <b>    <b><font color='darkgreen'>(p)</font></b><font color='darkgreen'>  	Version #3 (R. Tam) Answer (Rav Ashi):</font></b> He pays for 
          improvements that came through toil.
<br> <b>    <b><font color='darkgreen'>(q)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> In many cases Shmuel ruled that the 
          creditor gets such improvements without paying!
<br> <b>    <b><font color='darkgreen'>(r)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> He pays only when the value of the 
          improved land is more than he was owed.
<br> <b>    <b><font color='darkgreen'>(s)</font></b><font color='darkgreen'>  	Question (Ravina):</font></b> Shmuel is only like the opinion that 
          even if the buyer has money, he cannot pay the loan and 
          keep the land;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> According to the opinion that if the buyer has 
               money, he can pay the loan and keep the land, the 
               buyer should be able to say 'consider the money you 
               must pay for the improvements as partial payment of 
               the loan, and leave me that amount of land!'
<br> <b>    <b><font color='darkgreen'>(t)</font></b><font color='darkgreen'>  	Answer (Rav Ashi):</font></b> The case is, the borrower made the 
          land an Aputiki, i.e. the debt will be collected only 
          from the land (not from money).
<br>

sjt:
</p><p>
<font><b>1) AN ENACTMENT MADE TO ENCOURAGE TESHUVAH, ACCORDING TO REBBI SHIMON</b></font><b>
<br>QUESTION:</b> In the Beraisa (95a), Rebbi Yehudah rules that one who steals a sheep and then shears its wool, or steals a cow which then gives birth, must return only the animal in its present state, without the wool or the calf (<b>RASHI</b> DH Gezeilah). Although the thief does not pay for the increase in value of the wool or embryo from the time of the theft, he must pay for the value of the wool or embryo at the time of the theft. After all, he certainly must pay the full value of the item that he stole.
</p><p>
The Beraisa quotes Rebbi Shimon who rules that the amount which the thief must pay back is assessed according to the value of the animal at the time of the theft. <b>RASHI</b> (DH Ro'in) explains that Beis Din estimates the animal's value at the time of the theft and the thief pays according to the estimated value. 
</p><p>
The Gemara asks the obvious question. What is the difference between the opinions of Rebbi Shimon and Rebbi Yehudah? Rav Zevid explains that Rebbi Yehudah and Rebbi Shimon disagree about the supplementary object (such as the wool) which was on the stolen animal when the thief was caught. Rebbi Yehudah maintains that it must be returned to the owner, and Rebbi Shimon maintains that it belongs to the thief.
</p><p>
Rav Papa asserts that Rebbi Yehudah and Rebbi Shimon agree that the supplementary object still on the animal belongs to the thief. However, Rebbi Yehudah maintains that it belongs <i>entirely</i> to the thief, and Rebbi Shimon maintains that the thief receives a half, third, or quarter of the profits.
</p><p>
<b>RASHI</b> (DH l'Mechtzah) writes that according to Rebbi Shimon, the percentage which the thief receives from the profits is assessed according to how much is given, according to the local custom, to a farmer who tends animals for the same length of time that the animal was with the thief. The <b>ROSH</b> explains that the actual profits on the animal do not belong to the thief according to Rebbi Shimon. These objects must be returned to the owner. However, the owner must pay the thief for his labor, which means that the thief indeed has a share in the profits.
</p><p>
Rebbi Yehudah rules that the thief keeps all the profits because of Takanas ha'Shavim, the enactment the Rabanan made to encourage thieves to repent and return the property they stole. What, though, is the reasoning of Rebbi Shimon? 
</p><p>
<b>ANSWER:</b> The <b>CHAZON ISH</b> (Bava Kama 17:14) explains that according to Rebbi Shimon, there are grounds <i>not</i> to apply the Takanas ha'Shavim in one particular type of case. If the owner usually does not tend his animals himself but rather hands them over to a shepherd to tend, the thief deserves to receive a half, third, or quarter based on the normal fee charged by a shepherd. The thief is considered like one who enters his friend's field and plants there without permission. Such a person is entitled to receive payment for his efforts (see Bava Metzia 101a-101b, where the Gemara discusses how much he receives, and when he does not receive payment). In this case, Rebbi Yehudah maintains that the thief receives all of the profits because of Takanas ha'Shavim, and Rebbi Shimon maintains that no Takanah was made in this case.
</p><p>
However, if the owner of the stolen animal usually tends his animals himself, one who tends his animals without permission is not entitled to receive any payment since he did not give the owner any benefit. (See <b>REMA</b> CM 375:4 and Chazon Ish 17:13.) Since Rebbi Shimon says that the thief receives a percentage in all cases, it is clear that Rebbi Shimon agrees that there is a Takanas ha'Shavim that the thief does not have to give up all of the profits on the animal. (D. Bloom)
</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>IMPROVEMENTS ON STOLEN PROPERTY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rava):</font></b> If a thief stole and improved property, and 
          then sold or bequeathed it, the sale or inheritance takes 
          effect on the increased value (Rashi - a half, third or 
          quarter of it; alternatively, the entire increased value. 
          This is an enactment to facilitate repentance).
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If the buyer improved the land, what 
          is the law?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer (Rava):</font></b> When one sells, he sells all rights he 
          has in the matter. (Just like if the thief improved it, 
          he would get (all or some) of the improvements, also the 
          buyer.)
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If a Nochri (thief) improved the land, 
          what is the law?
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (Rav Acha mi'Difti):</font></b> Should we make 
               enactments for Nochrim?!
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Ravina):</font></b> The case is, the Nochri sold it 
               to a Yisrael.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> Still, one who acquired land through a 
               Nochri has no more rights than the Nochri had!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer:</font></b> The case is, the Nochri bought it from a 
               Yisrael thief, and then sold it to a Yisrael.
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  Do we say that since a Yisrael stole it and now a 
                    Yisrael owns it, the enactment applies?
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b>  Or, since a Nochri owned it in between, 
                    there is no enactment?
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	This question is unsettled.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>CHANGES TO STOLEN OBJECTS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> If Reuven stole a date tree and cut it 
          down, even if he plants it in his own property, he did 
          not acquire it.
<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'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> Originally, it was called a date tree, and also 
          now!
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If he stole a date tree and made logs out of it, he did 
          not acquire them, for they are called date logs (the name 
          has not been lost).
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	If he stole logs and made beams, he acquired them.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If he stole long beams and cut them into small beams, 
          he did not acquire them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he made boards out of them, he acquired them.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Rava):</font></b> If one stole a Lulav and pulled off the leaves, 
          he acquired it. Originally, it was called a Lulav, and 
          now it is leaves.
<br> <b>    <b><font color='darkgreen'>(h)</font></b></b>  	If one stole Lulav leaves and made a broom (by cutting 
          each leaf in half), he acquired it. Originally, it was 
          leaves, now it is a broom.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If one stole a broom and made it into a rope, he did 
          not acquire it, for he can untie it, and have a broom 
          again.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question (Rav Papa):</font></b> If the middle leaf was split, what 
          is the law?
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Version #1 - Answer:</font></b> We may learn from R. Mason, who 
          said that if the middle leaf was removed, it is 
          disqualified.
<br>
<br>

sjt:
<font><b>1) THE DEFINITION OF 'TIYOMES'</b></font><b>
<br>OPINIONS:</b> The Gemara teaches that when one steals a Lulav from his friend and plucks off the leaves one by one from the spine, he thereby acquires the leaves because their name has changed. Originally, they were called a 'Lulav' and now they are a different object, 'Hutzei' (leaves).
</p><p>
Rav Papa asks, if one steals a Lulav and splits the 'Tiyomes,' does this also represent a change in the name of the object such that the thief acquires it?
</p><p>
The Gemara attempts to answer Rav Papa's question from a statement of Rebbi Matun in the name of Rebbi Yehoshua ben Levi, who says that if the Tiyomes of a Lulav was removed the Lulav is invalid for the Mitzvah of Arba'as ha'Minim on Sukos. The Gemara suggests that the law is the same if the Tiyomes was not removed but only split. The Gemara refutes this suggestion and asserts that a Lulav whose Tiyomes was removed is worse than a Lulav whose Tiyomes was split, because it means that the Lulav is missing something.
</p><p>
The Gemara cites a second version in which Rabbi Matun says in the name of Rebbi Yehoshua ben Levi that a Tiyomes which was split is the same as a Tiyomes which was removed, and the Lulav is invalid. The Gemara concludes that the thief acquires the Lulav when he splits the Tiyomes, and it is also invalid for use on Sukos.
</p><p>
What exactly is a Tiyomes? The Rishonim and Acharonim discuss the definition of a Tiyomes at length. Some of their definitions are unclear, and thus there is additional discussion about what exactly they mean. Below is a summary of the <b>KAPOS TEMARIM's</b> understanding of the opinions of <b>RASHI</b>, <b>TOSFOS</b>, and the <b>GE'ONIM</b>.
</p><p>
(a) <b>RASHI</b> in Sukah (32a, DH Nechlekah) explains that a split Tiyomes refers to a split in the two middle, top leaves of the Lulav, where the spine of the Lulav ends. The split which invalidates the Lulav is a split that reaches until the leaves below. Rashi here (DH ha'Tiyomes), however, states only that the Tiyomes is the middle, top branch of the Lulav. What does Rashi here mean?
</p><p>
1. The Kapos Temarim in Sukah explains that Rashi understands that the middle leaf of a Lulav, determined by the highest leaf that separates from the Shidrah (spine, from which the leaves branch out) of the Lulav, is the Tiyomes. The middle leaf is comprised of two leaves that are naturally stuck together. If they are split down the middle, this is called a case of 'Nechlekah ha'Tiyomes' -- 'the middle leaf was split.' This is also the <b>TERUMAS HA'DESHEN's</b> (1:96) understanding of Rashi.
</p><p>
2. The Kapos Temarim points out that <b>TOSFOS</b> (DH Nechlekah) seems to understand Rashi differently. According to Tosfos, Rashi refers to <i>three</i> middle leaves, each of which is comprised of two separate leaves, and which are stuck together with a red-brown peel known as the 'Kora.' If the Kora falls off and the middle leaf separates from the two leaves next to it on either side, the Lulav is invalid.
</p><p>
(b) The <b>TESHUVAS HA'GE'ONIM</b> and the <b>BEHAG</b> cited by Tosfos have a different understanding of the Tiyomes, but their definition is also subject to varying interpretations.
</p><p>
1. The Kapos Temarim explains that the Ge'onim essentially agree with the way Tosfos understands Rashi, that there are three middle leaves, each of which is comprised of two leaves stuck together. The difference between the Ge'onim and Rashi is that according to Rashi, the split (between the middle leaf and the two leaves at its side) is invalid only when it reaches all the way down to the Shidrah. According to the Ge'onim, the Lulav is unfit when the leaves separate even if the split does not reach the Shidrah.
</p><p>
2. The <b>BEIS YOSEF</b> (OC 645) understands the Ge'onim differently. He explains that they refer to a Lulav with two middle leaves, known as a 'double Tiyomes.' When there is a split between those two leaves, the Lulav is invalid.
</p><p>
(c) Tosfos asks that the opinion of the Ge'onim is difficult to understand, because not even one in five hundred Lulavim possess this complete type of top leaf. The Kapos Temarim explain that the reason why Tosfos writes that even one in five hundred Lulavim are not valid in such a manner is that the Ba'alei ha'Tosfos lived in France and Germany where there were no indigenous Lulavim. They imported their Lulavim from distant countries, and since the red peel falls off easily it was rare for the Lulavim to arrive with the peel. Tosfos challenges the view of the Ge'onim because it was rare for Tosfos to find a Lulav that met the specifications of the Ge'onim.
</p><p>
However, in Eretz Yisrael (where <b>MAHARAM CHAVIV</b> lived, the author of Kapos Temarim) and in Egypt, palm trees are common and it one clearly observes that most Lulavim possess the Kora. When one shakes the Lulav on Sukos, the red peel may fall off and the pairs of leaves may become separated from each other. However, the individual twin leaves remain intact, and the two halves of the leaves do not easily become separated from each other. (A similar explanation is alluded to by the Beis Yosef.)
</p><p>
The Kapos Temarim asserts that a Lulav which possessed the Kora originally but later it fell off is valid as long as the leaves themselves are intact. He maintains that the Ge'onim said that a split in the Tiyomes is invalid only when the Tiyomes <i>grew</i> without the red-brown peel and the leaves may have never been together.
</p><p>
(It should be noted that the most widely accepted explanation is that the Tiyomes refers to the single leaf (comprised of two thin leaves stuck together) which comes out of the highest point of the middle of the Shidrah. See <b>REMA</b> OC 645:3.) (D. Bloom, Y. Montrose)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>DOES MITZVAH HA'BA'AH B'AVEIRAH APPLY AFTER SHINUY?</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'> 94a (Beraisa - R. Eliezer ben Yakov):</font></b> If one stole
               wheat, ground it, kneaded and baked it and separated
               Chalah from it, his Berachah only angers Hash-m - 'a
               thief who blesses, blasphemes.'
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> (Abaye):</font></b> He holds that Ein Shinuy Koneh (changing a
               stolen object does not acquire it).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rejection (Rava):</font></b> Perhaps he holds that Shinuy
               Koneh. However, one may not bless because it is a
               Mitzvah ha'Ba'ah b'Aveirah!
<br>       <b>   <b><font color='darkgreen'>4.  </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'>5.  </font></b><font color='darkgreen'> (Rava):</font></b> If one stole a Lulav and pulled off the
               leaves, he acquired it. Initially it was called a
               Lulav, and now it is leaves.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Sukah 29b (Mishnah):</font></b> A stolen Lulav is Pasul.
<br>       <b>   <b><font color='darkgreen'>7.  </font></b><font color='darkgreen'> Question:</font></b> The Mishnah disqualifies without
               distinction, i.e. even after the first day when it
               need not be 'Lachem', i.e. yours. What is the
               reason?
<br>       <b>   <b><font color='darkgreen'>8.  </font></b><font color='darkgreen'> Answer #1 (R. Yochanan and R. Ami):</font></b> It is a Mitzvah
               ha'Ba'ah b'Aveirah:
<br>       <b>   <b><font color='darkgreen'>9.  </font></b><font color='darkgreen'> Answer #2 (Shmuel):</font></b> The Mishnah discusses Yom Tov
               Rishon. On Yom Tov Sheni one is Yotzei with Gazul,
               just like he is Yotzei with borrowed Minim.
<br>        <b>  <b><font color='darkgreen'>10. </font></b><font color='darkgreen'> Sukah 30a - Rav Huna (to myrtle vendors):</font></b> When you
               buy myrtle from Nochrim, do not cut them yourselves.
               Let the Nochrim cut them and give them to you.
<br>        <b>  <b><font color='darkgreen'>11. </font></b></b> This is because Stam Nochrim steal land, and land
               cannot be stolen (it always belongs to the original
               owner). If the Nochri cuts the myrtle, the owners
               despair takes effect in his hands, and you acquire
               through Shinuy Reshus.
<br>        <b>  <b><font color='darkgreen'>12. </font></b><font color='darkgreen'> Question:</font></b> Even if the vendor would cut it, there
               would be despair in the vendor's hands, and Shinuy
               Reshus when the buyer gets it!
<br>        <b>  <b><font color='darkgreen'>13. </font></b><font color='darkgreen'> Answer:</font></b> Rav Huna's counsel was for the myrtle that
               the vendor himself will use.
<br>        <b>  <b><font color='darkgreen'>14. </font></b><font color='darkgreen'> 31a (Rav Nachman):</font></b> If one stole wood and used it for
               Sechach (all agree that he is Yotzei, for he
               acquired it and) he merely owes money.
<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 Lulav 8:1):</font></b> If one of the four Minim
               was Gazul or Ganuv, it is Pasul, even after Yi'ush.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh (9:1):</font></b> If one stole wheat, ground it, baked it
               and separated Chalah from it, his Berachah angers
               Hash-m - 'a thief who blesses blasphemes.' Shinuy is
               Koneh, but one may not bless (for it is Mitzvah
               ha'Ba b'Aveirah).
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Tosfos (Sukah 30 DH Ha) and Ran (Sukah 13b DH
               ul'Inyan):</font></b> Mitzvah ha'Ba'ah b'Aveirah applies only
               if he never acquired it, or if he acquired it
               through doing the Mitzvah, but not if he acquired it
               before the Mitzvah. Bava Kama 94a suggests that even
               after acquiring through Shinuy, one may not bless
               due to Mitzvah ha'Ba'ah b'Aveirah. This is a mere
               Dichuy. Alternatively, we are more stringent about a
               Berachah.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Mordechai (Sukah 747):</font></b> Riva forbids mid'Oraisa to
               diminish the berries of a Hadas on Yom Tov to make
               it Kosher. If one did so it is not Pasul due to
               Mitzvah ha'Ba'ah b'Aveirah. Similarly, if a Nochri
               made (detached or fixed) a Shofar on Yom Tov one may
               be Yotzei with it. If the four Minim were brought
               from outside the Techum for Reuven, another Yisrael
               may be Yotzei with it. Perhaps even Reuven may, for
               it is a Mitzvah. We learn from a Sukah made from
               stolen wood; all agree that is Kosher. Also, a
               stolen Lulav is Kosher on the second day. The reason
               one may not get Kaparah through a Vlad Temuras Asham
               is because it came through an Aveirah (Temurah 20b),
               i.e. a Yisrael transgressed 'Lo Yamir.'
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Bigdei Yesha (3):</font></b> We may offer Temurah of an
                    Olah or Shelamim, even though it came through
                    an Aveirah. Temurah is Pasul only for Kaparah.
                    Why does Mitzvah ha'Ba'ah b'Aveirah disqualify
                    Lulav, which is not for Kaparah? Since the
                    Mitzvah of Lulav is obligatory, it is like an
                    Asham.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Tosfos R. Peretz and Tosfos Rashba (Pesachim 35b DH
               Aval):</font></b> Mitzvah ha'Ba'ah b'Aveirah applies only to
               Mitzvos like Lulav, which we use to praise Hash-m
               and appease Him, or Korban.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Ramban (Pesachim 35b DH Yesh):</font></b> Mitzvah ha'Ba'ah
               b'Aveirah does not apply to an Isur like Tevel,
               which can be fixed. Mitzvah ha'Ba'ah b'Aveirah is
               only mid'Rabanan; the Gemara brought an Asmachta
               from Nevi'im. Some disagree, and say that
               mid'Oraisa, a stolen Chatas does not atone.
<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 649:1):</font></b> If any of the four Minim
               was stolen, it is Pasul, before or after Yi'ush.
               However, if he acquired it before the Mitzvah, e.g.
               he stole a Lulav and trimmed it, it is Kosher, for
               he acquired it through Shinuy.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra DH Aval):</font></b> One who stole wood and
                    built a Sukah is Yotzei if he acquired it
                    beforehand through Shinuy (31a). A Lulav of an
                    Asherah is Pasul due to Kesusei Michtas
                    Shi'urei, not due to Mitzvah ha'Ba'ah
                    b'Aveirah.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid.):</font></b> However, he may not bless on
               it.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Gra DH u'Mihu):</font></b> We learn from Bava Kama
                    94a.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Kaf ha'Chayim (12):</font></b> After acquiring it he owes
                    only money, so he is Yotzei. Nevertheless, he
                    may not bless since he acquired it through an
                    Aveirah.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bi'ur Halachah (11:6 DH ul'Inyan):</font></b> The Magen
                    Avraham allows to bless when there was Yi'ush,
                    but the Gra and Taz say that even then one may
                    not bless.
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Question:</font></b> The Gemara suggested that the Yisrael
                    can cut the myrtle himself and acquire through
                    Shinuy ha'Shem. If acquisition through Shinuy
                    does not allow one to bless, this is why the
                    Nochri must cut them!
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Answer #1 (Magen Avraham 2):</font></b> Perhaps Shinuy
                    ha'Shem with despair is better than Shinuy
                    alone. This requires investigation.
<br>             <b>  <b><font color='darkgreen'>vi. </font></b></b> Answer #2 (Maharsha Bava Kama 67a DH Omar):
                    Indeed, we asked that in any case they are
                    Yotzei through Shinuy ha'Shem, but they may not
                    bless.
<br>             <b>  <b><font color='darkgreen'>vii. </font></b><font color='darkgreen'>Answer #3 (Gra 11:22):</font></b> In any case the Yisrael
                    acquired the myrtle. The only concern was lest
                    it was stolen and he is called a blasphemer. We
                    are stringent only when it was definitely
                    stolen. To be Yotzei a Mitzvah, we are
                    concerned even for a Safek. We are not so
                    concerned for a Berachah on something stolen,
                    which is forbidden only due to an Asmachta.
<br>             <b>  <b><font color='darkgreen'>viii.</font></b><font color='darkgreen'>Kaf ha'Chayim (16):</font></b> One may not bless on
                    anything stolen, even if there was Yi'ush and
                    Shinuy Ma'aseh or Reshus, unless it is only
                    Safek Gezeilah.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema (637:3):</font></b> One may not cut Sechach (from a
               Nochri's forest) himself, for one may not make a
               Sukah from Gezel l'Chatchilah. Rather, he buys from
               the Nochri.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Mishnah Berurah (12):</font></b> It is permitted also if
                    David cuts and gives to Levi.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Mishnah Berurah (13,14):</font></b> Perhaps the Nochri
                    stole the forest. If there is no alternative,
                    one may cut it himself with the owner's
                    permission. Perhaps in this case one may bless
                    Leshev ba'Sukah, for most Nochrim have their
                    land through the government, and the law of the
                    kingdom is binding.
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Bi'ur Halachah (DH Ela):</font></b> If a Nochri stole wood
                    from government land, perhaps despair applies,
                    for the government knows that there are
                    thieves.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Shulchan Aruch (OC 646:2):</font></b> If a myrtle branch has
               more berries than leaves it is Pasul. If one removed
               berries (to make them the minority) it is Kosher.
               One may not do so on Yom Tov. If one did so, or took
               them one by one to eat, it is Kosher.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Kaf ha'Chayim (646:17):</font></b> This shows that if an
                    Aveirah was done with a Lulav, e.g. it was
                    brought from outside the Techum, it is Kosher.
                    Some allow even the transgressor to use it;
                    Mitzvah ha'Ba'ah b'Aveirah applies only to
                    stolen items. If one did a different Aveirah,
                    we do not tell him not to do a Mitzvah.
<br>
<font color='blue'><i>See also:</i>
<br><b><b>KINYAN THROUGH SHINUY </b></b>(</font><font color='blue'>


lvr: 41
dfh: b
trd:
<p>
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Suggestion:</font></b> Also if it was split, it is 
               disqualified. (Therefore, this is a change, and a 
               thief acquires through it.)
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Rejection:</font></b> No, only removal disqualifies it, for then 
          it is lacking.
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Version #2 - Answer:</font></b> We may learn from R. Mason, who 
          said that if the middle leaf was split, it is as if it 
          was removed, and it is disqualified. (end of Version #2)
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>REVERSIBLE CHANGES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav Papa):</font></b> If one stole dirt and made a brick, he did 
          not acquire it, because he can return it to dirt.
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	If one stole a brick and made it into dirt, he 
          acquired.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> We should say that he can make a brick again, 
          so he did not acquire!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> It would be a different brick.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Rav Papa):</font></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.
<br> <b>    <b><font color='darkgreen'>(f)</font></b></b>  	If one stole a Zuz and made it a lump of silver, he 
          acquires.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> We should say that he can make a Zuz again, 
          so he did not acquire!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer:</font></b> It would not be the same as originally.
<br> <b>    <b><font color='darkgreen'>(i)</font></b></b>  	If one stole a black (i.e. old) coin and made it like 
          new, he did not acquire;
<br> <b>    <b><font color='darkgreen'>(j)</font></b></b>  	If he blackened a new coin, he acquired.
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Question:</font></b> We should say that he can make it new again!
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Answer:</font></b> It would be recognizable that it was once 
          blackened.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>WHEN THE STOLEN OBJECT APPRECIATES IN VALUE</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> The general rule is, all thieves pay like at 
          the time of the theft.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Question:</font></b> What does this rule come to include?
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Answer:</font></b> It includes R. Ila'a's case. One stole a lamb 
          or calf and it became a ram or bull. He acquires it 
          through this change;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he slaughtered or sold it, he slaughtered or 
               sold his own animal (he is exempt from four or 
               five).
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	A man stole a yoke of oxen, plowed and seeded with 
          them, and then returned them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> Evaluate the increased value (the 
               owner receives it).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rava:</font></b> Are the oxen the only cause of the 
               increased value, and not the land?!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> I meant that the owner should 
               receive half.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rava:</font></b> Still, the stolen object returns intact, 
               like the Mishnah says 'all thieves pay as at the 
               time of the theft'! (Why should the owner profit?)
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rav Nachman:</font></b> This man has stolen many times, so I 
               want to fine him.
<br><b>
<br></b><b><b><font color='blue'>5) </font></b><font color='blue'>WHEN THE STOLEN OBJECT DEPRECIATED</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If a man stole an animal or slaves and they 
          grew old, he pays like at the time of the theft;
<br> <b>    <b><font color='darkgreen'>(b)</font></b></b>  	R. Meir says, regarding slaves, he can say 'here are 
          your slaves (because slaves are never considered to be 
          stolen).'
<br> <b>    <b><font color='darkgreen'>(c)</font></b></b>  	If he stole a coin and it cracked, or produce and it 
          rotted, or wine and it soured, he pays like at the time 
          of the theft.
<br> <b>    <b><font color='darkgreen'>(d)</font></b></b>  	If he stole a coin and it was disqualified, or Terumah 
          and it became Tamei, or Chametz and Pesach came, or an 
          animal and a person slept with it or served it like 
          idolatry or it (received a minor blemish, and) was 
          disqualified from being a Korban, or if it was being 
          taken to be stoned, he can say 'here is your animal.'
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	(Gemara - Rav Papa):</font></b> The Mishnah discusses not only an 
          animal that became truly old, rather, even if it became 
          weaker.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> The Mishnah says 'it became old'!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> It means, it became weaker in a way that 
          resembles growing old, i.e. it will not get better.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	(Mar Kashisha, citing R. Yochanan):</font></b> Even if he stole a 
          lamb or calf and it became a ram or bull, he acquires it 
          through this change;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he slaughtered or sold it, he slaughtered or 
               sold his own animal (and is exempt from four or 
               five).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Rav Ashi:</font></b> R. Ila'a taught that law, not R. Yochanan.
<br><b>
<br></b><b><b><font color='blue'>6) </font></b><font color='blue'>STEALING SLAVES</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah - R. Meir):</font></b> Regarding slaves, he can say 'here 
          are your slaves.
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(R. Chanina bar Avdimi, citing Rav):</font></b> The Halachah 
          follows R. Meir.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question:</font></b> Why did Rav rule like R. Meir against 
          Chachamim?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> A Beraisa switches the opinions.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> Why should Rav rule like the Beraisa against 
          the Mishnah?
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer:</font></b> Rav also switches the opinions in our Mishnah.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Question:</font></b> Rather, he should switch the opinions in the 
          Beraisa to conform to the Mishnah!
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Answer #1:</font></b> Rav's text of the Mishnah was like the 
          Beraisa (i.e. unlike our text of the Mishnah).
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer #2:</font></b> We switch a Mishnah when two Beraisos teach 
          to the contrary (the following Beraisa, and a Beraisa 
          just like our Mishnah but with the opinions switched).
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> (Beraisa - R. Meir):</font></b> If Reuven traded his cow for 
               Levi's donkey, and the cow gave birth, or, he sold a 
               slave, and she gave birth (and the cow or slave was 
               not here at the time):
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b>If one party says, I owned the mother at the time of 
               birth (so the child is mine), and the other party is 
               silent, the party claiming the child gets it;
<br>       <b>   <b><font color='darkgreen'>3.  </font></b></b> If both parties are unsure, they each own half 
               the child;
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> If both parties claim the child, the original 
               owner of the mother swears that he still owned her 
               at the time of birth (and he gets the child), for 
               mid'Oraisa, the one who swears does not pay.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b></b> Chachamim say, we do not swear about land or 
               slaves (because slaves are equated to land. 
               Likewise, they cannot be stolen.)
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If Rav rules like (the opinion he attributes 
          to) Chachamim, he should say 'the Halachah follows 
          Chachamim'!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> He teaches that according to our text (in the 
          Mishnah), the Halachah follows R. Meir.
<br>

sjt:
</p><p>
<font><b>2) AN OBJECT WHICH WAS CHANGED TWICE BUT REMAINED THE SAME</b></font><b>
<br>QUESTION:</b> Rav Papa rules that one who steals earth from his friend and makes it into a brick does not acquire the stolen earth through the Shinuy. Since the brick can be returned to earth, the change that he made is a 'Shinuy ha'Chozer li'Veriyaso' -- 'a change which can return to its original state.' A Shinuy which is easily reversible is not considered the type of Shinuy which makes a Kinyan. However, if one steals a brick and decomposes it into earth, that Shinuy <i>does</i> effect a Kinyan. Although one could remake a brick from the earth and, therefore, crumbling a brick into earth should not be considered a Shinuy which effects a Kinyan, nevertheless it is considered a Shinuy because the new brick would be a different brick altogether. It would be considered 'Panim Chadashos.' <b>RASHI</b> (DH Panim) explains that the second brick would not be the same as the first, because one could never make it exactly the same as the first brick.
</p><p>
Rav Papa then states another ruling. One who steals a bar of silver and forms coins out of it does not acquire the silver. The Shinuy he made is not effective because he could remake a bar of silver from the coins. However, if he steals coins and makes a bar of silver from them, his act is a valid Shinuy and he acquires the silver, because even if he would remake coins from the silver bar, they would be considered 'Panim Chadashos' since the second coins are different from the first ones.
</p><p>
What is the Halachah in the case of one who steals a bar of silver, makes it into coins, and then remakes a bar of silver from the coins? Does he acquire the silver when he makes the coins into a bar of silver since that change is considered an effective Shinuy? Perhaps he does <i>not</i> acquire the silver with this act of Shinuy, since the stolen item is a bar of silver just as it was at the time it was stolen, and it is considered as though it never underwent any Shinuy. Even though it became coins in the interim stage, making coins out of a bar of silver is not considered a Shinuy. Is this case considered a Shinuy or not?
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (360:4) answers by citing two statements of <b>TOSFOS</b>. Tosfos (95b, DH b'Shevach) understands that according to Rav Zevid, when one steals a non-pregnant cow and it becomes pregnant in the thief's domain, the pregnancy is not considered a Shinuy that can acquire the cow for him. It is a Shinuy ha'Chozer li'Veriyaso because when the cow gives birth it returns to its original state.
</p><p>
However, when one steals a pregnant cow and it gives birth, it is considered a Shinuy because it was stolen when it was pregnant and afterwards it became 'empty.' (The <b>GIDULEI SHMUEL</b> explains that the Ketzos ha'Choshen deduces this from the fact that Tosfos writes that if the profits (such as the wool) are still on the animal they belong to the owner. This implies that Tosfos understands that if an animal becomes pregnant while in the domain of the thief, no Shinuy is considered to have transpired. However, Tosfos maintains that if the profits are no longer on the animal (for example, it has given birth), the profits belong to the thief because a Shinuy has transpired.)
</p><p>
Moreover, the Mishnah (93b) states that when a cow becomes pregnant while in the thief's domain and then gives birth, the thief pays according to the value at the time of the theft. Tosfos (95a, DH Meshalem) states that all profits go to the thief. This is because birth is considered a Shinuy to the body of the cow, and therefore the thief acquires it through that Shinuy (see <b>ROSH</b> #3).
</p><p>
It is clear that when the thief steals an 'empty' cow and at the end it is also an 'empty' cow, nevertheless a Shinuy is considered to have transpired to the body of the cow as a result of being pregnant in the interim.
</p><p>

The Ketzos ha'Choshen applies this principle to the case of the Gemara here. He concludes that even though it was a silver bar both when it was stolen and when the thief was caught, since in between it was melted down into coins it is considered a Shinuy and the thief thereby acquires it. (See <b>GIDULEI SHMUEL</b>. See <b>TABA'AS HA'CHOSHEN</b> by ha'Ga'on Rav Chaim Pinchas Sheinberg shlit'a, and the notes on the new edition of the Ketzos ha'Choshen, who discuss this comment of the Ketzos ha'Choshen at length. See also Insights to 93b for different opinions about whether or not birth is considered a Shinuy.) (D. Bloom)
</p><p>



</p><p>


lvr: 41
dfh: a
trd:
<b><font color='blue'>1) </font></b><font color='blue'>MUST ONE PAY FOR USING STOLEN PROPERTY?</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question:</font></b> Does Rav really hold that slaves are like 
          land?!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Contradiction (Rav Daniel citing Rav):</font></b> If Reuven 
               grabbed Shimon's slave and made the slave work for 
               him, he is exempt.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> If slaves are like land, the slave always 
               belonged to Shimon. Shimon should own the labor!
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, he used the slave when the slave 
          does not work:
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Question (R. Aba):</font></b> If Levi lived in Yehudah's 
               yard without Yehudah's knowledge, must he pay rent?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Huna):</font></b> He is exempt.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Objection:</font></b> The cases are different!
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> There, Levi benefits Yehudah, both according to 
               the opinion that an inhabited house is settled (the 
               dweller tends to its upkeep), and according to the 
               opinion that Sheidim damage desolate houses;
<br>       <b>   <b><font color='darkgreen'>2.  </font></b></b> Here, Shimon loses. His slave is weaker (because 
               he was working)!
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer:</font></b> Here also, it benefits Shimon that his slave 
          not get used to idleness.
<br> <b>    <b><font color='darkgreen'>(e)</font></b></b>  	People of Rav Yosef bar Chama's household would take 
          slaves (of people who owed them money) and work with 
          them.
<br>       <b>   <b><font color='darkgreen'>1.  </font></b><font color='darkgreen'> Rava (his son):</font></b> Why do you do this?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> This is like Rav Nachman taught, that 
               a slave is not worth the food that he eats (I feed 
               them when I use them. I benefit the owners!)
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rava:</font></b> Rav Nachman said that only about his own 
               slave Daro, who dances in bars to get drinks. Normal 
               slaves work!
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rav Yosef:</font></b> I hold like Rav Daniel citing Rav, who 
               says that if Reuven grabbed Shimon's slave and used 
               the slave, he is exempt;
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Inference:</font></b> Shimon is happy that people use his 
                    slaves!
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Rava:</font></b> Since you take slaves of people who owe 
               you, this looks like Ribis!
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  (Rav Yosef bar Minyomi):</font></b> If Levi lived in 
                    Yehudah's yard without Yehudah's knowledge, he 
                    is exempt. If Yehudah owes him money, Levi must 
                    pay rent.
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Rav Yosef bar Chama:</font></b> I retract.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	(Rav):</font></b> If Reuven grabbed Shimon's boat and used it, 
          Shimon may demand the normal rental, or the depreciation.
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> He gets only the depreciation.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Resolution #1 (Rav Papa):</font></b> They do not argue. Rav 
          discusses a boat that is normally rented. Shmuel 
          discusses a boat not normally rented.
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Resolution #2:</font></b> Both discuss a boat normally rented. Rav 
          discusses when Reuven intended to rent it, and Shmuel 
          discusses when he intended to steal it.
<br><b>
<br></b><b><b><font color='blue'>2) </font></b><font color='blue'>DISQUALIFIED COINS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Mishnah):</font></b> If he stole a coin and it cracked...
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Rav Huna):</font></b> 'Cracked' is understood literally. 
          'Disqualified' means that the kingdom disqualified the 
          coin.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	(Rav Yehudah):</font></b> If the kingdom disqualified the coin, 
          this is also considered 'cracked'.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question:</font></b> If so, what is the case of disqualified?
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer:</font></b> This province disqualified it, but it is 
          accepted in other provinces.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question (Rav Chisda, of Rav Huna):</font></b> You say that 
          'disqualified' means in the whole kingdom. However, fruit 
          that rotted and wine that soured are similar to this, and 
          there, he pays like at the time of the theft!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer (Rav Huna):</font></b> There, the taste and smell changed. 
          Here, the coin did not change.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Rabah of Rav Yehudah):</font></b> You hold that if the 
          whole kingdom disqualified the coin, this is as if it 
          cracked (and he pays like the time of the theft). This is 
          like Terumah that became Tamei, and there he can say 
          'here is your Terumah!'
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer (Rav Yehudah):</font></b> There, the damage is not 
          noticeable. Regarding the coin, one can see that it is 
          unlike the coins being used.
<br><b>
<br></b><b><b><font color='blue'>3) </font></b><font color='blue'>CURRENCIES OF OTHER KINGDOMS</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	(Rav):</font></b> Reuven lent Shimon money, and the currency was 
          disqualified, Shimon must pay with a currency that is 
          accepted;
<br>
<br>

sjt:
<font><b>1) IS A SLAVE LIKE 'KARKA' OR 'METALTELIN'?</b></font><b>
<br>QUESTION:</b> The Mishnah (96b) states that when one steals an animal or slave and they age while in his domain, the thief must pay back to the owner their value at the time of the theft. Rebbi Meir says that if he stole slaves he may say to the owner, 'Harei Shelcha Lefanecha' -- 'Here is yours before you,' which means that he may return the slave as is, even though the slave is worth less now than it was worth at the time of the theft. <b>RASHI</b> (DH b'Avadim) explains that Rebbi Meir maintains that 'slaves are like land,' which do not change ownership by being stolen. Since a stolen slave is considered as though he never left the domain of the owner, the thief may return the slave 'as is.'
</p><p>
The Gemara (96b) quotes Rav Chanina bar Avdimi in the name of Rav who said that the Halachah follows the view of Rebbi Meir that 'slaves are like land.' The Gemara here challenges Rav's assertion from a different statement of Rav. Rav Daniel bar Rav Katina said in the name of Rav that when one snatches his friend's slave and makes him work, he is exempt from payment. The Gemara asks that if Rav maintains that 'slaves are like land,' why should the thief be exempt? The slave is still in the domain of the owner!
</p><p>
(<b>TOSFOS</b> (DH u'Mi) explains the Gemara's question as follows. If a slave is like land such that when the thief snatches him he is still considered to be in the owner's domain, the thief is considered as though he is <i>renting</i> the slave from the owner. If it is usual to rent out the slave, the thief should have to pay rent for the use of the slave, just as one who snatches his friend's ship (without intent to steal it but merely to use it) must pay rent to the owner if the ship is usually rented out.)
</p><p>
The Gemara answers that Rav rules that the thief is exempt because he snatched the slave at a time when the slave normally would not have done work. Rashi (DH Shelo) explains that since the slave would not have done work during that time, the principle of 'Zeh Neheneh v'Zeh Lo Chaser' applies. The thief who worked with the slave received benefit, and the owner of the slave did not lose as a result. This is why the thief who worked with the slave does not have to pay.
</p><p>
The Gemara implies that according to the opinion that 'slaves are like Metaltelin' (and not like Karka), one who snatches his friend's slave and works with him is exempt from payment, even if he steals the slave at a time when the slave usually works. (This is because a thief must pay according to the value of the stolen object at the time of the theft, and not for profits derived afterwards.)
</p><p>
This inference, however, contradicts the view of the <b>RIF</b> (34b of the pages of the Rif). The Rif writes that the Halachah is not like Rav, who rules like Rebbi Meir that slaves are like Karka, but the law is that slaves are like Metaltelin. However, immediately after the Rif writes that the Halachah is not like Rav, the Rif cites the ruling of Rav Daniel bar Katina in the name of Rav that one who snatched his friend's slave and worked with him is exempt only if he snatched the slave at a time when he would not have been working for his master. The Rif's ruling appears to contradict the Gemara that implies that according to the view that 'slaves are like Metaltelin,' even if the thief would work with the slave at a time when the slave normally works for his master, the thief is exempt! (He is considered to have acquired the slave at that time, and therefore he need not return the profits.) How is the position of the Rif to be reconciled with the Gemara?
</p><p>
<b>ANSWER:</b> The <b>KETZOS HA'CHOSHEN</b> (363:2) answers that the reason why the person who snatches the slave at the time he usually works is liable is <i>not</i> that he is considered a thief who steals a slave from the owner, but rather that he is directly damaging the owner. The Mishnah (83b) states that one of the five payments which one must pay for causing damage to another person is Sheves, compensation for lost time and earnings from work. The Gemara (85b) states that one who locked his friend in a room and prevented him from working, he must pay for the lost income.
</p><p>
The Ketzos ha'Choshen cites the Ramban who states that the latter form of damage is not considered 'Dina d'Garmi' (a more causal form of indirect damage; see 98b and 100a for more details). Rather, it is considered direct damage. Accordingly, preventing the slave from working for his master is not comparable to stealing an inanimate object; the law of Sheves applies only when one damages a human being. Consequently, even according to the opinion that 'slaves are like Metaltelin,' the thief nevertheless must pay the owner for the lost work-time of the slave. Therefore, the Rif rules that although 'slaves are like Metaltelin,' the thief is liable for snatching the slave at a time when he normally works.
</p><p>
The Ketzos ha'Choshen asks an obvious question on this approach. If the one who snatches the slave is obligated to pay the owner for the lost work-time only when he snatches the slave at a time when the slave otherwise would have been working for the master -- whether slaves are like Karka or like Metaltelin, what is the Gemara's question? The law is the same whether Rav maintains that a slave is like Karka or like Metaltelin!
</p><p>
The Ketzos ha'Choshen answers that when the Gemara asks why the person who snatched his friend's slave and worked with it is exempt, it does not ask according to the opinion that 'slaves are like Metaltelin.' The Gemara understands that according to that opinion, the case certainly refers to when he snatched the slave at a time when there was no work for the slave to do for his master.
</p><p>
The Gemara asks only according to the opinion that a slave is like land: Even though the thief derived benefit and the owner did not lose anything, why is the thief exempt? This case is not similar to the case of one who lives in a unoccupied house without the permission of the owner, in which he does not have to pay rent. In that case, the owner benefits as a result of the squatter (he prevents the house from deteriorating). In contrast, the owner of a slave does not benefit when the thief works with and weakens his slave.
</p><p>
A similar question according to the opinion that 'slaves are like Metaltelin' would not have been appropriate. One difference between whether slaves are like Karka or like Metaltelin is whether the thief keeps the profits produced by the slave. If the slave is like Karka, the thief keeps the profits. Accordingly, the Gemara does not ask that the thief should be liable even when he snatches the slave at a time when he otherwise would not have worked for his master.
</p><p>
Finally, the Gemara answers that even according to the opinion that 'slaves are like land,' the owner still is pleased that his slave should be made to work, so that he not acquire habits of laziness. Therefore, everyone agrees that in this case the thief gains and the owner does not lose. This is why the one who snatched the slave is exempt if he did so at a time when the slave was not working. (See also <b>KEHILOS YAAKOV</b> #40.) (D. Bloom)
</p><p>
<br>

loi:
<b><font color='blue'>1) </font></b><font color='blue'>REPAYING IN A DIFFERENT CURRENCY</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 (Rava):</font></b> If Reuven lent Shimon in a coinage,
               and they increased (the weight of) the coins, what
               is the law?
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Answer (Rav Chisda):</font></b> He must return coins that are
               accepted now, even if the new coins are much bigger.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Question:</font></b> These coins can buy more food! (This is
               Ribis!)
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Answer #1 (Rav Ashi):</font></b> If they buy more because they
               are bigger, he returns only coins with the same
               purchasing power. If the price of food declined, he
               returns the same monetary amount, even though it can
               buy more.
<br>       <b>   <b><font color='darkgreen'>5.  </font></b><font color='darkgreen'> Question:</font></b> The new coins have more weight!
<br>       <b>   <b><font color='darkgreen'>6.  </font></b><font color='darkgreen'> Answer #2:</font></b> A case occurred, and Rav Papa and Rav
               Huna brei d'Rav Yehoshua checked with a
               moneychanger, and found that eight new coins equaled
               10 old coins (that were lent).
<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 (9: 12):</font></b> The old coins were eight
               Perutos each, and the new coins were 10 each. If the
               price of food did not decline due to this, he
               returns the same number of coins. Even though the
               new coins weigh another fifth (of the total weight,
               which is a q4 of the original weight) more, we are
               not concerned, since they do not buy more food. If
               the price of food declined, even a little, he
               deducts from the new coins accordingly. If the new
               coins are more than a fifth heavier, he returns the
               same amount (of weight) as the old coins, especially
               if food became cheaper. The same applies if they
               make the coins smaller.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Rosh:</font></b> We are not concerned for returning up to a
               fifth more, for letter of the law one should return
               a currency that is accepted at the time, if not that
               it looks like Ribis if there is more metal. Since
               only another fifth is added, this is not a gain
               regarding the metal. It would cost this much to melt
               it down! The Ra'avad says that this is only if the
               coins became bigger, for it looks like Ribis, but
               not if the new coins are smaller (then he always
               returns the same number, even though they weigh
               less). Presumably, the Rif is correct (the same
               applies if they make the coins smaller), for we must
               be concerned for the lender's loss.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Rashba (4:287):</font></b> Up to a fifth one does not
                    deduct, for even in the initial currency, some
                    coins were up to a fifth bigger. Alternatively,
                    if one would melt the new coins, the fire would
                    consume a fifth, or it would cost a fifth to
                    make new coins. Also the Ra'avad said so.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Note:</font></b> Why should the cost of making new coins
                    (other than what is consumed by the fire) be a
                    fifth of the value? The cost to make new gold
                    coins should be the same as to make new silver
                    or copper coins!
<br>             <b>  <b><font color='darkgreen'>iii. </font></b><font color='darkgreen'>Question:</font></b> If he would melt the old coins, he
                    would also lose a a fifth (of their weight).
                    Therefore, he gained!
<br>             <b>  <b><font color='darkgreen'>iv. </font></b><font color='darkgreen'> Answer #1 (Drishah YD 165:2):</font></b> He had no need to
                    melt the old coins; he could spend them. The
                    new coins do not buy more; the only advantage
                    of them is if he will melt them.
<br>            <b>   <b><font color='darkgreen'>v.  </font></b><font color='darkgreen'> Rebuttal (and Answer #2 - Taz 1):</font></b> They are
                    worth more if he melts them to make a Kli!
                    Rather, we are not concerned for gains that
                    come only through destroying the old coins. Had
                    the lender bought food, he could have sod it
                    now to get bigger coins! The Gemara's question
                    was that the borrower can say 'I will make for
                    you old coins from the new ones, and keep the
                    extra metal.'
<br>             <b>  <b><font color='darkgreen'>vi. </font></b><font color='darkgreen'> Mordechai (110):</font></b> Rashi explained that 'lent in
                    a coinage' means that he gave merchandise on
                    credit, but one who lends gets back only what
                    he gave. At the end of his life, he retracted,
                    and wrote in a Teshuvah that it refers to a
                    loan of coins on condition to pay back coins,
                    and not other merchandise. The same applies to
                    one who sold on condition to pay a certain
                    coinage, or obligated himself to pay a Kesuvah
                    in a particular coinage. If food did not get
                    cheaper due to the increase in the coins, and
                    it was at most a fifth, he does not deduct. One
                    is not particular about this, and the borrower
                    expected to pay bigger coins if they will
                    change.
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rambam (Hilchos Malveh 4:11):</font></b> If Reuven lent Shimon
               in a coinage, or one wrote a Kesuvah to his wife in
               a known coin and they increased the weight of the
               coins:
<br>             <b>  <b><font color='darkgreen'>i. </font></b></b>  If food became cheaper due to the increase,
                    even any amount, he deducts the amount of the
                    increase;
<br>             <b>  <b><font color='darkgreen'>ii. </font></b></b> If food did not get cheaper due to the
                    increase, he does not deduct. He pays with
                    coins that are currently accepted.
<br>       <b>   <b><font color='darkgreen'>4.  </font></b></b> This is when the increase is at most a fifth, e.g.
               the coins weighed four and they made them five. If
               the increase was more than a fifth, he deducts the
               amount of the increase, even if food did not get
               cheaper. The same applies to one who lent in a
               coinage and they made the coins smaller.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Magid Mishneh:</font></b> Rashi and the Rashba say that if
                    there is a place where the old coins are
                    accepted like before, and the lender goes
                    there, he pays the old coins. This is no worse
                    than coins that were disqualified, and they are
                    still accepted in another place.
<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 165:1):</font></b> If Reuven lent Shimon in
               a coinage, and they increased the weight of the
               coins: If food became cheaper due to the increase,
               even any amount, he deducts the amount of the
               increase. If food did not get cheaper due to the
               increase, he does not deduct. He pays with coins
               that are currently accepted. This is when the
               increase is at most a fifth, e.g. the coins weighed
               four and they made them five. If the increase was
               more than a fifth, he deducts the amount of the
               increase, even if food did not get cheaper.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH Im):</font></b> If the increase was more
                    than a fifth, or food got cheaper due to the
                    increase, and the lender took the full
                    increased amount, Sefer ha'Terumos says that
                    some say that this is Ribis Ketzuzah, and
                    others say that it is Avak Ribis, and he need
                    not return it. The Rambam holds that it is Avak
                    Ribis, for he holds that even gvg extra l'Shem
                    Ribis, if there was no stipulation from the
                    beginning, is only Avak Ribis.
<br>             <b>  <b><font color='darkgreen'>ii. </font></b><font color='darkgreen'> Taz (2):</font></b> If it is more than a fifth, he deducts
                    the full increase, like we find regarding one
                    who sold Peros and more than the tolerance for
                    other species or dirt was mixed in (CM 229:1).
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Shulchan Aruch (ibid):</font></b> The same applies to one who
               lent in a coinage and they made the coins smaller.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Gra (2):</font></b> The Poskim disagree with the Ra'avad.
                    It is unreasonable that the borrower pay back
                    less than he borrowed!
<br>       <b>   <b><font color='darkgreen'>3.  </font></b><font color='darkgreen'> Rema:</font></b> If they did not increase the coins and food
               became cheaper, he pays with new coins. If they
               changed the coins and it is not known whether they
               are a fifth bigger or smaller, we rely on Nochri
               experts in the field who spoke Lefi Tumo (unaware of
               the consequences), or courts appointed over this.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Source (Sefer ha'Terumos, cited in Beis Yosef
                    DH Kosav):</font></b> The courts would not (lie, and) ruin
                    their reputation for what they were appointed
                    over. We ask two Nochrim not in front of each
                    other, like we do for a document written in
                    Persian (when only Nochrim understand it).
<br>       <b>   <b><font color='darkgreen'>4.  </font></b><font color='darkgreen'> Rema (ibid):</font></b> If the king commanded that anyone who
               pays must use the new coins, we follow this, for the
               law of the kingdom is binding. It is not a problem
               of Ribis or theft.
<br>             <b>  <b><font color='darkgreen'>i. </font></b><font color='darkgreen'>  Beis Yosef (DH uk'Inyan):</font></b> The Ramban says that
                    it is not a problem of Ribis, for the borrower
                    does not pay willingly. If not for the king's
                    decree, it would be theft!
<br>
<font color='darkblue'>Other Halachos relevant to this Daf:
<br><b><b>ONE WHO CAUSED A SMALL LOSS </b></b>(</font><font color='darkblue'>


lvr: 41
dfh: b
trd:
<p>
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	(Shmuel):</font></b> Shimon can return the same currency, and say 
          'you can use it in Meishan (a far away place in which it 
          is still accepted).'
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Rav Nachman:</font></b> Presumably, Shmuel's law is only when 
          Reuven needs to (Rashi; Rashba - can) travel to there.
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Question (Rava - Beraisa):</font></b> We may not redeem Ma'aser 
          Sheni on currency that is not accepted;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> If he had coins of Ben Koziva or of previous 
               kings, they may not be used.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Inference:</font></b> A similar case of coins of 
               contemporary kings (i.e. they may not be used here) 
               may be used for redemption.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Answer (Rav Nachman):</font></b> One may use the coins if the king 
          does not mind if people use currency of other kingdoms.
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Question:</font></b> We must say that Shmuel's law is when the 
          kings object to use of other currencies. If so, the money 
          will be confiscated!
<br> <b>    <b><font color='darkgreen'>(g)</font></b><font color='darkgreen'>  	Answer:</font></b> They object to using other currencies, but they 
          do not search people for other currencies.
<br> <b>    <b><font color='darkgreen'>(h)</font></b><font color='darkgreen'>  	Question (Beraisa #1):</font></b> In Bavel, we may not redeem 
          Ma'aser Sheni on coins of Yerushalayim, nor vice-versa;
<br>       <b>   <b><font color='darkgreen'>1.  </font></b></b> We may redeem on coins of Bavel in Bavel.
<br>       <b>   <b><font color='darkgreen'>2.  </font></b><font color='darkgreen'> Summation of question:</font></b> The Beraisa forbids 
               redemption on Yerushalayim coins in Bavel, even 
               though the owner will come to Yerushalayim!
<br> <b>    <b><font color='darkgreen'>(i)</font></b><font color='darkgreen'>  	Answer:</font></b> The case is, the kings object to use of other 
          coins and search people for them.
<br> <b>    <b><font color='darkgreen'>(j)</font></b><font color='darkgreen'>  	Question:</font></b> If so, why may we redeem in Bavel with coins 
          of Bavel? One cannot take them to Yerushalayim!
<br> <b>    <b><font color='darkgreen'>(k)</font></b><font color='darkgreen'>  	Answer:</font></b> One can buy an animal, and take it to 
          Yerushalayim.
<br> <b>    <b><font color='darkgreen'>(l)</font></b><font color='darkgreen'>  	Question (Beraisa #2):</font></b> It was enacted that all coins be 
          accepted in Yerushalayim for this reason (that people 
          brought foreign currencies. Why does Beraisa #1 forbid 
          redeeming on coins of Bavel in Yerushalayim?)
<br> <b>    <b><font color='darkgreen'>(m)</font></b><font color='darkgreen'>  	Answer (R. Zeira):</font></b> When Yisraelim rule in Yerushalayim, 
          all coins may be used. When others rule, only 
          Yerushalayim coins may be used.
<br> <b>    <b><font color='darkgreen'>(n)</font></b><font color='darkgreen'>  	(Beraisa):</font></b> The coin of Yerushalayim says 'David and 
          Shlomo' on one side, and 'Yerushalayim, the holy city' on 
          the other side;
<br> <b>    <b><font color='darkgreen'>(o)</font></b></b>  	The coin of Avraham said Yitzchak and Rivka on one 
          side, Avraham and Sarah on the other.
<br><b>
<br></b><b><b><font color='blue'>4) </font></b><font color='blue'>REPAYING IN A DIFFERENT CURRENCY</font></b>
<br> <b>    <b><font color='darkgreen'>(a)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> If Reuven lent Shimon in a coinage, 
          and they increased the (weight of) the coins, what is the 
          law?
<br> <b>    <b><font color='darkgreen'>(b)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> He must return coins that are 
          accepted now.
<br> <b>    <b><font color='darkgreen'>(c)</font></b><font color='darkgreen'>  	Question (Rava):</font></b> Is this even if the new coins are much 
          bigger?
<br> <b>    <b><font color='darkgreen'>(d)</font></b><font color='darkgreen'>  	Answer (Rav Chisda):</font></b> Yes.
<br> <b>    <b><font color='darkgreen'>(e)</font></b><font color='darkgreen'>  	Question:</font></b> These coins can buy more food! (This is 
          Ribis!)
<br> <b>    <b><font color='darkgreen'>(f)</font></b><font color='darkgreen'>  	Answer #1 (Rav Ashi):</font></b> If they buy more because they are 
          bigger, he only returns coins with the same purchasing 
          power. If the price of food declined, he returns the same 
          monetary amount, even though it can buy more.
<br>

sjt:
</p><p>
<font><b>2) COINS WHICH APPRECIATED IN VALUE AFTER A LOAN WAS MADE</b></font><b>
<br>QUESTION:</b> The Gemara (97a) discusses a case in which one lends money to his friend based on a coin, and the coin then becomes invalid. <b>RASHI</b> (DH ha'Malveh and DH Al) explains that he loaned merchandise on the basis of the coin, specifying that the borrower must return the value of the coin in return for the merchandise.
</p><p>
According to Rav, the borrower must return a valid coin at the time of repayment. Shmuel disagrees with Rav and maintains that the borrower may return the invalid coin, because the coin was invalidated only in that country, but it still is valid in a distance place (such as Meishan). The borrower can claim to the lender that he should go and spend the money in Meishan. Rav Nachman adds that it is logical that Shmuel's ruling applies only when the lender has a way of getting to Meishan. If he has no way of getting there, the borrower may not return to him a coin that is valid only in Meishan.
</p><p>
Rashi (DH u'Meishan) apparently understands that the phrase, 'he has a way of getting to Meishan,' means that the lender needs to go there anyway. (See also the footnotes (197 and 200) to the <b>CHIDUSHEI HA'RASHBA</b>, who suggests that according to the Rashba, even if the lender is not going to Meishan the borrower may return to him the invalid coin as long as it is possible for the lender to go there.)
</p><p>
Later (97b), Rava asks Rav Chisda what the law is in a case of one who lends a coin to his friend and then the authorities add to the value of the coin (they add more weight of metal to the standard coin). Rav Chisda replies that the borrower must return the standard coin which is in circulation at the time of repayment. Rava asks whether this means that he must return the larger coin even if it has been enlarged to the size of a Nafya or Tartiya (coins that are significantly larger than the original coins), and Rav Chisda answers that the borrower must return even such coins.
</p><p>
Rava asks that since the lender will be able to buy more fruit with the larger coin, paying back with this coin should pose a problem of Ribis. Rav Ashi answers that if the larger coin indeed buys more fruit because of its greater buying power, the lender must refund to the borrower the difference in value between the two coins. However, if the reason why the larger coin buys more fruit is that it was an exceptionally rainy and productive year and the fruit is plentiful (and therefore inexpensive), he need not refund the difference.
</p><p>
When Rava asks Rav Chisda about the enlarged coin, is his question according to the opinion of Rav or the opinion of Shmuel?
</p><p>
<b>ANSWERS:</b>
<br>(a) <b>RASHI</b> (DH v'Hosifu) explains that Rava asks his question only according to Rav, who maintains that if the first coin was invalidated the borrower must give the lender a new, valid coin. Rava's question is that if the first coin was not invalidated but rather enlarged, does he also have to return the updated, enlarged coin?
</p><p>
The <b>RASHBA</b> explains that the reason (according to this explanation) why Rava does not ask also according to Shmuel is that according to Shmuel the borrower does not need to return the new coin; he may return the old coin and tell the lender to go and spend it in Meishan.
</p><p>
(The <b>HAGAHOS ASHIRI</b> writes that Rashi rules according to Rav. Perhaps Rashi rules like Rav, and does not adhere to the general rule that the law follows the view of Shmuel in monetary matters, is that the fact that Rava asks his question according to Rav indicates that Rava rules like Rav.)
</p><p>
The <b>RA'AVAD</b> (cited by the Shitah Mekubetzes) also writes that Rava's question is according to the view of Rav. Rava considers two possibilities: Does the enlargement of the coin with more metal mean that the coin is inherently worth more, and therefore repayment with that coin poses a problem of Ribis, or since the coin's value has not actually changed (i.e. it was worth 100 both before and after the change) there is no problem of Ribis?
</p><p>
(b) The <b>ROSH</b> (see also <b>RASHBA</b>) implies that Rava asks his question according to Shmuel, and he refers to a case in which the lender is unable to travel to Meishan. In such a case, the borrower may not return the old coin and argue that the lender can spend it in Meishan.
</p><p>
The <b>YAM SHEL SHLOMO</b> (#15) writes that this must be the intent of the Gemara. Since the Halachah follows the view of Shmuel, it is logical that Rava would ask a question only according to the view of Shmuel. The <b>SHULCHAN ARUCH</b> (CM 74:7) explicitly rules in accordance with the view of Shmuel. (D. Bloom)
</p><p>



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